Claim Form Received

inydaisy

Hi,

Below is my defense, your thoughts would be much appreciated. Please be kind I'm new to this.........


IN THE COUNTY COURT


CLAIM NO: XXXXXXX

BETWEEN:

XXXXXXXXX (Claimant)

-and-

XXXXXXXXXX (Defendant)

________________________________________
DEFENCE STATEMENT

I am XXX, 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 Rowley Arts Car park, St Neots.
3. The PCN stated the contravention as “Failed to make a valid payment.” This cannot be a contravention as the defendant made payment for the amount as instructed on the pay on exit machine.

4. It is denied that:

a. A contract was formed, and it is further denied that any contravention of ''failed to make a valid payment'' occurred or can have occurred when a valid payment was made at the time of exit as instructed by the pay on exit machine

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 British Parking Association 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.

Rebuttal of Claim:

6. The Defendant prior to exiting the carpark, inputted the VRN, paid the fee as instructed by the machine, exited the carpark. The service makes no provision to print a ticket, The Defendant reasonably expected that the payment was made appropriately and had no reason to question that the payment was valid.

7. Breach of the BPA Code of Practice Principles

7.1 Upon receiving the PCN, the defendant was sure there had been a mistake as she had made a valid payment and immediately provided the claimant with proof of payment through the appeals process. The defendant did concede that potentially a 0 may have been entered as O, thus explaining the confusion. This was rejected. The Defendant believes this is in breach of the BPA code of Practise. As set out in the POPLA annual report 2018 it states that in October 2017 The BPA advised its members to put motorists at the heart of heart of their thinking and to focus on effective carpark management rather than punishing mistakes. Particularly in the case of simple keying errors e.g. replacing a 0 for an O.

7.2 Under section 21 of the CoP, AOS members are only allowed to use ANPR if they:
(a) Use it to enforce parking in a reasonable, consistent and transparent manner.
(b) Have clear signs which tell drivers that the operator is using this technology and what the data captured by ANPR cameras will be used for. 21 Automatic number plate recognition (ANPR) General principles
21.1 ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

A ticket was paid for, payment sent as proof and it was clear early on, that the defendant had paid in good faith but had simply keyed in the wrong registration number. This is not mitigation, this is a fact that I submit cannot give rise to a PCN because it is not 'transparent' in the terms on signs/the P&D machine, that a correct VRN is an 'obligation' which runs such a risk and will be compared to the ANPR data for the purpose of imposing a charge.

7.3 A BPA AOS operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. The Claimant has failed to explain what manual checks were made or why they consider that enforcement is appropriate, nor whether the contract even allows a charge for 'wrong VRN'. Nor do they show in what terms it is made clear to the payee standing at the machine, that when making payment they have an obligation to input a correct vehicle VRN and run the risk of a punitive so-called 'parking charge' (unfairly set as a fixed sum at the same level as a non-payer) for that action alone.

7.4. 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, such that the dangerous 'making a simple keying error' and associated consumer risk is eliminated from the machine when payments are being made.

7.5 Prior to exiting the carpark, the defendant entered the VRN, the VRN was sufficiently recognised for the machine to advise the defendant to make valid payment. A PCN was then automatically issued using the same technology stating “failure to make valid payment. The defendant does not believe the Claimant is using ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner as set out under section 21 of the CoP for AOS members.


8. No standing or landowner authority.
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. 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 £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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.

11. 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.



________________________________________



"I believe the facts contained in this Defence Statement are true."

With a signature and date below

Le_Kirk

In your paragraph 4d you have two "additional"
You seem to be repeating yourself with your unnumbered paragraph just below 7.2

inydaisy

Thanks Le_Kirk, will make changes to points mentioned.

Coupon-mad

No such thing as an 'authorised' registered keeper! Lose the word authorised.

DEFENCE STATEMENT

Nope. Just DEFENCE.

This suggests to me that you copied an old one, as we always head them DEFENCE. Read a few of the examples in the NEWBIES thread, especially bargepole's more concise versions.

Your point #11 about signs is out of place under the end summary and needs to be moved higher up.

And make sure you ALSO do what I said in my post #11 above.

inydaisy

Thanks for your advise coupon-mad, changes made accordingly.

Apologies for "Defense Statement" I picked this template up from Bargepole's advise on this newbies thread but didn't spot that "statement" had been dropped in later more recent threads by bargepole.

Other than that, do you think I have included enough points in my defense? I have read other examples in the newbies threads ( I really have despite the mistakes), however, I think I have included
what is relevant to my case. I was wondering, however, if I should include
1.Something about the new Regulatory legislation being introduced
2.that they have not disclosed everything in the SAR
3.In the POPLA appeal, the assessor states that "he does not dispute that I paid but the claimant has shown that no payment was made against my registration". He states that Britannia parking have provided evidence that no payment was made against my vehicle registration?? I have not been provided with any such evidence?? Should I have been under the SAR, does this have any impact on my defense.

Apologies in advance for all the (possibly idiotic) questions, your help is much appreciated. As wrong as it is, I can see why people pay up, even at this stage, EVEN when they feel they are in the right. This whole process is pretty overwhelming when you have no legal knowledge



IN THE COUNTY COURT


CLAIM NO:

BETWEEN:

XXXXXXX (Claimant)

-and-

XXXXXX (Defendant)

________________________________________
DEFENCE

I am XXX, 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 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 Rowley Arts Car park, St Neots.
3. The PCN stated the contravention as “Failed to make a valid payment.” This cannot be a contravention as the defendant made payment for the amount as instructed on the pay on exit machine.

