Parking "fine" - court letter

sellwin90

Coupon-mad wrote: »

Was there a reason for that overstay that you know of, e.g. was a machine broken, or did the driver have to waste 15 minutes registering for an app to pay by phone or something, or was it at a very busy time of year where there weer no parking spaces available for 15 minutes?

That's the sort of thing that reasonably explains 24 mins (because the 24 mins isn't all at the end, it's partly at the start, so what happened?

The driver was late returning to the car on the day in question due to an incident where an elderly gentleman had fallen. The driver, who is in the health care profession, stayed with the gentleman until a member of his family arrived, as it is within their duty of care to do so.

Also, if the SAR has NOT shown the time of the monetary payment from the VRN record, email back and INSIST on it. You need to know when payment was made.

On the email I sent requesting the SAR, I asked for the following:
- ALL photos taken
- A close up of the signs on the day in question (29/11/2017)
- Evidence that you have paid a debt collector
- All letters/emails previously sent
- A PDT machine record from that day, including evidence of payment for vehicle reg xxxxxxx
- A full copy of the PCN and NTK

I only received photos (of poor quality) of the vehicle entering and exiting the car park with the time attached (genuinely can't even tell if it's my car in the photos they are that bad and poorly lit!). I received nothing else except for the letter with a couple of notes which mean nothing with no context "Note: 2hrs" (2 hrs what???) and it goes on to say how much I owe them and to pay now etc.

I can email back insisting on the payment side of things but the defence needs to be in tomorrow.

Coupon-mad

The driver was late returning to the car on the day in question due to an incident where an elderly gentleman had fallen. The driver, who is in the health care profession, stayed with the gentleman until a member of his family arrived, as it is within their duty of care to do so.

I am in two minds about saying the above. Why didn't they pay to top up?

sellwin90

New draft below. Point 3 has been edited and point 6 is brand new. The rest is all the same as before and unchanged (except spelling mistakes etc).

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration xxxxx, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company BRITANNIA PARKING at Lambhay Car Park, Plymouth, and had a valid ticket to be parked in that bay.

3. To the best of the defendant’s knowledge, the driver fully complied with the car park rules by entering the vehicle registration number and purchasing a ticket within a reasonable time frame and also exited within a reasonable time frame, as described by the British Parking Association’s (BPA) Code of Practice (CoP) clause #13.

4. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. The POC is inadequate as it does not provide any hint as to what rule the driver is alleged to have breached. It is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct, however any driver of the vehicle did, as a ticket was purchased.

6. The SAR (Subject Access Request) provided by the claimant, backs up point number 5. In the SAR provided, there are notes that have no context and therefore make no sense and the dates that are provided within the notes don’t seem to correspond with anything (i.e. the date of the alleged offence, or the date that the PCN was issued). The SAR also provides no mention of payment for the vehicle when the driver has made a payment to park. The photographs within the SAR are flawed. They are of poor quality and it is impossible to make out the make, model and colour of the car, let alone see the number plate in the photos provided. A photo of the registration number is provided as a separate image but there is no proof that this is on the car that is photographed entering/exiting the car park.

7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. The lighting surrounding multiple signs in the Claimant’s car park is insufficient. The lighting over the tariffs board is intermittent and flickers. In addition to this, the outer box which highlights the tariffs provides a shadow underneath making it even more difficult to read the particulars when the light is in it’s “on” stage of the flickering. This is not conforming to the British Parking Association Code of Practice, nor the rules that were issued after the outcome of the “ParkingEye V Barry Beavis” case.

9. a) The Claimant has failed the Protection of Freedoms Act 2012 and so the defendant is not liable under the POFA 2012.
b) The Defendant believes that the Claimant has not followed the correct procedures outlined in the Protection of Freedoms Act 2012 by identifying who the driver of the vehicle was and therefore the Defendant, as keeper, is not liable for the charge.
c) The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £85. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery – verging on, in my opinion, an attempt to fraud the Defendant in to paying extra.

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

11. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

sellwin90

Coupon-mad wrote: »

I am in two minds about saying the above. Why didn't they pay to top up?

We discussed earlier in the post about adding/or leaving this and I think it was yourself who said leave it out for the minute and use that at a later date if it continues. The driver couldn't leave the person by himself to go and top up at the car park (no app etc was used) and when arrived back at the car I guess it just wasn't thought of after what had happened, wanting to get home etc. (I know that's not a good excuse, if you want to use the word excuse)

Coupon-mad

Yes this is ringing a bell. I'd say it goes into the Witness Statement later but it worries me because all the PPC has to do is prove the contract was readable, and mitigating circumstances don't assist the driver.

Not saying don't defend it, just saying...

...in fact I am, saying to everyone, why do people allow their VRNs to be filmed by ANPR at all when in private car parks? Certainly don't allow this to ever happen again.

No-one has to show their number-plate to an intrusive camera on private land (it is different on street).

COVER THE VRN and you will never get a PCN; this is what everyone should do and the likes of ParkingEye & other ANPR data-dependent PPCs would DIE WITHIN A YEAR.

Redx

I have NO legal training but I do like your last defence draft above

sellwin90

Coupon-mad wrote: »

Yes this is ringing a bell. I'd say it goes into the Witness Statement later but it worries me because all the PPC has to do is prove the contract was readable, and mitigating circumstances don't assist the driver.

Not saying don't defend it, just saying...

...in fact I am, saying to everyone, why do people allow their VRNs to be filmed by ANPR at all when in private car parks? Certainly don't allow this to ever happen again.

No-one has to show their number-plate to an intrusive camera on private land (it is different on street).

COVER THE VRN and you will never get a PCN; this is what everyone should do and the likes of ParkingEye & other ANPR data-dependent PPCs would DIE WITHIN A YEAR.

Haha! Good idea, will remember that for the future..

And I understand about them proving it is readable, I do have photos though that show the t&cs in really poor light because of their own sign that is raised out further and casts a shadow over the bottom of the sign. Not to mention the light flickers! (as all mentioned in the defence statement)

sellwin90

Redx wrote: »

I have NO legal training but I do like your last defence draft above

Thank you and thank you for your help! I'll wait for couponmad to respond and then print it off and get it sent then keep you updated

Coupon-mad

And I understand about them proving it is readable, I do have photos though that show the t&cs in really poor light because of their own sign that is raised out further and casts a shadow over the bottom of the sign. Not to mention the light flickers! (as all mentioned in the defence statement)

Sounds good, and your defence looks fine.

sellwin90

Received a letter yesterday...

Acknowledged receipt of the defence and that a copy is being served to the claimant. The claimant may contact direct to resolve dispute. If it can't be solved informally they will inform the court to proceed and this must be done within 28 days