QDR Solicitors - One Parking Solution, Vantage Point Brighton - CASE WON DISMISSED BY JUDGE

Coupon-mad

About a year.

GherkinInTheGarden

Particulars of Claim

The Claimants claim is for an outstanding parking charge issued to vehicle XXXXXX when parked at VANTAGE POINT BRIGHTON BN1 4GW.  The Site is managed by the Claimant.  The Defendant is the keeper of or the driver named in accordance with Schedule 4 of the Protection of Freedom Act 2012 of the vehicle.  Vehicles parking at the Site are subject to the parking restrictions and terms and conditions which are set out on sigs at the Site and form part of a contract between the driver of the vehicle and the Claimant.  On 11 08 22, the Vehicle was parked at the Site in breach of the contract, the contravention being NO PAYMENT TICKET.  By entering this contract the Defendant agreed they would be liable for £100.00 parking charges, plus additional contractual charges incurred by the claimant for the collection of the debt pursuant to the terms and conditions.

KeithP

Those particulars are flawed.

Specifically, the final sentence of the POC...

By entering this contract the Defendant agreed they would be liable for £100.00 parking charges, plus additional contractual charges incurred by the claimant for the collection of the debt pursuant to the terms and conditions.

...is very clearly suggesting that the Defendant, even if they were not the driver, has somehow agreed to 'the terms and conditions'.
At the time of writing those Particulars, the Claimant has confirmed that they do not know who was driving. The word 'or' in this sentence supports that...

The Defendant is the keeper of or the driver...

Whilst we all know that POFA allows for any driver's liability to be transferred to the RK, how can that sentence assert that "the Defendant agreed they would be liable"?

The only person able to agree with terms on the signs is the driver.

Yes I know the Defendant has admitted to being the driver, but that's not relevant to the point I am trying to make.

GherkinInTheGarden

I have filed the AOS online, received submission acceptance and printed a copy.  Taking the weekend off before working on the Defence.

Should I make mention of the POC wording as KeithP brought up and, if so, where would this go in the Defence?  The 3rd sentence contradicts the last sentence - they don't know who the Defendant is (keeper or driver) in the first breath and in the second they state the Defendant entered the contract, i.e. drove into their carpark.

Is the POC supposed to be formed when the PCN is issued?  Or can it be adapted as more information is gained by the Claimant?

Coupon-mad

The POC is the statement of case on the Claim Form and it is generic solicitors' vague legalese blurb.

Nothing to do with when the PCN was issued and no solicitor looks at anything!

If the Defendant was the driver, or was not the driver, that needs stating in para 2 or 3.  You must also remove the phrase early in the Template that the POC are 'devoid of detail' because they aren't.

There's also a slightly later paragraph, underneath your facts section, that says the POC fail to state the alleged breach.

Again that's not true in a QDR case, so remove that and the suggestion that the Claimant should provide better particulars.

Instead you could take issue with this:

"the contravention being NO PAYMENT TICKET" 

...on the basis that no ticket needs to be displayed in a car park relying upon an app. Was the failed app called PoPpay?  That's OPS' own app and it is thought to be (deliberately or negligently?) unreliable.  Perfect storm at Vantage Point.  Add this to your defence if it was PoPpay that failed.

GherkinInTheGarden

No, I believe it was JustPark but will check with the Defendant and see if they either 1. remember or 2. still have it downloaded on their phone.

I am removing this sentence from Point 2:

Conversely, the Claimant sets out a cut-and-paste sparse statement of case.  The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond.

As for the other item to adjust:

Should I just remove the line below from the Defence (or) just take out the 'which is not pleaded in the POC' and perhaps add that they have not proved the Defendant actually parked in their car park, i.e. instead car was idling and attempts were being made to pay.

(i). the alleged breach, which is not pleaded in the POC and requires further and better particulars, and

Coupon-mad

You also need to remove "requires further and better particulars" because it doesn't, in your case.

GherkinInTheGarden

Done.  I should have a draft Defence to post this Monday/Tuesday.

Coupon-mad

GherkinInTheGarden said:

Done.  I should have a draft Defence to post this Monday/Tuesday.

Good.  It being QDR, sadly the POC are detailed enough that you can't attack them too much.  This will be more about the fairness of a term that requires you to pay in 5 or 10 minutes but OPS provide an app that doesn't actually work within 5 or 10 minutes.

That's a CRA 2015 breach if ever I saw one.

GherkinInTheGarden

Hello again - my Defence as it stands now - useful suggestions/comments welcome:

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.   However, it is admitted that the Defendant was the registered keeper and driver of the vehicle.

3. The Defendant visited Brighton for the day and entered Vantage Point Brighton BN1 4GW car park.

4.  Due to frustration of contract being failure of the Claimant’s payment system that requires an adequate phone signal within the car park and lack of alternative means to pay such as a contactless/debit card, the Defendant was unable to make payment.

5.  Once the Defendant had exhausted all options for making a payment, they left the car park.

_______________

Along with removing a few comments in the template Defence about the POC being sparse and another area where its described as woeful, other changes I've made:

WAS:

(i). the alleged breach, which is not pleaded in the POC and requires further and better particulars, and

NOW IS:

(i). the alleged breach pleaded in the POC, the contravention being NO PAYMENT TICKET, relies on the Defendant having a mobile phone/data plan, on an adequate mobile signal within the car park, an application successfully being downloaded/working and on the Defendant’s bank interfacing with the ‘app’, and

________________

Maybe I leave out (i) entirely OR would I amend (i) to say 'relies on an onerous payment system' or something like that?    I am conscious of the fact that I cannot change this Defence after its submitted.  I never do say anywhere that the car was never parked, it was idling and had an occupant inside while the Defendant was attempting to pay within the confines of the car park.   I guess this sort of detail goes into a WS instead?

I also would like to know the following:

A)  if I leave the sub-headings shown in bold in the Defence template, i.e. Exaggerated Claim and 'market failure' currently being addressed by UK Government

It feels like OPS is imposing an onerous payment system for car park patrons at this car park.  Is this in itself a CRA 2015 breach?  As CRA 2015 was mentioned in the Defence, can I expand upon this later in the WS?

C) In the Conclusion, it seems the word embarrassing to describe the POC I received doesn't fit.  Not sure what should be used here.