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  • FIRST POST
    • manwyl
    • By manwyl 6th Nov 17, 12:15 PM
    • 63Posts
    • 42Thanks
    manwyl
    SCS Law & Smart Parking
    • #1
    • 6th Nov 17, 12:15 PM
    SCS Law & Smart Parking 6th Nov 17 at 12:15 PM
    Hi, your advice is requested as my head is spinning after reading through the sticky threads. I've not seen a set of circumstances exactly like below (including the POPLA part) but apologies if I've missed something. I'm not certain on the way to proceed but first I'll explain the background.

    8 months ago our car parked in a car park associated with a Matalan Store but not owned by the store. Matalan offer discounts for the parking cost to their customers. We did not buy anything from the Matalan store that day. They use ANPR cameras and parking machines which require the VRN to be entered. This was incorrectly entered due to some of the keys not working properly (although this has been denied by Smart) and due to being in a rush and the pressure of a queue forming behind. The VRN entered was very similar to the actual VRN. Smart have confirmed there is a payment on their system at the time for a vehicle with a very similar VRN that wasn't in the car park. In short, the correct payment was made but the wrong VRN was entered. Smart rejected an appeal based on the information above and we naively assumed that POPLA would consider the circumstances based on the details above but this too was rejected. We answered all the leading questions and I believe the driver was identified. I realise now that this was a big mistake and was a missed opportunity.

    Since then we have ignored all letters from Debt Recovery Plus until receiving a letter at the end of October from SCS Law (acting on behalf of Smart Parking Ltd) which declares it is an LBC. They are requesting payment of 170 via Debt Recovery Plus to settle the matter. I shall try to supply a link to view the redacted letter -

    dropbox.com/sh/b2c2u24qwppur58/AACTONoflX1KgrOLUgFi3iz6a?dl=0[/url]

    BTW - Matalan have stopped using Smart Parking due to the number of customer complaints.

    I'm unsure on how to proceed as we have shot ourselves in the foot with POPLA already. I'm not sure which advice to follow in case it now doesn't apply. It's such a minefield that we've considered just giving in but I guess this is what they're relying on. My instinct is to fight it but after the POPLA mistake I've lost confidence.

    Any assistance on how to proceed would be greatly appreciated. Please let me know if any more information is required.

    Many thanks
    Last edited by manwyl; 06-11-2017 at 12:20 PM.
Page 5
    • Coupon-mad
    • By Coupon-mad 17th Mar 18, 12:37 AM
    • 61,816 Posts
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    Coupon-mad
    Respond to both at once, and tell them you are aware that their woeful and threatening pre-action letters were specifically criticised on 16th March at Reading Court, in the case C0GF19AQ/2 that they lost with a 500 counter-claim by the successful Defendant.

    Tell them you are minded to do the same, a 500 counter-claim, should they proceed.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • manwyl
    • By manwyl 17th Mar 18, 8:05 AM
    • 63 Posts
    • 42 Thanks
    manwyl
    Respond to both at once, and tell them you are aware that their woeful and threatening pre-action letters were specifically criticised on 16th March at Reading Court, in the case C0GF19AQ/2 that they lost with a 500 counter-claim by the successful Defendant.

    Tell them you are minded to do the same, a 500 counter-claim, should they proceed.
    Originally posted by Coupon-mad
    Thanks guys

    My draft reply is below -

    A similar registration entered alongside a payment for a vehicle not in the car park is highly relevant because Smart Parking are most definitely imposing a penalty for breach of contract, not a parking charge. As in Beavis, the penalty rule is engaged.

    I would like to highlight the IAS's opinion on this issue. SCS Law, save your breath/ink if you are about to engage your template reply finger to point out that Smart Parking are BPA members, not IPC. I know that. The BPA have actually fallen well below the level of the IAS/IPC in this regard and missed a trick that any fair Judge would not miss when shown the following annual report where the rival 'IAS' Chief Adjudicator uttered some words of reason:

    Of course, it is incumbent upon the motorist to take reasonable care in entering their details, and when they fail to do so properly very often a charge may be justified. However, where the mistake is so trivial that even someone applying their full attention might not realise - such as entering a '0' instead of a 'O' or a '1' instead of an 'I' - then it is, in my view, unfair to enforce a charge.

