Gladstones LBC

00460008

Hi just starting this thread as I have just received a County court claim form.

A little back ground of where I am up to -

Driver parked on car park and paid for a ticket. the buttons on the machine did not function correctly and the first letter of the reg could only be pressed. After a few attempts I gave up and just entered the first letter of my reg and paid the amount needed.

A few months later I received a PCN stating that I had failed to purchase and/or validate a pay and display ticket.

This was appealed with the said parking company, stating the issue with the machine and that I still had the original ticket as proof of purchase but they declined the appeal and say they allow up to two digits to be wrong. I then appealed with the independent appeals service, who also rejected.

few weeks later I get the final demand, debt collectors and Gladstone solicitors letters which I had ignored, but now received the County court claim letter.

I have had a good read through the forums and posts on here and filled out the car parking companies SAR and just followed the procedure for AOS, which is now submitted.

So I believe its just getting a defence wrote up now, but can't find any cases on incorrect reg numbers being entered?

Also just to note. The county court claim form says in the parking companies defence, that the driver of the vehicle AGREED to pay the pcn within 28 days of issue yet failed to do so. I agreed to no such thing!

Thanks for reading and any pointers on cases for incorrect reg numbers entered would be appreciated.

waamo

What is the issue date on the form and did it come from Northampton?

KeithP

00460008 wrote: »

I have just received a County court claim form.

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

00460008 wrote: »

The county court claim form says in the parking companies defence, that the driver of the vehicle AGREED to pay the pcn within 28 days of issue yet failed to do so. I agreed to no such thing!

They are suggesting that by parking you agreed to their terms and conditions, one of which was along the lines of 'if you break the terms of the contract you agree to pay us £100 within 28 days'.

00460008

The issue date is 8 aug 2019

And it came from the county court business centre in Northampton.

I have completed the acknowledgement of service as per the newbies guide.

KeithP

00460008 wrote: »

The issue date is 8 aug 2019

And it came from the county court business centre in Northampton.

With a Claim Issue Date of 8th August, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 10th September 2019 to file your Defence.

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


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

00460008

Thanks KiethP.

Im not too good at writing a defence, but have been looking for some similar cases and not found any yet.

Do you have any links that you have come across?

KeithP

There are seventeen Defence examples linked from post #2 of the NEWBIES thread.

Surely you can find something there that can be adapted to your situation?

00460008

I've just found one from 2016 with parking eye. Will edit it and see how it looks.

Is this thread the best place to post the defence for review?

Just want to get it wrote up and sent so its done.

KeithP

Can you not find anything newer than 2016?

Something from 2018 or later would be best.

Do not rush this step - you have a whole month to create and file your Defence.

Please keep everything about this one parking incident in this one thread.

00460008

No worries I will keep searching and keep on this thread.

thanks again for the advice.

00460008

would this be a suitable defence letter?Defence Statement


Preliminary Matters.

I am the driver and I contend that I am not liable for the parking charge on the grounds listed below. If this operator remains silent on any appeal point then it is deemed accepted.

1) Breach of the BPA Code of Practice Principles

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.

2 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.''

The facts are that a ticket was bought, sent as proof and it was clear early on, that the driver 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.

The fact is, a BPA AOS operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. I require that the operator provides the Court with a copy of their policy and proof that those checks were made in this instance. Further, I require proof that ''wrong VRN' is in fact incorporated into the contract from the landowner as a penalty-generating 'contravention' since I find it highly unlikely that the retailer/landowner allows this unfair fining of paying customers.

If it is not in the contract it is not a contravention that can give rise to a penalty.

In your rejection letter, HX Car parking Management ltd have 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.

This is an inappropriate parking charge which should have been cancelled on appeal. I remind HX Car parking Management ltd that operation and enforcement is not just about issuing PCNs and collecting money from hapless victims, regardless of any legitimate interest, reasonableness or appropriateness. In fact the BPA CoP mentions in the Introduction 'minimum standards' (suggesting they are set low) as well as the importance of 'acting in a professional, reasonable and diligent way' in issuing 'appropriate' parking charges:

2.6 By creating the Code the parking industry has set out the minimum standards by which you will be judged by anyone coming into professional contact with you. Members of the public should be able to expect that you will keep to the law, and act in a professional, reasonable and diligent way.

2.9 The Code and its appendices cover the operation of parking on private, unregulated land. This includes:
• designing and using signs
• using ANPR and associated systems
• appropriate parking charges.

And in the ANPR section:

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.

