Defense for ticket paid on app for different VRN

shizzlemyjizzle

Hi,

What an amazing resource this forum is!

I'm following the guides and have read through previous defenses of previous forum users which relate to the same mechanism - I paid for the parking ticket on an app but the wrong number plate was selected on the app.  When the original letter came through I appealed and gave the details/ticket I had paid for and explained that that car had been parked at home and so wouldn't have occupied a space that day.  Needless to say further escalating fines/baliffs etc etc have came through the letterbox which I declined to respond to.

Claim was issued 2/4/25 - DCB Legal Ltd for Brittania Parking Group Ltd

My Acknowledgement of Service was received 7/4/25

Below is my draft defence (a blend of most recent template, previous efforts on the same mechanism and my own) - would appreciate any comments on the draft

DEFENCE

1. The Particulars of Claim are denied.

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear 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 and driver.

3. The vehicle with registration mark XXXXXX, of which the Defendant is the driver and registered keeper, was parked on the material day correctly within a designated bay and a ‘virtual permit’ was purchased via the PayByPhone mobile app. Proof of this payment was supplied to the Claimant at their internal appeal stage but the claimant did not cancel the charge. The permit was valid in as much as the correct tariff was paid for the time period the parking bay was correctly occupied for.

4. The particulars of claim state that the vehicle XXXXXXX incurred the charge for breaching the terms of parking on the land at XXXXXXXXX and a ‘Fixed Charge Notice (FCN) was issued. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge (tariff) had already been paid but due to an error in the cashless pay by phone app, it was not associated with this VRN.  The quantum is hugely exaggerated (no PCN can be £155 on private land) and there were no damages incurred whatsoever. The Claimant is put to strict proof of all of their allegations.

5. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel. Paying by phone for parking is indisputably a 'distance contract'.  The app used by the Claimant had carried forward stored data and, without having to physically key it in, or providing a pop-up to check, the app wrongly used the VRN relating to a completely different parking session. Taking into account an average two car household the claimant must be aware of the potential hidden pitfall of the system. To quote from the decision in Beavis:

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

6. Further and in the alternative, it is denied that the Claimant’s signage sets out the terms and conditions in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The important requirement of entering a correct or indeed any VRN for a valid ‘virtual permit’ should be made clear to patrons in prominent lettering and that failure to do so would incur a parking charge of £85.

7. 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.

 

8. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

 

9. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any damages were actually paid or incurred.

 

10. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

 

11. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

12. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022:

 

The Ministerial Foreword is damning: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

 

13. Despite legal challenges delaying the Code (temporarily withdrawn) a draft Impact Assessment (IA) was published on 30th July 2023.

 

14. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

 

15. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. In the Particulars of Claim £155 is the total of the PC(s) and damages, however £160.61 is filed as the amount claimed, with a further £35 court fee and £50 for legal representative's costs.  It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

 

16. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the  fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it.

 

17. The heads of alleged loss or purported 'contractually agreed' sums are unspecified and not adequately broken down, but it is denied that the added costs / damages sought were incurred. In this industry, debt collectors charge nothing when failing to collect parking charges.

 

18. A typical private PCN model comprises a series of demands that the Supreme Court called an 'automated letter-chain' and the parking charge itself is already inflated to generate a healthy profit. In Beavis, there were 4 pre-action letters/reminders and the £85 PCN was held to more than cover the minor costs of the operation. This is less about genuine 'parking management' and more of a PCN-generating scheme, where debt demands are part of the regime.

 

19. Whilst the new Code is 'on hold' and not retrospective, the new MHCLG Secretary of State must still introduce a statutory Code of Practice according to the legislation already enacted. It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure' and in 2025, the new Labour Government has pledged to resurrect the statutory Code with a Public Consultation expected within weeks. Statutory regulation will soon replace the BPA & IPC Code, so the clauses in the (temporarily stalled) February 2022 Code should bear significantly more weight than the industry's own self-serving version.

 

20. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'. That judgment was unaffected by Beavis and remains binding as the only authority covering the clear abuse of parking firms routinely adding imaginary 'admin /debt recovery' fees to further enhance a large parking charge.

 

21. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper. The Claimant is put to strict proof of POFA compliance, if they are relying upon 'keeper liability'.

 

22. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they even meet the basic signage requirements in the current BPA & IPC Joint Code of Practice, which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

 

CRA breach - lack of prominent terms

 

23. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not.

 

24. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk and adequately positioned where terms are bound to be seen) and all terms must be unambiguous and contractual obligations clear.

 

25.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith). 

 

ParkingEye v Beavis is distinguished

 

26.  Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs. 

 

27. The Supreme Court held that deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from alleged breach.  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, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

 

(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

 

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

 

both leading authorities that a clause cannot be incorporated after a contract has been concluded; and

 

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''.

 

Lack of standing or landowner authority, and lack of ADR

 

28. DVLA registered keeper data is only supplied on the basis that parking operators who do not own the land must hold prior written agreement from the landholder. Should the Claimant try to rely upon the finding in One Parking Solution v Wilshaw in this regard, it is averred that this appeal judgment was misguided and plainly wrong. The DVLA rules and requirements that relate to private parking operators are a fundamental set of rules specific to parking on private land and regrettably, HHJ Simpkiss was not appraised about the 'KADOE' requirement for written landowner authority. Even the BPA & IPC's questionable industry Code gets this right: absent written landowner authority, there is no 'reasonable cause' to obtain DVLA data nor to issue PCNs.

 

29. It is not accepted that this Claimant (an agent of a principal) had written authority from the landowner to offer and form contracts with drivers at this site, in their own right. Many parking operators merely act as agents (contracted to put signs up and issue charges 'on behalf of' the site landowner) and this Claimant is put to strict proof of their standing to litigate.

 

30. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The rival Trade Bodies' time-limited and opaque 'appeals' services 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). An impartial, fair appeals service was never on offer.

 

Conclusion

 

31. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 Government IA analysis shows (from data from this industry) that the usual letter-chain costs eight times less than the sum claimed for it. The claim itself relies on an unfair charge which is entirely without merit, and should be dismissed.

 

Statement of Truth

 

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:

STATEMENT OF TRUTH

The Defendant believes that the facts stated in this Defence are true.

 

 

SIGNED

Coupon-mad

All good except that second statement of truth is old and needs deleting. You have the correct one above it!

And this is wrong (below). Only Napier Parking issue 'FCNs'. Britannia don't:

"and a ‘Fixed Charge Notice (FCN) was issued."

Oh, and as the C is Britannia Parking Group Ltd (and check your spelling of their first word...) I would add a point saying that it is not accepted that the signs and/or letters including any Notice to Keeper were in the name 'Britannia Parking Group Ltd' and the Claimant is put to strict proof that they are the entity which purportedly offered the alleged contract and issued the requited postal notices.

shizzlemyjizzle

Thanks very much for looking through it Coupon-mad and for those useful comments, your dedication to helping everyone on this forum is remarkable and admirable.  

I have updated my defence and will lodge it.  I will update the thread with the final outcome for future users!

Coupon-mad

Look carefully at the NTK and signs in their WS, when it arrives. Look at the bottom of the images.

Quite possibly, the contract (sign) was not actually offered by 'Britannia Parking Group Ltd'. We see that a lot and it's a winning point. Limited companies are separate legal entities.

I hope you added that point as I suggested.

shizzlemyjizzle

I did thank you.  I'll update as things progress!