    As a consequence, I released guidance to all the adjudicators that they should have regard to the nature and extent of such mistakes in determining whether a charge is lawful. I am pleased to say that, since issuing the guidance, there has been a visible reduction in the amount of cases where operators pursue such parking charges and far fewer (justifiably) frustrated motorists as a result.


    This issue clearly meets the definition of "de minimis". I hereby put SCS and Smart Parking on notice for unreasonable costs.

    I am aware that your woeful and threatening pre-action letters were specifically criticised on 16th March at Reading Court, in the case C0GF19AQ/2 that you lost with a 500 counter-claim by the successful Defendant. Should you proceed I am thinking of making a similar counter-claim.

    I have asked for information on vehicles (with tickets bought) but were not detected by the ANPR cameras before and not received a full and proper answer. I will ask for this again as clearly as possible.

    Was the vehicle with registration ****** in the car park at the time in question i.e. was it detected by the ANPR cameras? YES or NO

    If ****** was detected by the cameras, which other vehicle registrations, with tickets bought, were not detected by the ANPR cameras at the time in question? Compare the tickets bought with the vehicles detected around the time in question and send me ONLY the vehicle registrations that were not detected by the cameras.
    • Johnersh
    • By Johnersh 17th Mar 18, 9:10 AM
    • 1,178 Posts
    • 2,236 Thanks
    Johnersh
    perhaps with the addition of....

    the above information is necessarily required to narrow the issues in dispute, as required by the pre-action protocol. If you fail to provide this information and proceedings are subsequently issued and defended, I reserve the right to show this correspondence to the Court and to seek my costs for unreasonable litigation conduct pursuant to CPR Part 27(1)(g) or as appropriate.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • manwyl
    • By manwyl 1st Apr 18, 8:27 AM
    • 63 Posts
    • 42 Thanks
    manwyl
    They've finally replied and answered if the vehicle was in the car park. The answer was no, it wasn't. So 2 minutes after arriving in the car park they have a record of a ticket being bought for a similar VRN to my own that wasn't in the car park at the time.

    We have also established the car park isn't just for Matalan customers so the value of the parking space is limited to the cost of the parking ticket which they can't prove we didn't buy and display.

    They are clearly trying to impose a penalty for a minor infringement that resulted in no financial loss or loss of any other kind prior to them ignoring the facts freely available to them and also presented to them by me. They chose to proceed with a foolhardy attempt to extract payment from me and they should foot the cost for their mistake themselves.

    https://www.dropbox.com/s/3gu95s4fg8oor27/Image%20%2839%29.jpg?dl=0

    Please can you let me know if I need to reply to this letter or just wait for the court proceedings to start? Happy to see them in court and submit my counter claim.
    Last edited by manwyl; 01-04-2018 at 8:35 AM.
    • IamEmanresu
    • By IamEmanresu 1st Apr 18, 8:41 AM
    • 3,311 Posts
    • 5,584 Thanks
    IamEmanresu
    Seems it comes down to the one simple question of whether their equipment was correctly maintained to allow 100% compliance (which is what is being inferred) with their terms.

    Since the amount claimed is a penalty - though a "good" one - a simple "our equipment doesn't fail" is not good enough. They should be able to show not just the ANPR records but the maintenance records too and whether there were checks (automatic or otherwise) to ensure they were not taking advantage of machine failures.

    The second leg, so to speak, is whether enough weight is given to the issue of human error in the matter. There was an instruction there but was it made sufficiently clear that human error could cost 100.

    Interesting one for them to lose on this issue.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • Johnersh
    • By Johnersh 1st Apr 18, 6:37 PM
    • 1,178 Posts
    • 2,236 Thanks
    Johnersh
    Love a bit of Streetview. I tried to post links, but they don't all seem to work. You can view a perimeter sign and repeaters and the terms (ish) on streetview.

    Incidentally there are very few signs with the terms on them, as compared with the number of repeaters...
    Last edited by Johnersh; 11-04-2018 at 7:21 PM.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • manwyl
    • By manwyl 3rd Apr 18, 5:52 PM
    • 63 Posts
    • 42 Thanks
    manwyl
    Thanks guys. I have been sent clear photos of the signs and a map showing their positions within the car park.

