County Court Claim - Defence stage - Incomplete number plate

Laith25

Hello all,
I've received a County Court Claim Letter after ignoring all of the debt collector letters and solicitor letters sent to me and an unsuccessful POPLA appeal (admittedly a poor one as I was not aware of this forum!). I have read through the NEWBIE thread and acknowledged the claim. Struggling at trying to find a Defence example from the cases on the forum.
My situation...
- Driver parked car at GS CAR PARK, LEICESTER
- Purchased ticket using machine however only first 4 characters of car number plate entered. 
- Returned and left GS CAR PARK within the allocated purchased time

The operator has issued the Parking Charge Notice (PCN) as no payment/ticket. This is the case they have presented... (sorry I have just copy and pasted of POPLA appeal)

• The Terms and Conditions of the site have been breached. • The signage is located upon entry to advise motorists that payment is required to park. • Within the car park, the payment machine is located which clearly provides instructions on how to make payment for parking and advises “enter your full number plate”. • The signage advises that a 10-minute grace period is given from entry to the car park to purchase a ticket – this would allow enough time for motorists to park, note down their VRM, and go to the machine to make payment. • The signage also states, “Your correct registration must be entered into the machine when purchasing a ticket. If you fail to do this your stay will not be authorised.” • A screenshot taken of the payment session look up (included in evidence) confirms no payment was made against the vehicle registration XXXXXXX on 19/04/2019. • The appellant’s evidence of their P&D ticket confirms that only “XXXX” was entered. • Whilst the appellant may have made payment into the machine, if the correct VRM is not entered then the payment has not been made correctly. • It is the responsibility of the motorist to ensure their vehicle remains in accordance with the Terms and Conditions of the site to avoid receiving a Parking Charge Notice “PCN”. • There are multiple payment machines on site for the motorist to utilise if they were experiencing any difficulty in making payment. • By remaining on site beyond 10-minutes, the motorist entered into a contract with the car park operator “CPO” and agreed to the terms of the contract, this includes paying the charge of £100.00 in the event of the contract being breached. • The T&Cs have been breached and so this notice has been issued correctly.

Any information on this would be helpful. Thank You

KeithP

What is the Issue Date on your County Court Claim Form?
On what date did you file an Acknowledgment of Service?
Did you file the AoS using the MCOL website or in some other way?

Laith25

Issue date: 07/02/2020
AoS submitted on 10/02/2020 at 08:21:55 using the MCOL website. 

KeithP

Laith25 said:

Issue date: 07/02/2020
AoS submitted on 10/02/2020 at 08:21:55 using the MCOL website. 

With a Claim Issue Date of 7th February, and having filed an Acknowledgment of Service on 10th February, you have until 4pm on Monday 9th March 2020 to file your Defence.

That's nearly 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 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 he 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.

Coupon-mad

You need to also complain to the BPA that the PPC (who is it?) are not complying with the new CoP on keying errors.
If you can make the new forum search work better than I can (sigh...!) search for keying errors Steve Clark and copy.

Laith25

The PPC is One Parking Solution. I will have a search and draft a defence. Will post it on here for review by you kind people...
Thank you for the info!

D_P_Dance

Many judges treat these so called Breach of Contract claims for minor errors in VRNs as trivial, a waste of court time, read this,

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

So do not be too perturbed if this goes to court, they are very lkely to fail..

Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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.

Laith25

Hi guys,
Managed to formulate a Defence... Please feel free to comment.. Any help would be much appreciated..

IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BETWEEN:

One Parking Solution Ltd, XXXXXXXX

-and-

XXXXXXXX

DEFENCE

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 GS

Car Park, Leicester, LE1 3DL on 19/04/2019

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')'.

1.2. The Claimant has spent almost 8 months harassing the Defendant with ever increasing and

intimidating demands pursuing this baseless charge, sending debt collector letters and causing

the Defendant and their family significant distress, despite having no basis to charge £100 and

despite knowing that the parking tariff was fully paid, with evidence provided in the form of the

original parking ticket for the time on site.

1.3. The allegation appears to be based on images by the Claimant’s Automatic Number Plate

Recognition (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 'parking without a valid paid parking ticket’.

1.4. The Driver successfully made payment for a valid parking ticket by using an approved

payment machine located on site at GS Car Park. This ticket was retained and provided as

absolute, clear cut evidence at the time of appeal.

