Urgent -County Court SIP Parking Limited - Ticket Dispute

nosferatu1001

Of course it doesn't affect it. You can pay them if you wish. 

Not a fine. Invoice. 

Did you explain this issue with their machines not working to them? How did you contact them
get the ack done. Now. Stop. Delaying. 

KeithP

OhVADR said:

@KeithP Hi Keith will sending an acknowledgement of service affect my ability to pay the fine in full if i choose ?  

Not at all. You have the opportunity to pay the Claimant what they are asking for at any time right up to walking through the court-room door. Although I cannot imagine why you might want to pay them.

Coupon-mad

No-one would pay this; it's not a fine and well worth defending.  SIP use Gladstones, whose claims are weak.

SIP seem to have form for having car parks next to others in Manchester then, and unclear signs.

Redx

I suspect the second ticket was not a SIP controlled car park, hence the pcn, because the payment went to another supplier who wasnt SIP, as coupon mad rightlky says, many SIP car parks around manchester and tameside etc are next to others controlled by the councils or a different operator

there is a SIP car park in Hyde where the car park has 3 zones, one is SIP, the second is CEL and the last one is Tameside Council

one huge car park, 3 sections, 3 suppliers , but the machines can be located close to each other , the signs all tell you that other suppliers tickets do not apply and are invalid. one SIP car park in manchester near the g*y village has council parking nearby with the machines close together, so a SIP car park next to council on street parking close by and machines near each other, very confusing

OhVADR

@Redx - i think this may be the case with mine hence the parking fine for invalid ticket. Would this not defend SIP regardless of there machine's working or not. Its unfortunate that i dont have any other motorist details to back up my claims.
Its seems like a massive con the fact they can get away with this so easily baffles me.

@Coupon-mad - Surley i am still liable as they are not responsible for machines not working ?

@nosferatu1001 On the evening i tried to call support for SIP and there was no answer probably due to the fact it was 23:00. I did explain in my appeal to SIP that there was no way for me to purchase a ticket with both machines inactive. But they dont seem to have taken this into account.

You've all seem more cases than i will my lifetime if you guys think this worth perusing then i will submit my N9 back to the courts. I believe i can do this online now 

nosferatu1001

No, it wouldnt "defend" SIP. It shows the dirver was clearly confused enough by inadequate signage to think another car park was the SIP one. 
Hence why we NEED. PHOTOS. You will need photos if they try court. 
C-M - of course theyre responsible for their machines not working! IF they require payment but make it impossible to accept payment, how can they calim a contract existed? Think. 
Do yo uhave proof you called at 23.00?
ACKNOWLEDGE THE CLAIM, TODAY. You keep not doing this. You willd o it online,. The newbies thread tells you exactly how to do so. 

Coupon-mad

@Redx - i think this may be the case with mine hence the parking fine for invalid ticket. Would this not defend SIP regardless of there machine's working or not. Its unfortunate that i dont have any other motorist details to back up my claims.  Its seems like a massive con the fact they can get away with this so easily baffles me.

You do appear to have got a ticket from another machine.  But on that evening you had no idea if the boundary between the two areas and that was SIP's fault.  They can't profit from their negligence in having inadequate signs, insufficient lighting and 'pay at alternative machine here' arrow, it was impossible to tell.  That breaches the CRA 2015 and Lord Denning's 'red hand rule'.

@Coupon-mad - Surley i am still liable as they are not responsible for machines not working ?

No.  As above.  They failed more.  In fact they caused you to 'make a transactional decision' that you would not otherwise have made, and that breaches the CRA 2015 and the CPUTRs (two statute laws).

@nosferatu1001 On the evening i tried to call support for SIP and there was no answer probably due to the fact it was 23:00. I did explain in my appeal to SIP that there was no way for me to purchase a ticket with both machines inactive. But they dont seem to have taken this into account.

You did all you could.  If you'd parked on street beside a non working machine during operational hours, the Coucil could not have fined you.  But private firms make it up as they go along.  Never choose a car park; the street is the place to park at night in a city!

