Missed PCN and recovery action

nosferatu1001

Yep. 
OP - if you tell them who drove, POFA means nothing. 

Masterplanner

1505grandad said:

"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."

Which do you suggest I remove?
I paid but wasn’t driving

Le_Kirk

Masterplanner said:

1505grandad said:

"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."

Which do you suggest I remove?
I paid but wasn’t driving

The DRIVER paid if you are defending as KEEPER.  Or, the defendant, who was an occupant of the car (if that is true) paid.

Coupon-mad

 The total time in the car park was 3hours 15 minutes which falls within the accepted 15 minute grace period.

There is no such accepted grace period.
You need to search the forum for NCP green button defence as this seems to be just like those we wrote in cases in 2019 that talk about the HMRC Court of Appeal case that NCP lost, and what it says about when the contract starts (green button).

Le_Kirk

Searching is difficult in the new forum but I found this: -
https://forums.moneysavingexpert.com/discussion/6004010/ncp-appeal-tax-man-1-ncp-nil/p1
Is it the one?

Masterplanner

Coupon-mad said:

 The total time in the car park was 3hours 15 minutes which falls within the accepted 15 minute grace period.

There is no such accepted grace period.
You need to search the forum for NCP green button defence as this seems to be just like those we wrote in cases in 2019 that talk about the HMRC Court of Appeal case that NCP lost, and what it says about when the contract starts (green button).

Thanks, does I think I understand that this means my defence should be based on the contract not starting until I pressed the green button (and therefore accepted the offer) and therefore as I left before the end of my paid for period there is no breach of contract?

Le_Kirk

I think that was the thrust of the case linked on 15th February at 10.05 a.m.  (Oh bring back post numbers!!!)

Masterplanner

Hi all, 
thanks for your help so far, I have updated the defence to remove point 14.1 as suggested. I have also added a paragraph regarding the green button defence and the reference to the court of appeal case, but I have not found any examples of defences, just references to them.  I have found the original ncp 0 hmrc 1 post, and I think it gives an overview of the defence but not the wording? Also I was driving a different car in to the car park which my wife then left in but I drove the car out and bought the parking tickets for both cars, does this make a difference to the defence?  Would you mind reviewing and providing feedback?

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 £1.50 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.

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.

16. As decided in the court of appeal under the NCP vs HMRC case paragraph 18 where it states that “The best analysis would seem to be that the contract was brought into being when the green button was pressed. On that basis, the pressing of the green button would represent acceptance by the customer of an offer by NCP to provide an hour's parking in return for the coins that the customer had by then paid into the machine.” This would mean there was no breach in contract and no overdue debt as the contract was not made until the green button was pressed at nn:nn as per the data provided by the claimant in the pet machine payment log and the vehicle exited the car park prior to the 3 hours expiring.

I believe the facts contained in this Defence are true.

Masterplanner

Hi folks, 
I have to submit my defence by next Monday and would really appreciate some feedback on my proposed defence if you can help?

Coupon-mad

NCP (Claimant)

That is not the company's full name as shown on the Claim form and you need to copy it in full at the top.

I have re-worked your defence to give you the more recent template, that goes in strong about the abuse of process of the added £60, in the hope of more Courts following the example of Warwick, Southampton and Skipton and striking claims out, without a hearing (which is what most posters here would prefer):

DEFENCE

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the driver who parked the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ (over and above the tariff paid) to the Claimant.  

 

2.      In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £160. This figure is a penalty, far exceeding the £85 parking charge in the case of ParkingEye Ltd v Beavis [2015] UKSC 67, which is fully distinguished in relation to all facts. 

  

3.      The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair.

  

4.      Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs. The sum exceeds the maximum amount which can be recovered from a registered keeper Defendant, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’). 

  

5.      Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix A)  and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix B ).

  

6.      Applications by AOS member parking firms to try to reach the (usually low) threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions in person from both sides of the dispute, at a hearing on 11th November 2019 (Britannia Parking v Crosby & Anor).  The court refused to set aside the Orders and, tellingly, despite instructing the barrister who appeared at the hearing and obtaining a transcript, no appeal was made by BW Legal.

 7.  BW Legal are also responsible as the legal representatives in the instant case and in flagrant disregard for their primary duty as officers of the Court, they continue to file multiple, exaggerated parking charge claims that duplicate the issues they know have already been struck out by more than one court circuit.   At Southampton, the Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage.  That Judgment is appended (Appendix C).

 

7.1.  On 27th February 2020, DJ Wright at Skipton followed suit, refusing to set aside the Court's multiple summary strike-out orders at an application hearing by Excel Parking Services Ltd, whose barrister failed in his arguments, just as the barrister for BW Legal did at Southampton three months earlier.  The learned Judge's reasoning was the same (as can be seen by Appendix A which shows an example of her concisely but clearly worded continuing Orders affecting all parking firms who attempt to abuse the court process in this way).  DJ Wright had sight of the Southampton transcript and dismissed as entirely without merit, Excel's witness statement arguments that to strike out these inflated claims was 'draconian', although she stopped short of allowing the Defendants (six, of whom two appeared in person for this application hearing) to describe the conduct as fraudulent.

8.      The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are easily identified to be unlawful when the Courts exercises their specific duty in every case (whether argued by a Defendant or not) to firstly consider and apply the CRA test of fairness. The Courts are invited to make a finding of fact without a hearing, that there is a breach of Schedule 2 of the CRA 'the grey list of terms and consumer notices that are likely to be unfair' and specific attention is drawn to paragraphs 6, 10, 14 and 18 of that Schedule, which the Defendant avers are all breached.

8.1.  Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which - as the Claimant and their legal representatives already know - is entirely tainted by abuse of process and breaches of the CRA.