Draft Court Defence - PPS - 'delayed payment on entry'

icybear

Dear all,

Been lurking here for a while soaking up the knowledge. Firstly just wanted to say thank you for all the work everyone does in helping other fight Parking Charge Notices. This is a really incredible community!

I’ve been faithfully following the directions in the newbies thread after receiving a Notice to Owner from Premier Parking Solutions (of Newton Abbot, Devon) in March 2020 which I’ve been appealing as Registered Keeper. It’s progressed in the standard pattern outlined in the newbies thread – with BWLegal representing PPS - and has now ended up at County Court Claim (issued 10/11/20). I submitted an AoS (16/11/20) and need to submit defence by 13/12/20.

I’ve been researching possible defences based on existing forum posts and am now reaching out to request advice on polishing/perfecting it. I would be really grateful of any input/advice that you can provide to improve my chances of defence.

Background

Reason given for PCN issue was “delayed payment on entry”. The vehicle was pictured by ANPR entering the site at 09:04:11 and leaving at 17:51:47. The vehicle was in the car park for 8 hours 47 minutes and 36 seconds. Payment of the parking tariff (12 hours) was made by the Driver at 17:30 using RingGo before exit.

Initial Justification for Appeal

The signage in the car park (photo attached) lists 10 bullet point terms and conditions. Line 1 states that a vehicle must ‘have a valid RingGo session’ and on line 9 that ‘Full payment must be made before leaving the site’. There is no indication on any of the parking signs that there is a minimum duration between entry and payment before a penalty charge will be incurred.

In my appeal I argued that the T&C’s are ambiguously worded, so as to cause confusion as to when the payment for parking should be made, and insufficiently clear to be the basis of a contract. For example, there is no explicit definition of the required duration of valid RingGo session, or whether ‘Full payment must be made before leaving the site’ refers to the Vehicle leaving site or the Driver departing on foot?

In PPS’s written response to decline the appeal, the existence of a ‘10 minute grace period’ was revealed. PPS stated that this allows ‘enough time to purchase a valid ticket for parking and to return to your vehicle to display the valid ticket in windscreen as conditions of parking state’. There is no written evidence of this grace period on any of the car parking signage.

I believe that the combination of ambiguous terminology in the T&C’s and existence of a hidden term (the 10 minute grace period) makes it impossible for drivers to be fully informed enough to enter into a contract, or PPS to enforce it.

The full and correct tariff was paid for the period in hours which the vehicle was parked. I believe the driver acted in good faith and was not trying to avoid paying or, since a PCN was not issued on site and the Driver paid before exit, avoid a pre-existing penalty.

Court Claim

The Claim is for a ‘contractual breach’ and it is stated that the ‘PCN was issued as the Defendant failed to comply with the terms and conditions, as displayed’.

The total claim is 239.76. This is made up of £164.76 (£100 PCN, 4.76 interest and £60 recovery costs), £25 court fee and £50 legal representative costs.

Proposed Defence

I have drafted the following to insert into section 2 of the template defence. Statements 2 – 2.9 are the facts, 2.10 – 2.15 statements in which I try and articulate why I don’t think this PCN and claim is enforceable. Some of 2.10 – 2.15 overlap with later points in the template defence (i.e. poor signage, fairness and clarity, vauge/hidden terms) - should I leave them in, modify or remove? I would be really grateful for any comments, suggestions or guidance that would help me improve the draft. Thanks very much, in advance, for your help!

Facts known to the Defendant:

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

2.1 The Defendant denies being the Driver on the date that the alleged contravention is purported to have occurred.

2.2 . Details known by the Registered Keeper

2.3 The Vehicles was pictured by ANPR camera entering the site at 09:04:11

2.4 The Vehicle was pictured by ANPR leaving the site at 17:51:47.

2.5 The Vehicle was within the car park for a period of 8 hours 47 minutes and 36 seconds.

2.6 A ticket for one full day of parking (12 hours total period) was purchased via the RingGo app at 17:30.

2.7 The Defendant received a Notice to Keeper, with reason given for issue of the Parking Charge as ‘delayed payment on entry’.

2.8 The defendant appealed the decision, as Registered Keeper inline with published timeline and method.

2.8 PPS upheld their decision to issue a PCN, citing “the terms and conditions, in particular paragraph 1, (which) states that a valid ticket must be displayed at all times or have an active RingGo session in place” and the disclosed the existance of a “10 minute grace period”.

2.9 The Defendant has since been continually harassed by automated debt collection letters, phone calls and e-mails from BW Legal.