    So the main points are -

    1) the PCN is a penalty for a minor mistake that hasn't resulted in any loss of earnings because a ticket was bought. Also, a parking space wasn't denied to a Matalan customer because the car park isn't just for Matalan customers.

    2) was their equipment maintained and can they provide evidence of this

    Is there anything else I should be focusing on? And do I need to reply to this letter or should I wait for anything that follows after the 14 days have passed?

    Many thanks
    • IamEmanresu
    • By IamEmanresu 3rd Apr 18, 6:12 PM
    • 3,311 Posts
    • 5,584 Thanks
    IamEmanresu
    Not certain but AFAIR the actual Smart/Matalan contract ran out either a day before you parked or a day after. They were certainly issuing tickets after the end of their contract so put them to proof the contract had not run out - or that during the run out of the contract they had the authority to issue tickets. They will need to confirm as a statement of truth that the contract was live.

    See if Matalan will give you the dates if you explain the situation to them.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • Coupon-mad
    • By Coupon-mad 3rd Apr 18, 6:34 PM
    • 61,816 Posts
    • 74,707 Thanks
    Coupon-mad
    I would be making it clear that, since they have admitted that the parking firm is trying to issue a penalty for - already explained and rectified - human error (no more and no less) this is clearly exactly the sort of unrecoverable penalty that the Supreme Court Judges had in mind in ParkingEye Ltd v Beavis [2015] UKSC 67 when they discussed the fact that Lord Dunedin's four tests for a penalty still had application in ordinary consumer contract cases, such as this one.

    In Beavis it was held:

    at 22:
    ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was 'unconscionable' or 'extravagant'. The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

    and at 32:
    ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the {claimant}* in the enforcement of the primary obligation. The {claimant}* can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''
    Clearly, Smart Parking cannot possibly 'justify' the charge and (unlike the facts that swayed the Judges in the completely different Beavis case) have no 'legitimate interest' excuse in pursuing a sum that is one hundred times the parking tariff already paid by the driver. This is clearly unconscionable and out of all proportion to any 'justification' Smart Parking think they might have.

    You can also add that this is just the type of unfair term that offends against the CPUTRs 2008 and the Consumer Rights Act 2015. And as IamEmanresu suggests, put Smart Parking now to strict proof that the Matalan contract still allowed them to ticket cars on the material date of the event and/or the Notice to Keeper.

    You could add that the fact that Matalan had ended Smart Parking's contract, suggests that charges being vexatiously pursued now are not commercially justified at all, but are purely speculative enforcement, indeed ''revenge claims'' like Civil Enforcement infamously did against Co-op shoppers and employees after the Co-op kicked them out.

    All of which reinforces the contention that this is an extravagant penalty with none of the justification behind it that would cause it to be upheld under consumer law.

    State that you will not be replying again but that you are keeping a record of this unwarranted harassment in pursuit of a meritless 'parking charge' that has none of the elements of legitimate interest that saved the Beavis case charge from falling foul of the penalty rule. The continued unfair demands are causing significant distress (describe that distress to the family, e.g. insomnia, spending hours sorting this out and replying and researching the law, losing precious family time, headaches, upset & disagreements within the family about whether to just pay the scam to make it go away, etc.).

    Describe the stress and distress, set the scene...in case later you want to bung in a counter claim, should they proceed.




    * I refuse to call a parking firm 'the innocent party' and never do when quoting the above, I redact the phrase/replace it with claimant.
    Last edited by Coupon-mad; 03-04-2018 at 6:44 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Umkomaas
    • By Umkomaas 3rd Apr 18, 9:25 PM
    • 19,507 Posts
    • 30,866 Thanks
    Umkomaas
    a map showing their positions within the car park.
    A 'proper' map or a GSV aerial view with crosses here, there and everywhere? Judges haven't been impressed by GSV birds' eyes.
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • manwyl
    • By manwyl 7th Apr 18, 4:39 PM
    • 63 Posts
    • 42 Thanks
    manwyl
    A 'proper' map or a GSV aerial view with crosses here, there and everywhere? Judges haven't been impressed by GSV birds' eyes.
    Originally posted by Umkomaas
    A GSV map with crosses here and there - https://www.dropbox.com/sh/np1qw4jv1cmak2y/AACukphHD4fZ4dtLj2rpN4dLa?dl=0

