Help with a PCN ticket on Sennen Harbour Car Park in Sennen, Cornwall

marcinga

(cross-posting from https://forums.moneysavingexpert.com/discussion/6000919/armtrac-parking-scam-at-sennen-cove-harbour-car-park#latest, as advised)

Hello everyone, I've received a claim from KBT Cornwall (and their solicitors BW Legal) re: PCN for my parking at Sennen Cove Harbour last year. They caught my ticket face down (I don't know how and when it flipped) and they issued the PCN, despite the ticket serial number was clearly visible. I found this forum and decided to defend myself. The claim is dated for 07 Jul 2022 and I filled the AOS, so that I guess I've got about two weeks more to submit my defence.

What I did probably incorrectly (I did not know about this forum! ), I appealed the ticket the same day and I provided all my details in the appeal. The appeal was of course denied, so was a following one to the IAS. Then BW Legal came with their usual method of threatening and demanding the payment that was increasing with each demand. I dismissed all BW Legal messages and was waiting for the claim and it finally came...

I started preparing the defence and am posting here the points 2 and 3+ (the ones that must the replaced in the template that can be found in the NEWBIES thread). Would appreciate for any feedback and suggestions for improvements. I did not invent wheel here and the contents is mostly a compilation of what I was able to find in this forum.

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The facts as known to the Defendant: 

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

3. The particulars of claim provide no information regarding what the original charge was or how it arose, only that they allege that they are owed money for an alleged parking contravention. 

4. The Claimants original PCN stated as the reason for issue “Ticket Incorrectly Displayed Face Down”. This failure to display a parking ticket is the only breech of a term or condition that the claimant has ever mentioned to the defendant. 

5. The defendant asserts that he did pay to park in the car park and did display a valid ticket that had not expired and did cover the whole of the time that the car was in the car park. 

6. It is not disputed that the ticket gave the Defendant a licence to park until midnight that day. The ticket was displayed on the dashboard at all times. This will be demonstrated by the Claimant’s own evidence. The Claimant’s evidence will show the back of the ticket has a serial number of 086865. The Defendant’s evidence will also show the front and back of the ticket has the same serial number of 086865. 

7. The Claimant presented the Defendant with a photograph taken by the parking officer showing the ticket placed on the dashboard. The serial number in the photograph matches the serial number of the ticket purchased by the Claimant: 086865. 

8. The defendant has shown a copy of the ticket to both the claimant and the IAS, neither of whom have disputed that the ticket was valid. The IAS adjudicator said in their rejection of the appeal “As a genuine ticket holder the appellant has my sympathy but the guidance to the appeal is clear that I may not consider extenuating circumstances”. 

9. During the appeal the Claimant stated that the serial number by itself could not have been used to validate the ticket, as their patrol officers have no access to machine data as the machines belong to the landowner. The Claimant also stated that a serial number cannot be searched on any system by a patrol officer. The Defendant feels sorry for the patrol officers not being equipped enough to validate tickets by their serial numbers, but at the same time the Defendant believes that he should not be penalised for patrol officers not being equipped well enough to do their job. 

10. It should be noted that IAS and the IPC Trade organisation are managed by the same firm of solicitors who are behind the large number of generic claims brought by this claimant and other private parking operators. Also, Armtrac are a member of the IPC. This is grossly unfair on unrepresented consumers who are not allowed to appeal to the more reputable POPLA. 

11. A ticket was purchased and was clearly displayed in the windscreen so all details could be seen. This ticket gave the defendant permission to park from 10:50 until 23:59 on 30 Oct 2021 covering the time and date relating to the disputed charge. The defendant has no knowledge of what happened to the ticket during the 5hr that the car was left parked there. The time on PCN (15:23) shows that it was put behind the windscreen wiper blade during the time covered by the pay and display ticket. Oct 30th 2021 experienced a strong sea breeze and the ticket was light, thin and flimsy. The fact that it became dislodged from the windscreen and flipped out to the other side was not the Defendant's fault. 

