Excel/ELMS PCN based on exceeding grace period - defence

thisistheworst

Hello,

I previously posted a thread here when I got my first LBC. I've now done more reading and wanted to start a thread with a more level demeanour going forward! Coupon-mad had sent a final reply that I somehow missed, so I'll upload those requested images here (how do I

Current stage is CNBC claim form received and acknowledged:
A claim was issued against you on 21/11/2023
Your acknowledgment of service was submitted on 09/12/2023 at 21:50:53
Your acknowledgment of service was received on 11/12/2023 at 01:06:40

First - timings. I didn't anticipate a gap between submit/receive. Hopefully I'm grand? I am calculating my defence deadline as 24th Dec (despicable timing really..) but with weeeknd and christmas - do I actually need to get this done for Friday 22nd? Potentially even a half day if they finish early? Yikes, best get a move on.

The actual details of the day are:
18th March 2023 I arrived at an excel car park (ANPR timestamp of my wheels entering the car park is at 09:08:59)
The parking machine wasn't working, so we used their online service to pay.
Signal was rubbish and it was a frustrating process, but we managed to get it done at 09:19, paying for 2 hours
The invoice for that online ticket says "issued 09:19" but it covers parking from 09:24 - using their guest checkout I can't even see how this is possible, suspect partner registered.
We were attending a class at the adjacent building that ran 09:00 to 10:00 so 1) we were already late and 2) knew for a fact we'd be gone in an hour, so we really were trying to pay for the parking as fast as possible from the moment we parked up, no faffing about whatsoever.
We left at 10:14 (1hr 5 mins use)

Timeline for events:
Owner/registered keeper (not me) received a NTK PCN in the post 6th June 2023
I appealed 22nd June on the basis of having a ticket and being delayed by lack of a physical ticket machine that worked. I also admitted being driver - didn't want keeper dealing with this. Appeal denied 5th Jul 
I didn't try the tribunal or whatever it is next
LBC
now CNBC claim

Interestingly, it is the same car park, same day and same "breach" as this thread by sooty86 so I am mostly going to use wording in there.

Some slight differences in our cases which will affect the defence:
1) they said it was busy and they "set down" to unload their child. It wasn't overly difficult to park  for me (different time I guess) so I don't have that argument.
2) HOWEVER, I'm sure I remember the parking machine being properly out of order with a yellow cover over it, so we had to use pay by phone or web. I went back last week and the machines look brand new now.
3) There's some detail around the 09:19 payment triggering parking at 09:24 that they obviously didn't have to deal with.
4) I appealed and was denied, wordings were around "clear signage" showing "grace period" - the sign shows 5 min grace period and seems ridiculously small and verbose compared to the Beavis one



I'll start adapting the defence from sooty86 below, but would be keen to hear any tips on how to word the "extra" bits for my case (and obviously will delete non-relevant parts)

Thanks

KeithP

thisistheworst said:

Current stage is CNBC claim form received and acknowledged:
A claim was issued against you on 21/11/2023
Your acknowledgment of service was submitted on 09/12/2023 at 21:50:53
Your acknowledgment of service was received on 11/12/2023 at 01:06:40

First - timings. I didn't anticipate a gap between submit/receive. Hopefully I'm grand? I am calculating my defence deadline as 24th Dec (despicable timing really..) but with weeeknd and christmas - do I actually need to get this done for Friday 22nd? Potentially even a half day if they finish early? Yikes, best get a move on.

Your Acknowledgment of Service was filed in time.

With a Claim Issue Date of 21st November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Thursday 28th December 2023 to file your Defence.

That's a whole week away but they may be busy days. 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'.

thisistheworst

Thankyou KeithP - can I ask how you work out the date? It's different to my counting, and keen to know where (or if) I went wrong.

My maths was 21st + 5 days = 26th Nov as "service day," then 28 days after that is 24th Dec?

thisistheworst

KeithP said:

Your Acknowledgment of Service was filed in time.

With a Claim Issue Date of 21st November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Thursday 28th December 2023 to file your Defence.

