Civil National Business Centre - Claim Form - Interesting Twist with Contract Law - Advice Needed

pjwanderer

Details and Actions I have followed so far.

Preamble - This is a claim resulting from a PCN issued 5 years and 8 months ago.

The Claimant is DCB Legal Ltd on behalf of Euro Car Parks Limited.  The particulars of claim are standard to other threads:

1: The Defendant (D) us indebted to the Claimant (C) for a Parking Charge(s) issued to the Vehicle Fxxx xxx at (location redacted)
2: The PCN(s) were issued in xx/02/2019
3: The defendant is pursued as the driver if the vehicle for breach of the terms on the signs (the contract) Reason: The PandD/permit Purchased Did Not Cover The Date And Time Of Parking
4: In the alternative the defendant is pursued as the keeper persuant to POFA 2012, Schedule 4 AND THE CLAIMANT CLAIMS
1: £170 being the total of the PCN(s) and damages
2: Interest at a rate of 8% per annum pursuant to s.69 of the County Court Act 1984 from the date hereof at a daily rate of £.04 until judgement or sooner payment.
3: Costs and Court Fees.

- Amount Claimed - 252.56
- Court Fee 35.00
- Legal representatives costs - $50
-Total Amount 337.56

Where I am up to and the interesting part of the defence with regards to contract law.
I have created the start of the template based on one by @hharry100 

Now some details (I have redacted parts at the moment as I assume DCB read these threads.)

I was not the driver.  I received a PCN which to this day is the only evidence I have of what is alleged to have happened.  I of course went through the appeals process, where interestingly at the POPLA stage seems to have never been concluded - and why I ignored every correspondence afterwards.

To summarise (Alot), in the PCN, it was stated that  register keeper breached the terms and conditions of parking - "the P&D/permit purchased did not cover the date and time of partking.

Now they go on to state how its the driver responsibility to check signs etc, and that contract law applies.  They then go to state a pay and display ticket matching the vehicle registration was purchased for £2.20 (in actual fact it was purchased by a pay by phone app) which they say would have entitled your vehilce to part for upto 3 hours/Minutes according to the clearly displayed tariff.  They say the total stay was 3 hours and 32 mins (via ANPR).  This did not cover the date and time of parking etc etc.

Now the interesting bit.

Along with this assertion, they kindly sent a picture of the of the signage at the entrance to the car park, which is the only point where T&C are displayed - As I was not there, and this was 5 years 8 months ago, this picture they sent is the only evidence of the tariff in place at the time. The tariffs on the picture of the signage are as follows:

UPTO 1 HOUR - £0.60
UPTO 2 HOURS £1.20
UPTO 3 HOURS £1.80
UPTO 4 HOURS £2.40

Now as you can see, they took 2.20 as payment, to which the contract was entered in to.  This is not a tariff on the signage.  No refund was given.  Therefore I simply conclude with simple maths that the "offer" is 1 pence per minute based on the tariffs.  So by taking 2.20 in contract law, we can assume that the contract entered in to was to park for 3 hours and 40 mins.  Therefore no overstay happened.

So along with the standard defence, the help I guess I need is to correct word the contract law defence with regards to the offerer and the assumed contract that was entered in to?

hope this makes sense, and thanks in advance for the advice.  Any questions I'm happy to answer.

KeithP

Hello and welcome.

What is the Issue Date on your Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

pjwanderer

A claim was issued against you on 30/10/2024

Your acknowledgment of service was submitted on 03/11/2024 at 20:03:57

Your acknowledgment of service was received on 04/11/2024 at 08:05:46

Coupon-mad

No, your conclusion that there was no overstay isn't correct.  You can't look at a tariff list and imagine your own version of a price in between.

I have created the start of the template based on one by @hharry100 

But your case doesn't lend itself to that alternative one.  That's only for claims where the POC don't specify the alleged breach.

