DCBL Letter of claim

KeithP

NorthWalian said:

8. As users of the gym are allowed to park their car for up to three hours, the car’s stay duration of 2 hours and 35 minutes has not violated the terms.

9. The defendant has previously provided a screenshot from the Puregym app to the operator which provides further evidence to support this assertion.

10. As such evidence has been provided, it is extremely unreasonable for the operator to argue that the proof that registering the number plate would have provided is at all necessary.

Those three single sentence paragraphs would be better combined into a single paragraph.

LDast

7. The terms of the car park state that users of the Puregym are allowed to park their car on the premises for up to three hours. While a number plate registration system exists at the gym, it is located in an unsuitable location at the far corner of the building next to the vending machines and water tap which are far away from the gym machines.

That paragraph reads as though the Defendant was fully aware of the keypad that is supposed to be used for registering the vehicle but couldn't be @rsed to use it. I don't understand how that is any defence.

Trainerman

LDast said:

7. The terms of the car park state that users of the Puregym are allowed to park their car on the premises for up to three hours. While a number plate registration system exists at the gym, it is located in an unsuitable location at the far corner of the building next to the vending machines and water tap which are far away from the gym machines.

That paragraph reads as though the Defendant was fully aware of the keypad that is supposed to be used for registering the vehicle but couldn't be @rsed to use it. I don't understand how that is any defence.

Beat me to it. I was going to say exactly that, which tends to emphasise how that passage will/may be read.

Needs altering, imho

NorthWalian

Trainerman said:

LDast said:

7. The terms of the car park state that users of the Puregym are allowed to park their car on the premises for up to three hours. While a number plate registration system exists at the gym, it is located in an unsuitable location at the far corner of the building next to the vending machines and water tap which are far away from the gym machines.

That paragraph reads as though the Defendant was fully aware of the keypad that is supposed to be used for registering the vehicle but couldn't be @rsed to use it. I don't understand how that is any defence.

Beat me to it. I was going to say exactly that, which tends to emphasise how that passage will/may be read.

Needs altering, imho

How should I change it?

Should I just completely omit the machine’s existence?

Coupon-mad

Remove it and instead, your defence facts could say: 


- The Defendant was a regular gym user but there were many complaints about and significant issues with the unfair system, which set gym users up to fail.  The Claimant unreasonably required patrons to seek out their unreliable keypad on every occasion they were on site, rather than simply having all members' VRMs registered on an exempt electronic 'whitelist'.

- The Defendant could never be sure, from one day to the next, that the system would work and also recalls that the keypad was deliberately (seemingly by the Claimant, not the gym) placed in an inaccessible place with absolutely no arrows or signs in reception alerting users to it (except for an A4 home-made notice printed by the gym themselves).

- Further, this single keypad was very often not working, causing hundreds of complaints and PCNs unfairly issued to genuine patrons who reasonably expected to be allowed three hours free parking, as offered by the gym's app.  The Claimant notoriously refused to cancel any PCNs on appeal and some patrons even left the gym because of it.

- The Defendant denies any overstay, agreement to a contract or breach by conduct. The Defendant was entitled to three hours and the fact that the Claimant chooses to inflict remote ANPR and a dodgy 'keypad' on gym users (instead of a fair system of ongoing exemption for members) is their problem and not a cause of action against consumers caught out by it. There has been no mischief caused by any conduct of the Defendant.  This set-up causes unfair penalties. The Parking Eye v Beavis case is fully distinguished. 

- If this claim is not struck out, the Claimant is put to strict proof that on the material date, their keypad was positioned prominently alongside 'contractual' warning signs inside the gym, alerting patrons about the risk of being penalised at a rate of £100 per visit.  And they are put to strict proof that the system was working continuously because the Defendant has no information regarding what went wrong. Certainly there was no contract agreed. No gym user could be said to have reasonably agreed to a £100 'charge' let alone the inflated added 'fee/damages'.

- Unlike in the Supreme Court case of Beavis, there is no arguable legitimate interest to save the Claimant's charge, which merely punishes gym users for typos or other issues with the keypad.  The Supreme Court specifically held that a parking charge is penal and unenforceable if its purpose is to punish.

NorthWalian

Coupon-mad said:

Remove it and instead, your defence facts could say: 


- The Defendant was a regular gym user but there were many complaints about and significant issues with the unfair system, which set gym users up to fail.  The Claimant unreasonably required patrons to seek out their unreliable keypad on every occasion they were on site, rather than simply having all members' VRMs registered on an exempt electronic 'whitelist'.

- The Defendant could never be sure, from one day to the next, that the system would work and also recalls that the keypad was deliberately (seemingly by the Claimant, not the gym) placed in an inaccessible place with absolutely no arrows or signs in reception alerting users to it (except for an A4 home-made notice printed by the gym themselves).