To any right-minded person's viewing, refusing an appeal from a genuine parking customer who did pay and display is neither 'professional and reasonable' nor 'diligent'. Their own ANPR records show that there was no vehicle on site with the VRN I accidentally keyed in and as evidence, I was able to produce the ticket as proof that I paid but made an inadvertent error with the VRN, thereby showing that THIS ticket did relate to THIS vehicle and no other in the car park.

I submit that it was clear that it was not 'appropriate to take action' so the PCN should have been cancelled. I submit that to pursue a genuine customer who paid & displayed is contrary to the wishes of the landowners and this PCN is unauthorised. As such, the parking charge cannot be considered 'properly given' at the point of inappropriately refusing my appeal.


3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner to evidence the definition of the services provided. This includes a list of grace periods, charges and all restrictions authorised where a parking charge can arise, as I do not believe they are authorised by the landowner to charge a paying customer for a mere VRN error.

The contract and any 'Manual' setting out details including restrictions, charges and exemptions - such as any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).


Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement.


4) The signs do not state what the ANPR system data will be used for.

The BPA CoP contains the following in paragraph 21:

''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.''

HX Car parking Management ltd fail to tell drivers that the ANPR data will be compared to any VRNs input into the P&D machine and will then be used to issue 'parking charges' for any case where there is a VRN omission or error. If I had known this vital fact, I would have thought twice before inputting the VRN in error. As I did NOT know this, I cannot be deemed bound by the terms.

The ticket machines should be linked to the cameras and only allow correct details, or offer the nearest match and ask if it is the correct VRM before accepting the money


5) The 'ParkingEye v Beavis' case exposes this charge as unconscionable, with no overriding 'legitimate interest' to save it from offending against the penalty rule.

The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and putting in a VRN) were said at the Court of Appeal stage to be likely to fall foul of Lord Dunedin's four tests for an unenforceable penalty.

HX Car parking Management ltd should be well aware that the circumstances of the Beavis case were entirely different. In this case, we have an authorised user using the car park appropriately where there has been no loss to the owner and no abuse of a parking space, nor any overstay.

While the courts might hold that a large charge might be appropriate in the case of a 'free stay' car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept that a £100 penalty is a conscionable amount to be charged for the simple problem of a VRN error which was explained and accompanied in good faith at appeal stage, by proof of pay & display.

In this case the vehicle would have been fully entitled to park as it did had the VRN been correctly keyed in (provided that obligation had been clearly brought to the motorist's attention). The justification and 'legitimate interest' that was held to rescue the 'ParkingEye v Beavis' charge is irrelevant and conspicuously absent. The Operator cannot argue that a 'legitimate interest' exists to punish customers for accidentally inputting a wrong VRN on a single occasion, yet using the car park for exactly the purpose intended and for no more than the paid-for time.

The Beavis case is not comparable and does not supersede any considerations of the specific facts in this case. It is certainly likely that the courts would say it is undoubtedly 'unconscionable' to penalise a customer who has proved they paid and displayed, at the same level as (for example) a trespasser, who parked all day across two bays without paying any tariff.

This charge issued to me as a paying driver is clearly capable of being held by the courts as an unenforceable penalty. This view is supported by the judgment of the Supreme Court, which did not disagree with the earlier judgment from the Court of Appeal in 'Parking Eye v Beavis' which held:

"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other...

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park...

47. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) Bing. 141 at 148:

“But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

This judgment makes clear that the Court of Appeal (and by definition, the Supreme Court which agreed) would also consider the charge in this case to offend against the penalty rule which all Judges agreed WAS 'engaged' by a contract attempting to enforce a parking charge. And at the Supreme Court it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:

''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

The purported contract with the motorist is an ordinary 'financial contract' where the loss that HX Car parking Management ltd thought had arisen (non-payment of a tariff) is easily calculable. Without intellectual dishonesty, it cannot be argued that there is a commercially or socially justifiable deterrent value in this charge, especially as soon as HX Car parking Management ltd knew that in fact, I paid and displayed.

Any putative contract needs to be assessed on its own merits as regards what would be deemed 'out of all proportion' to the tariff paid and 'unconscionable' given the circumstances. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.

In this case the specific question is whether a reasonable person would, when parking in a place where they had paid the correct tariff for the privilege, also accept a further unknown liability in the case of a VRN error (that they were not informed was vital nor ran the risk of a huge fine). I would suggest that a court would not accept that £160 was a reasonable amount given these specific circumstances.

