Return to car park in same day

Park_Life_Green

Hello again everyone,

I've written a defence and as the guidance says I have only updated sections 2 and 3 as I understand the rest of the template can stay the same.

I'm wondering if my comments about signage should go into point 13 of the template which talks about this also.

Any feedback is really appreciated - thanks in advance!

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

3. The claimant alleges that two separate visits to the car park was one single period of parking of 3hrs 46 minutes. The terms and conditions on the parking signage do not express restrictions on returning to the car park within any time period.

The British Parking Association has written a guidance article identifying issues with ANPR technology whereby only the first entry and last exit in a 24 hour period are matched together. Their Code of Practice 2020 v8 makes it clear the responsibility lies with the parking operator to exercise due diligence to avoid this issue arising.

This demonstrates a lack of robust control measures in place and as a result the claimant has obtained personal data without resonable cause.

Signage at the site is not clearly and prominently displayed. Signage is limited and several can easily be obscured by taller vehicles due to their positioning on walls. There are two customer entrances to the McDonalds building and due to the layout of the car park the secondary entrance is much more likely to be used by parking patrons. The first entrance has signage next to the door but the secondary one does not. The entrance to the car park is three car lanes in width and the signage at the entry point is located far to the left. Due to the angle cars enter the car park this signage is not clear and cannot be read.

Appendix E of the British Parking Association's Code of Practice 2020 v8 is the Parking Charge Notice Flow Chart for Recovery of Unpaid Parking Charge Notices and Appeals Under POFA 2012. This shows that the keeper should receive a notice followed by two reminder letters before this can proceed to a debt recovery process. However, the original notice was issued 21/09/18 followed by only one reminder letter issued 22/10/18. This was then followed up with a debt collection agency letter 07/11/18 not following the process laid out by the BPA.  

Fruitcake

It is never too late to get a landowner cancellation.

A lot of that reads like a witness statement, not a defence.

You haven't specifically stated that the vehicle made two separate visits, you have merely alluded to it.

Para 3 needs to explain what type of car park it was, (hospital, residential, retail park, free for X hours/minutes, pay and display, pay after X hours/minutes and state that the vehicle left the site and returned later.
If it was two different driver, then say so.

You should also send an SAR to the PPC, specifically requiring them to supply all four images of the vehicle. If they don't provide all four, complain to the BPA and ICO.

Complain to the landowner, the BPA, and the DVLA about the PPC having unlawfully obtained the keeper's personal data.

The keeper should also complain to their MP.

Le_Kirk

Your wording is OK but you haven't stated whether you are defending as keeper or keeper and driver.  Whichever it is should be stated in paragraph 2 e.g. 

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

OR

2. It is admitted that the Defendant was the registered keeper but not the driver of the vehicle in question but liability is denied.

Every paragraph requires a number.  As you have added several new paragraphs to the template (nothing wrong with that) you will have to make an adjustment: -

This is often posted by @1505grandad: -
The existing para 7 in the Template states: -  "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."

As you now have more than paras 2 and 3 - you therefore have to renumber the subsequent paragraphs and alter the reference to point #5 accordingly.

As you have added four new paragraphs then point #5 becomes point #9.  Regarding the signage issue that is a good spot, just make sure that what you state does not duplicate or detract from what is in the template.  If you consider your words are important, I would keep them early on and adjust the template to suit.

Park_Life_Green

I have written to McDonalds to ask them to get the parking fine cancelled - not sure what their response will be but it's worth a shot.

I have also made an SAR to UKPC and they have provided only the same entry and exit photo that appear on the PCN advising there are no further photos. How will I able to prove there were two visits to the car park as without CCTV evidence it will just be my word against theirs?

Having another go at the defence - is it worth mentioning appendix E of the BPA's most upto date Code of Practice? Not sure if it's legally binding or just good practice but not compulsary?