KeithP

pjwanderer said:

A claim was issued against you on 30/10/2024
Your acknowledgment of service was submitted on 03/11/2024 at 20:03:57
Your acknowledgment of service was received on 04/11/2024 at 08:05:46

With a Claim Issue Date of 30th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 2nd December 2024 to file a Defence.

That's nearly four 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'.

pjwanderer

ok I will revisit the template with regards to no using Hharry100.

Back to the tariff. The question is one of what contract was entered in to if the parking company gladly took £2.20 in a pay by phone app.  Hence the question as it falls more in to contract law than it does in to standard POFA or signage (which actually was bad  as no T&C are put by the payby phone notice).  If the person forming the contract offers £2.20, and the accepter takes this amount, what contract is formed with regards to the length of stay.  They accepted more than the 3Hours, and Less than 4 hours.  This is my point here.  Also, it was the driver not myself that entered in to this contract.  ?  For all I know, the stated terms and tariff could well have been different in the app.  But the only evidence I have is the details sent by the parking company of the signage.?

Coupon-mad

Yes I see that and it is worth saying in defence. But what you can't do is leap to the conclusion that £2.20 buys x minutes.

pjwanderer

I have now drafted a defence.  Can I post here to get feedback?

Fruitcake

If you have used the template defence, please only post the parts you have changed.

pjwanderer

DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').
   
   
   
2. The facts known to the Defendant: The Defendant's own knowledge and honest belief  in the background to this claim come ONLY from the Claimants notice to keeper on the date issued xx/xx/2019, and reject of appeal dated xx/xx/2019.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appears 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. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.
   
   
   
3. The Claimant in the POA is making a Claim against the keeper for PandD Purchased did not cover the time and date of parking, which is denied
1. The details from the Notice to Keeper (NTK) documentation provided on xx/xx/2019 state that eurocar parks were  “using cameras to capture images of vehicles entering and leaving the car park to calculate the length of stay. The signage, which clearly displayed at the entrance to and throughout the car park states that this is private land, the car parl is managed by euro car parks and sets out the terms and conditions of the car park by which those who part in the car park agree to be bound”
2. From this NTK,  The Defendant has knowledge that a payment of £2.20 was made.  This is stated in the Claimants rejection of letter of appeal dated xx/xx/2019 where they state “a pay and display ticket matching your vehicle registration was purchased for £2.20 - this would have entitled your vehicle to park for up to 3 hours/minutes according to the clearly displayed tariff.  Your vehicle entered at 09:xx:xx and excited at 12:xx:xx, a total stay of 3 hours and 32 minutes.” 
   
   
   
4. The Claimant provided an image of the car park signage with the displayed tariff as follows:
               UP TO 1 Hour £0.80
               UP TO 2 hours £ 1.20
               UP TO 3 Hours £1.80
               UP TO 4 Hours £2.40
               UP TO 10 Hours £5.80
               UP TO 12 Hours £6.80
               UP TO 24 Hours £8.00
1. The Claimant image provides no detailed terms and conditions that are legible and in relation to the contract formed between the Claimant and the driver, nor do any of the signage state terms of an intermediate payment amount. 
   
   
   
5. The Defendant in this case is aware that the Claimant states that the driver stayed in the car park for 3 Hours and 32 Minutes based on Camera data.  The Defendant knows that the driver paid £2.20, which was accepted by the Claimant for parking in the car park.  
1. The Defendant knows that the amount paid to the Claimant was for more than 3 hours and less than 4 hours.  The Defendant also knows that there are no terms covering intermediate payments displayed at the carpark based on the image of the signage provided by the Claimant
2. The Defendant can only look at the Offer of contract to the driver to ascertain if the Claimants alleged breach of terms and the PandD permit did not cover the date and time of parking : The parking operator’s terms on the signage constitute an offer to provide parking in exchange for payment.  The defendant is seeking that contract Acceptance is void In this case as the terms of the signage are ambiguous and it is unclear about how intermediate payments are treated
6.  Under the Contra Proferentem Doctrine, ambiguous terms, as in this case,  the Defendants claim is that they must be interpreted against the party that drafted them. The Claimant, as the drafter, cannot enforce an interpretation that penalises the Defendant or the driver who entered in to the contract.
1. Case law supports this position, including: Excel Parking v. Hetherington-Jakeman, which invalidated enforcement of charges due to unclear terms
   
