PayByPhone: Paid wrong location (Council) instead of SiP (Private)

Chai_Tea

I paid to park in the Manchester Student Village on the PaybyPhone app and chose the wrong location. I received this ticket on 26 January 2018 and decided to fight it as it was a genuine mistake. I was naive and went about it in the wrong way, I sent an appeal and didn't read the forums . After receiving a couple more letters I have now received the claim form from the County Court. They want £100 for the parking charge 'no ticket displayed' and £60 for damages for the terms of the contract being breached, plus £25 court costs.

After doing some homework, I've now submitted the Acknowledgment of Service through MCOL and hand delivered a SAR request letter today to SIP’s apparently ‘virtual office’ address on Oxford Road in Manchester. I could do with some help please.

I have copied the text of letter I sent to the 'The Independent Parking Committee' below. It outlines my initial appeal letter which was rejected.

After reading the forums I have also drafted a defence. I will copy that below the letter to IPC.
My questions are: Do I outline any of the original letter in my defence? (I'm assuming SIP will have a copy and use it anyway?)
Is my defence any good?

Letter:
The Independent Parking Committee
4 The Stables
Red Cow Yard
Knutsford
Cheshire
WA16 6DG

Dear Sir or Madam,

Parking ticket number: XXXX

Vehicle registration number: XXXX XXXX

Here is my original draft of my appeal via the SIP website.

"I use this car park on a regular basis and was shocked to see the ticket on my windscreen when I returned to my car. I always pay by the PayByPhone app and have never had any problems with it before. Initially I thought the payment hadn’t gone through, but when I checked my account it had. It was then I realised my mistake. I had tried to park in the SIP Student Village car park on the 17 January and it was full, so I had to park on Hulme Street nearby. That day I came down with the flu and had to take time off work so I had completely forgotten about parking there. As I had paid there, the code for that location had replaced the Student Village one on the list of locations on the app. As a consequence I paid to park on Hulme Street instead of in the Student Village car park.
I realised that this is my mistake, but I did pay and as I have parked in this car park for the last 10 years on a regular basis, I appeal to you to waver this charge. I am happy to pay for the parking if it is not transferable by PayByPhone and any administrative fee. I have attached my receipt from PayByPhone as proof, and a previous invoice so you can see that I am a regular customer.
I have never done this before and have no intention of doing it again.

I have enclosed proof of payment for parking on this day and on a regular basis. I often cycle to work, but park in the SIP car park when I drive."


I tried to send this to you via your web site but it did not recognise the PCN number and vehicle registration. I contacted SIP and they referred me back to you, as they couldn’t offer any more help. There is no way of calling or emailing your company directly as far as I can see. This is neither helpful nor professional in any way. In fact it could be seen as a deterrent to submitting further evidence to you.

Here is my response to their (SIP) email of 8 February 2018. (Enclosed.)

"Can you demonstrate how the fee of £60 in any way has been incurred, when I have bought a ticket? £60 as a fine is not representative of any loss incurred to you and is not in any way justifiable. You need only contact PayByPhone to recoup the fee that I paid to the wrong location via the app.

SIP offer the PayByPhone service but there are no internet services available to use the app until you leave the car park. I chose what I thought was the correct location on my phone and made a mistake as I had to leave the car park in order to make the transaction. There is no signage outside the building to indicate the location number and the door is exit only, once it shuts behind you there is no easy way of going back in to check the signage or pay machine. I have attached an image of the exit door that does not enable access and the side of the building that has no signage."

Image 1: Door is outward opening and has no handle to enter the car park (attached an image of closed doorway without a handle on the outside)

Image 2: There is no signage on the outside of the car park (attached image of blank outside of the building)

Image 3: Screenshot of my phone when trying to use PayByPhone inside the car park (image of phone without internet signal)

To any right-minded person's viewing, refusing an appeal from a genuine parking customer who did pay is neither professional nor reasonable. I have been able to produce the electronic ticket as proof that I paid but made an inadvertent error with the location, thereby showing that THIS ticket did relate to THIS vehicle and no other in the car park.


Precedents have been set where mistakes such as mine have resulted in a successful appeal against the car parking company by the owner of the vehicle.

I will be contacting the owners of Student Village to voice my concerns about SIP’s management of this car park.

I do not expect to be contacted regarding this matter again.