You've all seem more cases than i will my lifetime if you guys think this worth perusing then i will submit my N9 back to the courts. I believe i can do this online now 

Of course you have a case; a very good defence.

OhVADR

@nosferatu1001 - AOS has now been completed i will be working towards completing a draft version of my defense and submitting a draft to the forum by this evening latest. In regards to photos i am unable to drive up to Manchester any time soon due to COVOID shielding, google maps is the best i will be able to get within the time frame. Also in regards to the phone call no this was over 2 years ago i could try contacting my phone provider to see if they still have the calls log but im fairly confident these are wiped.
@Coupon-mad - I will make note of this in my defense. I am using 'template defense 2020 without C' for reference.

Coupon-mad

In regards to photos i am unable to drive up to Manchester any time soon due to COVOID shielding, google maps is the best i will be able to get within the time frame. 

Google Streetview has photos going back year on year.

Make sure you add the new statement of truth (the longer one) to the defence, as per the NEWBIES thread because the template doesn't have it.

OhVADR

Notes
- Removed point 16 which referred to POFA as im not sure if i can rely on non-compliance with POFA. Do i still need  to leave a statement in there that acknowledge myself as the driver of the vehicle. ?
- Point 16 refers to my actual defense and is the part i have drafted, Appexdix D will show the valid ticket purchased. Is there any other photos or evidence i need to provide in this defense ?
- Appendix A,B,C are these to be left in and submitted with my defense, they referenced other cases ?
Again apologies i have never had to draft a defense before so go easy on me.


Defense Draft:
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IN THE COUNTY COURT

Claim No.: G9QZ53F4

Between

SIP Parking LIMITED

(Claimant) 

-and- 

Ryan Francis James Butler             (Defendant)

 

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 of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ 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 £185. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case. 

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, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to 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 .

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 from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made. 

7.       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).

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 now easily identified to be unlawful. 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 is entirely tainted by abuse of process and breaches of the CRA.

9.       Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''  

 

10.   The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

 

11.   In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

 

12.   The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

 

13.   Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach.  Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

 

14.    This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

 

15.   Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

 

16. The defendant has made effort to purchase a valid ticket (see apexdix D) this show a valid parking ticket present for the accused date. The defendant was not aware of the boundaries set between the two car parks and that inadequate signage pointed to no alternative payment when both machines on site were out of order. The defendant was caused to make a transnational decision that would not have been needed had relevant lighting, accurate signs and working alternative payment methods had been in place. Had the defendant moved his car to street side parking besides a non-working machine during operational hours the council would not have directly fined. How can a company require payment but make it impossible to accept payment, when effort was made to contact customer support to address the non-working machines no contact was received.

17.    The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was entered into with the Claimant, whether express, implied, or by conduct.

 

18.   The Beavis case is fully distinguished and a more relevant list of binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 and (ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.

 

19.    Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary landowner authorisation to issue PCNs under these circumstances and to pursue keepers by means of civil litigation. 

It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, other terms (or instructions to cancel charges due to a surge of complaints) and there is no evidence that the freeholder authorises this particular Claimant SIP Parking limited company number (06752126) Any purported landowner 'contract' which fails to properly identify the two contracting parties and/or which is in any way redacted (including the signatories, which in some parking claims have been revealed not to be that of the landowner) should be disregarded, along with any undated and/or unsubstantiated records, documents, boundary maps or aerial views, or photos which are capable of manipulation.

 

20.   For any or all of the reasons stated above, the Court is invited to dismiss this claim.

21.    In the matter of costs.  If the claim is not struck out, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) the Court to reserve, assess and award the Defendant’s Summary Costs Assessment, to be filed and served at Witness Statement stage in anticipation of a typical late Notice of Discontinuance (‘NoD’) from this Claimant.

 

22.   At NoD stage, or at a hearing if the case proceeds that far, the Court will be taken to facts to support a finding of wholly unreasonable conduct by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer & anor v Paul Jones Financial Services Ltd.

 

23.   In summary, the Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA,  The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

 

Statement of Truth

I believe that the facts stated in this Defence are true.