Excel PCN - AoS submitted, defence drafted, advice appreciated

Butterycrumpetlover

Apologies for leaving it a week or so but I've been exceptionally busy both with work and home, life eh.

Over the past few days I've made some changes based on the most recent discussion and advice. The app did default to the previously used VRM and from what I remember did not prompt me with any checks or confirmations.

---

3. For the date [PRIVACY] the Defendant had business in the town. The methods of payment were unreliable and overly complicated and, unbeknownst to the Defendant, it seems that the smartphone app that finally worked when the Defendant paid, defaulted to the wrong VRM. The Claimant had been aware of what happened on this day since [PRIVACY] as, in good faith, a futile attempt was made by the Defendant to resolve the dispute by supposedly ‘appealing’ using the self-serving in-house ‘appeal’ service. This appeal was rejected by the Claimant causing the Defendant to appeal via the (then non-independent) Independent Appeals service, only for the Defendant to realise afterwards this was a ‘kangaroo court’ designed to make 95% of victims pay.

4. The Defendant avers that this is a plainly extortionate charge with no legitimate interest to support it. This is not a situation where there is any genuine commercial value to be protected as a result of the Defendant’s actions. The Claimant has not suffered loss or pecuniary disadvantage as a result of smartphone app incorrectly defaulting to the incorrect VRM. The 'penalty' charge is unconscionable in this context, with the leading Supreme Court case of ParkingEye v Beavis distinguished.

5. As this is not a barrier car park, traffic is continuously moving and it would be impossible, not only for the Defendant but anyone to read a small sign that is supposed to have all the prominent terms. Therefore, no contract could be formed whereby the Defendant ‘agreed’ to pay £100 as a penalty (in all but name) when the Claimant’s own app unfairly defaulted - without warning or alert – to another vehicle. This common situation is no more than a ‘keying error’ at best, and the Claimant knows this fact yet continues to unjustly pursue the Defendant, purely to punish them because of a parking app default error. The Defendant was aware that it was a paid car park and made reasonable (and successful) endeavours to pay, did not disadvantage other users of the car park and did not overstay.

---

As per usual, thanks to everyone for their input.

Coupon-mad

Looks fine.

B789

It may be worth pointing out when mentioning the default VRM was entered, that the Claimant should have seen that no vehicle with that VRM entered or departed according to their (oh so reliable... NOT) ANPR. The point is that payment was made.

Also, perhaps highlight that if they are relying on technology to penalise their victims, it is not beyond current technology for the app to highlight the fact that the entered VRM does not match any VRM on the ANPR database. Not including that functionality to check the VRM entered against the ANPR data can be construed as a trap making the charge a penalty which is not allowed.

Snakes_Belly

 "This common situation is no more than a ‘keying error’ at best," You did not input the VRN the app defaulted. Also I could not see any mention that the ticket machine had failed which is why you had to use the app.  This took time.  

The legal term for this would be De Minimis. Too small an issue to be heard at court. Unfortunately in the the absence of a truly independent appeals service it is the only option available to a Litigant in Person seeking fairness. 

Butterycrumpetlover

3. For the date [PRIVACY] the Defendant had business in the town. The methods of payment were unreliable and overly complicated, with both the physical ticket machine and the smartphone app presenting with issues on the day. Unbeknownst to the Defendant, it seems that the smartphone app that finally worked when the Defendant paid, defaulted to the wrong VRM. The Claimant had been aware of what happened on this day since [PRIVACY] as, in good faith, a futile attempt was made by the Defendant to resolve the dispute by supposedly ‘appealing’ using the self-serving in-house ‘appeal’ service. This appeal was rejected by the Claimant causing the Defendant to appeal via the (then non-independent) Independent Appeals service, only for the Defendant to realise afterwards this was a ‘kangaroo court’ designed to make 95% of victims pay.

4. The Defendant avers that this is a plainly extortionate charge with no legitimate interest to support it. This is not a situation where there is any genuine commercial value to be protected as a result of the Defendant’s actions. The Claimant has not suffered loss or pecuniary disadvantage as a result of smartphone app incorrectly defaulting to the incorrect VRM. The 'penalty' charge is unconscionable in this context, with the leading Supreme Court case of ParkingEye v Beavis distinguished.

5. As this is not a barrier car park, traffic is continuously moving and it would be impossible, not only for the Defendant but anyone to read a small sign that is supposed to have all the prominent terms. Therefore, no contract could be formed whereby the Defendant ‘agreed’ to pay £100 as a penalty (in all but name) when the Claimant’s own app unfairly defaulted - without warning or alert – to another vehicle. This common situation is no more than a ‘keying error’ at best, and the Claimant knows this fact yet continues to unjustly pursue the Defendant, purely to punish them because of a parking app default error. The Defendant believes this to be a case of de minimis, however due to the absence of a truly independent appeals service it is the only option available to a Litigant in Person seeking fairness. The Claimant is relying on ANPR technology to detect which VRM have entered or exited the car park. It is not beyond the capability of current technology for the smartphone app to highlight the fact the VRM entered, by default, to the smartphone app on the day had not in fact entered the car park and therefore can be construed as a trap. The Defendant was aware that it was a paid car park and made reasonable (and successful) endeavours to pay, did not disadvantage other users of the car park and did not overstay.

