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Claim Form 04.14 Issued over PCN, only 14 days to respond. My Defence



On the 11/05/19 I entered an NCP car park at the address above in Gloucester, parked my car and went to the ticket booth to pay for my ticket. I tried several times to purchase a ticket however the machine didn't accept my card. After that, I left. This took a total time of 14 minutes. The letters were sent to my parents house in Wales however I was living in England for six months in a work facility, then lived with my partners family for a few months, and only this year moved into my first home. I had calls from a company called 'BWLegal' and simply hung up straight away assuming it was scam, never thought about it. When clearing out my old room I found a stack of letters my parents kept for me and found out about this. Due to the threatening nature of the letters by this point, I decided it was too far gone to do anything but prepare a defence. And voila, I got this delivered to my parents house this week.
So I have been looking through the threads for the best defence I could make my own and was wondering if what I have attached is sufficient. It is a case that was removed I found on a thread that best fits my case and I have merged my case to make it my own the best I could. I hope it's ready to go as I don't want to waste your time. Any changes/advice I would be very grateful for.
Comments
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Firstly, let's hope that some scurrilous person doesn't decide to file a Defence on your behalf.
To avoid that, best you obliterate your MCOL password from that image.0 -
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:
- 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'.
- 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... - Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
- 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"]
- 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.
- Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.
0 - Print your Defence.
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Thank you for your timely response, advice has been followed.
In terms of my defence, is there anything wrong with it? As I think it is as good as I will get it alone0 -
The linked defence has no headings at the top and no date at the bottom.
Also I searched it for the word 'green' to check you had copied a previous NCP one where the HMRC v NCP Court of appeal case was used, where the CoA held that the contract in this sort of car park only begins 'when the green button is pressed' and the ticket produced by the machine (or app), and there were no results.
So I say search the forum for NCP HMRC green button and grab the relevant case law and wording.
Secondly, then please post the entire defence across two replies here, not as a link. You will get more views.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Read this one: -
https://forums.moneysavingexpert.com/discussion/6004010/ncp-appeal-tax-man-1-ncp-nil/p1
Post # 10, count'em, there are no post numbers any more (although I believe they are on their way back!)0 -
DEFENCE RESPONSE TO CLAIMANT NATIONAL CAR PARKS LIMITED FOR SUM OF PARKING CHARGE NOTICE (PCN)
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 Gloucester Blackfriars car park on 11/05/19.
1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £60 'Parking Charge Notice ('PCN')' for the lawful conduct described below.
2. The allegation appears to be that the 'motorist fails to make the appropriate tariff payment’ 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 Gloucester Blackfriars.
Data Protection concerns
3. The Defendant was an occupant of the car and attempted to purchase a ticket, however after several attempts their card was declined by the ticket machine at Gloucester Blackfriars. However, the Defendant had no idea about any ANPR surveillance and received no letters after the initial 'PCN' a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.
3.1. 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 £60 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 remote car 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 Gloucester Blackfriars, who are being caught out regularly by this trap.
4.2. Silently collecting VRN data in order to inflate the 'parking charge' from £4 to £60 and write (weeks later) to registered keepers at their own homes, which in this case was not their living address at the time - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.
4.3. The Claimant will have some difficulty in justifying their hidden and unexpected terms at a site where the Defendant now learns from researching online reviews, that the Claimant has also added an unexpected and unwarranted (given the nature of the remote location) '4hr max stay' rule on top. These are not the 'brief, simple and prominently proclaimed' terms that convinced the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 to bend the penalty rule in that unique, fact-specific case only.
4.4. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.
5. Unlike the free car park in Beavis, this site where the Claimant has machines to take payment of tariffs. Clearly there will be National Car Parks 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, fully functional 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.
Premature claim - sparse Particulars
6. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and was sent to an address that was not the Defendant’s living address due to living in England temporarily for six months) and the equally lacking and embarrassing Particulars of Claim (POC), the Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.
6.1. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.
7. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
The evidence brought by the Claimant of the ANPR camera corroborates what the Defendant states. As entering the site, finding a place to park, parking the car, walking to the PDT machine, attempting to produce this contractual agreement with her card payment, failing several times, returning to the car, trying to find other methods of payment unsuccessfully, and finally exiting the site would in theory amount to under quarter of an hour. The timing of the ANPR camera is exactly that.