(a) Payment for parking was made via entering the correct vehicle registration number (VRN) into

the parking validation terminal within the GS Car Park site.

(b) The service makes no provision for the printing of a valid paid parking ticket to display or keep

as proof.

(c) The driver followed the instructions exactly as shown on the validation terminal.

(d) The validation terminal did not indicate any failure to input the VRN correctly and responded

as if the VRN had been accepted. As such the driver believed the necessary process had been

carried out successfully to obtain parking for the duration of the stay.

1.6. It is the Claimant’s own failure caused by their validation terminal that has given rise to a

'PCN' being not properly issued from the outset.

2. Consumer Protection from Unfair Trading Regulations (CPUTR) and British Parking

Association (BPA) Code of Practice (CoP) - Breach

2.1. The Defendant, through research, has discovered that if a complaint had been made at the

time of receipt of the parking charge notice (PCN), then the businesses on site (including One

Parking Solution Ltd) had the authority to cancel the charge.

2.2. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to the

registered keeper, that the onsite businesses could easily cancel a charge. By withholding the

route of cancellation/ complaint from a consumer the Claimant is 'misleading omissions' of

material facts. These breaches of the CPUTRs 2008 have caused the unfair PCN, prevented its

cancellation before proceeding started and this conduct by the Claimant has severely

disadvantaged the Defendant.

2.3. The Defendant, through research, has discovered that the Claimant is a member of the

British Parking Association (BPA) Approved Operator Scheme (AOS) and is in breach of its own

Trade Body’s 2020 Code of Practice (CoP) that protects drivers in ‘keying error’ cases.

2.4 The Claimant knew in the pre-action phase in 2019, that this change to the CoP was coming,

and the CoP now says that AOS members are expected to offer to recover a modest charge of

no more than £20 for a 14-day period from when the keying error was identified before reverting

to the charge amount at the point of appeal, but this was never offered. If a keying error did occur

in this instance, then the Claimant is in breach of the BPA 2020 CoP.

3. Data Protection concerns

3.1. The registered keeper or driver had no idea about the ANPR surveillance and received no

letters after the initial 'PCN', only a vague document which gave no indication as to what the

alleged breach was. No photographic evidence of the terms supposedly on the car park signage

has ever been supplied, not even in the postal PCN.

3.2. The Claimant is put to strict proof of any breach and of their decision-making in processing

of the data and the human intervention in deciding to issue a PCN and why, as well as the

reasoning behind trying to collect £182 instead of seeking to recover a modest charge, if it is their

case that this sum went unpaid.

3.3. Under the General Data Protection Regulation (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 car park where there would likely be no vehicles unconnected to

patrons, no trespass nor 'unauthorised' parking events.

3.4. 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 unsuspecting but circumspect visitors to GS Car Park, who get caught out by this

trap.

3.5. Collecting VRN data in order to inflate the 'parking charge' to £182 and write (weeks later) to

registered keepers, whether they were driving or not, is excessive, untimely and intrusive to

registered keeper data subjects.

4. Denial of contract and denial of any breach, or liability

4.1. Due to the sparseness of the Particulars of Claim (POC) it is unclear as to what legal basis

the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it

is denied that the registered keeper, or the driver of the vehicle breached any contractual

agreement with the Claimant, whether express, implied, or by conduct.

4.2. According to the POC the Claimants ANPR system captured a vehicle entering and leaving

the site without a valid paid parking ticket, however, a VRN was correctly entered into their

parking validation terminal so any perceived breach is denied.

4.3. 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, especially with no 'grace period' mentioned. Any reasonably circumspect driver would be

entitled to rely upon the BPA's interpretation and not expect to be penalised.

4.4. In any case, the Claimant is put to strict proof that it had sufficient proprietary interest in the

land, or that it had the necessary authorisation from the landowner to issue parking charge

notices, and to pursue payment by means of litigation in its own name on the material date. The

Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to

erect signs and collect money from the machines, and no doubt, to issue PCNs - but 'on behalf

of' the landowner, which would give them no authority or standing.

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

5.1 The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67. However, 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.

5.2. 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, where there was no breach, no right to issue a PCN for a keying error.

