HX Car park management Ltd

harrys_dad

Yes, I have noticed there are two 4.6s

Coupon-mad

Very good.

I would add a denial here:

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 and the untrue allegation ''you entered the registration **'' is denied.

You also have nothing about the costs being fake and unrecoverable. You need that too, like here under the 'disproportionate & disingenuous' heading:

https://forums.moneysavingexpert.com/discussion/comment/75791958#Comment_75791958

And at WS and evidence stage, use the Excel case transcript where they alleged the driver input 'QQ' and the Judge agreed that it was a machine fault, not driver error. Very similar to your case, not a precedent, but comparable and might help your Judge lean in the right direction.

That transcript is in the Parking Prankster's case law pages, so that will definitely be one of your exhibits, as well as all the newspaper articles and car park reviews where people are reporting the same machine error time and again.

harrys_dad

Ok, I have taken on board the two suggestions above from Coupon Mad (you are a star of this board) and this is the third (and I hope final) attempt at a defence.

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, and the untrue allegation "you entered the registration **" is denied.
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.

4.7 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. The costs on the claim are disproportionate and disingenuous:

CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Two letters received from Gladstones Solicitors were a standard feature of a low cost business model. ParkingEye v Beavis [2015] ruled that Claimants are the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

The Claimant cannot reasonably recover an additional (partially invented) £140.48 in damages or costs to pursue an alleged £100 debt. The PoFA states that the maximum sum that may be recovered is the charge stated on the Notice to Keeper, in this case £100 (this sum also being the ceiling allowed by the BPA) and thus £100 is the maximum sum potentially recoverable under contract, regardless of whether the illegible small print on the signs attempted to bolt on a further sum (this is not known, but is a common trick by this industry).

Even the purported 'legal costs' are made up out of thin air. No individual Director or solicitor has signed the Particulars of Claim - in breach of Practice Direction 22, and rendering the statement of truth a nullity - and this template roboclaim has clearly had no input from any supervising Solicitor, whether in house or externally. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated clerical staff.

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.

Name
Signature
Date

Coupon-mad

Looks good to go now. Much better flow to it, except that between #10 and #11 you need more paragraph numbers.

Sign & date and email it a per KeithP's instructions.

Don't disappear from the forum for too long, as I hope you've read ahead in post #2 of the NEWBIES thread and seen that defence is not your only job. Read bargepole's post linked there, about COURT PROCEDURES.

And please (my standard plea now, to save us time) no asking us:

(a) what to do about Gladstones letter pushing for the case to be heard on the papers

(b) how to fill out the DQ

(c) whether to tick yes to mediation (bargepole explains why the answer is NO).

But come back in good time once you get your hearing date at your local court, so that you can show us your Witness Statement and evidence and the rubbish version Gladstones fling out at you...

harrys_dad

Defence emailed off today as per KeithP's advice. I am a little concerned that he also suggests they can take days to acknowledge it on moneyclaimonline. The deadline for receipt is 4pm next Monday ( as per an earlier post 28 days is Sunday, hence 4pm next working day), so should I also arrange for a copy to be sent by post tomorrow (belt and braces)?

On another issue a family member has also discovered a FB group in Cumbria dedicated to fighting HX (I suspect some of the people on there are also on here) because it seems HX are very active in the north west. At least one of the cases on there has the exact same two digits "**" alleged to have been put in. There is also at least one more case on here. This cannot be coincidence, is almost certainly fraudulent, and needs to be reported to Trading Standards. Anyone with any further information on this please feel free to PM me. once I have more information I will pursue this avenue too.

Thanks again for all the help and advice.

Umkomaas

On another issue a family member has also discovered a FB group in Cumbria

Why not join that group and contribute? You never know what pearls are available - it is, after all, dedicated to HX issues and will have up to date intel and info about that particular company. This forum is a lot more general where we are fighting hundreds of different PPCs.

harrys_dad

Umkomaas wrote: »

Why not join that group and contribute? You never know what pearls are available - it is, after all, dedicated to HX issues and will have up to date intel and info about that particular company. This forum is a lot more general where we are fighting hundreds of different PPCs.

My family member has joined, and started contributing.

Coupon-mad

On another issue a family member has also discovered a FB group in Cumbria dedicated to fighting HX (I suspect some of the people on there are also on here) because it seems HX are very active in the north west. At least one of the cases on there has the exact same two digits "**" alleged to have been put in.

There is also at least one more case on here. This cannot be coincidence, is almost certainly fraudulent, and needs to be reported to Trading Standards. Anyone with any further information on this please feel free to PM me.

Apart from with a small list of regulars here, I don't do pm's. We agree this appears to be negligent/machine faults, and HX know about it as they are suing people all the time - so it's arguably fraudulent.

How about reporting this to Action Fraud as well as Trading Standards, and Watchdog? National paper? Local Councillor and MP to lend weight to the complaints?

The bit in bold is telling. Has to be the machine. A complete scam.

Umkomaas

Read the reviews on TrustPilot from 24th and 25th March which confirm that HX has a continual problem with recording fully the VRMs input to their PDTs.

https://uk.trustpilot.com/review/hx-pcn.com

Woody510

I emailed the MP involved mp involved with the legal action saying I would provide a statement and the details of the court case. She replied saying thank you very much and would be in touch again about it.