   
   
7. Presumption of Reasonable Contract
1. The Defendant states that in the driver’s position, it would not have been understood what the contract would mean if an intermediate payment was made as part of the offer to the Claimant. The defendant would take how a reasonable consumer might interpret a payment of £2.20 as buying parking time proportional to the other rates, if intermediate payments are not addressed in the terms of a contract.
2. This principle aligns with: The Consumer Rights Act 2015, which requires terms to be clear and fair.3.2.2 Under Section 62 of the Consumer Rights Act 2015, contractual terms must be clear, fair, and transparent. The lack of clarity regarding intermediate payments violates these principles.
3. Failure to Mitigate Loss. Even if a breach occurred (which is denied), the Claimant failed to mitigate their loss by not providing mechanisms to validate or adjust payments in real time via the pay by phone app to cater for intermediate payment.  The intermediate payment was still taken from the driver who entered into the contract
4.  the signage does not address intermediate payments, a court might assume a proportional or reasonable interpretation of the payment. 
5. The gap between £1.80 and £2.40 creates room for an implied contract (if not void) based on a reasonable inference — in this case, one might assume £2.20 entitles the driver to a proportionate time period based on the offer and acceptance of the monies paid to the Claimant... This is a fair interpretation that aligns with a proportional or “pro rata” approach

8.             ​The Defendant asserts that no enforceable contract was breached, as the terms were ambiguous, unclear, and could not be reasonably understood by the driver entering in to the contract given the evidence provided by the Claimant.  The Defendant disputes the entirety of the claim brought by the Claimant for an alleged breach of terms, specifically the alleged underpayment of parking fees.

9.              The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be: 

1. (i). a strong 'legitimate interest' extending beyond mere compensation for loss, and
2. (Ii). 'Adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines

 

 

Conclusion: Defence Against Ambiguous Terms

Using the above principles, a defence based on ambiguous parking rates and reasonable interpretation can be summarized as follows:

• Ambiguity in Terms: The parking operator’s signage failed to clearly specify how intermediate payments are treated, creating uncertainty.
• The Defendant contends that: - No valid contract breach occurred due to the ambiguous terms.
• Due to the ambiguous terms The Defendant contends that the contract is void.
• The Claimant failed to meet their obligations to provide clear terms, and any ambiguities should be resolved in favour of the Defendant.
• Proportional Interpretation: In the absence of explicit terms to the contrary, the driver could reasonably assume their payment (£2.20) entitled them to a proportionate time allowance give the offer and acceptance.
• Consumer Protection: Under the Consumer Rights Act 2015, the driver’s interpretation aligns with what a reasonable consumer would expect, and any penalty for this payment would be unfair and unenforceable.
• Operator Responsibility: The parking operator, as the party drafting the terms, bears responsibility for resolving ambiguity in favour of the consumer under the contra proferentem doctrine.

 

Request for Dismissal 

Based on the reasonable interpretation of the driver’s payment, the defendant respectfully requests that the court dismiss the Claimant claim in its entirety. 

Coupon-mad

That's far too much to add to the Template Defence and most isn't needed.  I would not admit to so much knowledge and (assuming that you paid with coins) maybe just put them to strict proof that £2.40 was not received in the machine that day and say that, on the balance of probabilities, the issue was caused by the machine swallowing a 20p coin, which the Claimant retained but did not attribute to any particular vehicle.

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Contra proferentem doesn't apply.  A tariff list isn't ambiguous.

Much of the end repeats what's already in the 30 paragraph template defence.