Quoting in case that gives you a ping of some sort! Please see above post asking about the method for calculating this number (as it's 24th Dec by my count)

Odd that we can't edit posts on here!

Coupon-mad

The claim form tells you on the back that 5 days is added for service. You've done that right but 24th is a Sunday.

The date due is only ever the next working day.

thisistheworst

Coupon-mad said:

The claim form tells you on the back that 5 days is added for service. You've done that right but 24th is a Sunday.

The date due is only ever the next working day.

Brill, thanks. Presumed I was missing something like that. Means I can go to bed and worry about this on a clearer head. Guess that makes it the 27th though rather than 28th?

For my defence structure I've copied sooty86's defence except:

1) my appeal did get read and denied for "consideration period" (unspecified time) and "ts and cs clear on signs to read" so I've put that in
2) I unfortunately didn't do any setting-down
3) I'm basically saying that their default consideration period is unreasonable when their parking machines don't work. Should probably go and find whatever industry guide says they should give 10 mins consideration (and point out their signs say 5...)

It still seems very long, but I need to just post it and get some rest:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond.

3. The POC fail to properly identify the location or town; merely a street name which is not private land. It is denied that the vehicle was parked in 'the Copeland Street' (public highway).  Further, the POC fail to mention any quantum at all, let alone break it down into heads of cost.  The claim is for £170 which is far higher than the maximum (industry capped) sum for a parking charge and is wholly disproportionate.  It is denied that this Claimant is entitled to the unquantified 'parking charge, contractual costs and interest' that the POC vaguely mentions, nor any sum at all.

4. The VRM in the POC is recognised and it is admitted that the Defendant was the keeper and driver.  The Defendant was visiting “Jumpin’ Fun” inflatable park with their partner and two young children (near-2 year-old, and 4-week old), to attend a session which began at 09:00 and had a fixed end time of 10:00. Arriving in the car park after 09:00, the Defendant made all reasonable efforts to park up and pay for a ticket quickly in order to maximise their time in the venue.

5. The Defendant’s partner was unable to purchase a ticket from either machine in the car park (which were not close together), using either card or cash. Unable to purchase a ticket from the physical machines, the Defendant’s partner opted to use the “pay online” service. Network coverage in the area is poor so this again was not a straightforward experience.

7. The Defendant and their partner found the online service unintuitive. After registering an account and entering vehicle details, the online service only appeared to offer a parking period starting 5 minutes after the purchase time. The Defendant and their partner could see no way to bring the start time forward; the drop-down option only allowed the start time to be pushed further into the future. This seemed like an unavoidable quirk of the online system and a ticket was purchased.
 
8. The Defendant ultimately paid for 2 hours of parking (the minimum period) and left the car park after approximately 1 hour as planned.
 
9. Three months later, after being sent a vague PCN alleging non-payment, the Defendant appealed on the basis that they had in fact paid for parking and outlined the extensive difficulty encountered whilst trying to do so promptly. This appeal was denied on the basis that the Defendant took longer than the Claimant’s fixed (but unspecified) “reasonable time” allowance to purchase a ticket, and that the terms and conditions were on clear signs and should have been read and considered upon entry.
 
10. The Defendant undertook three attempts to purchase a parking ticket before being successful. The fault for the first two failed attempts lies with the Claimant, not the Defendant. The parking period before the ticket purchase was less than 10 minutes, which does not seem unreasonable given the difficulties encountered.
 
11. The incoming statutory Parking Code of Practice linked later in this defence helpfully defines the “parking period” at '2.24 parking period' as:
 
"the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle). This is not the period between a vehicle being recorded as entering and departing controlled land."
 
12. It is unclear how the Defendant could have purchased a ticket sooner without advanced knowledge that their preferred payment method (physical machines) was out of order. It is also unclear how reading the astonishingly verbose terms and conditions sign in detail would have done anything other than delay the Defendant’s purchase further.
 