---

Current draft based on the suggestions to include the information about ANPR and the de minimis principle. Unsure if the 5th point should now be split as it feels bulky but does contain relevant information.

The submission date is looming (Monday 24th) so I think I'm going to send this out tomorrow, unless advice states otherwise?

Thanks again as always to everyone for your help.

Coupon-mad

I'd split bulky paragraphs.

Butterycrumpetlover

3. For the date [PRIVACY] the Defendant had business in the town. The methods of payment were unreliable and overly complicated, with both the physical ticket machine and the smartphone app presenting with issues on the day. Unbeknownst to the Defendant, it seems that the smartphone app that finally worked when the Defendant paid, defaulted to the wrong VRM. The Claimant had been aware of what happened on this day since [PRIVACY] as, in good faith, a futile attempt was made by the Defendant to resolve the dispute by supposedly ‘appealing’ using the self-serving in-house ‘appeal’ service. This appeal was rejected by the Claimant causing the Defendant to appeal via the (then non-independent) Independent Appeals service, only for the Defendant to realise afterwards this was a ‘kangaroo court’ designed to make 95% of victims pay.

4. The Defendant avers that this is a plainly extortionate charge with no legitimate interest to support it. This is not a situation where there is any genuine commercial value to be protected as a result of the Defendant’s actions. The Claimant has not suffered loss or pecuniary disadvantage as a result of smartphone app incorrectly defaulting to the incorrect VRM. The 'penalty' charge is unconscionable in this context, with the leading Supreme Court case of ParkingEye v Beavis distinguished.

5. As this is not a barrier car park, traffic is continuously moving and it would be impossible, not only for the Defendant but anyone to read a small sign that is supposed to have all the prominent terms. Therefore, no contract could be formed whereby the Defendant ‘agreed’ to pay £100 as a penalty (in all but name) when the Claimant’s own app unfairly defaulted - without warning or alert – to another vehicle. The Claimant is relying on ANPR technology to detect which VRM have entered or exited the car park. It is not beyond the capability of current technology for the smartphone app to highlight the fact the VRM entered, by default, to the smartphone app on the day had not in fact entered the car park and therefore this can be construed as a trap. This common situation is no more than a ‘keying error’ at best, and the Claimant knows this fact yet continues to unjustly pursue the Defendant, purely to punish them because of a parking app default error.

6. The Defendant believes this to be a case of de minimis, however due to the absence of a truly independent appeals service it is the only option available to a Litigant in Person seeking fairness. The Defendant was aware that it was a paid car park and made reasonable (and successful) endeavours to pay, did not disadvantage other users of the car park and did not overstay.

---

I've made a split in 5 to create 5 and 6.

B789 said:

The point is that payment was made.

I can't help but quote this to reiterate it to myself, as I have been doing every time one of the slimy threat letters gets posted through my door, that I paid the fee and stayed less than the posted time and this whole things is a shambles from the Claimant.

Sods.

Butterycrumpetlover

Defence signed and submitted via email, receipt received. I'm now looking at preparing for the next steps.

---

I think the options listed in the thread by bargepole regarding the Directions Questionnaire are out of date.

Strikethrough and bold italics for my understanding of the new order of things.

• A1 = NO to mediation (they want the whole amount, you want to pay them nothing, so no scope for mediation. This will not go against you)
• B = fill in all the details, name, address, etc
• C1 = YES to small claims track – this is the limited costs track for claims up to £10,000 in value
  
• D1 = YES/NO to determination without a hearing
  
• D1E1 = name of your local County Court – unless you are a Ltd company, the case files will be transferred there
• D2E2 = NO to expert evidence (this relates to medical negligence cases and suchlike)
• D3E3 = 1 witness (that’s you) (or more if you are going to get another person to provide a statement)
• D4E4 = Put down the dates of any pre-booked holidays, NO to interpreter (unless you need one).
• E5 - YES/NO to witness vulnerability
  ---

The questionnaire asks, in D, the following;

"Suitability for determination without a hearing

D1 Do you consider this claim is suitable for determination without a hearing, i.e. by a judge reading and considering the case papers, witness statements and other documents filed by the parties, making a decision, and giving a note of reasons for that decision? If No, please state why note. (Yes/No checkboxes, larger text box if No)

Notes: The court can determine this claim without a hearing: (a) if both parties agree; or (b) where the 'Small Claims Paper Determination Pilot' applies, even if the parties do not agree. For more information on the courts participating in the pilot and the cases to which the pilot may and may not apply, please see Practice Direction 51ZC to CPR 51."

The E section is now related to the venue, witnesses and dates of availability with an inclusion of a 5th point, which reads as below.

"E5 Do you believe you, or a witness who will give evidence on your behalf, are vulnerable in any way which the court needs to consider? If Yes, please explain in what way you or the witness are vulnerable and what steps, support or adjustments you wish the court and the judge to consider. (Yes/No checkboxes, larger text box if Yes)"

Is this covered anywhere? Apologies if this is already mentioned and I'm late to the party.

KeithP

This thread - New Questions on the N180 Form - should help.

Coupon-mad

Everything is all findable on the forum with a search.  Nothing is new.

In this case 'new DQ questions' as your search keywords would have found Grizebeck's thread from last June and a hundred posts asking the exact same thing you typed out. A forum search is advised at all stages, to save you & us time.