8. English law, of course, generally adopts an objective approach when deciding what has been agreed in a contractual context. Here, it seems to me that, taken together, the tariff board and the statement that "overpayments" were accepted and no change given indicated, looking at matters objectively, that NCP was willing to grant an hour's parking in exchange for coins worth at least £1.40. In the hypothetical example, the precise figure was settled when the patron inserted their pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. 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. At all events, there is no question of the customer having any right to repayment of 10p. The contract price was £1.50.
This is the contractual analysis in the hypothetical example where the customer has only a pound coin and a 50p piece, and therefore has no alternative but to pay £1.50 if she wishes to park in the car park. However, the analysis is the same even if it is possible for the customer to obtain the right coins, for example by obtaining change from another user of the car park. If the customer nevertheless chooses to insert £1.50 and presses the green button, it remains the case that she has accepted the offer to provide an hour's parking at that price.
This analysis may be slightly different from that of the UT, which referred to an offer by NCP to grant the right to park for up to one hour in return for paying an amount between £1.40 and £2.09. In fact the offer made by NCP is more specific, to grant the right to park for an hour in return for the coins shown by the machine as having been inserted when the green light flashes. That is the offer which the customer accepts.
Given that NCP often use PDT machines alongside ANPR, this is a binding decision that can be used to support defences and POPLA appeals which argue that the contract in a PDT machine car park (unlike a free retail park) cannot possibly begin upon driving in, not least because at that point the driver has no idea whether the tariff is 50p or £50 until they stand in front of the machine & signs. And if it was £50, they'd leave having not accepted the offer. With such an unjust ‘grace period’, which the Defendant does still not know as there was no signs at the site that state long that was, which is deliberately deceptive, how could a driver be legally subjected to a forfeit fare of a supposed ‘breach of contract’ before even knowing the commencing of such a contract?
Denial of contract and denial of any breach, or liability
8. Due to the sparseness of the 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 Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
9. 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.
9.1. The Defendant avers that the signs within the parking area are confusing and therefore misleading. There was no indication of a ‘grace period’ that the Defendant would have to leave before any charges would be issued to them. This is important as reasonable time needs to be allowed for parking and payment to be made. Due to the failure of the Claimant to provide a payment machine that accepted their method of payment, no contract was ever entered into and the an unfair amount of time was given to realise this and leave.
9.2. It is not remembered whether an occupant of the car did see another PDT machine and pay a tariff/input the VRN, and the Defendant is none the wiser due to the lack of information from the Claimant. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.
No standing or authority to form contracts and/or litigate
10. 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 Gloucester Blackfriars.
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No 'legitimate interest' or commercial justification - Beavis is distinguished
11. 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 £4 '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.
11.1. 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
12. 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 £4 according to the recent, frankly awful, Gloucester Black Friars NPC carpark reviews from people who have also been caught here. Had the Defendant been clearly alerted to the sum on the day - or even simpler, if they could have had the certainty of paying it upon entry with a functional machine - there would be no unfair penalty, and the local business of Gloucester Blackfriars (or landowner) would gain in income and avoid any parking issues at all, including all the complaints mounting up online about National Car Parks at the otherwise beautiful area.
12.1. 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 £170 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.
12.2. 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 £4 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.
12.3. This regime in a car park that was always free until 2017 is not commercially justified, is damaging the reputation of Gloucester Blackfriars and driving away visitors in future, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. In addition to the Google Reviews feedback, newspaper articles show that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:
link
12.4. 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.''
12.4.1. 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.''
12.5. 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''.
13. 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.
13.1. 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.
13.2. 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 £170, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.
14. 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.
15. 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 I submit have not actually been incurred by the Claimant.
15.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, National Car Parks Ltd 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.
16. 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 the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.
16.1. 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 £60 can be claimed instead of £4 in this case, but either way, the additional sum on top of that amounting to £110.76, appears to be a disingenuous attempt at double recovery.
17. 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.
MYNAME
MICROSOFT SIGNATURE LINE
05/03/2020
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Ready to go?0
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I'd remove 9.2. which just sounds odd, like you are being dishonest. You'd know if someone paid!
Also remove this (all of it, because it's waffly and adds nothing and looks like it was just copied from one with a £4 tariff and 4 hour max stay?) and re-number what's left so that EVERY paragraph has a number, and show us draft #2:Data Protection concerns
3. The Defendant was an occupant of the car and attempted to purchase a ticket, however after several attempts their card was declined by the ticket machine at Gloucester Blackfriars. However, the Defendant had no idea about any ANPR surveillance and received no letters after the initial 'PCN' a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.
3.1. 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 £60 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 remote car 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 Gloucester Blackfriars, who are being caught out regularly by this trap.