13. Accordingly it is denied that "the act of entering private land was the acceptance of the offer". In a pay & display site, entry in moving traffic cannot be the moment when a parking contract begins. It cannot possibly be concluded prior to parking and before the motorist was given the opportunity to read the terms, and either accept or reject them. This view is supported by case law and incoming statute. The Defendant relies upon paragraph 5 of the incoming statutory Parking Code of Practice and upon the authority in National Car Parks v HMRC [2019] EWCA Civ 854 (20 May 2019) where it was held by the Court of Appeal that the contract with a paying patron in a Pay & Display car park is brought into being "when the green button was pressed".
 
14. It is denied that the vehicle was parked without purchasing a valid pay & display ticket. The sum paid by the Defendant covered the duration of parking. Any breach is denied.

1505grandad

"Timeline for events:
Owner/registered keeper (not me) received a NTK PCN in the post 6th June 2023
I appealed 22nd June on the basis of having a ticket and being delayed by lack of a physical ticket machine that worked. I also admitted being driver - didn't want keeper dealing with this. Appeal denied 5th Jul 
I didn't try the tribunal or whatever it is next
LBC
now CNBC claim"

Just checking  -  the (any) claim form is definitely stating you as the Defendant?

thisistheworst

1505grandad said:

"Timeline for events:
Owner/registered keeper (not me) received a NTK PCN in the post 6th June 2023
I appealed 22nd June on the basis of having a ticket and being delayed by lack of a physical ticket machine that worked. I also admitted being driver - didn't want keeper dealing with this. Appeal denied 5th Jul 
I didn't try the tribunal or whatever it is next
LBC
now CNBC claim"

Just checking  -  the (any) claim form is definitely stating you as the Defendant?

Yes everything has been addressed to me rather than the registered keeper since I appealed.

Coupon-mad

Your point 5 needs changing to explain the machines were covered which is why you found yourselves unable to pay within 5 minutes. At the moment what you've written sounds like it was your partner's error/inability to pay.

You have no point 6.

thisistheworst

Coupon-mad said:

Your point 5 needs changing to explain the machines were covered which is why you found yourselves unable to pay within 5 minutes. At the moment what you've written sounds like it was your partner's error/inability to pay.

You have no point 6.

My partner remembers first machine being covered (as do I) but not 2nd, and I couldn't see it. So I was trying to keep it vague, but I've updated it to be more clear. Thanks. I've given it extra detail now, as I've had the chance to ask my partner for extra detail - mostly around how rubbish the online payment functionality was. Any further comments welcome, thanks

Also, you had asked for some images of the NTK/PCN etc on my first thread - do you still want these?

Defence:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond.

3. The POC fail to properly identify the location or town; merely a street name which is not private land. It is denied that the vehicle was parked in 'the Copeland Street' (public highway).  Further, the POC fail to mention any quantum at all, let alone break it down into heads of cost.  The claim is for £170 which is far higher than the maximum (industry capped) sum for a parking charge and is wholly disproportionate.  It is denied that this Claimant is entitled to the unquantified 'parking charge, contractual costs and interest' that the POC vaguely mentions, nor any sum at all.

4. The VRM in the POC is recognised and it is admitted that the Defendant was the keeper and driver.  The Defendant was visiting “Jumpin’ Fun” inflatable park with their partner and two young children (near-2 year-old, and 4-week old) for the first time, to attend a session which began at 09:00 and had a fixed end time of 10:00. Arriving in the car park after 09:00, the Defendant made all reasonable efforts to park up and pay for a ticket quickly in order to maximise their time in the venue.

5. The Defendant’s partner proceeded to the nearest parking machine and found it covered in a yellow “out of service” jacket. She then proceeded to the second machine in the car park, which was on the other side of a large building. This machine was also not working, although the Defendant’s partner cannot remember if it had a yellow jacket on or not, and it was out of line of sight of the Defendant. The Defendant and their partner always have parking change and cards with them; both would have been tried if the machine was usable. Unable to purchase a ticket from the physical machines, the Defendant’s partner opted to use the “pay online” service.