4. It is denied that:

a. A contract was formed, and it is further denied that any contravention of ''failed to make a valid payment'' occurred or can have occurred when a valid payment was made at the time of exit as instructed by the pay on exit machine

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. in addition to the parking charge there was any agreement to pay additional and unspecified 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 British Parking Association 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.

Rebuttal of Claim:
6. 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.

7. The Defendant prior to exiting the carpark, inputted the VRN, paid the fee as instructed by the machine, exited the carpark. The service makes no provision to print a ticket, The Defendant reasonably expected that the payment was made appropriately and had no reason to question that the payment was valid.

8. Breach of the BPA Code of Practice Principles

8.1 Upon receiving the PCN, the defendant was sure there had been a mistake as she had made a valid payment and immediately provided the claimant with proof of payment through the appeals process. The defendant did concede that potentially a 0 may have been entered as O, thus explaining the confusion. This was rejected. The Defendant believes this is in breach of the BPA code of Practise. As set out in the POPLA annual report 2018 it states that in October 2017 The BPA advised its members to put motorists at the heart of heart of their thinking and to focus on effective carpark management rather than punishing mistakes. Particularly in the case of simple keying errors e.g. replacing a 0 for an O.

8.2 Under section 21 of the CoP, AOS members are only allowed to use ANPR if they:
(a) Use it to enforce parking in a reasonable, consistent and transparent manner.
(b) Have clear signs which tell drivers that the operator is using this technology and what the data captured by ANPR cameras will be used for.
21 Automatic number plate recognition (ANPR) General principles
21.1 ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

A ticket was paid for, payment sent as proof and it was clear early on, that the defendant had paid in good faith but had simply keyed in the wrong registration number. This is not mitigation, this is a fact, that the defendant submits cannot give rise to a PCN because it is not 'transparent' in the terms on signs/the pay on exit machine, that a correct VRN is an 'obligation' which runs such a risk and will be compared to the ANPR data for the purpose of imposing a charge.

8.3 A BPA AOS operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. The Claimant has failed to explain what manual checks were made or why they consider that enforcement is appropriate, nor whether the contract even allows a charge for 'wrong VRN'. Nor do they show in what terms it is made clear to the payee standing at the machine, that when making payment they have an obligation to input a correct vehicle VRN and run the risk of a punitive so-called 'parking charge' (unfairly set as a fixed sum at the same level as a non-payer) for that action alone.

8.4. 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, such that the dangerous 'making a simple keying error' and associated consumer risk is eliminated from the machine when payments are being made.

8.5 Prior to exiting the carpark, the defendant entered the VRN, the VRN was sufficiently recognised for the machine to advise the defendant to make valid payment. A PCN was then automatically issued using the same technology stating “failure to make valid payment. The defendant does not believe the Claimant is using ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner as set out under section 21 of the CoP for AOS members.


9. No standing or landowner authority.
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.

10. 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 £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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 Statement are true."

With a signature and date below

Coupon-mad

3.In the POPLA appeal, the assessor states that "he does not dispute that I paid but the claimant has shown that no payment was made against my registration". He states that Britannia parking have provided evidence that no payment was made against my vehicle registration?? I have not been provided with any such evidence?? Should I have been under the SAR, does this have any impact on my defense.

Not under a SAR but in the POPLA evidence pack they must have provided an evidence sheet showing nothing recorded for your VRN on a white list (or similar), which is what POPLA meant.

inydaisy

Ah Geeze, while I was sure at the time I received the PCN (Sept '18) that I had made a simple keying error. Now (May '19) I am beginning to doubt myself, because if they showed evidence of no record of my VRN to POPLA, maybe just maybe I didn't mix up the 0 with the O maybe I inputted my old VRN (my new car was only two weeks old at the time.:(. I really doubt that this is the case but I suppose there is always a chance

If it turns out this was the case, will a judge be like " well you put in your old VRN not an O instead of a 0" you've lied in your defense so you lose. Or does the same argument still hold, I paid in good faith so therefore there should have been no PCN.

Also, on an unrelated note, I have since been at the carpark in question and it is no-longer possible to incorrectly input your VRN, the machine now prompts you that there is no match and recheck the details........ That's not much use to me now though. Why the change I wonder? Preparing for new legislation perhaps.......

Umkomaas

Also, on an unrelated note, I have since been at the carpark in question and it is no-longer possible to incorrectly input your VRN, the machine now prompts you that there is no match and recheck the details........ That's not much use to me now though. Why the change I wonder? Preparing for new legislation perhaps.......

You could pray that in aid, that there has been a need for a change in the machine as it was previously not fit for purpose. PPCs don't routinely change machines just for the sake of it.

Coupon-mad

I am beginning to doubt myself, because if they showed evidence of no record of my VRN to POPLA, maybe just maybe I didn't mix up the 0 with the O maybe I inputted my old VRN (my new car was only two weeks old at the time.

Send their DPO a SAR proving you were the owner of the old car and ask for disclosure of whether you input that VRN when you were there on xx/xx/18, or a near match of EITHER car VRN.

You are entitled to the machine data that relates to your payment.

inydaisy

Done! Thanks again for all your help coupon-mad.