12. The terms and conditions are in far too small a font and very difficult to read especially against the red background. Also they are forbidding terms. In a larger font above the terms and conditions it says “Parking charge of £100”. This is confusing because for an ordinary honest consumer, the charge which you pay in a pay and display car park is understood to be the money inserted into the machine in exchange for the pay and display ticket. One can only assume as did the defendant, that this £100 must be a PENALTY for not obeying the normal rules of any pay and display car park i.e. purchase a ticket, display it in the windscreen so that it can easily be read from outside the car, park within a marked bay and don't overstay the expiry time on the ticket. The defendant meticulously adhered to these rules/terms and conditions. 

13. The only sign the Defendant noticed was located behind a dirty glass wall next to the paying machine. Retrospectively, by looking at the photographs taken by the Claimant, there were other signs: two signs affixed to the walls of the booth with the ticket machines, not visible to the Defendant as they approached the booth from the front. There were also two other signs affixed to the nearby building, both were small with texts unreadable to the Claimant from the distance the car was parked. Those two were not located on the Claimant’s way to the ticket machine. 

14. The term “Retrospective evidence of authority to park will not be accepted” is unfair as restricts the evidence available to the defendant to defend the charge, creating a significant imbalance, contrary to the requirements of good faith, to the detriment of consumers. Also it is not clear what is meant by retrospective evidence in this context. The defendant purchased the ticket immediately on parking the car, not at some later point in time. 

15. The ticket is evidence that the defendant did pay to park and display it in the windscreen thus complying with the terms and conditions. He even checked that it was still in place after closing the car door. Having purchased the ticket, why would he not display it in the windscreen, so that all details can be examined? This is standard procedure in all pay and display car parks. Had he not done this, there would have been no point in purchasing the ticket. 

16. If the claimant wanted to impose a term 'to continuously display' the ticket then they should have drafted clear terms to that effect. “Fluttering ticket cases” have been ruled by PATAS adjudicators in council PCN adjudications as requiring the specific terms “continuously display” or there is no contravention. There is no such term on the Armtrac signs. 

17. There is certainly no sign warning of the strong possibility a “fluttering ticket” as this does, from what the Defendant has since read online, seem to be a regular occurrence at Sennen Cove. Armtrac seem to be more interested in making as much money as possible from preying on law abiding consumers by contrived contraventions than in the fair management of the car parks. 

18. During the appeal the Claimant stated that the ticket had a sticker, and the sticker could have been used to fix the ticket to the windscreen. The Defendant did not realise that there was a sticker. The Terms and Conditions don’t mention the sticker either. Had the Defendant been aware about necessity to affix the ticket to the windscreen, he would not probably have parked the car in the car park in first place, as the Defendant had bad experience with removal of residue adhesive from the windscreen lasting from other parking permit stickers before. 

19. The defendant paid for and displayed a ticket in good faith according to the terms of the car park. The defendant has no desire whatsoever to be forced to spend the necessary time and energy combating this case in court but has been forced to. 

20. The claimant has produced a figure of £165 which is a completely unsubstantiated 3-figure sum. The defendant has the reasonable belief that this sum is simply a number made up out of thin air. 

21. The claimant cannot cite the case of “Parking Eye VS Beavis” in the supreme court, because that was concerning a free for the first two hours car park (not a pay and display car park) and Mr. Beavis had overstayed by 1hour. Therefore the £85 charge demanded on his PCN could be considered to be the charge for parking as there had been up to that point no charge and was necessary as a deterrent in order to ensure the turnover of available spaces for new shoppers contrary to the case with a pay and display car park where a charge is paid into the machine in exchange for parking up until the expiry time on the ticket; and the defendant did not overstay. 

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Also, I would appreciate any hints on timings of the hearing. How quickly after the defence submission does the hearing actually take place? I am asking, as I will be off country in August, so that I am wondering if there is a possibility to ask the court to postpone the hearing until autumn? Or maybe I should not worry, as it's usually couple of months anyway?

My final ask --  English is not my first language and I would like to request a translator for the hearing. Should I ask for that in the defence or maybe time for that comes later? Also, if I come with a translator, would it somehow decrease my chances to defend the claim?

Really appreciate if I could get some advice / answers here.

Le_Kirk

My final ask --  English is not my first language and I would like to request a translator for the hearing. Should I ask for that in the defence or maybe time for that comes later? Also, if I come with a translator, would it somehow decrease my chances to defend the claim?