4.2. Silently collecting VRN data in order to inflate the 'parking charge' from £4 to £60 and write (weeks later) to registered keepers at their own homes, which in this case was not their living address at the time - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.
4.3. The Claimant will have some difficulty in justifying their hidden and unexpected terms at a site where the Defendant now learns from researching online reviews, that the Claimant has also added an unexpected and unwarranted (given the nature of the remote location) '4hr max stay' rule on top. These are not the 'brief, simple and prominently proclaimed' terms that convinced the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 to bend the penalty rule in that unique, fact-specific case only.
4.4. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.Also, make sure the fact that you left without accepting a contract is in there, as I really had to read loads of it to know you'd left within 15 mins and didn't leave the car there after all. That needs to be near the top.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
DEFENCE RESPONSE TO CLAIMANT NATIONAL CAR PARKS LIMITED FOR SUM OF PARKING CHARGE NOTICE (PCN)
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 Gloucester Blackfriars car park on 11/05/19.
1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £60 'Parking Charge Notice ('PCN')' for the lawful conduct described below.
2. The allegation appears to be that the 'motorist fails to make the appropriate tariff payment’ 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 Gloucester Blackfriars.
3. The claimant left the car park without accepting any contract whatsoever. Therefore no breach of contract could have ever occurred.
4. Unlike the free car park in Beavis, this site where the Claimant has machines to take payment of tariffs. Clearly there will be National Car Parks 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, fully functional 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.
Premature claim - sparse Particulars
5. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and was sent to an address that was not the Defendant’s living address due to living in England temporarily for six months) and the equally lacking and embarrassing Particulars of Claim (POC), the Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.
5.1. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.
6. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
The evidence brought by the Claimant of the ANPR camera corroborates what the Defendant states. As entering the site, finding a place to park, parking the car, walking to the PDT machine, attempting to produce this contractual agreement with her card payment, failing several times, returning to the car, trying to find other methods of payment unsuccessfully, and finally exiting the site would in theory amount to under quarter of an hour. The timing of the ANPR camera is exactly that.
7. English law, of course, generally adopts an objective approach when deciding what has been agreed in a contractual context. Here, it seems to me that, taken together, the tariff board and the statement that "overpayments" were accepted and no change given indicated, looking at matters objectively, that NCP was willing to grant an hour's parking in exchange for coins worth at least £1.40. In the hypothetical example, the precise figure was settled when the patron inserted their pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. 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. At all events, there is no question of the customer having any right to repayment of 10p. The contract price was £1.50.
This is the contractual analysis in the hypothetical example where the customer has only a pound coin and a 50p piece, and therefore has no alternative but to pay £1.50 if she wishes to park in the car park. However, the analysis is the same even if it is possible for the customer to obtain the right coins, for example by obtaining change from another user of the car park. If the customer nevertheless chooses to insert £1.50 and presses the green button, it remains the case that she has accepted the offer to provide an hour's parking at that price.
This analysis may be slightly different from that of the UT, which referred to an offer by NCP to grant the right to park for up to one hour in return for paying an amount between £1.40 and £2.09. In fact the offer made by NCP is more specific, to grant the right to park for an hour in return for the coins shown by the machine as having been inserted when the green light flashes. That is the offer which the customer accepts.
Given that NCP often use PDT machines alongside ANPR, this is a binding decision that can be used to support defences and POPLA appeals which argue that the contract in a PDT machine car park (unlike a free retail park) cannot possibly begin upon driving in, not least because at that point the driver has no idea whether the tariff is 50p or £50 until they stand in front of the machine & signs. And if it was £50, they'd leave having not accepted the offer. With such an unjust ‘grace period’, which the Defendant does still not know as there was no signs at the site that state long that was, which is deliberately deceptive, how could a driver be legally subjected to a forfeit fare of a supposed ‘breach of contract’ before even knowing the commencing of such a contract?
Denial of contract and denial of any breach, or liability
8. Due to the sparseness of the 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 Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
9. 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.
9.1. The Defendant avers that the signs within the parking area are confusing and therefore misleading. There was no indication of a ‘grace period’ that the Defendant would have to leave before any charges would be issued to them. This is important as reasonable time needs to be allowed for parking and payment to be made. Due to the failure of the Claimant to provide a payment machine that accepted their method of payment, no contract was ever entered into and the an unfair amount of time was given to realise this and leave.
No standing or authority to form contracts and/or litigate
10. 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 Gloucester Blackfriars.
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