Regards
XXXXXXX

I also sent copies of monthly receipts from PayByPhone showing regular usage of the car park.


Here is my Defence:

I am XXXXXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at Manchester Student Village, Manchester.

3. The PCN stated the contravention as “No ticket displayed.” This cannot be a contravention when a driver uses the Pay by Phone ticketless option.

4. It is denied that:

a. A contract was formed, and it is further denied that any contravention of ''no ticket displayed'' occurred or can have occurred when using the Pay by Phone option, the failure of which was not communicated to me nor was it within my control. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's app, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.

b. There was any agreement to pay a parking charge.

c. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

d. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

f. The Pay by Phone app, being indisputably an offer of a 'distance contract', complied with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says:

''Confirmation of distance contracts: 16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''

5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim
6. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
a. Payment for parking was made via the phone application using a cashless system provided by PayByPhone.
b. This is a distance contract which requires certain information to be supplied in advance.
c. The service makes no provision for the printing of a ticket to display.
d. SIP advertise the PayByPhone service but there are no internet services available to use the app until you leave the car park building. The PayByPhone app offers the location once outside, only then can the transaction be made. There is no SIP signage outside the building to indicate the location or any contractual agreement. The door is exit only. There is no opportunity to re-enter the building at that point.
e. The payment channel did not indicate any failure to make payment and responded as if payment had been made. As such the Defendant believed the necessary payment had been made.
f. The failure of the payment service to notify incorrect payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

8. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

9. The signage on this site was inadequate to form a contract with the motorist.
a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore, no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
e. The PayByPhone signage specifically states that “Parking is permitted for: … Vehicles with an electronic ticket purchased by phone in advance of the vehicle being left unattended, remaining valid for the duration of the vehicles stay…” therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
f. If the Claimant wanted to impose a condition to continuously display permits, then they should have drafted clear instruction to that effect, requiring specific terms of how to 'continuously display' when a paper ticket has not been issued or there is no contravention.
g. Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.
The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

10. The Claimant has artificially inflated the value of the Claim from £5.20 to £160. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £5.20 to £160. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
11. SIP Parking Ltd are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

12. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
‘The driver of the vehicle registration XXXX XXX incurred the parking charge(s) on the relevant land at Manchester Student Village for ‘no ticket displayed’. The charge was incurred as the terms of the contract were breached and it is stated on the contract that should there be a breach, a parking charge will be incurred to the sum of £100.00, subject to discount for prompt payment. The parking charge was issued at 10:18:04 on 26 January 2018, with a parking chare notice being affixed to the windscreen of the vehicle, under the notice reference of 61075707. The Notice to Hirer or Named Driver dated 12 July 2018 upon the Defendant at the address they provide when appealing the parking charge, which was followed by three further notices dated 13 August, 28 August 2018 and 12 September 2018, along with a Letter Before Claim dated 08 November 2018. The amount claimed is broken down to £100.00 as per the contract and £60.00 in damages for the terms of the contract being breached.’

13. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

14. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

15. The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

16. SIP Parking Limited are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action.

17. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Defence Statement are true.

I grabbed most of this from another appeal which was successful and seems to meet my needs.

Any advice would be greatly appreciated.

Coupon-mad

Welcome!

That defence is far too long so start again. Buried in there is your main defence:

d. SIP advertise the PayByPhone service but there are no internet services available to use the app until you leave the car park building. The PayByPhone app offers the location once outside, only then can the transaction be made. There is no SIP signage outside the building to indicate the location or any contractual agreement. The door is exit only. There is no opportunity to re-enter the building at that point.

You need to expand on that point, i.e. (if I've got this right?):

There is no chance to read the 'location code' once a motorist gets a phone signal, as a driver has no option but to go outside to pay. The Claimant will be aware that a clear location code is vital to this sort of contract, and that there is more than one location with a similar name listed by their chosen app.

Unbeknown to the Defendant, their payment was directed to the wrong location and there was no way to be aware of this issue, which relies upon terms and an app that is unfit for purpose (inside the car park building it does not work). This is unfair and lacking in transparency, contrary to the basis tenets of the Consumer Rights Act 2015 and contrary to the doctrines of clean hands, open dealing with consumers and good faith.

This is clearly a 'concealed pitfall or trap' to quote the Supreme Court Judges in Parkingeye Ltd v Beavis [2015] UKSC 67, which is fully distinguished from the instant case where motorists are set up for a fall.

