PPS delayed payment on entry advice

Devonisheaven11

2.  It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied. 

3.  The Claimant’s case has been based on a supposed delayed payment on entry recorded on the 03/01/2020 at Bovisand car parks. The Defendant paid in full for the time spent at the car park and was shocked to hear that this event was even a case to be considered. The Claimant had not stated a set time that the payment needs to be made, therefore making the basis of their case invalid. It is also not listed in the contractual terms that the Defendant can be punished for 'paying late’ and even if it was a listed term, the Supreme Court case of ParkingEye v Beavis confirmed that the purpose of a parking charge must never be to merely punish a driver.

4.  The Claimant’s signs include vague terms in a mixture of small fonts, much too small to be made out when purchasing the ticket.  Hidden in the small print on the cluttered signage is the phrase: 'full payment must be made immediately on entry'.  That term is both unfair and void for impossibility.  Every driver would breach it because the machine is not pay-on-entry at the entrance and it would take more than 10 minutes on a busy day, to drive in, find a space, park, lock the car, walk over to the signs and machine, read the terms including two different tariff lists and discover the small red warning above those, that tells a driver that they cannot in fact pay by card (as advertised) unless they buy a full day's parking and otherwise must find the right change.  By the time a driver has taken all that on board and managed to make the payment at the machine, even if there was no queue this could never be achieved 'immediately' whatever that vague term means.  The instructions on the consumer notice and the terms fail the Consumer Rights Act 2015 tests for fairness, transparency and prominence and the requirements for good faith and open dealing with consumers.  This was echoed in the Beavis case at 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.”

 5.  It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

6.  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 the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

Devonisheaven11

Here's their WS followed by my original defence. I understand I cannot use the grace period defence anymore. I did pay in full before I left but I'm not sure how this will hold up? 

KeithP

Keep in mind this line from that Order you showed us earlier...

D_P_Dance

Did your submission contain a large amount of nonsensical content.?   Imo, asking for unlawful amounts, makes little sense sense.  

Personally, I would complain to the SRA  that their letter is couched in unsolicitory  terms and likely to bring their profession into disrepute. 

https://www.sra.org.uk/

Devonisheaven11

D_P_Dance said:

Did your submission contain a large amount of nonsensical content.?   Imo, asking for unlawful amounts, makes little sense sense.  

Personally, I would complain to the SRA  that their letter is couched in unsolicitory  terms and likely to bring their profession into disrepute. 

https://www.sra.org.uk/

I based my defence around the main template and edited the first few paragraphs to suit my case at the time and it seemed pretty reasonable. They might be referring to the 10 minute grace period defence that I got wrong?

Devonisheaven11

I think I'm just going to admit to paying 'late', I couldn't find the required cash within the grace period, decided to call a friend who I was planning to meet to bring some extra cash, ended up staying there until my friend arrived with the extra cash and then paid the full amount. Just going to have to rely on the fact that I did eventually pay 

Umkomaas

Devonisheaven11 said:

I think I'm just going to admit to paying 'late', I couldn't find the required cash within the grace period, decided to call a friend who I was planning to meet to bring some extra cash, ended up staying there until my friend arrived with the extra cash and then paid the full amount. Just going to have to rely on the fact that I did eventually pay 

I've not ploughed back through the whole thread, but did the PPC's signage on site give any indication of the timescale by which a payment for parking must be made?

Devonisheaven11

Umkomaas said:

Devonisheaven11 said:

I think I'm just going to admit to paying 'late', I couldn't find the required cash within the grace period, decided to call a friend who I was planning to meet to bring some extra cash, ended up staying there until my friend arrived with the extra cash and then paid the full amount. Just going to have to rely on the fact that I did eventually pay 

I've not ploughed back through the whole thread, but did the PPC's signage on site give any indication of the timescale by which a payment for parking must be made?

No exact timescale, just 'Full payment must be made immediately on entry' in very small print

SayNoToPCN

OP - you now have 1 day to file your WS and all the documents. Its been a week so please say you have written something!
You may have paid "late"< but you paid
- before they issued a parking charge
- before you left, in full for the entire time you stayed
- you there4fore did not gain any advantage from paying "late".
This fully distinguishes the claim from the parking eye v beavis supreme court case, as there is no overriding commercial justification for the claimant to have issued a parking charge in these circumstances. 
But you MUST show us your WS today! else you will be submittign it with no chance of anyone reviewing it. 

Devonisheaven11

SayNoToPCN said:

OP - you now have 1 day to file your WS and all the documents. Its been a week so please say you have written something!
You may have paid "late"< but you paid
- before they issued a parking charge
- before you left, in full for the entire time you stayed
- you there4fore did not gain any advantage from paying "late".
This fully distinguishes the claim from the parking eye v beavis supreme court case, as there is no overriding commercial justification for the claimant to have issued a parking charge in these circumstances. 
But you MUST show us your WS today! else you will be submittign it with no chance of anyone reviewing it. 

Thank you, I have been putting it together throughout the week, after just receiving their evidence I have had to re-edit because I thought I had paid within the grace period.