Thanks in advance

Jenni_D

Do you have location history enabled on your phone? It's not conclusive proof but if it shows that the phone was at that location twice, and elsewhere in-between, then on the balance of probabilities it is proof of your assertion.

Park_Life_Green

I will have to check with my partner as he was driving but I have a feeling he has had a few different phones between Sept 2018 and now.

Might be worth looking at a bank statement from that date to see if it will show any transactions that would identify times/locations but if not I don't think this is anything else I can use. 

Fruitcake

With regards to proving a negative, the defendant should aver that the vehicle made two separate visits, and put the claimant to strict proof that it did not leave and return at a later date.
At the witness statement stage later in the process, the driver or drivers if it was different ones on each occasion will make a statement under oath that the vehicle left site and returned later. This is evidence from the only witness present at the time, and the judge should give weight to this and decide on th balance of probabilities which if it is true.

In para 2, either state that the defendant was the registered keeper, but not the driver on either visit, or was the registered keeper and the driver on one but not both visits, or was the registered keeper on both visits.
Never miss the opportunity to state that this was two separate visits.

Smart 'phone or GPS location tracking data will support this, as will receipts/bank/card statements, as well as witness statements from other people who saw the driver in between visits, and/or work logs, sign-in/out sheets, medical appointments etcetera.


State that photos of both visits were requested by the defendant as part of an SAR, but the claimant has failed to provide them.

Make the complaints to the DVLA and then the ICO anyway as it is part of the long game.

Le_Kirk

Park_Life_Green said:

I have also made an SAR to UKPC and they have provided only the same entry and exit photo that appear on the PCN advising there are no further photos. How will I able to prove there were two visits to the car park as without CCTV evidence it will just be my word against theirs?

You should ask them to supply ALL the orphan images (as these are called).  This would show the car leaving after visit No. ! and re-entering for visit No. 2.

Park_Life_Green

Second version of draft ready for comments:

2. It is admitted that the Defendant was the registered keeper but not the driver of the vehicle in question for either visit to the car park but liability is denied. 

3. The car park belongs to a McDonalds branch providing 90 minutes free parking. The claimaint alleges an overstay at the car park with the total parking time being recorded as 3hrs 46 minutes. This is not corrrect as the vehicle left the site and returned later to the car park. The terms and conditions on the parking signage do not express restrictions on returning to the car park within any time period.

4. A guidance article by the British Parking Association identifies issues with ANPR technology that only matches together the first entry and last exit in a 24 hour period. As such, this has produced an inaccurate length of stay record in this case. Photos of both visits have been requested by the defendant as part of an SAR, but the claimant has failed to provide them. The BPA's Code of Practice 2020 v8 confirms the responsibility lies with the parking operator to exercise due diligence to avoid this issue arising. The claimant has demonstrated a lack of robust control measures in place and as a result personal data has been obtained without resonable cause.

5. 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 Sch2 of the CRA. In addiiton, positioning of signage means it is hidden from view as vehicles park up and move around the car park. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

6. Appendix E of the BPA's Code of Practice 2020 v8 is the Parking Charge Notice Flow Chart for Recovery of Unpaid Parking Charge Notices and Appeals Under POFA 2012. The flow chart confirms the keeper is to be sent a notice followed by two reminder letters before a debt recovery process can commence. In this case the notice was issued 21/09/18 followed by only one reminder letter issued 22/10/18; a debt collection agency letter was then issued 07/11/18. As a second reminder letter was never issued the claimant has not followed due process.

Jenni_D

Park_Life_Green said:

I will have to check with my partner as he was driving but I have a feeling he has had a few different phones between Sept 2018 and now.

Might be worth looking at a bank statement from that date to see if it will show any transactions that would identify times/locations but if not I don't think this is anything else I can use. 

If the phones were all linked with the same account (e.g. Google) then location history sticks with the account, not the phone.  

https://support.google.com/maps/answer/6258979?hl=en-GB&co=GENIE.Platform=Desktop

My own timeline goes back as far as November 2013, and I've had several phones in that time frame.