**Court Summons** NCP - BW Legal ANPR Parking Overstay Options

[Bordtea]

Good evening all,

Looking for some advice please around putting together a defence for a court summons I've received for overstaying in an NCP car park who are being represented by BW Legal.

The parking occured in June, all correspondence has been ignored until the court summons. No POPLA appeal, and no appeal to the parking company. The case has been acknowledged online and it awaiting submission of the Defence, which I intend to post on Monday.

In a nutshell - the driver parked in a pay and display car park and paid for one hour. Upon return to the vehicle after the time had expired, there was no physical ticket on the car and so the driver thought nothing of it and left the car park, unaware of the ANPR presence. A week later, a letter arrived claiming a 30 minute overstay. ANPR camera on entry/exit to car park and provided photos of the front/rear number plate of the vehicle. The driver has not been disclosed, and the registered keeper is being pursued (presumably - the particulars don't make this clear).

Clearly this is not a legal argument but the whole system is set up to catch people out, if you can put in place an ANPR system then you can link it to the machine to pay on exit, not pay and display. It's pathetic.

Now - a couple of quick questions:
1. Is it possible for the case to go to court without actually going to court on the day e.g. by post, the reason being the registered keeper is v reluctant to attend court. I am aware a lay representative can be used but AFAIK the registered keeper/defendant would still have to be there on the day? Clearly this isn't ideal but the defendant will not stand up in court to fight the case and would prefer to pay the money...

2. I previously won a case against Gladstone's for a different claim by initially submitting a 'lite' defence centred around the deficient statement of particulars, saying that I could not submit a defence without knowing more information. The court struck out the claim. I am tempted to go down this route again rather than submitting the full defence initially. The particulars are better than in the gladstone case but still not great. Thoughts?

3. I have listed the arguments below, which are the strongest? Are there any that should be removed, or any extras to be added? This is a first stab but looking for advice please!

Arguments
POFA - as far as I can tell all the letters sent conform with the POFA Act and so keeper liability could be shown, happy to post photos if somebody could check.

Inflated costs - breach of POFA - RK being pursued for £167 + £25 court fee + £50 legal representative's cost + interest. The £167 however is comprised of £100 parking charge + then added a random £60 charge on, plus interest.

Denial of contract - Signage inadequate - see attached photos. Large sign to the side of entrance with thousands of words on in tiny font, impossible to read from a car on entry to the car park. I have read previously about a 'red hand rule' or something similar but can't find anything on it recently, could anybody pls advise? IIRC it's something along the lines of the parking charge text must stand out from the sign.

No Option to Cover Extra Cost of Time - The signs also do not make clear how you are supposed to extend a stay if you get back to your car 'late'. For example, if I pay for 1 hour @ 1300 and return at 1420 and then paid for a further hour which would take me until 1520, there is presumably still 20 minutes in there unpaid?

Denial of contract - no standing authority to form contracts and/or litigate - The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

Deficient Particulars - particulars don't state whether they are pursuing driver or keeper, fail to comply with civil procedure rules 16.4. 2. The POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage. Are they claiming for a breach of contract or a trespass?

ANPR Data Protection Concerns

Reasonable endeavours e.g. Jolley v Carmel - the driver made reasonable endeavours to comply with the contractual terms by paying for 1 hour's parking (e.g. paid for a ticket, rather than parking and not paying)

Distinguished from Beavis - At the Court of Appeal stage in!Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

General political situation - parliamentary committee at the moment looking at these shady practices by parking companies

BPA Grace Period - NCP is a member of the BPA. BPA guidelines state a grace period of no less than Cameras record entry and exit time, not the time actually parked. There is time taken to find a space etc which could reasonably take 5 minutes. I am aware this is probably a weak argument - is it better to remove?

Apologies for the wordiness of this post and for posting at such a late stage as I will need to submit my defence by post on Monday to meet the deadline. Would be grateful for any advice, and I will post a draft defence on here in the next 24h.

Very best wishes


Signs by machine


Sign by machine continued


Sign to left of entrance to car park


Relative positioning of signs at entrance


One of the central section of signs showing tariffs. To the right you can see just how small the text is on the terms.


First letter from NCP


Claim form


Post also mirrored on MSE forums due to time constraints

This post has been edited by Bordtea: Sat, 19 Jan 2019 - 18:03

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[SchoolRunMum]

MSE thread with answers here, including from me as Coupon-mad:

https://forums.moneysavingexpert.com/showth...d.php?t=5952899

I said:

The POC fail to state the terms, or the alleged breach, so they fail to set out a cause of action, and also fail to explain the added costs of £60, whether these were actually incurred, nor even what terms & conditions they are relying upon and how these were drawn to attention.

So you could try your tactic again but it's possibly risky, in case it doesn't get struck out.

Maybe your 'lite' version then a Part B that states:

In the event that the case is not struck out, or if the Claimant is not ordered to full & serve full and better particulars, the Defendant will base their defence on the following main points and asks the court to allow the defence to be amended, should this robo-claim Claimant later ambush the Defendant with information that should have been in the POC:

(then set out bargepole's concise defence from the NEWBIES thread).