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

User_181022

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:chepstowbeacon.co.uk/article.cfm?id=107788&searchyear=2017

 

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.

 

MICROSOFT SIGNATURE

05/03/2020

User_181022

Thank you for the adjustments, implemented 

KeithP

Is that your real name showing at the bottom of your Today at 9:44PM post?

User_181022

Sorted, thank you. Is there any further improvement needed? Thank you

Coupon-mad

#7 makes no sense and a lot of paragraphs are not numbered.  ALL must have a number.

#7 appears to be a quote from the NCP v HMRC appeal case but you haven't explained it's a quote or where it cos from, so it reads as if it's your words...then makes no sense because it's not!

in theory amount to under quarter of an hour.

I would change that to 'some 14 minutes' (which sounds better).

Umkomaas

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.

There are no salaried in-house solicitors employed by NCP - simply copying a previous ParkingEye defence then replacing PE with NCP needs very careful and close scrutiny before launching on the courts.

I haven't checked any other part, this just jumped out at me as being wrong. 

User_181022

Okay, I was advised to put 7# in however I can't see the relation to my case. Would I be better off just removing it completely, or does it have place in my case and I just have to try and reword it to make it applicable?

User_181022

I've taken 15.1. out on that advice, thank you

User_181022

Coupon-mad said:

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.

I tried finding that article again to rewrite it again and I can't find it

User_181022

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 and the car was not left there. 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.

6.1. 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 fourteen minutes.  The timing of the ANPR camera is exactly that.

7. To quote the NCP V HMRC case:

7.1. “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 customer inserted her 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.

 

7.2. 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.”

 

7.3. 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.

 

7.3. Given this analysis, it can be concluded that such a contractual agreement could not have been entered at just the entrance of the vehicle into the carpark, no agreement had been understood nor confirmed.

 

7.4. 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?