Parking Apps - Can you claim a keying error?

mczero

This has moved on a little.  Claim raised by Claimant. I have acknowledged and am now drafting a defence. Core of my argument is that I paid but made an error in the parking app and selected nearby and similarly named Car park.  It can't be right that this can't be fixed by either the operator or their Agent (Ringo). Draft Defence below - I would appreciate thoughts.  I have very good use of the template but focused on the App rather than the signage aspects as I was remote from the location when using the App.  Interesting that even the latest code of practise has little to say about using parking apps. 

DEFENCE

1.      The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2.      The facts in this defence come from the Defendant's own knowledge and honest belief. At all stages the Defendant has acted transparently and expeditiously. Conversely, the Claimant has adopted an approach characterised by the production of stock letters, cut-and-paste responses, and sparse statement of case.

3.      The Defendant refutes the basis of the Particulars of Claim (POC) that there was a contractual breach and that this situation is one of a minor keying error. The Defendant considers that the Claimant has behaved unfairly and unreasonably in being unwilling or unable to address this. However, the vehicle is recognised, and it is agreed that the Defendant is the registered keeper.

The facts known to the Defendant

4.      The facts are as follows.  The Defendant had been a regular user of the XXXX for over a year and paid each and every time online using the Ringo App. On the occasion of the claimed breach as the operator will attest, the defendant was parked in car park () for two consecutive days. The parking session for the first day was correctly attributed to their car park. The Defendant was required by work to extend a business trip. The Defendant then extended the session in the Ringo App while remote from the car park. A minor keying effort resulted in selection of a nearby - but similarly named - car park (XXXX) car park. This other car park is operated by a different operator. 

5.      Parking tariff was paid for at all times the vehicle was parked, via the Claimant’s Agent (Ringo) however the location was incorrect due to a minor keying error.

6.      As soon as the Defendant was informed that payment – in both cases via the Ringo app - had been to the wrong car park operator, contact was made to if the funds could be re-attributed to the correct car park operator. Ringo stated this was not possible. The Defendant offered to pay the car park operator in full including a notional fee for the processing of payment. This was rejected. Subsequent appeals were rejected with no acknowledgment of the minor keying error or the fact that parking tariff had been paid.

7.      The defendant engaged with the appeals process, but the Claimant failed to acknowledge the evidence that parking had been paid in the past, including the previous day.

Legal Argument

8.      The Claimant does not appear to have a process that corrects a minor keying error made in their agent’s app (Ringo) and this cannot be the basis for a penalty on the Defendant. At this point the parking charge should not have been pursued by the Claimant.

9.      The POC appear to be in breach of Civil Procedure Rules (CPR 16.4) and fail to "a concise statement of the facts on which the claimant relies". There is no acknowledgement that parking was paid to the Claimant’s Agent (Ringo). The Claimant has made no attempt to recover that sum from their Agent or provide any mechanism to allow the Defendant to do so. 

10.  The Claimant appears to have failed to recognise, or even acknowledge, the Private Parking Sector Single Code of Practice Annex F where it relates to minor keying errors. The defendant asserts that this situation was a one of a minor keying error noting that the Code of Practise does not appear to recognise (or provide examples) relating to the use of Parking Apps despite the fact that they evidently handle much of the Claimant’s revenue.

11.  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

i)        a strong 'legitimate interest' extending beyond mere compensation for loss, and

ii)       'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

12.  The Defendant rejects (i) has been met. It is also the case that in the Ringo App there is no indication or warning that user might be selecting a nearby car park with a different car park operator. This argues that (ii) is also not suitably met in a context where payment is by Parking App.

13.  In this case, where the Defendant had an history of payment, had clearly demonstrated willingness to pay, made every effort to address the minor keying error and there cannot be legitimate interest in enforcing a charge and therefore this charge would be considered an unenforceable penalty. 

Consumer Rights Act breach - lack of support to correct minor errors

14.  Section 71 of the Consumer Rights Act (CRA) creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. The Defendant considers the claim to be unfair in that there is poor delineation between the car parks (3199 and 2015) which is certainly not clarified by the parking app and that the Claimant exploits this into a 'concealed pitfall or trap' in expectation of generating revenue.

15.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps'). This Claimant has failed those tests as the Ringo App fails to highlight that these two similarly named and adjacent Car Parks can be easily confused.

Lack of credible Alternative Dispute Resolution

16.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Trade Bodies' time-limited and opaque 'appeals' services that fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful average 5% of decided cases (ref: recent Annual IAS Reports). It became evident to the Defendant very early that an impartial, fair appeals service was never on offer. No recognition of the mitigating aspects is an indicator of a dispute resolution service that is not fit for purpose.

Conclusion

17.  In the matter of costs, the Defendant seeks:

(a) standard costs for attendance at Court, pursuant to Civil Procedure Rules (CPR) 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.22.

18.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. The defendant expects that the Claimant will opt for discontinuance and contends that costs should be awarded as the claimant has behaved unreasonably - in accordance with CPR 44.11. 

Statement of Truth

19.  I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature:

Date:  

Car1980

What are the Particulars of Claim?

Who is the solicitor? DCB Legal?

Car1980

I have very good use of the template but focused on the App rather than the signage aspects as I was remote from the location when using the App.

I'd make the point that the Claimant should have replicated the contract they rely upon within the app but failed to. It's the equivalent of placing a payment machine with tariffs at one end of the car park and the terms and conditions 400m away at the opposite side.

mczero

Car1980 said:

What are the Particulars of Claim?

Who is the solicitor? DCB Legal?

The claim is £95.00 for an unpaid parking charge following contractual breach which occurred on XXYYZZ in the private land (lawfully occupied by the claimants) by the driver of registration mark NNNNNN.  The terms and conditions displayed offered the driver a contractual licence, were accepted by the driver upon entry and subsequently breached. Drivers breach; Failure to display a valid ticket permit The claim also includes £70.00 recovery costs as set out in the terms and conditions and the ATA AoS code of practise. 

BW Legal

Car1980

"Failure to display a valid ticket permit"

Defend on what they claim. You can't display a "ticket permit" if you pay by phone.


I would take out everything you've added to the template and just say this as a single paragraph of facts know to the defendant:


The defendant parked using the RingGo payment app. Displaying a "ticket permit" was an impossibility as the phone app was used.

It is submitted that the claim should be struck out under 3.4(2)(a) (where a statement of case discloses no reasonable grounds for bringing or defending a claim) because the particulars amount to:

(2) those which are incoherent and make no sense,

and/or

(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

Coupon-mad

I agree you should respond ONLY to the allegation "failure to display". The allegation isn't "failure to pay".

Save all the rest of your detail for WS stage.

mczero

Just to keep this thread up to date.  I submitted the defence via MCOL in late June. I adjusted the defence as suggested.  Napiers (Generic) Terms and Conditions state that unless there is good reason they should have placed PCN on vehicle (which they didn't). Week and a half latter just had a note from "legal services" (BW Legal) to inform me that they "intend to proceed with Claim".  Now awaiting a hearing date.    

Gr1pr

That wont happen for weeks or months, mediation is next,  plus the N180 stage,  because its still with the CNBC,  not your local civil court 

Study the 12 steps in the defence template thread,  because you have several to go as of now 

Any hearing could be next year 

mczero

Gr1pr said:

That wont happen for weeks or months, mediation is next,  plus the N180 stage,  because its still with the CNBC,  not your local civil court 

Study the 12 steps in the defence template thread,  because you have several to go as of now 

Any hearing could be next year 

Thank you - read this right at the start but good to go back and re read. Will await the next steps.