    They have also provided the following photos of the signs and PDF's - https://www.dropbox.com/sh/ff5ou5qhepbxpnf/AACOfP1GgbzRCPfEJDmhEyUZa?dl=0

    And the times of arrival, leaving and transaction details -
    https://www.dropbox.com/sh/3acq0q4dwuoo8e2/AACUwYUFUi9z7kCMRXEFT0ZGa?dl=0

    You'll notice the VRN containing GYP on the transaction log is for a ticket bought 2 minutes after our car arrived in the car park. Smart Parking have admitted this transaction was for a VRN that was not in the car park at the time.

    I've used GSV to obtain some additional photos of the signs - https://www.dropbox.com/sh/agmm35g5jnaucrx/AAAoGclsOgHrWG8kqYqvogLaa?dl=0

    These demonstrate the poor positioning as you approach and enter the car park and the contradictory signs suggesting non-Matalan customers can park there.

    Not certain but AFAIR the actual Smart/Matalan contract ran out either a day before you parked or a day after. They were certainly issuing tickets after the end of their contract so put them to proof the contract had not run out - or that during the run out of the contract they had the authority to issue tickets. They will need to confirm as a statement of truth that the contract was live.

    See if Matalan will give you the dates if you explain the situation to them.
    Originally posted by IamEmanresu
    Interesting. I have emailed Matalan head office to ask when the contract expired. I'm awaiting a reply and will update here when they do.

    I will now spend some time drafting a reply based on the excellent advice above and will post it here shortly. Many thanks to all
    Last edited by manwyl; 07-04-2018 at 4:48 PM.
    • manwyl
    • By manwyl 7th Apr 18, 5:21 PM
    • 63 Posts
    • 42 Thanks
    manwyl
    Here is the draft reply for now. It pretty much wrote itself as the gold quotes above describe the situation accurately. I will give Matalan head office a few more days to reply in case I want to edit/add that part to it. Please feel free to comment or make suggestions. Many thanks all -

    Dear Sirs,

    I am in receipt of your letter dated **** ***** ****.

    Since you have admitted that Smart Parking are trying to issue a penalty for - already explained and rectified - human/machine error (no more and no less) this is clearly exactly the sort of unrecoverable penalty that the Supreme Court Judges had in mind in ParkingEye Ltd v Beavis [2015] UKSC 67 when they discussed the fact that Lord Dunedin's four tests for a penalty still had application in ordinary consumer contract cases, such as this one.

    In Beavis it was held:

    at 22: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was 'unconscionable' or 'extravagant'. The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

    and at 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the {claimant}* in the enforcement of the primary obligation. The {claimant}* can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

    Clearly, Smart Parking cannot possibly 'justify' the charge and (unlike the facts that swayed the Judges in the completely different Beavis case) have no 'legitimate interest' excuse in pursuing a sum that is one hundred times the parking tariff already paid by the driver. This is clearly unconscionable and out of all proportion to any 'justification' Smart Parking think they might have.

    This is just the type of unfair term that offends against the CPUTRs 2008 and the Consumer Rights Act 2015. All of this reinforces the contention that this is an extravagant penalty with none of the justification behind it that would cause it to be upheld under consumer law.

    Please now provide strict proof that Smart Parking had a contract with Matalan which still allowed them to ticket cars on the date of the event and/or the Notice to Keeper.

    The fact that Matalan has ended Smart Parking's contract, suggests that charges being vexatiously pursued now are not commercially justified at all, but are purely speculative enforcement, indeed ''revenge claims'' like Civil Enforcement infamously did against Co-op shoppers and employees after the Co-op kicked them out.

