Civil enforcement County Court Letter

KeithP

As you are an admitted driver, does the second sentence in para 5 have any relevance?

ASHLEYB66

I Honestly don't know? Shall I take this out?

Coupon-mad

How about this, which uses some of the good bits from your other draft?

DEFENCE

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter is that the Defendant tried to pay via the Phone and Pay App on the 06/07/2018, [STRIKE]in[/STRIKE] a glitchy and unreliable system which the Defendant uses on a daily basis, being familiar with the fact that drivers are allowed to leave the car park and still make payment remotely by phone, which the Defendant often does on the way to work. [STRIKE]although on this day in matter,[/STRIKE] On this occasion, the phone app was unavailable and failing to refresh. Throughout the day the defendant tried numerous times although with no luck and it was then impossible to pay afterwards or even at the machine when returning on foot later, without incurring a PCN anyway. Nor was it reasonable to expect this regular customer to pay at a machine before leaving the site, because by the time it became clear the app was repeatedly failing, rather than a temporary glitch, the Defendant was off site and at work. Thus the Defendant was unfairly penalised.

3. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct. 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.

4. The Pay by Phone app, being indisputably an offer of a 'distance contract', failed to comply with the relevant statute, 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. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel. The Defendant followed the PayByPhone instructions exactly as shown on the signage at the payment machine and the Claimant is put to strict proof to list the almost daily payments made each month successfully against this VRN at this location, in order to assist the court in reaching an informed decision about the system and the conduct of both parties.

6. 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. The Defendant could not have known that the app was not working, and if the machine or additional signs had alerted him to this fact, the Defendant would have stopped to pay at the machine as a one-off, but was not given that opportunity or information.

7. The Defendant did not enter into any 'agreement on the charge' (the unfair penalty) and on this day due purely to the Claimant's own system failure, no consideration flowed between the parties and no distance contract was established. Given the failure of statutory 'distance contract' requirements which cover payments concluded by phone, the Defendant was caught in an unrecoverable situation through no fault on the part of the consumer, and any contract was rendered void for impossibility.

8. Further and in the alternative, the signage at this site was inadequate to form a contract with the motorist regarding paying £100. The term about the penalty was unclear and not prominent and these wordy, cluttered signs with a lack of white space, did not meet the British Parking Association (BPA) Code of Practice. The size of font of the tariffs advised for parking is much larger than the font size of the hidden trap of the £100 penalty. Bearing in mind the Defendant was a regular customer, he knew only about the large print tariff payment terms and had no idea about a possible £100 'fee' under any circumstances. This purported contractual offer was not brought to the attention of the motorist on any occasion, and this onerous term failed to satisfy Lord Denning's "red hand rule”.

9. The PayByPhone signage specifically states that there is “No need to display a ticket in your car” therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ - being definitions from the Protection of Freedoms Act 2012, Schedule 4 ('the POFA') which provides for a useful set of legal checks and balances to guide a court regarding parking on private land, even in cases where the driver is known, as is admitted in this case.

10. Further, this Claimant is put to strict 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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges or bring any action regarding this claim, and in addition, it is averred that there can be no legitimate interest excuse to disengage the penalty rule, where the fault lies with the Claimant's own distance contract mechanism.

Costs on the claim - disproportionate and disingenuous
11. 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.

11.1. 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. Any debt collection letters were either sent by a third party which offers a 'no collection, no fee' service, or were a standard feature of a low cost business model. ParkingEye v Beavis [2015] UKSC 67 is 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.

11.2. The Claimant cannot reasonably recover [STRIKE]£267.25[/STRIKE] an additional (partially invented) £167.25 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).

11.3. 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.

12. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

Statement of Truth:

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

Name
Signature
Date

George_Gray

Hi There
I am going to Durham court on the 29th of this month to defend a claim such as yours from the same car park but I actually paid however the wrong registration number was entered by there system.
The other thing which was incorrect was the time stamp on the PCN it was 1 hour out so check the time you were entering and leaving the site against your mobile phone record when you tried to pay,
Also the site signage is rubbish because you cant read it at night because there is no dedicated lighting make sure to include this in you final defence because the rules apply 24 hours.
the signs are incorrect size. the sign part with terms and conditions should be 450x450 and its not
If I win I will send my defence to you but take pictures at night of the signs and include a site plan showing where the street lights are against the signs
when you try to read the signs at night the lights actually impair your reading because the glare makes it impossible to read them.
good luck

Coupon-mad

George I have replied on your own thread as you disappeared for 3 months and have not shown us your WS and evidence yet:

https://forums.moneysavingexpert.com/discussion/5947398/pending-court-date-defense-help-for-pcn

Please reply there. A defence on its own isn't enough; hope you realised.

George_Gray

Hi Ash
just another point about this site there is no help line number on the signs just a number to offer you away to make a reduced payment when you haven't complied with the terms and conditions
mention this because you can only pay by phone.

George_Gray

sorry about not coming back to you C M but I thought CEL had given up the chase but a court date is set now for this month and all documents have been submitted to the court and CEL.
They contacted me offering a reduced payment of £100 instead of going to court but I declined and would rather have my day in court.
I will keep you posted of the outcome.

Coupon-mad

George_Gray wrote: »

sorry about not coming back to you C M but I thought CEL had given up the chase but a court date is set now for this month and all documents have been submitted to the court and CEL.
They contacted me offering a reduced payment of £100 instead of going to court but I declined and would rather have my day in court.
I will keep you posted of the outcome.

Needs to be posted on your own thread; I did bump it back to the top.

ASHLEYB66

I am very grateful for your help @coupon-mad!

So Looking at the posts earlier, am I to send my defence to CCBCAQ@Justice.gov.uk or Input it on the MCOL website ?

KeithP

ASHLEYB66 wrote: »

I am very grateful for your help @coupon-mad!

So Looking at the posts earlier, am I to send my defence to CCBCAQ@Justice.gov.uk or Input it on the MCOL website ?

Please re-read post #4 above.

True, it doesn't say not to file your Defence via MCOL, but bargepole's 'what happens when' thread linked from post #2 of the NEWBIES thread does say that and explains why.