- Further, this single keypad was very often not working, causing hundreds of complaints and PCNs unfairly issued to genuine patrons who reasonably expected to be allowed three hours free parking, as offered by the gym's app.  The Claimant notoriously refused to cancel any PCNs on appeal and some patrons even left the gym because of it.

- The Defendant denies any overstay, agreement to a contract or breach by conduct. The Defendant was entitled to three hours and the fact that the Claimant chooses to inflict remote ANPR and a dodgy 'keypad' on gym users (instead of a fair system of ongoing exemption for members) is their problem and not a cause of action against consumers caught out by it. There has been no mischief caused by any conduct of the Defendant.  This set-up causes unfair penalties. The Parking Eye v Beavis case is fully distinguished. 

- If this claim is not struck out, the Claimant is put to strict proof that on the material date, their keypad was positioned prominently alongside 'contractual' warning signs inside the gym, alerting patrons about the risk of being penalised at a rate of £100 per visit.  And they are put to strict proof that the system was working continuously because the Defendant has no information regarding what went wrong. Certainly there was no contract agreed. No gym user could be said to have reasonably agreed to a £100 'charge' let alone the inflated added 'fee/damages'.

- Unlike in the Supreme Court case of Beavis, there is no arguable legitimate interest to save the Claimant's charge, which merely punishes gym users for typos or other issues with the keypad.  The Supreme Court specifically held that a parking charge is penal and unenforceable if its purpose is to punish.

This is absolute genius.

Thank you!!

NorthWalian

5. The defendant entered the premises for the sole purpose of using the facilities located on the premises. In this situation the defendant parked his car to use the Puregym located on site.

6. The defendant upon leaving the gym, immediately drove his car out of the car park.

7. The Defendant was a regular gym user but there were many complaints about and significant issues with the unfair system, which set gym users up to fail.  The Claimant unreasonably required patrons to seek out their unreliable keypad on every occasion they were on site, rather than simply having all members' VRMs registered on an exempt electronic 'whitelist'.

8. The Defendant could never be sure, from one day to the next, that the system would work and also recalls that the keypad was deliberately (seemingly by the Claimant, not the gym) placed in an inaccessible place with absolutely no arrows or signs in reception alerting users to it (except for an A4 home-made notice printed by the gym themselves).

9. Further, this single keypad was very often not working, causing hundreds of complaints and PCNs unfairly issued to genuine patrons who reasonably expected to be allowed three hours free parking, as offered by the gym's app.  The Claimant notoriously refused to cancel any PCNs on appeal and some patrons even left the gym because of it.

10. The Defendant denies any overstay, agreement to a contract or breach by conduct. The Defendant was entitled to three hours and the fact that the Claimant chooses to inflict remote ANPR and a dodgy 'keypad' on gym users (instead of a fair system of ongoing exemption for members) is their problem and not a cause of action against consumers caught out by it. There has been no mischief caused by any conduct of the Defendant.  This set-up causes unfair penalties. The Parking Eye v Beavis case is fully distinguished. 

11. If this claim is not struck out, the Claimant is put to strict proof that on the material date, their keypad was positioned prominently alongside 'contractual' warning signs inside the gym, alerting patrons about the risk of being penalised at a rate of £100 per visit.  And they are put to strict proof that the system was working continuously because the Defendant has no information regarding what went wrong. Certainly there was no contract agreed. No gym user could be said to have reasonably agreed to a £100 'charge' let alone the inflated added 'fee/damages'.

12. Unlike in the Supreme Court case of Beavis, there is no arguable legitimate interest to save the Claimant's charge, which merely punishes gym users for typos or other issues with the keypad.  The Supreme Court specifically held that a parking charge is penal and unenforceable if its purpose is to punish.

13. As registering the number plate provides no benefit to the claimant beyond serving as evidence of usage of the Puregym, any argument that claims that registration is a contractual term is unsubstantiated and should not be considered.

14. When the defendant was using the car park, a large amount of empty spaces remained and when the defendant left the car park, it had passed midnight and the car park was nearly empty as no building was open to the public other than the gym. Therefore, there was no detriment to any other member of the public or any business from the defendant’s use of the car park.

Is that ok or is there something else that needs fixing?

Coupon-mad

Looks good. Then add para 4 of the Template Defence onwards, suitably re-numbered.

But DON'T show us the whole thing please.

NorthWalian

Coupon-mad said:

Looks good. Then add para 4 of the Template Defence onwards, suitably re-numbered.

But DON'T show us the whole thing please.

Thanks a lot

NorthWalian

I have now had the classic letter from DCBL stating that they intend to proceed and are willing to settle.

Am I correct in assuming that I just have to wait for the directions form to come in?