Excel Parking/DCBlegal Defence advice - Paying outside of the 10 minute time upon entry.

newbie_2517

Great thank you I will write this  @Coupon-mad x

Johnersh

Look, the fact is that none of the normal T&C's were breached. 10 mins, when the timer is started at the ANPR gate (ie. Before the car is parked at all) is problematic because:

1. It is onerous
2. It takes no account of time to park (which may be up to half that time in a large or busy car park)
3. It takes no account of queues at a pay station or to undertake app downloads
4. It takes no account of disability or encumbrance (here slowed down by baby)

Since the requirement to pay within minutes isn't signed on the perimeter road, it creates a trap. I would suggest it should engage the old red hand...

newbie_2517

Thank you for your reply @Johnersh this is certainly my view point as well. Sorry what did you mean by 'old red hand'? 

I like your summary of why it is problematic thank you I will use this in my defence.  I will try look up the red hand rule in the mean time.

newbie_2517

@Johnersh Were you referring to - The “Red Hand Rule” in Contract Law

The “Red Hand Rule” originates from Lord Denning’s judgment in Spurling v Bradshaw (1956) and is used in contract law to determine whether an unusual or onerous contract term has been sufficiently brought to the attention of the other party.

Key Principles of the Red Hand Rule:

• If a contract contains an unfair, unusual, or especially harsh term, the party imposing it must clearly highlight it to the other party.

• The more unreasonable or burdensome a term is, the more effort must be made to draw attention to it.

• In Lord Denning’s words: “Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.”

How It’s Used in Legal Disputes:

• If a business tries to enforce an unfair term that was hidden in the fine print, courts may refuse to uphold it.

• For example, if a parking company buries a 10-minute grace period exclusion deep in the terms without clear notice, a court may rule it unenforceable under the Red Hand Rule.

fisherjim

This is quite clearly a made up term to create a trap to gain more revenue.

They use ANPR to charge you for the inclusive time the vehicle is on site, they then try to add on another clause about timing the driver or other occupant from the time the vehicle entered the site, to the time a person took to complete a transaction to pay.

It's obviously an unfair and unnecessary extra condition applied where a parking payment covers the period on site as the ANPR is all that needs to be relied on, and even that is contentious.

newbie_2517

Thank you @fisherjim that is very well put, I am going to try and incorporate that into my defence. 

I highly doubt it will go to court, but I am fully prepared to go the distance. An additional question I have come across in my mind is that if it does go to court, and I am successful, should I submit a bill of costs to DCB legal, and if they refuse to pay then insist on an assessment of costs hearing.  I highly anticipate this won't happen, but I was wondering if it is appropriate or peoples general thoughts into including a line to this effect in my defence in that this is my intention to reclaim my own personal costs for this, and then quote the amount of losses I would incur by losing a day of work in my professional role +/- the time spent responding/self representing this case.  Just wanted others thoughts on that as well, and if so a good way to word this? And also at what point in the template to write such a statement.  Many thanks

newbie_2517

I have done a little more research on this matter now, and I have found the below information, so my question now is - would it be worth quoting Dammermann v. Lanyon Bowdler LLP [2017] EWCA Civ 269 regarding small claims costs which clarifies the “unreasonable conduct” exception in CPR 27.14(2)(g).    More really for clout in my defence rather than intending to pursue this and in hope of them just withdrawing.  Thoughts on this would be most welcome. 

Also would still like to know if I should outline the costs I will be reclaiming if I am successful if it proceeds to court as per CPR 27.14(2)(e) .

 
information: 

CPR 27.14(2)(e) – This rule is the legal basis for claiming lost earnings on the small claims track. It prohibits most cost orders in small claims but explicitly makes an exception for a party’s or witness’s loss of earnings/leave due to attending the hearing . In practice, this means the judge can order the losing party to pay the winner a fixed sum for lost work time (in addition to other fixed costs like court fees).  Practice Direction 27A, paragraph 7.3(1) – This sets the cap of £95 per day for loss of earnings/leave . This is an official limit; even if your actual loss is higher (say £150 of wages), the most you can recover is £95 for that day.  

However I have also found: Legal precedent on costs (unreasonable behaviour):  While not specific to lost earnings, it’s worth noting a key Court of Appeal case Dammermann v. Lanyon Bowdler LLP [2017] EWCA Civ 269 regarding small claims costs. This case clarified the “unreasonable conduct” exception in CPR 27.14(2)(g). Normally, apart from the fixed costs (fees, travel, £95/day loss of earnings, etc.), no further costs are awarded. However, rule 27.14(2)(g) says the court may order a party who has behaved unreasonably to pay further costs . In Dammermann, the Court of Appeal emphasized that “unreasonable” is a high bar: “conduct cannot be described as being unreasonable simply because it leads in the event to an unsuccessful result… The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may not be unreasonable.” . This means that if the parking company’s conduct in bringing the claim was more than just misguided – for example, vexatious, wholly without merit, or abusive of the process – you could ask for additional costs beyond the £95 (such as all your missed work time, or mileage at a higher rate, etc.). Judges are cautious with this: only clear-cut unreasonable behavior warrants extra costs. For instance, in some parking ticket cases, courts have found claimants acted unreasonably (e.g. pursuing a claim they knew was baseless or failing to follow court directions), and have ordered them to pay a larger share of the defendant’s costs . But such awards are exceptional. The usual outcome, even when you win, is that you’ll recover your court fees, travel expenses, and lost earnings (capped at £95/day) – but not your general legal costs.

newbie_2517

I have now seen point 29 in the templated defence includes this, brilliant.  Answering my own questions ha.   I will upload my defence soon once I have completed it.  

Johnersh

@newbie_2517 indeed. 

Coupon-mad

newbie_2517 said:

I have now seen point 29 in the templated defence includes this, brilliant.  Answering my own questions ha.   I will upload my defence soon once I have completed it.  

You're doing well though.  Exemplary research.  You are better than most newbies: ahead of the game!