2.10 The ‘Terms & Conditions’ signage is difficult to read, with varying font sizes and colour and is therefore illegible from a vehicle or on foot.

2.11 The ‘Terms & Conditions’ within the on site signage are ambiguously worded and contradictory, i. that ‘vehicles must display a valid ticket or permit within the front windscreen or have a valid RingGo session’ and ii. that ‘payment must be made before leaving site’.

2.12 The first term of the on site signage is worded differently to that which PPS have used as the basis to issue the PCN and uphold their decision against appeal (c.f. 2.8). There is no reference in the on site signage to a required duration for ticket display or valid RingGo session.

2.13 With regard to the second term of the on site signage, referred to in 2.11, it is entirely ambiguous whether ‘payment before leaving site’ refers to the vehicle leaving site upon expiration of parking or the driver on foot once they have parked their vehicle.

2.14 At appeal the Claimant disclosed existence of a ‘10 minute grace period’ as the maximum time acceptable between entry and payment is contrary to any on site signage. This term and condition is not displayed prominently or transparently on any of the car park signage. It is therefore not possible for drivers to assess the contract for fairness as required under the Consumer Rights Act 2015.

2.15 The Claimants Particulars of Claim state ‘contractual breach’ associated with ‘failure to comply with the terms and conditions, as displayed’. There is no term or condition contained within the on site signage that stipulates the duration that either a valid ticket or RingGo session must be in place or that there exists any time limited period between entry and payment for parking. Consequently there is no basis for using either to establish a contract or enforce the issue of a Parking Charge Notice for contravention of said Terms & Conditions.

KeithP

icybear said:

...and has now ended up at County Court Claim (issued 10/11/20). I submitted an AoS (16/11/20) and need to submit defence by 13/12/20. 

Hello and welcome.

With a Claim Issue Date of 10th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 14th December 2020 to file your Defence.

That's over a week away. Plenty of time to produce a Defence, and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Le_Kirk

Some of that defence will be better in the witness statement (WS), just stick to legal/technical arguments in a defence.  No evidence (including photos) goes with a defence but with the WS.

D_P_Dance

If they take this to court, imo they are likely to struggle mightily .  No loss, no intention to bilk, unfair terms and condition in consumer contracts even?   They cannot possibly have been damaged to the tune of £100.  Have you complained to your MP?. 

How long are you allowed with the London congestion charge? 

Fruitcake

Remove the sub-paragraph numbers and just make it paragraph 2, or split it into two and renumber all the remaining paragraphs.

I would remove the comments about ambiguity and just state that, the signs say pay before you leave. Payment was made before the vehicle left the site, therefore there was no breach of the Ts and Cs.
Don't give the scammers the opportunity to say, ah well, you weren't sure so you should have checked which applied.

I'm not sure if it is in the CRA, but there is something somewhere that where a term can be interpreted in different ways, the one that favours the consumer is the one that applies.

It would help if we could see the rest of the sign. 

Le_Kirk

Would that be Contra Proferentem?

icybear

Thanks for the welcome @KeithP! Great to know I've underestimated the defence submission date, will be sure to get it submitted on or before 14/12/20.

KeithP

Fruitcake said:

I'm not sure if it is in the CRA, but there is something somewhere that where a term can be interpreted in different ways, the one that supports the consumer is the one that applies. 

It is in the CRA.

S69 of CRA2015 says:

69 Contract terms that may have different meanings
(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

icybear

Le_Kirk said:

Some of that defence will be better in the witness statement (WS), just stick to legal/technical arguments in a defence.  No evidence (including photos) goes with a defence but with the WS.

Thank you for the suggested modifications @Le_Kirk. Will amend and re-post. I won't submit evidence with the defence, just added photo to my first post to show quality of signage/T&C's

icybear

D_P_Dance said:

If they take this to court, imo they are likely to struggle mightily .  No loss, no intention to bilk, unfair terms and condition in consumer contracts even?   They cannot possibly have been damaged to the tune of £100.  Have you complained to your MP?. 

How long are you allowed with the London congestion charge? 

Thank you @D@D_P_Dance, that's really reassuring! MP Complaint is the one thing I haven't done - thanks for the reminder. I'm putting two together, one to my local and one to the MP of the patch where the car park is. Every little helps

Fruitcake

KeithP said:

Fruitcake said:

I'm not sure if it is in the CRA, but there is something somewhere that where a term can be interpreted in different ways, the one that supports the consumer is the one that applies. 

It is in the CRA.

S69 of CRA2015 says:

69 Contract terms that may have different meanings
(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

Thanks Keith. This time I shall bookmark it.