PPC Court Letter! Parking paid for, any defence advice greatly appreciated.

CivilThieves

Hiya all,

I’d first off like to say thank you to everybody here that takes the time to answer these posts and guide people like myself out of these ridiculous PCN charges! I would really appreciate advice regarding my case, although it should be pretty straight-forward given that parking was paid for (!) I am concerned that without your help I could get caught out on legal semantics.

My issue date for the court claim is the 14/05/2019 so I think I have until 4pm 10/06/2019 to submit my defence. I will submit the defence as per Keith P’s advice:

- Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- 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.

The PCN issue date was for mid 2018. I have read the Newbies thread a few times and have filled out the AoS.

The details of my situation are that:
1. I am the owner of, but was not the driver of the car at the time of the PCN. I was away on holiday.
2. My friend (Driver) drove my car along with Friend 2 and 3, they were staying away for the night for a rowing race.
3. Parking was paid for at the hotel, everybody shared a room. There is a copy of the invoice under the name of Friend 2. Unfortunately, not under the name of the Driver.
4. The tablet was not working at the hotel so details including vehicle registration were written in a book, I have asked the hotel for a copy but the book is no longer to hand. The details were clearly not passed on to the PPC, or at least not correctly.

My questions:
1. If I clarify again that I wasn’t driving, will the PPC simply pursue the Driver instead? In my appeal, I did state that I wasn’t the driver but they dismissed my appeal and continued pursuing the PCN. Could I lose the case because I didn’t state that I wasn’t actually the driver sooner?
2. The invoice for the room plus parking isn’t under the Driver’s name, should I ask Friend 2 (who paid for the room and is stated on the invoice) for a WS confirming the tablet not working, shared room etc?
3. Should I ask everyone: Driver, Friend 2 and 3, to write a WS to put evidence into context?
4. Further, is it too late for me to email the PPC for a SAR? If so, do I simply bullet point the requests listed in the Newbies thread along with my PCN, vehicle reg etc?

Evidence:
1. My holiday booking confirmation
2. Invoice for Friend 2 paying for room and parking through hotel (vehicle reg. not specified)
3. Confirmation of Driver insured on car
4. Race confirmation (reason for travel for Driver and Friend 2 and 3)

Could I ask given the situations above, for your advice on my questions, and if there are any draft defences out there that are quite close to my case that I could edit to fit the particulars of my PCN?

Thank you all!

KeithP

CivilThieves wrote: »

My issue date for the court claim is the 14/05/2019 so I think I have until 4pm 10/06/2019 to submit my defence.

You are mistaken. You have longer than you thought.

With a Claim Issue Date of 14th May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 17th June 2019 to file your Defence.

That's over two weeks away. Loads of time to produce a good Defence, but please don't leave it to the last minute.

Coupon-mad

The tablet was not working at the hotel so details including vehicle registration were written in a book, I have asked the hotel for a copy but the book is no longer to hand. The details were clearly not passed on to the PPC, or at least not correctly.

That's a very strong defence, right there. Can you press the Hotel Manager by email to admit that there were periods when the tablet supplied BY THE PARKING FIRM(!) was not working, and that they had to faff about recording VRNs by hand in a book on occasions, and that the book is no longer to hand but he/she can confirm that Fred Blogs (the friend) was among a party booked into the Hotel and thus, authorised to park, and that he/she DOES NOT SUPPORT the fining of Hotel patrons or registered keepers of cars used by genuine guests who made every effort to comply with the parking rules.

Spoon feed him/..her that wording. It is THE LEAST they can do, given it's their fault for getting into bed with a scammer and allowing a system that is not fit for purpose to ruin people's peace of mind and potentially, credit ratings.

The alternative is of course, you can tell the Manager you will sue the Hotel for any losses.

1. If I clarify again that I wasn’t driving, will the PPC simply pursue the Driver instead?

No, because you won't be naming the driver (and it's too late once court action has commenced, to transfer liability anyway). The driver was just one of the party who stayed at the hotel, could be any of them and you have no obligation to actually name the driver, when you (quite properly) deny being the driver.

You need to read Henry Greenslade's epic article 'UNDERSTANDING KEEPER LIABILITY' in the POPLA Annual report 2015, which you will also later use in evidence as an exhibit. Google it.

2. The invoice for the room plus parking isn’t under the Driver’s name, should I ask Friend 2 (who paid for the room and is stated on the invoice) for a WS confirming the tablet not working, shared room etc?

Yes but without them saying who was driving.

3. Should I ask everyone: Driver, Friend 2 and 3, to write a WS to put evidence into context?

Yes but without them saying who was driving.

Witness Statement & evidence stage comes much later so you have months to collect those.

4. Further, is it too late for me to email the PPC for a SAR? If so, do I simply bullet point the requests listed in the Newbies thread along with my PCN, vehicle reg etc?

Never too late to send a SAR. Yes.

Could I ask given the situations above, for your advice on my questions, and if there are any draft defences out there that are quite close to my case that I could edit to fit the particulars of my PCN?

Sounds like you can adapt the 'ParkingEye Odeon hidden keypad' defence (it's one of those linked in the NEWBIES thread) and change it to 'broken keypad' and explain what rigmarole the driver had to undertake and that they made every reasonable endeavour to comply.

Also search the forum for Jolley v Carmel defence and use that paragraph too.

And you need to add a sentence that puts the Claimant to strict proof that its keypad/tablet was working every day at this location, and specifically, on the material date, because the Hotel guests who are prepared to sign witness statements, and the Hotel Manager, have told you that it was faulty and VRNs were being collected manually in a book.

