Smart Parking claim - defence
Troubled42
Forumite 
Good day to you all.
I find myself assisting another relative and I'm
starting this thread due to them receiving two separate court claims from Not So Smart
Parking. I've made a start on the defence and the draft is below.
Summary:
- Two separate claim forms which total 4 'parking charges'.
- For reference, I have
bundled all of the redacted forms here; https://imgur.com/a/ql4Z7Mu
- Claim date: 03.03.21. AoS: 13.03.21
- Location is Middleway Retail Park, Burton-upon-Trent, ANPR operated.. Handful of signage obstructed by trees and T&C signs are of small font near payment machines. As expected, there’s numerous cases of bad reviews left in relation to the site i.e people receiving a parking charge despite paying. Complaints in relation to the poor signage on site.
- No surprise to see that each 'parking charge' has an inflated cost added on and would be abuse of process.
- The driver was not identified until now - The defence could admit the driver.
- Another relative told the defendant
to ‘ignore’ from the start and sadly this means no further appeal/POPLA
windows are available. No appeals were lodged for the contraventions being
discussed here.
- We have complained to the
landowner who responded that he ‘was sorry to learn about the parking
tickets and that he passed it on to the managing agent’ but also said ‘in
most cases the car park management supplier has the ultimate decision’. He
has been chased several times since then with no response. We have sent a
final request, demonstrating that it has now escalated with the claim
forms in hopes it can still be quashed.
- Local MP still needs to be
contacted and we will do this once the defence has been filled.
- It is interesting to note
that some tickets were purchased during the alleged contraventions but
this will be raised during Witness Statements.
- Defendant was bombarded with
the usual drivel from Debt Recovery Plus and then eventually CST Law. We
wrote to CST law twice in relation to their unlawful letters. We also
requested that they updated the defendants address and this was ignored –
we were lucky enough to catch the claim forms in time as they were
delivered to the old address.
- Data rectification letter can be sent to Claimant DPO. MCOL has the new address of the defendant
As above, all images so far are here: https://imgur.com/a/ql4Z7Mu
The main issue is wording around ‘the driver’ and poor signage. As there’s two
claims, the defence on both will essentially be the same.
Draft case related notes for Defence, following the 2020 template;
2. It is admitted that the Defendant was the registered keeper of the vehicle in question. It is noted that this claim contains three separate tickets, spanning the dates of 08/10/19, 14/10/2019 and 15/01/2019.
3. There
are no terms and conditions signs at the front of the car park. There are
however very small terms and condition signs next to payment machines to which
are of very small font.
It is also noted that there are numerous trees within the car park, resulting
in car park related signage being easily obscured.
P.S, is the forum search broken or am I just incapable? 
searching for 'smart parking defence' only yields one result. https://i.imgur.com/ueIXLtB.png
Many thanks for your continued support.
Replies
I see that they impersonated real PCNs by calling the notices a Notice to Owner. That's for statutory penalties only, and breaches the BPA CoP. Not a gamechanger but an extra point for defence. Personally I would NOT admit the driver in these two defences and you should deny that the C has complied with the POFA (because they never do) and thus they cannot hold a rk liable.
Due to the abuse of process of filing a spate of separate claims which exposes all parties top more costs, you also need to add the usual words about Henderson v Henderson (again, Google including the 'site' phrase I said to find forum results).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
The first question must be... why is the Defendant determined to admit to being the driver?
Smart usually have difficulty transferring any driver's liability to the keeper.
Both these claims need defending, but at every step the Defendant should insist that the two claims be consolidated.
Of course everywhere I have written 'you' or 'your' I mean the named Defendant.
Read what Pete Wishart MP said recently in the House of commons about Smart Parking.
"I am sick and tired of receiving emails from people complaining about the behaviour of parking companies, telling me that they will never again visit Perth city centre because of the negative experience they had when they had the misfortune to end up in a car park operated by one of these companies. I have received more complaints about one car park in the city of Perth than about any other issue. That car park is operated by the lone ranger of the parking cowboys: the hated and appalling Smart Parking—I see that many other Members are unfortunate enough to have Smart Parking operating in their constituencies. It has reached the stage where one member of my staff now spends a good part of each day just helping my constituents and visitors to my constituency to navigate the appeals process.
