Missed PCN and recovery action

Coupon-mad

In mid-March my car used a ncp car park, there are photos of entry and exit and it is alleged that the car was parked for longer than the time paid for, although it doesn’t specify how long was paid for, and we don’t remember how long was paid for.

A SAR would have flushed all of that data out by now. If you missed the advice to send a SAR, see the NEWBIES thread post #2.

Email NCP's data protection officer a SAR as shown there (even though that letter is not a real LBC, it will be at that stage soon).

These are relatively easy to defend, and we were replying on a case just like this only yesterday where a person was working on their defence or WS against NCP, re a case where they had paid to park and were accused of a few minutes' overstay.

You simply need to read other NCP threads to see how simple these are to defend and what to say when it gets to that stage, so you can finally rid yourself of this scam in court.

Send the SAR by email now. You know which email; the NEWBIES thread tells you.

Masterplanner

Thanks everyone for your help so far.
I have now received a letter of claim from BW legal this contains a reply form, which asks me to say whether I acknowledge the debt.
Is this the acknowledgment of service or something else, I understand I shouldn’t fill in the income and expenditure form, but do I need to fill the response form.
I have sent the SAR and now have the information from that.
I have read several other posts and I feel I’m wasting your time but there is so much information I am confused.
Apologies

KeithP

Filing an Acknowledgment of Service comes after you have received a County Court Claim Form.

How to deal with a Letter of Claim is described in the first few paragraphs of post #2 of the NEWBIES thread.

No need to fill in any forms.

Masterplanner

Hi Again,

I have now recieved a calim for from the County Court Business centre, which I have to respond (acknowledge) to by 23rd Feb.  For the form if I am disagreeing with the claim I then have another 14 days to send in a defence (this seems to contradict some of the advice on this forum, or am I misunderstanding?)  The letter states "You must either send the completed acknowledgement of service form or a defence form to the court within 14 days of the date of service.  If you send the acknowledgement of service you mst send a defence to the court to arrive no later than 28 days from the date of service"

I have drafted a defence below based on a defence from the Newbies thread, I think I have too much in here, my main argument is that I left before the pay and display ticket expired and there is nothing to indicate that there is a defined period to purchase a ticket on any of the signs.

I took 30 minutes to park the car, unload and purchase the ticket.

My draft defence:

IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

NCP (Claimant)

-and-

xxx mf87 xxx(Defendant)

DEFENCE

Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXXXXXXX car park on XX/XX/19.

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

2. The allegation appears to be 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, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing the appropriate parking time' or of the driver not being a patron of the XXXXXX Shopping Centre.

Data Protection concerns

3. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.

4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a busy shopping centre park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

4.1. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the Centre, who are being caught out regularly by this trap.

4.2. Silently collecting VRN data in order to inflate the 'parking charge' from £1.5 to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

5. Unlike the free car park in the Beavis vs. ParkingEye case, this Shopping Centre is a site where the Claimant has machines to take payment of tariffs. Clearly there will be NCP staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.

6. Due to the sparse details on the 'PCN' it was taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and arrived weeks later.

7. 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.

7.1. The Defendant avers that the signage at the site in question does not set out clearly the expected period that a ticket should be purchased in and that if this is not adhered to the parking charge will be inflated to £100.

7.2. The NCP signs within the parking area refer to ANPR but do not detail how this is used and that the time of entry and exit are recorded and stored.

7.3. The defendant paid £1.50 for a period of parking of 3 hours and left before the expiry time on the ticket, as evidenced from the PDT log provided. The total time in the car park was 3hours 15 minutes which falls within the accepted 15 minute grace period.

7.4 The carpark is a old multistorey carpark and there was some difficulty navigating the ramps due to their narrow nature and the large MPV being driven, this mean that navigating the car park took longer than expected. 

7.5 There were 5 occupants of the car, with 3 being under the age of 5 and one being only 2 weeks old, this the unloading of the occupants of the car and set up of push chairs etc took time prior to purchasing the ticket.  There not signage in the carpark to indicate the expected time between entry and purchasing the ticket. 

No standing or authority to form contracts and/or litigate

8. 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 patrons of the Shopping Centre.

No 'legitimate interest' or commercial justification - Beavis is distinguished

9. 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 PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late with a 'parking charge' that bears no resemblance to the £1.5 'parking charge' tariff, 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.

9.1. 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.''

Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

10. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £0.50 according to the claimants own signage for this period of time.

10.1. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £4 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

10.2. 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 £0.5.

11. 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 was believed to be £4 and no more.

11.1. 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.

11.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £4 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

12. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

13. 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 Solicitor's Costs of £50, which have not actually been incurred by the Claimant.

13.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, NCP have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

14. The Protection of Freedoms Act 2012 (the POFA) 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 (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

14.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £100 can be claimed instead of £0.50 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.

15. 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 believe the facts contained in this Defence are true.

KeithP

Masterplanner said:

The letter states "You must either send the completed acknowledgement of service form or a defence form to the court within 14 days of the date of service.  If you send the acknowledgement of service you mst send a defence to the court to arrive no later than 28 days from the date of service"

That's correct.
What is the Issue Date on your County Court Claim Form?

Coupon-mad

For the form if I am disagreeing with the claim I then have another 14 days to send in a defence (this seems to contradict some of the advice on this forum, or am I misunderstanding?)

Yes you misunderstand.

Masterplanner

KeithP said:

Masterplanner said:

The letter states "You must either send the completed acknowledgement of service form or a defence form to the court within 14 days of the date of service.  If you send the acknowledgement of service you mst send a defence to the court to arrive no later than 28 days from the date of service"

That's correct.
What is the Issue Date on your County Court Claim Form?

The issue date is 4th Feb

KeithP

Masterplanner said:

KeithP said:

Masterplanner said:

The letter states "You must either send the completed acknowledgement of service form or a defence form to the court within 14 days of the date of service.  If you send the acknowledgement of service you mst send a defence to the court to arrive no later than 28 days from the date of service"

That's correct.
What is the Issue Date on your County Court Claim Form?

The issue date is 4th Feb

With a Claim Issue Date of 4th February, you have until Monday 24th February to file an Acknowledgement of Service, but there is nothing to be gained by delaying it. To file an AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread - https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou 

About ten minutes work - no thinking required.

Having filed an AoS, you have until 4pm on Monday 9th March 2020 to file your Defence.

That's over three 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 could be filed via email as suggested here:

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5. 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'.
   
6. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
   After filing your Defence, there is more to do...
   
   
7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
8. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet - https://www.gov.uk/government/publications/form-n180-directions-questionnaire-small-claims-track , and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of the NEWBIES thread - https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou"]
   
9. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
   
10. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

Masterplanner

Thanks for the details KeithP.
how does my draft defence look please?

1505grandad

"14.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof)......"

well I think the "strict proof" is provided here:-

"7.3. The defendant paid £1.50 for a period of parking of 3 hours and left before the expiry time on the ticket, as evidenced from the PDT log provided."