Which PPC was it? ParkingEye or Civil Enforcement, perhaps?

The_Deep

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

CivilThieves

Thank you all so far

Spoon feed him/..her that wording. It is THE LEAST they can do, given it's their fault for getting into bed with a scammer and allowing a system that is not fit for purpose to ruin people's peace of mind and potentially, credit ratings.

Unfortunately the manager simply ignored my emails...over the phone, he confirmed again that the book is no longer to hand, therefore implying that there was a book, and that the tablet has been down occasionally, he says that he cannot comment on this specific incident as he was not the manager through the dates of my PCN...I have had more relaxed conversations with staff on reception, saying that the when the tablet is down, VRNs were recorded in a book.

And you need to add a sentence that puts the Claimant to strict proof that its keypad/tablet was working every day at this location, and specifically, on the material date, because the Hotel guests who are prepared to sign witness statements, and the Hotel Manager, have told you that it was faulty and VRNs were being collected manually in a book.

I have added this to the end of the defence if it is sufficient?

The SAR was requested on 4th June, still no reply. I presume they have 28 days to reply so are holding out?

I'm having a law graduate look through my defence again tomorrow morning before I send it, below is my current draft:

***
Background - the driver was an authorised patron of the onsite business

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract on XX/XX/XXXX, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £XXX 'parking charge notice' (PCN) for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of the facility.

3. The Defendant has already proved that the £X ‘parking fee’ for authorization of use of the car park for the entirety of their stay, and it is the Claimant's own failure, caused by their faulty keypad that has given rise to a PCN that was not properly issued from the outset.

4. The Claimant has spent over 1 year harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, causing the Defendant and their family significant distress, despite having no basis to charge the initial £XX and despite knowing that the parking tariff was fully paid as per the evidence submitted in the appeals process.


Unclear terms - unconscionable penalty relying upon a faulty keypad

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.

5. To avoid a Parking Charge after paying a single ‘parking fee’ at the start of their stay, visitors were expected to know to input their Vehicle Registration Number (VRN) in to a keypad to fully ‘authorise’ parking in the car park.

5.1. Despite the lack of signage provided by Civil Enforcement, the Defendant, based on previous experience with such Private Parking Companies, sought out the keypad to enter their VRN, however, the iPad was faulty and the Defendant was unable to do so.

5.2. The Defendant was therefore advised to write their VRN and personal details in to a book to guarantee avoiding a PCN from Civil Enforcement, again, despite the Defendant clearly having paid the ‘parking fee’.

6. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. The Manager was incensed that these complaints were becoming a regular occurrence and was frustrated that Civil Enforcement were suing genuine customers and lowering satisfaction for their business.

6.1. The only route offered was a supposed 'appeal' to Civil Enforcement themselves. The Defendant proceeded to ‘appeal’ to Civil Enforcement, attaching evidence of the paid ‘parking fee’ in the form of an invoice. The Defendant knew that no offence or mischief had occurred and, despite appealing with evidence, was not hopeful of a just outcome. From initial research, the Defendant knew that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.!

6.2. This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating 'an outrageous scam' typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and ParkingEye, companies ran in a similar maner to Civil Enforcement, were named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self regulation has failed, and in many cases any 'appeal' is futile.


No legitimate interest - the penalty rule remains engaged

7. There was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.!

8. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in!Beavis!held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

9.. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.!

Lack of good faith, fairness or transparency and misleading business practices

10. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that if the keypad was faulty, due actions were taken to guarantee that genuine customers did not receive a PCN, and if they did receive an unfair PCN, to respect the appeals process and abolish the charge for patrons who clearly paid the ‘parking fee’. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way Civil Enforcement make any money.

Inflation of the parking charge and double recovery - an abuse of process

12. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in!Beavis!(where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.!

13. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £XX, which have not actually been incurred by the Claimant. ParkingEye Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

14. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. According to!Ladak v DRC Locums!UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.!

15. The Defendant holds the Claimant to!strict proof!that its keypad/tablet was working every day at this location, and specifically, on XX/XX/XXXX.

16. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature


Date

***

Any addition/deletions and further advice would be greatly appreciated.

The_Slithy_Tove

What about Protection of Freedoms Act and keeper liability? It hasn't been mentioned at all. They are pursuing you as keeper, which means they have to have met all the conditions of Schedule 4 or PoFA. Have they? Always assume not. Was the NtK conformant? You need to check it very carefully. If it does not conform, it's an instant fail (or should be). If it was CEL, they almost never use or conform to PoFA.

The_Deep

In my opinion, a simply narrative stating the facts would be sufficient in this case. You paid, the tablet was faulty, the hotel have confirmed this. On the balance of probabilities you, an upstanding citizen, are telling the truth and it is the PPC who is acting in bad faith.

Judges are not fools, they are well aware of the m.o. of these scammers, they deal with these fake claims every day. Keep the abuse of process in though, and consider a counter-claim for unreasonable behaviour. (CPR27.14(2)(g). Also read this.

https://en.wikipedia.org/wiki/De_minimis

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Coupon-mad

I'm having a law graduate look through my defence again tomorrow morning

Hope they didn't tel you that a parking charge has to be a genuine pre-estimate of loss, if so then tell them to read the ParkingEye v Beavis Supreme court case and think again!

Maybe I am doing them a disservice but we will see.

I agree about adding in the POFA/no keeper liability and going through the defence word for word to make sure it doesn't imply that the Defendant is the person who parked.