SMART PARKING LTD / ZZPS

Bradley91

@Umkomaas i received an email from the court to say they’re pursuing the claim. I’ve just received a pack N180 for mediation and to provide witnesses / expert evidence etc.

Gr1pr

Which is covered in the 8 steps in the defence template thread in announcements, first post

Please edit your thread title to something more suitable and relevant like

DCB LEGAL, SMART PARKING court claim, defended

Umkomaas

https://forums.moneysavingexpert.com/discussion/comment/82050449#Comment_82050449

Did you show us a redacted copy of the court claim, as previously requested by @Gr1pr?

Have you submitted your Defence? What did you say in your Defence?

Bradley91

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I thought I posted this when it came through. Apologies if it didn’t upload.

I followed the thread on the 8 steps and followed the defence from that template.

Bradley91

(Image removed by Forum Team)

Defence Continued)​​​​​​Claim No: (Removed by Forum Team)

2. The allegation(s) are vague and liability is denied for the sum claimed, or at all. The delay in bringing proceedings lies with the Claimant, making retrieving material evidence difficult, which is highly prejudicial. The Defendant has little knowledge of events, save as set out below and to admit that they were the registered keeper and driver.

3.  Referring to the POC: paragraph 1 is denied. The Defendant is
not indebted to the Claimant. Paragraph 2 is denied. The Defendant
does not accept that a contravention occurred on 22/10/2022, as
alleged. Whilst the Defendant was the registered keeper and
driver, paragraphs 3 and 4 are denied. The Defendant is not liable
and has seen no evidence of a breach of prominent terms. The
quantum is hugely exaggerated (no PCN can be £170 on private land)
and there were no damages incurred whatsoever.

3.1 The Defendant recalls parking in an available bay opposite the pay and display car park. Which upon recollection had no signs for permit/ticket to park in the bay. Upon arriving back at the vehicle several vehicles were given a ticket for parking in the road along the car park, The Defendant did not park illegally or in the road. The Defendant has a witness that can confirm this. 

4.  It is neither admitted nor denied that a term was breached but to form a contract, there must be an offer, acceptance, and valuable consideration (absent in this case). The Consumer Rights Act 2015 (s71) mandates a 'test of fairness' duty on Courts and sets a high bar for prominence of terms and 'consumer notices'. Paying regard to Sch2 (examples 6, 10, 14 & 18), also s62 and the duties of fair, open dealing/good faith, the Defendant notes that this Claimant reportedly uses unclear (unfair) terms/notices. On the limited information given, this case looks no different. The Claimant is put to strict proof with contemporaneous photographs.

5. DVLA keeper data is only supplied on the basis of prior written landowner authority. The Claimant (an agent) is put to strict proof of their standing to sue and the terms, scope and dates of the landowner agreement, including the contract, updates, schedules and a map of the site boundary set by the landowner (not an unverified Google Maps aerial view).

6. To impose a PC, as well as a breach, there must be: (i) a strong 'legitimate interest' extending beyond compensation for loss, and (ii) 'adequate notice' (prominence) of the PC and any relevant obligation(s). None of which have been demonstrated. This PC is a penalty arising as a result of a 'concealed pitfall or trap', poor signs and covert surveillance, thus it is fully distinguished from Beavis.

7. Attention is drawn to:

(i) paras 98, 100, 193, 198 of Beavis (an £85 PC covered all costs and generated a huge profit shared with the landowner); the court should also read paragraph 3.4 of the original judgment by HHJ Moloney in Beavis, confirming what that authority means by 'costs of the operation', and

(ii) the binding judgment in ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which remains unaffected by Beavis and stands as the only parking case law that references costs abuse. HHJ Hegarty held in paras 419-428 (his judgment later ratified by the CoA) that 'costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the very minor cost of a letter-chain and 'would appear to be penal'. The court should note that HHJ Moloney referenced this case in Beavis.

8. The Parking (Code of Practice) Act will curb rogue conduct by operators and debt recovery agents (DRAs). The Government launched a Public Consultation likely to herald a ban on double recovery 'fees', which the relevant 2022 Minister called ‘extorting money from motorists’. Both the previous and present Governments found that the high profits may be indicative of firms having too much control 'indicating that there is a market failure'.

9. Pursuant to Sch4 of the Protection of Freedoms Act 2012 ('POFA') the claim exceeds the maximum sum and is unrecoverable: see Explanatory Note 221: 'The creditor may not make a claim against the keeper ... for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (para 4(5))'. There is no keeper liability for added false fees and the POFA specifically states that 'double recovery' is not allowed if a creditor uses any other remedy.

10. The Defendant seeks fixed costs (CPR 27.14) and a finding of unreasonable conduct and further costs (CPR 46.5). Parking cases now make up a third of all small claims which has overburdened HMCTS, causing the most CCJs of all sectors yet almost invariably discontinuing defended cases before hearings, which indicates a deliberate business model of systemic abuse and makes Claimants liable for costs (r.38.6(1)). Whilst this does not 'normally' apply to the small claims track (r.38.6(3)) the White Book has this annotation: 'Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))'.

 This was a continuation….

Bradley91

I parked on private land as the car park opposite was full. The car park is or was owned by the company claiming, however they do not own the private land where I parked…. There were no signs that I could see at the time to say I couldn’t park there and then a photo of the smallest of signs pinned to a wired temporary fence to say it’s private land etc. everyone that went to the event and parked in the road, must have been 20-25 cars with tickets

Umkomaas

You’re on track, so now deal with and submit the Directions Questionnaire and prepare your WS and evidence for submission to the allocated court. The 8 steps in the Defence Template Announcement takes you through it step by step.

You’re on your way to a discontinuance later in the year.

Gr1pr

Parking companies like Smart Parking dont own the land, they are contractors working on behalf of their client, the landowner or landlord or business who hired them, no different than a tarmac crew or sign writers i

It's definitely private land ! But not Smart Parking land

Your picture above shows the VRM details, so needs redacting and replacing, and your thread title needs editing too

Bradley91

amazing thank you. Glad I’m on the right track. Appreciate your help

Coupon-mad

Redacted image:

Remove yours.