6. The Defendant and their partner found the online service slow. Registering an account included a 2-3 minute wait for a verification text. Once registered, the Defendant’s partner used the website to purchase a 2 hour parking session. The website displayed a message “your parking will start from now” at the start of the process yet the final confirmation screen showed that the parking period would start 5 minutes after confirmation. The Defendant and their partner both looked for an option to change this, even going back to the start of the booking process, and there was no option. The issue time on the invoice is 09:19 and the “start time” of the ticket is at 09:24, which the Defendant disputes as it appears to be a deficiency within the Claimant’s online booking system.

 7. Three months later, after being sent a vague PCN alleging non-payment, and showing a timestamp of 09:08:59 for entry to the car park, the Defendant appealed on the basis that they had in fact paid for parking and outlined the extensive difficulty encountered whilst trying to do so promptly. This appeal was denied on the basis that the Defendant took longer than the Claimant’s fixed (but unspecified) “reasonable time” allowance to park, read terms and conditions and purchase a ticket, and that the terms and conditions were on clear signs and should have been read and considered upon entry.

 8. The Defendant had undertaken three separate attempts to purchase a parking ticket before being successful. The fault for the first two failed attempts lies with the Claimant and their faulty parking machines. The third attempt, whilst successful, was also significantly delayed due to the Claimant’s implementation of their online payment system. Finally, the issued ticket displays an inaccurate start time, again due to the Claimant’s online payment system. The Defendant disputes whether the Claimant’s “reasonable amount of time” truly accounts for the unreasonable disruption caused by the Claimant’s machines and systems on the day.

 9. The Defendant ultimately paid for 2 hours of parking (the minimum period) and left the car park after approximately 1 hour, as planned. The Defendant vehemently denies that they were unreasonably slow to purchase a parking ticket. Conversely, the Defendant asserts that this was the single most time-consuming parking ticket purchase of their life, entirely due to factors controlled by the Claimant. At all times the Defendant was trying desperately to purchase a ticket as quickly as possible so that they could proceed with their planned activity.

 10. Further, the Defendant asserts that purchasing a ticket within 10 minutes of parking, despite all of the issues encountered, is not only reasonable, it was actually fast. It is unclear how the Defendant could have purchased a ticket sooner without advanced knowledge that their preferred payment method (physical machines) was unavailable. It is also unclear how reading the astonishingly verbose terms and conditions sign in detail would have done anything other than delay the Defendant’s purchase further.

 11. The Claimant’s signage states that a PCN will be issued if a ticket is not purchased within 5 minutes. The Defendant disputes that this is reasonable, as the online process alone took longer than this, with most of the time used up waiting for a verification text as part of registration. Having repeated the process at home (with good signal) the Defendant again found the verification text to take ~3 minutes to arrive, so this does not appear to be related to the poor signal in the area.

 12. The Claimant’s PCN also appears to claim that the parking session began at 09:08:59 when the vehicle entered the car park. This is not the case. The incoming statutory Parking Code of Practice linked later in this defence helpfully defines the “parking period” at '2.24 parking period' as:
 "the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle). This is not the period between a vehicle being recorded as entering and departing controlled land."

 13. Accordingly it is denied that "the act of entering private land was the acceptance of the offer". In a pay & display site, entry in moving traffic cannot be the moment when a parking contract begins. It cannot possibly be concluded prior to parking and before the motorist was given the opportunity to read the terms, and either accept or reject them. This view is supported by case law and incoming statute. The Defendant relies upon paragraph 5 of the incoming statutory Parking Code of Practice and upon the authority in National Car Parks v HMRC [2019] EWCA Civ 854 (20 May 2019) where it was held by the Court of Appeal that the contract with a paying patron in a Pay & Display car park is brought into being "when the green button was pressed".

 14. It is denied that the vehicle was parked without purchasing a valid pay & display ticket. The sum paid by the Defendant covered the duration of parking. Any breach is denied.

Coupon-mad

Yep that followed by the rest of the template will be fine.  It's detailed but needed IMHO.

I don't need the NTK images now as they are all here already:

https://forums.moneysavingexpert.com/discussion/6483542/a-thread-of-pictures-of-2023-parking-firm-ntks/p1