From reading your defence and your posts, one would not guess that!  The time to to discuss a translator is on the N180 - DQ form which comes later in the process but I think you have to provide your own!  Check the N180 form here: -
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1079639/N180_Final_Form.pdf

Fruitcake

Your English is excellent.

Do you have photos of the signs (perhaps from the other threads about this site), and if so, do they specifically say the ticket must be displayed face up?

marcinga

Do you have photos of the signs (perhaps from the other threads about this site), and if so, do they specifically say the ticket must be displayed face up?

I did not take any photos, but the parking officer took some and added to the appeal resolution -- all of them from a large distance and unreadable. What they did as well, they added a stock/design photo of the sign. I think I saw it in couple of places on this forum too. It does not tell anything about ticket being face up or face down. It does not even say which side of the ticket is the upper face, as I could argue that the one I used was the upper one.

The sign asks to place the ticket so all details can be inspected. To be honest, I believe this is an impossible ask, as the ticket has some details on both sides.

What's also important, both sides show the same serial number, so that I would argue the serial number should be good enough for the officer to pull all the remaining data.

Castle

marcinga said:

11. A ticket was purchased and was clearly displayed in the windscreen so all details could be seen. This ticket gave the defendant permission to park from 10:50 until 23:59 on 30 Oct 2021 covering the time and date relating to the disputed charge. The defendant has no knowledge of what happened to the ticket during the 5hr that the car was left parked there. The time on PCN (15:23) shows that it was put behind the windscreen wiper blade during the time covered by the pay and display ticket. Oct 30th 2021 experienced a strong sea breeze and the ticket was light, thin and flimsy. The fact that it became dislodged from the windscreen and flipped out to the other side was not the Defendant's fault. 

Just think about this; if the driver placed their ticket on the windscreen at around 10.50am; why did it take until 15.23-which is some 4.5 hours later-before the PCN was written out. Therefore, it supports your view that the ticket was displayed correctly when the driver left the vehicle; otherwise, the PCN would have been written out a lot earlier.

Fruitcake

It is quite possible that a person or persons unknown could have bounced up and down on the car in order to dislodge the ticket, as a jolly jape.
Do you know anyone who would benefit from such an act? 

You are right about displaying the ticket so all details can be inspected is a contract term void for impossibility, because the ticket is double sided, and has unique data on both sides that can be traced back to your vehicle.

The image above is a piece of artwork design from a completely different company to Armtrac, who were offering a service to the PPC. There is no proof that signs with that specific design was ever approved, nor that signs to that design were ever manufactured, nor that any were installed at the site.

It's old and out of date anyway because it shows a prohibited premium payment 'phone number that was banned many years ago.

You really need images of signs from the site though.

Mouse007

Perhaps a topical thought, heat. Would it have been possible for the heat build up in the car to cause the ticket to roll up and flip over? or was it actually stuck to the windscreen and the heat melted the glue enough for it to fall off face down? Defective ticket?

Edit: I went back and read defence. Point 18, sticker not used.

marcinga

Fruitcake said:

You really need images of signs from the site though.

I did not take any then, so that it's unlikely to have some photos exactly from that day.. I searched online and could not Google anything. I won't travel trough the country to Sennen either, for a photo only.

They took a few photos and added to the appeal resolution, but all are unreadable. The look&feel resembles the design I posted though.



I am pretty sure I even can decipher last digits of the banned phone number on the last photo. I will try to write to the harbour office, maybe they'll be kind enough to take a photo for me? Judging by their website, they don't seem to be affiliated with the car park land owner.

fisherjim

You don't want better photos those ones they have sent are gold dust it shows how bad they are which is what you want!

The signage you posted at post number 4 is clearly their stock file copy and even has the signage design companies details on it as a design proof. A judge would love those IMO, evidence that they have no interest in informing patrons of any T&C's and their audit's, if there have been any, have been office based. What a scam!

Castle

The ones they have sent has 4 lines of writing in a different size font underneath the "phone number and pay-on-line" reference, whilst it's missing on the stock photo.

Coupon-mad

I'd remove paragraph 8 onwards but keep paragraph 11.

Remove all mention of the rogue ticketer being an 'officer'. He/she was no officer!

And add here the word 'alleged':

 This alleged failure to display a parking ticket is the only breech