ECP DCB County court claim defence keying error

KeithP

AndrewS1973 said:

I have sent my acknowledgement of service via the moneyclaim website. The issue date was 17 Dec, so by my calculations, I need to send in my full defence by 19th Jan. I'll post it here.

Almost right, but a court deadline will never be on a Sunday.

With a Claim Issue Date of 17th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 20th January 2025 to file a Defence.

That's three weeks away. Plenty of time to produce a Defence but please don't leave 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.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Bazarius

This case echoes a similar case where Excel Parking’s application to appeal against the DDJ’s decision that it was de minimis . The defendant had paid but entered the vehicle model as the VRM (I think from memory) 

The Circuit judge’s reason for refusing appeal to be heard ;

1. There are no grounds of appeal which have real prospects of success.
2. The Judge's decision as to the breach being de minis and no loss to the operator does not fall foul of either contract law nor the Supreme Court decision in Beavis. There is no need to show "loss" in the form of actual loss by reason of a person parking without payment however here the Claimant did receive payment for the parking.

That the Claimant choses to use Automatic number detection does make the precise entry of plate (nor perhaps ability to read the plates if dirty etc) a key part of the contract. There was no argument that the Defendant had paid and so the Claimant obtained the payment it sought.

3. The judge was entitled to dismiss the claim on this basis. The remainder of the matters are not necessary to consider on appeal.

AndrewS1973

Hi, thanks for all your help so far.

So I'm keeping paras 1& 2 of the defence in the recommended thread by Coupon Mad and using the below as my para 3. I will then add paras 4 to 30 of the template defence in full. Does that all sound OK? POC details also shown below.

Defence should be filed by 4pm on Monday

Thanks again!

3. ...The Defendant avers that it will be common ground that the correct fee of £1.00 for 1 hour’s parking was paid.  At the time of parking, it was dark, the temperature was -4 degrees and the conditions underfoot in the car park were extremely icy. Coupled with a payment procedure that was not particularly intuitive and a poorly positioned keypad and contactless payment interface, this led the defendant to struggle with the payment process, having to undertake it several times before a ticket was correctly paid for and issued. As a result of the confusion, the defendant inadvertently entered only part of their vehicle’s registration number. The Claimant was immediately alerted to this with an early appeal by the Defendant. Payment was acknowledged, but a £20 administration fee was still levied. A professional parking operator would have cancelled the parking charge because an incorrect vehicle registration is not a valid or lawful justification to penalise motorists.  There is no legitimate interest in pursuing a motorist for a mere typo and the Government confirmed this fact in February 2022. The incoming statutory Code of Practice (now being finalised by the new Government)  requires all 'keying error' cases to see all PCNs cancelled because VRM entry with such a disproportionately punitive financial risk places an unfair burden upon consumers 'out of all proportion' to the alleged breach and fails the test of fairness (s71. Consumer Rights Act 2015).

Johnersh

A parking charge *can* be a penalty and thus unenforceable if disproportionate to to the breach of contract. The o/p:

1. Paid (the primary obligation)
2. Did not overstay or park in multiple bays or obstruct the operation of the car park (the secondary obligation)
So they seek £170 for a typo. There is no commercial loss and self-evidently they can trace the payment.

Beavis is authority that a PPC cannot charge whatever they like in any circumstances. Unlike Mr Beavis the commercial needs (whether to the landlord or the PPC) have been met. 

Coupon-mad

Johnersh said:

A parking charge *can* be a penalty and thus unenforceable if disproportionate to to the breach of contract. The o/p:

1. Paid (the primary obligation)
2. Did not overstay or park in multiple bays or obstruct the operation of the car park (the secondary obligation)
So they seek £170 for a typo. There is no commercial loss and self-evidently they can trace the payment.

Beavis is authority that a PPC cannot charge whatever they like in any circumstances. Unlike Mr Beavis the commercial needs (whether to the landlord or the PPC) have been met. 

This is very succinct, as always.

A tweaked version of the above would work as paragraph 3, which IMHO should NOT mention the £20 offer and needs to be more concise. It could refer to the decision referred to by Bazarius as well, but:

"That the Claimant choses to use Automatic number detection does make the precise entry of plate (nor perhaps ability to read the plates if dirty etc) a key part of the contract."

@Bazarius - is there a 'not' missing in the above? The case you quote is shown as an image in the forum on a thread and can be found by searching for HHJ Pema.

Bazarius

@Coupon-mad

no there isn’t .

Coupon-mad

Interesting. It reads like he meant to say 'does not' because it then continues 'nor'...

Bazarius

@Coupon-mad .     Difficult to understand the meaning or context behind his reasoning.  How the cameras is used as a key part of the contract relevant? 

My interpretation is  that the Claimant chose to use the cameras as a key part of enforcing the contract - knowingly that it is not always accurate (double dips , misread etc) will  get away with having to pay a copper of compensation as long the PCN is cancelled at appeal .  Leaving the motorists distraught, wasted time and money having to deal with it . 

Yet on the other hand , if a motorist make a mistake,   (an mis key error etc) they are charged £100 ,  but produces evidence of payment at appeal ,  is  still unfairly punished and dragged to court  for similar technical breaches of the same with errors that can occur with their cameras or machines  ? 

I think he’s probably applying the fairness test under CRA 2015 which the Court must consider if the  contract terms significantly imbalance the rights and obligations of the parties, if it leaves the motorist in an unfair disadvantage it is not enforceable, 

AndrewS1973

Thanks a lot. Coupon Mad, are you saying I should drop the stuff about the cold weather etc etc? I lifted the rest of the paragraph from one of your suggestions to another poster.

Cheers 

Coupon-mad

Johnersh said:

A parking charge *can* be a penalty and thus unenforceable if disproportionate to to the breach of contract. The o/p:

1. Paid (the primary obligation)
2. Did not overstay or park in multiple bays or obstruct the operation of the car park (the secondary obligation)
So they seek £170 for a typo. There is no commercial loss and self-evidently they can trace the payment.

Beavis is authority that a PPC cannot charge whatever they like in any circumstances. Unlike Mr Beavis the commercial needs (whether to the landlord or the PPC) have been met. 

I'm saying do your facts paragraph like the above (written by a solicitor).

Certainly remove this, which a rookie Judge might think was reasonable and wonder why you didn't settle:

"Payment was acknowledged, but a £20 administration fee was still levied."