Although the charge was different, the Beavis case was 'entirely different' and does not save the charge in this case, from being held to be unconscionable. This is an unenforceable penalty and cannot be upheld as properly given.


6) Reference the ICO Code of Conduct for surveillance.

Some interesting points arise from use of Automated Number Plate Recognition (ANPR) - see section 7.1. and in particular this:

“
When storing the information and cross referencing it with other
databases to identify individuals, you will need to ensure that these
databases are kept up-to-date and accurate and are of sufficient quality
to prevent mismatches
”
So if the camera takes personal data (registration) and stores it to then cross reference with the registrations inputted, I would argue that

(i) an accurate, quality system would be able to marry up the letters that were inputted?
(ii) Also register an anomaly for a VRN entered.

See Appendix 2 which is taken from one of the numerous parking examples concerning Parking Eye that are posted on the Internet.

7) Not Fit for Purpose Invalid Ticket issued against rules of Consumer Rights Act 2015
The reason given by Parking Eye and POPLA for my penalty is that the ticket I was issued with from Parking Eye was an invalid ticket. This ticket was bought and paid for in good faith. According to the Consumer Rights Act 2015 any goods purchased should be 'Fit for Purpose'. The ticket that was issued to me was not 'fit for purpose'. Parking Eye took my money to issue an invalid ticket and now want to charge me a penalty of £100 for having an invalid ticket. The invalid ticket was issued due to the ticket machine allowing the transaction to complete when I had entered an invalid Vehicle Registration Number. The ticket machine should not have issued the ticket as all British Number plates contain both letters and numbers and I only entered letters. The ticket machines should be linked to the cameras and only allow correct details, or offer the nearest match and ask if it is the correct VRM before accepting the money

8) Example of previous case Parking Eye v Heggie
Example of previous case taken from many previous cases listed on Internet

---

New transcript available. ParkingEye v Heggie


3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). Deputy District Judge Obhi ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss.


Report

In this case Mr Heggie entered the wrong registration number for his vehicle. ParkingEye were able to trace this and confirm that he had paid. However, because they had started court proceedings they refused to drop the claim.

ParkingEye argued that their charge of £100 was a genuine pre-estimate of loss because the whole running costs of the car park needed to be considered.

Judge Obhi ruled that there was actually zero loss incurred.

ParkingEye then tried to argue there was an overstay of four minutes.

Judge Obhi dismissed the claim.

Although ParkingEye claim this was all the defendants fault for not contacting them, it is worth noting that it is their own systems which cause the problem. Systems from other organisations do not allow entry of numbers where a vehicle with that registration was not present.

It is also true that ParkingEye will have had an entry on their system that charges were paid for a vehicle which was not present, and so could reasonable be said to be aware that the problem was likely to have been caused by an incorrect registration.

This ticket was bought and paid for in good faith. According to the Consumer Rights Act 2015 any goods purchased should be 'Fit for Purpose'. The ticket that was issued to me was not 'fit for purpose'. Parking Eye took my money to issue an invalid ticket and now want to charge me a penalty of £100 for having an invalid ticket. The invalid ticket was issued due to the ticket machine allowing the transaction to complete when I had entered an invalid Vehicle Registration Number. The ticket machine should not have issued the ticket as all British Number plates contain both letters and numbers and I only entered letters. The ticket machines should be linked to the cameras and only allow correct details, or offer the nearest match and ask if it is the correct VRM before accepting the money

8) Example of previous case Parking Eye v Heggie
Example of previous case taken from many previous cases listed on Internet

---

New transcript available. ParkingEye v Heggie


3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). Deputy District Judge Obhi ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss.


Report

In this case Mr Heggie entered the wrong registration number for his vehicle. ParkingEye were able to trace this and confirm that he had paid. However, because they had started court proceedings they refused to drop the claim.

ParkingEye argued that their charge of £100 was a genuine pre-estimate of loss because the whole running costs of the car park needed to be considered.

Judge Obhi ruled that there was actually zero loss incurred.

ParkingEye then tried to argue there was an overstay of four minutes.

Judge Obhi dismissed the claim.

Although HX Car parking Management ltd claim this was all the defendants fault for not contacting them, it is worth noting that it is their own systems which cause the problem. Systems from other organisations do not allow entry of numbers where a vehicle with that registration was not present.

It is also true that HX Car parking Management ltd will have had an entry on their system that charges were paid for a vehicle which was not present, and so could reasonable be said to be aware that the problem was likely to have been caused by an incorrect registration.