Parking Apps - Can you claim a keying error?

Coupon-mad

mczero said:

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 practice. 

Napier using BW Legal. I would expect this to proceed to the hearing.

The added £70 is double recovery of costs covered by the PCN. Not that this is a defence in itself against the allegation, but it is vital to state this in your WS and at the final hearing, to stop the Judge going wrong & thinking that the 'debt recovery fee' is a thing that can be layered on top of a PCN. ParkingEye v Beavis (and schedule 4 of the POFA) says it can't.

Also this point kills the claim if you argue this well:

Coupon-mad said:

it is impossible for this breach to have occurred.

You can't 'fail to display' when using an app and they can't re-plead the case without making a formal application.

mczero

Coupon-mad said:

mczero said:

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 practice. 

Napier using BW Legal. I would expect this to proceed to the hearing.

The added £70 is double recovery of costs covered by the PCN. Not that this is a defence in itself against the allegation, but it is vital to state this in your WS and at the final hearing, to stop the Judge going wrong & thinking that the 'debt recovery fee' is a thing that can be layered on top of a PCN. ParkingEye v Beavis (and schedule 4 of the POFA) says it can't.

Also this point kills the claim if you argue this well:

Coupon-mad said:

it is impossible for this breach to have occurred.

You can't 'fail to display' when using an app and they can't re-plead the case without making a formal application.

thanks for this - if I read it correctly POFA schedule 4 only allows for the parking charge and that the recovery number is something they have made up in their terms & conditions. 

as an aside I am now at the point where I will be disappointed if they don't show up.        

Coupon-mad

"the recovery number is something they have made up in their terms & conditions."

"Made up" - yes.

"In their t&cs" - certainly NOT and whatever you do, no saying that!

mczero

Coupon-mad said:

"the recovery number is something they have made up in their terms & conditions."

"Made up" - yes.

"In their t&cs" - certainly NOT and whatever you do, no saying that!

is this to your liking :-) 

The Claimant’s POC includes a claim for “recovery costs”. The case of Beavis confirms that the parking charge already covers operational cost and profit (para 193). Any further fixed “recovery” sum is double recovery and not permitted under POFA (2012) Schedule 4 Para 4 (1)(6). Accordingly, even if liability were found (which is denied), the POC is (again) incorrect and the claim should be stuck out.

Coupon-mad

It won't be struck out. Change the end to 'dismissed'.

Le_Kirk

mczero said:

I am preparing my witness statement which is a modification of my defence 

Can I ask if it is acceptable and / or usual to use e-mail to send them (and indeed the court) my witness statement and evidence pack? 

The letter from the court doesn't seem to be prescriptive (nor does it have an obvious email address - although there is a fax number :-)).  

Your witness statement is not a modification of your defence but a statement in the First Person (I) that backs up and is in support of your defence with evidence.  Use of email is fine and expected, you can use the gov.uk tribunal finder for the contact details of every court.

mczero

I have drafted my witness statement and would welcome any comment etc. Please ignore the paragraph numbering - it looks fine on the version I will be sending

County Court at XXXXXXX

Claim number XXXXXXX

Between

XXXXXXXX

and

XXXXXXXX

Witness Statement

1. I am XXXXXXXXX. I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.
2. I am a defendant in person with no formal legal training. I have done my best to present my case and evidence clearly and truthfully, and I ask the court to take this into account. 

Flawed Particulars of Claim

1. The Particulars of Claim (POC) received by me (Exhibit 1 dated XXXX), asserts a breach of Failure to display a valid ticket / permit. This is incorrect in fact and law as the I paid using RingGo, which by its nature precludes a physical ticket permit. The Claimant's signage refers to a Virtual Permit. Any alleged breach of virtual permit provisions (denied) is a different basis of claim to that made in the POC. The Claimant's statement of case discloses no reasonable grounds for bringing a claim as required by Civil Procedure Rule (CPR) 16.4 (Exhibit 2) and should be dismissed under Civil Procedure Rule (CPR) 3.4. (Exhibit 3)
2. The Claimant’s POC includes a claim for “recovery costs”. The case of Beavis (ParkingEye Limited (Respondent) v Beavis (Appellant) UKSC/2015/0116) (Exhibit 4) confirms that the parking charge already covers operational cost and profit (para 193). Any further fixed “recovery” sum is double recovery and not permitted under POFA (2012) Schedule 4 Para 4 (1)(6) (Exhibit 5). Accordingly, even if liability were found (which is denied), the POC is (again) incorrect and the claim should be dismissed.
3. The POC also attempts to cross reference to recovery cost to their terms and conditions (a term which does not exist in their terms and conditions) and refers to a Trade Association Code of Practise (ATA AoS) to which the claimant is not a member. (Exhibit 6). The text of the POC claims £95 plus £70 however the table appears to sum this amount at £155 rather than £165.
4. In the cases of CEL v Chan 2023 [E7GM9W44] (Exhibit 7) and CPMS v Akande 2024 [K0DP5J30] the claims were dismissed due for failing to meet the necessary legal standards.