Put that into bargepole's concise defence example instead (it's in the NEWBIES thead).

KeithP

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

Chai_Tea

Thank you, that is the point, there is no signal in the car park and no signage outside.

I have approached the owners of the building and they are aware of this problem but leave the management to SIP. One of the managers approached SIP on my behalf, but they wouldn't back down.

I have seen the concise thread, so I'll get back to work!

Chai_Tea

The Claim form is dated 22 January and is from County Court Business Centre
St Katherine's House, 21-27 St Katherine's Street NN1 2LH

A quick google search says it's Northampton.

What is the relevance please?

KeithP

Chai_Tea wrote: »

The Claim form is dated 22 January and is from County Court Business Centre
St Katherine's House, 21-27 St Katherine's Street NN1 2LH

A quick google search says it's Northampton.

What is the relevance please?

With a Claim Issue Date of 22nd January, you had until Monday 11th February to do the Acknowledgement of Service.

Did you do the AoS by that date - last Monday?

Assuming you did do the Acknowledgement of Service in a timely manner, you now have until 4pm on Monday 25th February 2019 to file your Defence.

That's nearly two weeks away. Loads of time to produce a good Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Chai_Tea

That's great, thank you again.
I put in the AoS on Sunday 10th and received a confirmation message.
I won't leave it until the last minute as I'd like to make sure I've nailed it!

I was wondering about the best way to send the defence as I'd already seen the 122 line (or something like that) limitation and no feasible way of sending photographic evidence on MCOL, so that advice is great.

I will re-read the newbies thread as already I'm lost on the abbreviations but I'll get up to speed soon enough.

KeithP

Chai_Tea wrote: »

...and no feasible way of sending photographic evidence on MCOL, so that advice is great.

A Defence is purely narrative - just legal arguments.
Nothing gets attached to a Defence.

The submission of evidence comes at a later stage, along with a Witness Statement.

This is all detailed in post #2 of the NEWBIES thread and there is a link to that thread in my earlier post.

Chai_Tea

Okay, thanks, I will read it all, re-write my post based on bargepole's concise defence, expanding my own particular defence and post my new defence here in the next couple of days. (Unfortunately work gets in the way of these things.)

I really appreciate the help. I was floundering at one point and nearly paid up just to make it go away. Fortunately I found this thread and started reading...

Chai_Tea

Here's the second attempt. It's much shorter and I've incorporated the points suggested by Coupon-mad. I'm not quite sure about my numbering of the paragraphs and I think paragraphs 7-11 could be superfluous?

Please could I get some feedback.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

SIP CAR PARKING LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________

DEFENCE
________________________________________

I am XXXXXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked in the Manchester Student Village Car Park, Manchester on XX/XX/XXXX.

3. The Defendant parked and had to exit the car park by foot in order to use the PayByPhone app to pay. There is no signal inside the car park rendering the app unusable and therefore unfit for purpose. There is no chance to read the ‘location code’ once a motorist gets a phone signal outside of the building as the door is exit only and there is no SIP signage of any description on the outside of the building.

Unbeknown to the Defendant, their payment was directed to the wrong location by the PayByPhone app. The app did not indicate any failure to make payment and responded as if payment had been made. As such the Defendant believed the necessary payment had been made.

4. The Claimant will be aware that a clear location code is vital to this sort of contract, and that there is more than one location with a similar name listed by their chosen app.

This is unfair and lacking in transparency, contrary to the basic tenets of the Consumer Rights Act 2015 and contrary to the doctrines of clean hands, open dealing with consumers and good faith.

This is clearly a 'concealed pitfall or trap' to quote the Supreme Court Judges in Parkingeye Ltd v Beavis [2015] UKSC 67, which is fully distinguished from the instant case where motorists are set up for a fall.


5. The failure of the payment service to notify incorrect payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.

In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

4. The PCN stated the contravention as “No ticket displayed.” This cannot be a contravention when the Defendant used the PaybyPhone ticketless option.

7. The signage on this site was inadequate to form a contract with the motorist.

8. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

9. SIP Parking Limited are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action.

10. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

11. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

12. The Defendant denies the claim, voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

I believe the facts stated in this Defence Statement are true.

Name
Signature
Date

KeithP

Drop the word authorised from this:

the Defendant was the authorised registered keeper