    I will not be replying again but I will be keeping a record of this unwarranted harassment in pursuit of a meritless 'parking charge' that has none of the elements of legitimate interest that saved the Beavis case charge from falling foul of the penalty rule. The continued unfair demands are causing significant distress (distress to my family, insomnia, spending hours researching the law and replying to your letters, losing precious family time, upset & disagreements within the family about whether to just pay the scam to make it go away).
    • manwyl
    • By manwyl 10th Apr 18, 2:02 PM
    • 63 Posts
    • 42 Thanks
    manwyl
    I'll get this in the post today because the 14 days isn't far off. I'll update again if I hear back from Matalan head office or get any more letters from SCS. Many thanks to everyone for all your help again
    • Johnersh
    • By Johnersh 11th Apr 18, 7:26 PM
    • 1,178 Posts
    • 2,236 Thanks
    Johnersh
    @Manwyl do request and make sure they bring a complete (unredacted) copy of all registration numbers to Court. It is very unattractive for them to argue that you should be charged the additional sums they seek when they have clear evidence of payment - and very probably unreasonable litigation conduct.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • manwyl
    • By manwyl 14th Apr 18, 7:27 PM
    • 63 Posts
    • 42 Thanks
    manwyl
    Matalan have replied to say the contract expired "around the 11th March". 1 week after the alleged event.
    • Umkomaas
    • By Umkomaas 14th Apr 18, 8:53 PM
    • 19,507 Posts
    • 30,866 Thanks
    Umkomaas
    Matalan have replied to say the contract expired "around the 11th March". 1 week after the alleged event.
    Originally posted by manwyl
    So, presumably, they have the contractual authority to order a cancellation.

    Why not?
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Johnersh
    • By Johnersh 14th Apr 18, 9:37 PM
    • 1,178 Posts
    • 2,236 Thanks
    Johnersh
    This suggests it may well have been march
    http://forums.pepipoo.com/index.php?showtopic=112652

    But interestingly, this suggests it was February (at least in Portsmouth)
    https://www.google.com/amp/s/www.portsmouth.co.uk/news/people/shoppers-tell-of-their-anger-at-being-given-85-parking-fines-1-7923179/amp#ampshare=https://www.portsmouth.co.uk/news/people/shoppers-tell-of-their-anger-at-being-given-85-parking-fines-1-7923179
    It would seem odd for the contracts not to have been renewed/cancelled at the same time...
    Last edited by Johnersh; 14-04-2018 at 9:45 PM.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Coupon-mad
    • By Coupon-mad 14th Apr 18, 9:44 PM
    • 61,816 Posts
    • 74,707 Thanks
    Coupon-mad
    Matalan have replied to say the contract expired "around the 11th March". 1 week after the alleged event.
    Originally posted by manwyl
    So bang goes their 'legitimate interest'; the thing that saved the charge in Beavis from falling foul of the penalty rule.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • Johnersh
    • By Johnersh 15th Apr 18, 11:12 AM
    • 1,178 Posts
    • 2,236 Thanks
    Johnersh
    Hmmm... an interesting thought.

    Standard contracts *usually* offer up terms as follows, so these are assumptions:

    1. the PPC, smart was able to issue pay & display tickets and keep the proceeds;
    2. If there was a failure to comply with the parking contract they could issue PCNs; and
    3. the PPC could commence court proceedings for recovery of payment.

    The contract with Matalan was defined within the period. The o/p (Smart say) was in breach of contract during the period in which they were entitled to issue PCNs. That is obviously disputed. But, as I see it, the following question now arises:

    If the contract with Matalan had been terminated prior to commencement of court proceedings do Smart have any entitlement (at all) to pursue the Defendant as the contract that empowered them to undertake enforcement action on behalf of the landowner is now ended and where it is not disputed that Smart had the cash? To paraphrase the Black Eyed Peas - Where is the loss?

    To address this, they would need a 'run off agreement' permitting them to complete their recovery in relation to outstanding PCNs. In the absence of that, they may have a problem. I also say this because all Matalan parking signs said at the top of them "Matalan Pay & Display Customer Parking" so arguably the contract the consumer thought he was making was with the store not with Smart at all...
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Castle
    • By Castle 15th Apr 18, 11:26 AM
    • 1,905 Posts
    • 2,583 Thanks
    Castle
    I also say this because all Matalan parking signs said at the top of them "Matalan Pay & Display Customer Parking" so arguably the contract the consumer thought he was making was with the store not with Smart at all...
    Originally posted by Johnersh
    Indeed; I bet that Smart are not paying business rates on the car park as an occupier and the Vat on the pay and display tickets is being accounted for by Matalan.
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