The Facts

1. I had been a frequent user of the Claimant’s car park at XXXXXX, always paying via RingGo Application. I initiated a parking session remotely via the RingGo App, as permitted. I paid having searched for Fareham Station, not realising that two similarly named car parks, operated by different operators existed at this station (Exhibit 8). This led to selecting an adjacent car park operated by a different organisation. Payment was made in good faith to RingGo.
2. The Penalty Charge Notice (PCN) was not affixed to my vehicle - as shown in claimants pictures. This is a deviation from the Operator's Terms and Conditions (Para 3c / Para 8e)(Exhibit 9). Had this procedure been followed, the I would have been quickly aware and able to address any perceived issue (para 3b). Ringo recognise this problem and offers for some locations the option to make a retrospective (late) payment (Exhibit 10) indicating that this issue could have been resolved.
3. Action was taken by the me as soon as it became apparent that payment had been made to the wrong car park operator – although this was several weeks later. Contact was made to enquire if the funds could be re-attributed to the other car park operator. RingGo unequivocally stated this was not possible and indeed not allowed by the Claimant. I then made a good-faith offer to pay the correct car park operator, including a notional fee for processing, demonstrating a clear willingness to rectify the situation. (Exhibit 11 - XXX email dated 5 sept 2024). The payment was real, and the misallocation was virtual and an internal matter of accounting between RingGo and the Claimant. The misallocation was at all times capable of remedy between the Claimant and RingGo once evidence of misallocation became available.

Failure to Adhere To Code Of Practise

1. The private parking sector single Code of Practise (the trade association to which the Claimant does actually belong i.e. the International Parking Community) (Exhibit 12, 13, & 14 from version 1 dated 24 June 2024) acknowledges the use of technology in the management of parking and also the potential for keying errors (para 6.3). and indeed Annex F outlines where parking charge should not to be pursued and para F.3 states that operators must recognise mitigating circumstances warranting reduction to a level suggested by me at the outset. The Claimant did not follow their own code of practise in handling this case noting that they were aware at the earliest stage that this was a keying error and relied in harassing behaviour to extract disproportionate charges and disingenuously justify damages.

Unenforceable Penalty

1. The RingGo App provides no explicit indication or warning that a user might inadvertently select a nearby car park with a different operator, significantly undermining the concept of adequate notice in a mobile payment context. Given the my exemplary history of payment, immediate and demonstrated willingness to cooperate with the reallocation of the payment to its proper destination, and the fact that payment was indeed made for the parking duration, there can be no legitimate interest in enforcing this charge. Therefore, this charge constitutes an unlawful and unenforceable penalty.
2. The Claimant make much of the Supreme Court judgment in the case of Beavis (ParkingEye Limited (Respondent) v Beavis (Appellant) UKSC/2015/0116 (Exhibit 4) however Beavis was a case of overstaying and failing to engage – this situation is not at all similar. Had the Claimant acted in accordance with their own Terms and Conditions and Code of Practice this could have been resolved at nil (or at least negligible) cost. As Beavis makes clear, whether a charge of the nature the Claimant is seeking to enforce is lawful is fact-dependent. If it is the policy of the Claimant to seek to enforce the charge in the circumstances of this case or similar circumstances, then the charge is an unlawful penalty.