…
The BPA does not have the ability to regulate these companies and has shown no sign whatsoever that it is trying to get on top of some of the sharper practices. The BPA gives a veneer of legitimacy to some of the more outlandish rogue operators by including them in their membership, allowing them to continue to operate. The Bill will oblige operators such as Smart Parking to amend their practices.
I've added the Henderson v Henderson golden nugget.
I'm curious about future claims on this one. Whilst there's two claims at this moment in time, the defendant also missed the popla deadline for 'charge', a few months ago. This ultimately will end up coming through as another claim. I'm assuming it cannot really be referenced at this stage as it hasn't come through yet. (Trust me they've had the appropriate words of advice on how to deal with PPC's in the future
Annoyingly this '3rd charge' was appealed, rejected, and mentioned the driver... anyway, I'll try not to get worked up about that!
I've roughly described your extra point regarding 'real PCNs' @Coupon-mad but it may need some revision. Thanks for the search tips, I was able to find a few more nuggets of info.
I've included a bit more about PoFA and liability.
Here's the draft additions;
2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. It is noted that this claim contains three separate tickets, spanning the dates of 08/10/19, 14/10/2019 and 15/01/2019.
3. There are no terms and conditions signs at the front of the car park. There are however very small terms and condition signs next to payment machines to which are of very small font.
It is also noted that there are numerous trees within the car park, resulting in car park related signage being easily obscured.
4. The Claimant’s ‘Notice to Owner’ letters issued to the defendant attempts to impersonate a real PCN which is for statutory penalties only and this breaches the British Parking Association’s CoP.
5. The facts are that the vehicle, registration XXXXXX, of which the Defendant is the registered keeper, was parked in Middleway Retail Park could have been used on the material date by a third party driver (family member or friend allowed to driver this car).
6. The Claimant does not comply with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4. On this basis, the Claimant cannot proceed with this claim as only the driver of the vehicle can be hold liable and not the registered keeper.
7. The Court is invited to take note that the Claimant has issued an additional claim, number XXXXXXXX, against the Defendant with substantially identical particulars.
The issuing of separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. In the event that similar matters proceed to claim issue, they must be particularised as a single claim and not as multiple separate cases, otherwise (as an extreme analogy) a builder purportedly owed money by an individual customer, could file a separate claim for each brick laid.
The facts of these cases are duplicated in every respect: Claimant, Defendant, location, parking charge breach allegation, and added unrecoverable 'debt collection' and/or 'legal' costs for each case, that are an abuse of process in themselves, given that the Claimant did not in fact ever incur such costs and that they are disallowed by virtue of the ceilings set in the POFA 2012 and the Supreme Court decision in ParkingEye Ltd v Beavis.
Multiple claims and disproportionate added costs run contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and vacate the other hearing, and the Defendants asks that these two cases be put before a Judge at the earliest opportunity - before allocation - to apply appropriate sanctions against the Claimant for a gross abuse of process and to strike out the imaginary and unrecoverable added 'damages/debt collector' costs, which do not exist even once, let alone multiple times per claim.
And the last few paragraphs need a number. Apart from that, good! And yes I would not mention the one where the driver was admitted that is not at pre-action stage yet anyway. Cross that bridge when you come to it, after winning these ones first.
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
Defence was received 06.04.21. (submitted a few days before within the allocated time from AoS)
MCOL usually updates to suggest that the DQ has been sent out and it says nothing further.
Is there any harm emailing Northampton at this stage to see if anything has been received, unless 28 days has not elapsed due to weekends/BHs?
Just ensure that your claim history reflects what you have done , keep checking it to see when a DQ has been posted
Is this likely going to be dropped in this instance, given the amount of time that has passed?
I feel like the C surely has to do 'extra work' to now even get this case back on track if they ever wanted to challenge it as the court letter did state for them to respond within 28 days. This is also taking into consideration the above comments and the possibilities of a delay... but surely not this long?