Help requested re. response to claim form received for NCP overstay, BW Legal

BRRN

Yeah I'll leave that bit out then!

However, that case does set a precedent for the contract beginning when the ticket is purchased, which in this case makes the overstay 16 minutes - so is a 'grace period' defence plausible?

Castle

BRRN wrote: »

The ticket was purchased 2 minutes after entering.

How do you know since the ANPR camera and the PDT machine(s) have different clocks, which are not synchronised.

Coupon-mad

I very much doubt you crossed the threshold passing the first camera, then drove round & found a space, then carefully reverse parked, then picked up belongings (organised children or passengers?) and locked the car, looked around, then walked over to the nearest machine (queued?) then read the signs, decided how long to pay for, but saw that the machines there do not give change, so found £3 in cash, then put it in the machine and your VRN as well, then pushed the green button to conclude the contract...all within 120 seconds.

See what Castle is getting at?

That did NOT all happen in two minutes, did it?

The two systems play off against each other but are NOT synchronised in any way, not the same system, server or anything.

Far more likely that you took 5 - 10 minutes for the 'observation time', then were allowed a MINIMUM ten minutes (not maximum) to 'grace period' leave after expiry of the paid for time, as the BPA expects in this article:

https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

(ignore their featured banner headline!)

BRRN

Well this is fantastic. You both surmised correctly that I am going by the times recorded on the ANPR system and on the payment machine print out. Sounds to me like the 'observation time' and the 'grace period' can easily cover the overstay.

BRRN

I am belatedly drafting the defence today and I wondered if there was a template document or a defence that someone has shared on here or somewhere else from who had a similar issue to the one I am facing which I could use as the basis for my defence? Thanks.

Quentin

You aren't late at all


You have another week to get it in (though if you want to get it looked at then post it up here allowing enough time to get comments)


See #2 in the Newbies FAQ thread for help on preparing a defence together with links to defences to crib from

Le_Kirk

There are about 17 defences that have been used for varying issues. These will be found in the NEWBIE section post # 2: -

Sticky: **NEWBIES!! PRIVATE PARKING TICKET? OLD OR NEW? **READ THESE FAQS FIRST!** Thankyou!

Go there and scroll down until you see: -

Here are some cases won or in progress:

Here is a defence I suggested for a case where

BRRN

OK here it is, my draft defence. Large parts of this are lifted wholesale from others I have seen online and I'm not sure if they are relevant or not but I guess it cannot hurt. Section 2 where I talk about grace periods and observation time is really my main defence and I want to really hammer that home. Any suggestions on how to improve that bit would be most welcome. Also anything that I should remove or add, any help at all I would be very grateful! Never done this before and it's very bloody stressful if I'm honest!

I have photographs of all the signage at the car park to illustrate the points I make in the defence. Should I print them out and send them with the defence?

======================================================

IN THE COUNTY COURT
CLAIM No: XXXXXXXX
BETWEEN:
National Car Parks Ltd (Claimant)
-and-
XXXXXXXXXXXXXX (Defendant)


DEFENCE

1 Background
1.1 The Defendant is the registered keeper of the vehicle in question. The claim relates to an alleged debt in damages arising from an alleged ‘parking contravention’, which occurred at XXXXXXXXXX Car Park, XXXXXXXXXX on 07/11/2018.
1.2 The allegation is described by the claimant as ‘parking longer than the time paid for’ and offers timestamped ANPR camera images and PDT machine records as evidence of the alleged ‘overstay’.
1.3 The Defendant denies the contravention due to the alleged overstay period being within a reasonable period of time allowed for observation, locating a parking space, parking, obtaining a ticket, and exiting the car park.

2 Denial of parking contravention
2.1 The Claimant’s ANPR camera images show that the vehicle exited the car park 2 hours and 18 minutes after entering. The driver of the vehicle paid for two hours parking. The Defendant asserts that the 18 minutes is within the allowed observation time and end-of-parking ‘grace period’ specified by the BPA Approved Operator Scheme Code of Practice. National Car Parks is a member of the BPA and the AOS.
2.2 BPA AOS Code of Conduct Clause 13.2 and 30.2:
“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
2.3 Kelvin Reynolds, BPA Director of Corporate Affairs:
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person five minutes, but another person ten minutes depending on various factors, not limited to disability.”
2.4 Given the time periods specified by the BPA, the Defendant asserts that the alleged overstay of 18 minutes is well within the period that should be allowed, and that no parking contravention has taken place. Therefore, the Defendant invites the court to dismiss the claim as being without basis.

3 Denial of contract and denial of any breach, or liability
3.1 The Claimant has failed to make clear the legal basis under which the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
3.2 Further and in the alternative, it is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
3.2.1 The sign displaying the parking charges is obscured by a pole at both entrances to the car park so cannot be clearly read and understood, as it also positioned too high to be clearly visible when seated in a vehicle.
3.2.2 A smaller version of the sign described above is positioned at multiple points around the perimeter of the car park, however these signs are positioned at the top of tall poles, placing them too high up to be read by any normal-sized person.
3.2.3 A further sign located at the entrance displaying the car park terms and conditions - in full – is rendered in very small text (each letter is approximately 4mm high. Due to the position of the sign at the car park entrance, it is not possible for a driver to stop and read the terms and conditions before entering the car park as the entrance is off a busy town centre road.
3.2.4 Further, is it both difficult and dangerous to approach the sign on foot to read the terms and conditions as the sign’s position means that to read it, and individual would have to stand in the flow of traffic entering the car park.

4 No standing or authority to form contracts and/or litigate
4.1 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, and to pursue payment by means of litigation against individuals whom it alleges to have committed a parking contravention.

5 Claimant is attempting to recover unrecoverable charges
5.1 The amount claimed is £242.92 which bears no relation to the loss suffered by the Claimant. The amount demanded in the original Parking Charge Notice issued by the claimant is £60. Subsequently the Claimant demanded £100. The Claimant has now increased this amount to £160 and is attempting to recover court fees and legal expenses of £75.
5.2 The Defendant denies that any of the above amounts are owed to the Claimant, and the Claimant is put to strict proof that it has incurred any loss at all as a result of the Defendant’s actions.

6 No 'legitimate interest' or commercial justification - Beavis is distinguished
6.1 With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the signs displaying the terms are not easy accessible, the VRN data is harvested excessively by two automated but conflicting data systems, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.
6.2 The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:
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.''
6.3 Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £1 (the charge for two hours parking being £2.60 and the charge for three hours parking being £3.60)
6.4 Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which is £3.60. The PDT machine record indicates that a sum of £3 was paid for two hours’ parking (NCP have elected to install machines which do not give change, therefore has already profited in the sum of 40p). Regardless, the sum owed by the Defendant cannot be more than £1.
6.5 No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.
6.6 In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported costs of £175, which I submit have not actually been incurred by the Claimant.

7 Summary
7.1 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. I invite the court to dismiss the claim.

I believe the facts contained in this Defence are true.

BRRN

Thanks Quentin. I know I still have time to get it in, just wish I'd started it a couple of weeks ago! Anyway the draft is now here so take a look

KeithP

BRRN wrote: »

I have photographs of all the signage at the car park to illustrate the points I make in the defence. Should I print them out and send them with the defence?

Nothing gets sent with a Defence.

Evidence comes later - as explained in post #2 of the NEWBIES thread.

You will be emailing your Defence - as explained in post #5 above.