5.3. Differences in facts include but are not limited to: The signs/terms were not prominent; the

PCN breached the BPA CoP in regards to keying error; the Defendant did not ignore the PCN;

this was not a free car park which complicated the decision in Beavis, and the PCN bore no

resemblance to the advertised tariff. As such, this case is fully distinguished in all respects from

Beavis, where the decision turned on a legitimate interest in charging more as a deterrent, and

clear notices proclaiming brief terms and an agreed contractual sum that did not impact on the

rights and interests of drivers.

5.4. The Defendant avers that the factually-different Beavis decision confirms the assertion that

this charge is unconscionable, given the facts of this case. To quote from the Supreme Court:

i) 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''.

ii) 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.''

iii) 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. Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

6.1. If the 'parking charge' was unpaid, then the sum 'owed' is a quantifiable figure. Despite

paying the correct charge and returning and leaving GS Car Park within the allocated time

purchased, the Defendant found the car had already had a predatory PCN applied demanding an

extortionate £100 (also described also as the 'parking charge' but clearly being an unrecoverable

penalty). This is not the sort of 'complex' issue with a 'compelling' commercial justification that

saved the charge in Beavis from the penalty rule.

6.2. 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 a

percentage of the £1.30 per hour tariff. It can only be viewed in terms of a simple damages

clause, where the sum allegedly 'owed' in debt is known.

6.3. This charge represents exactly the sort of concealed 'pitfalls or traps' that the Beavis case

Judges warned against:

(i) At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop:''as Lord

Dunedin himself acknowledged, the essential question was whether the clause impugned was

unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these

expressions can properly be applied to simple damages clauses in standard contracts.''

(ii). And at #32: ''The true test is whether the impugned provision is a secondary obligation which

imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of

ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend

beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests

would usually be perfectly adequate to determine its validity.''

6.4. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle -

which went unchallenged in the completely different 'free car park' considerations in the Beavis

case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of

money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

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. 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 a minuscule sum in pence (if

unpaid, which it was not) 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.

7. In addition to the original PCN penalty, for which liability is denied, the Claimants have

artificially inflated the value of the Claim by adding purported added 'costs' of £50, which the

Defendant submits have not actually been incurred by the Claimant.

7.1. These have been variously described as a 'ZZPPS Legal instructions fee' (in the pre-action

exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and

cannot be added, not least because it was never expended). Suddenly in the Particulars there is

also a second add-on for purported 'legal representative costs of £50' on top of the vague £60,

artificially hiking the sum to £257.00. This would be more than double recovery, being 0vague

and disingenuous and the Defendant is alarmed by this gross abuse of process.

8. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the

direct and provable costs of the time spent on preparing the claim in a legal capacity, not any

administration cost.

9. 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.

Name

Signature

Date

Le_Kirk

Laith25 said:

1.4. The Driver successfully made payment for a valid parking ticket by using an approved

payment machine located on site at GS Car Park. This ticket was retained and provided as

absolute, clear cut evidence at the time of appeal.

(a) Payment for parking was made via entering the correct vehicle registration number (VRN) into

the parking validation terminal within the GS Car Park site.

(b) The service makes no provision for the printing of a valid paid parking ticket to display or keep

as proof.

The two statements above appear to contradict each other.

nosferatu1001

No such thing asa  VRN. VRM. Never VRN. 

Laith25

Hi guys,
Just an update..
My BPA complaint fell on deaf ears. Got this response back....

Thank you for your enquiry.

 To give you some background about what we do, our role is to investigate any complaints about alleged non-compliance with our Code of Practice where evidence can be supplied; however, the BPA is a membership organisation and we are not set up to deal with disputes from the general public about parking, nor can we cancel or suspend Parking Charge Notices.

 Therefore, the Code does not provide a way for a driver to challenge how a landowner or operator has applied parking control and enforcement on private land. Any challenge or appeal is a matter for the landowners or operators procedure, with the option of taking it to POPLA (Parking on Private Land Appeals), and or the courts. The BPA will not get involved in the arbitration of a dispute between an operator and an individual.

 I can appreciate that you have mentioned that you paid for the whole period of the parking session, when it has later become apparent that you had paid against an incorrect vehicle registration number. I do also acknowledge that you have referred to keying errors, however, the Keying Errors Section (section 17) in our Code of Practice came into effect from 6th January 2020, whereby the parking charge you received relates to an event on 24th April 2019.

 As we have been unable to determine a breach of our Code, we are unable to assist any further. As this matter is within the courts system, please seek legal advice to contest the charge further.