Estoppel Arises

1. The Claimant's relies on the RingGo (or similar) Apps for remote payment, and the implicit understanding of a contractual relationship when a user pays for parking, created a reasonable expectation that a keying error - particularly when payment was successfully made (albeit misdirected) - would be remedied in good faith. This is particularly the case where the keying error arises due to circumstances in which the Claimant and RingGo are complicit due to the similarity of car park descriptions (see screen shot at Exhibit 8). The consistent and successful payments beforehand also establish a clear "course of dealing" that implies a particular standard of conduct and reliance on the part of the Defendant, which the Claimant has failed to consider, recognise or reciprocate.
2. RingGo's has a role as the Claimant's agent. RingGo's own site [Exhibit 15] explicitly states: "When offering you our parking payment systems we are facilitating the payment of parking fees on behalf of the operator of the specific on-street or off-street location and acting on behalf of that operator to conclude a parking action requested by you." This is a direct admission of agency. The fact that RingGo's system integrates with the operator's enforcement system, allowing wardens to view active parking sessions, further solidifies this agency relationship. RingGo is not a detached third party but an integral component of the Claimant's payment and enforcement infrastructure. Therefore, knowledge of the payment by RingGo, which was readily available or could have been obtained (and was when the I contacted them), and could have been credited directly to the Claimant.
3. Ringo staff are part of the International Parking Community (IPC) to which the claimant belongs and their Technical Working group professes to be working on “improving standards and enabling seamless integration across services”. However the IPC declares that it functions as a commercial entity and allows the IPC to provide tailored support and services that directly benefit its members. They choose not to operate an integrated service in order to extract profit through intimating claims for charges that are unjustifiable.

Consumer Protection and Dispute Resolution

1. The Claimant does not appear to possess, or at least failed to utilise, a process to correct a keying error made within their agent's app (RingGo). This systemic failing should not form the basis for a penalty. At no point should the parking charge have been pursued by the Claimant under these circumstances – in this case only the parking tariff should have been pursued.
2. The Particulars of Claim appears to be in breach of Civil Procedure Rule (CPR 16.4), failing to provide "a concise statement of the facts on which the claimant relies." There is a notable absence of acknowledgment that parking was paid to the Claimant’s Agent (RingGo), and the Claimant has made no discernible attempt to recover that sum from their Agent or provide any mechanism for the Defendant to do so.
3. The Claimant has evidently failed to recognise, or even acknowledge, the Private Parking Sector Single Code of Practice Annex F concerning minor keying errors. The Defendant asserts that this situation falls squarely under the definition of a keying error. It is pertinent to note the Code of Practice's apparent lack of specific guidance or examples for errors made using parking apps, despite their significant role in the Claimant’s revenue generation. The error was minor and pertained to a similarly named car park, strongly suggesting an understandable human error and could not represent a deliberate attempt to evade payment. I am aware of other instances where other motorists have made similar errors, suggesting a systemic issue or at least a common point of confusion that the Claimant has failed to address.
4. I assert that the claim is inherently unfair and in breach of Section 71 of the Consumer Rights Act (CRA) (Exhibit 16). This Act creates a statutory duty upon Courts to consider the test of fairness, irrespective of whether a party raises it. The poor delineation between car parks with the name of the Car Park being very poorly indicated, is a significant contributing factor to this unfairness. The Claimant appears to exploit such vagueness as a 'concealed pitfall or trap' with the expectation of generating revenue, which is contrary to the spirit of consumer protection. The intention of parking enforcement should not be to create conditions that allow them to punish a driver or to present them with hidden terms or cumbersome obligations.
5. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). I experienced firsthand that the available appeals services were time-limited and opaque, failing to factor the mitigating circumstance, adherence to terms and considering the single Code Of Practise (Exhibit 17). None of the correspondence acknowledged my timely actions or considered mitigating circumstances, indicating a dispute resolution service that is not fit for purpose.
6. My MP XXXXX referred this case to the Ministry of Housing Communities in Local Government. In response the Minister specially noted the pattern of poor behaviour by Parking Operator in their response and mentioned the degree to which this poor behaviour harms individuals and local businesses on high streets (Exhibit 18)..
7. The RAC (RAC Limited) also assert that this poor behaviour is in place (Exhibit 19).; “As it is, too many unfair tickets are still being handed out by operators who haven’t been forced to adhere to stricter rules and too many drivers are still being hounded by debt collection companies. And, we still don’t have a single, truly independent appeals service that drivers can go to if their initial appeal to the operator concerned is rejected”.

Conclusion

1. For the reasons stated above, the Defendant respectfully requests that the Court dismiss the Claimant's claim in its entirety.
2. In the matter of costs, I ask:
3. Standard witness costs for attendance at Court, pursuant to CPR 27.14, and
4. For finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5

Statement of Truth

1. I believe that the facts stated in this witness statement 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.

Coupon-mad

Two typos/wrong words:

"Code of Practise"

"Penalty Charge"

Le_Kirk

refers to a Trade Association Code of Practise Practice (ATA AoS) to of which the claimant is not a member. (Exhibit 6)

See changes above