HX Car park management Ltd

KeithP

harrys_dad wrote: »

Firstly, County Court Claim received, Issue Date 7th May. My understanding is that this means that the service date is 12th May. An acknowledgement of service was filed through moneyclaim online on 14th May. I think this means that a defence has to be submitted by 9th June. Can someone who knows please confirm this is correct.

Almost right. As 9th June is a Sunday, you have until 4pm on the next working day to file your Defence.


With a Claim Issue Date of 7th May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 10th June 2019 to file your Defence.

That's nearly three weeks away. Loads of time to produce a perfect Defence, but don't leave it to the 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 "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep 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.

Coupon-mad

harrys_dad wrote: »

Latest Updates:

Firstly, County Court Claim received, Issue Date 7th May. My understanding is that this means that the service date is 12th May. An acknowledgement of service was filed through moneyclaim online on 14th May. I think this means that a defence has to be submitted by 9th June. Can someone who knows please confirm this is correct. Assuming this is correct it is hoped to put a provisional defence for comment on this thread early next week after a full reading of the stickies.

Secondly, the complaint to the Information Commissioner has not achieved very much. The complaint was forwarded by the IC to the DPO at the parking company, who then sent the same reply as previously. Any advice on what to do now please? (especially from Coupon Mad please) It is really important to do this as I am sure that the PDM data will confirm that a ticket was paid for, will show what was entered, and may even show that the machine was faulty. The company has already admitted in the appeal response (see earlier posts in this thread) that a ticket was purchased but "the full registration was not entered".

Email the company back again and insist that a partial entry that they have clearly identified as attributed to this car (because they said "the full registration was not entered") IS your payment and your data, and they are breaching the GDPR to keep hiding that machine data relating to the payment. Say that this is potentially fraudulent trading as their machines are known to do this, and that the driver did NOT make this error, so this is not a reason to pretend they cannot attribute the payment to this car, or to withhold/refuse your right to data disclosure under a SAR:

https://forums.moneysavingexpert.com/discussion/comment/75838113#Comment_75838113

Do not miss your AOS or defence dates though, of course!

harrys_dad

Is it better to email the company, or to email the case worker at the IC and copy to the DPO at the company? What evidence is there that "their machines are known to do this"?

Woody510

Plenty of evidence on my thread that they are known to do this there is trust pilot reviews, a newspaper article and I can send you proof they do this.

harrys_dad

Woody510 wrote: »

Plenty of evidence on my thread that they are known to do this there is trust pilot reviews, a newspaper article and I can send you proof they do this.

PM sent Woody, thanks

Coupon-mad

You only had to Google for newspaper reports or search this forum too!

harrys_dad

First attempt at defence, having read a number of exemplars from the stickies. Para 4 appears to be the key defence, with others added from templates. Comments and suggested amendments welcome and encouraged. Thanks for all the help and advice.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

HX Car Pasrk Management (Claimant)

-and-

xxxxxxxxxxxx (Defendant)



DEFENCE


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

2. It is admitted that the Defendant was the registered keeper but not the driver driver 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 (details of car partk here) in 2018.

2.1. The PCN stated the contravention as 'Failed to purchase and/or validate a pay and display ticket' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge (tariff) had already been paid.

2.2. 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.

3. It is denied that:
a. A contract was formed to pay anything more than the advertised tariff;
b. There was any agreement to pay a further penalty parking charge;
c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty, in at least as large lettering as the tariffs shown at the machine (going to check sizes later today)
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums;
e. the claimant in fact expended the claimed additional sums;
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice. of which they were member at the time.

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

4.1 The driver paid for a ticket for the appropriate time that the car was parked. The response to the initial appeal about the PCN from HX Car Park states "You entered the registration **. As this is not the full correct registration for your vehicle the ticket is not valid". This clearly shows that the claimant agrees that a ticket was purchased.
4.2. It was only when a PCN arrived in the post, that the Defendant knew (too late) of what appeared to be a minor data problem caused by the Claimant's system itself incorrectly recording the vehicle registration. There is evidence on the internet, including trustpilot reviews, to show that other users of car parks run by HX Car Park Management have suffered similar machine problems.

4.3 The Defendant has tried through a SAR to obtain a copy of the Pay and Display Machine Data being relied on by the Claimant, suitably redacted to obscure information that does relate to the defendant's vehicle. This has been refused three times, despite an ongoing complaint to the Information Commissioner's Office. The Claimant cannot on the one hand say that "you entered the registration **" and yet on the other refuse to comply with a valid SAR because " as you did not enter your full and complete vehicle registration there is no records of this therefore we cannot provide data that does not exist". The defendant clearly has data which refers to the vehicle that is the subject of the PCN but refuses to disclose it, contrary to the GDPR.

4.4 Given the fact that the ANPR data did not match with a payment made, an automated PCN was issued. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose, including that they correctly store the data inputted by a driver.

4.5. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the Claimant's own data being wrong at the outset, and going unnoticed by a driver.

4.6 It is clear that the claimant is trying to claim an excessive amount for what may be an error in their own data recording equipment. It is preposterous to believe that any driver when prompted to enter a car registration would solely enter two letters, only one of which is in the correct registration of the car. Even if the registration was entered as suggested by the claimant (which is disputed) it is accepted that payment was made, and that a punitive PCN has been issued for a technical breach of terms and conditions.

5. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for their own machine's data storage fault. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

6.2.1 Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015. (I believe this has been superseded but not sure by what)

6.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.

6.2.3. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

7. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''


8. Further and in the alternative, 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 under defined parameters (including when caused by failure of their own data processing/excessive storage) and to form/offer contracts in their own name, and to pursue payment by means of litigation.

9. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty when it is agreed that payment was actually made.

9.1. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

10. 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.

Name
Signature
Date

Le_Kirk

You might want to check your paragraph numbering! You refer to the incorrect registration, the technical term is de minimis (the law does not concern itself with trifles) and if you do a forum search for that phrase you will find some defences showing where and how it was used.

Coupon-mad

You have a typo here:

HX Car Pasrk Management (Claimant)

And a double word 'driver' in your first #2.

I like this:

4.3 The Defendant has tried through a SAR to obtain a copy of the Pay and Display Machine Data being relied on by the Claimant, suitably redacted to obscure information that does relate to the defendant's vehicle. This has been refused three times, despite an ongoing complaint to the Information Commissioner's Office. The Claimant cannot on the one hand say that "you entered the registration **" and yet on the other refuse to comply with a valid SAR because " as you did not enter your full and complete vehicle registration there is no records of this therefore we cannot provide data that does not exist". The defendant clearly has data which refers to the vehicle that is the subject of the PCN but refuses to disclose it, contrary to the GDPR.

I feel that HX need reporting to Action Fraud about their Parkeon machines that reportedly keep doing this thing of churning out PDT tickets with two letters on, instead of the VRN the driver input in good faith.

There are so many accounts of this happening in HX car parks.

harrys_dad

Updated now, thanks for suggestions. I would like to submit this on Monday so any suggestions before then would really be appreciated.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

HX Car Park Management (Claimant)

-and-

xxxxxxxxxxxx (Defendant)



DEFENCE


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

2. It is admitted that the Defendant was the registered keeper but not the driver of the vehicle in question at the time of the alleged incident.

2.1 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 Victoria Street Pay & Display Car Park, Morecambe LA4 4AE in 2018.

2.2. The PCN stated the contravention as 'Failed to purchase and/or validate a pay and display ticket' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge (tariff) had already been paid.

2.3. 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.

2.4 The principle of de minimis applies here, namely that this is a legal action for technical breaches of rules or agreements where the impact of the breach is negligible.
3. It is denied that:

a. A contract was formed to pay anything more than the advertised tariff;
b. There was any agreement to pay a further penalty parking charge;
c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty, in at least as large lettering as the tariffs shown at the machine
d. In addition to the parking charge there was an agreement to pay additional and unspecified additional sums;
e. The claimant in fact expended the claimed additional sums;
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice.

4.1 The driver paid for a ticket for the appropriate time that the car was parked. The response to the initial appeal about the PCN from HX Car Park states "You entered the registration **. As this is not the full correct registration for your vehicle the ticket is not valid". This clearly shows that the claimant agrees that a ticket was purchased.
4.2. It was only when a PCN arrived in the post, that the Defendant knew (too late) of what appeared to be a minor data problem caused by the Claimant's system itself incorrectly recording the vehicle registration. There is evidence on the internet, including trustpilot reviews, to show that other users of car parks run by HX Car Park Management have suffered similar machine problems.
4.3 Whilst entering the correct registration into the machine the defendant's son was calling out the registration number directly from the vehicle number plate to make sure there was no error. This reinforces the suggestion in 4.2 that the machine was at fault.

4.4 The Defendant has tried through a SAR to obtain a copy of the Pay and Display Machine Data being relied on by the Claimant, suitably redacted to obscure information that does relate to the defendant's vehicle. This has been refused three times, despite a complaint to the Information Commissioner's Office. The Claimant cannot on the one hand say that "you entered the registration **" and yet on the other refuse to comply with a valid SAR because " as you did not enter your full and complete vehicle registration there is no records of this therefore we cannot provide data that does not exist". The defendant clearly has data which refers to the vehicle that is the subject of the PCN but refuses to disclose it, contrary to the GDPR.
4.5 Given the fact that the ANPR data did not match with a payment made, an automated PCN was issued. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose, including that they correctly store the data inputted by a driver.

4.6 A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the Claimant's own data being wrong at the outset, and going unnoticed by a driver.

4.6 It is clear that the claimant is trying to claim an excessive amount for what may be an error in their own data recording equipment. It is preposterous to believe that any driver when promoted to enter a car registration would solely enter two letters, only one of which is in the correct registration of the car. Even if the registration was entered as suggested by the claimant (which is disputed) it is accepted that payment was made, and that a punitive PCN has been issued for a technical breach of terms and conditions. The principle of de minimis applies here, namely that this is a legal action for technical breaches of rules or agreements where the impact of the breach is negligible.

5. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for their own machine's data storage fault. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015.

6.3 And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.

6.4 The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

7. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''


8. Further and in the alternative, 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 under defined parameters (including when caused by failure of their own data processing/excessive storage) and to form/offer contracts in their own name, and to pursue payment by means of litigation.

9.1 It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty when it is agreed that payment was actually made.

9.2 The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

10. 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.

Name
Signature
Date