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Civil Enforcement LTD PCN - From Court to Small Claims Track. Advice Needed.
In March 2018 I received a PCN from CEL for an overstay in a 30 minute FREE CarPark of 16 minutes according to the ANPR cameras that photographed me going in at a said time and exiting 46 mins later.
I ignored their continued letters as they supposedly passed the claim to the debt collectors while all the time increasing the fine, until finally a County Court Business Centre Claim came through.
I disputed their claim with the following defence:
"The Claimant issued a Parking Charge Notice Ref: XXXXXXXXX stating that vehicle WXXX RXX had been recorded via their automatic number plate recognition system and that the ‘Payment
(was) not made in accordance with terms displayed on signage’ The Claimant states that on the 18/3/2018, the ANPR cameras monitored the vehicle entering the car park at 15:30:46 and exiting the car
park at 16:16:51. The Claimant claims the sum of £193.93 plus Court Fee & Legal Representative’s costs. A Total Amount of £268.93. It should be noted that the car park in question is a FREE car Park for the first 30 minutes, and then £1.00 for the subsequent 2 hours of parking.
As the previous registered keeper of the vehicle, (I am no longer keeper) I wish to refute The Claimant’s charges on the following grounds:
1) Grace Period: BPA Code of Practice – non-compliance
The BPA’s Code of Practice (13) states that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start (of a minimum of 10 minutes)
BPA’s Code of Practice (13.1) states that: “If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and
conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” BPA’s Code of Practice (13.2) states that: “If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.” BPA’s Code of Practice (13.4) states that: “You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.” The BPA Code of Practice clearly states that the a ‘reasonable grace period’ after entering the car park should be a minimum of 10 minutes and the reasonable grace period to leave the car park after the parking contract has ended should be a minimum of 10 minutes. Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA): “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.” “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on
various factors, not limited to disability.” In the case in question the claimed period of parking of a total of 46 minutes, was not in breach of the terms and conditions. 30 minutes of FREE parking and a total of 20 minutes MINIMUM grace period would permit a minimum stay of 50 minutes. The grace period in this case is required for finding a space, park, locate and read signage, given the failure to make signs visible from all parking spaces (which they are not), read the full terms and conditions and then the time taken to exit from the car park at the end of the parking period.
2) The Charge is not a genuine pre-estimate of loss. The Claimant states that the charge is for ‘failure to comply with the terms & conditions’ so The Claimant must prove the charge to be a genuine pre-estimate of loss. As parking was FREE for the first 30 minutes, there can be no loss to The Claimant, and therefore no loss flowing from the parking event. The Claimant cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable.Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver’s alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Claimant would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. Given that The Claimant charge the same lump sum for a 30 minute overstay as they would for 3 hour overstay, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this alleged incident in this car park.
3) No Evidence of Period Parked – Notice to Keeper does not meet PoFA 2012 requirements
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was actually parked versus attempting to read the terms and conditions before deciding
against parking or remaining, & the subsequent time taken to exit the car park. By virtue of the nature of an ANPR system recording only entry and exit times, The Claimant have not definitively stated the period of actual parking.
4) The ANPR system is neither reliable nor accurate.
The Claimant’s Notice to Keeper provides no evidence of the time the vehicle was parked, merely two photos of the car claiming to be images of arrival and departure. There is no identifiable connection to the car park in question, nor do the photos show a time of arrival or departure. It is unreasonable for this operator to record the start of ‘parking time’ as the moment of arrival in the car park if they offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of ‘parking time’ either & has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that day.
In conclusion I contend that if the vehicle was in fact parked for the period stated by the Claimant, it clearly was not in breach of the parking terms and conditions, as it was in accordance with the
Grace Period permitted by the BPA Code of Practise.
I contend that it is wholly unacceptable to rely on unclear photos that provide no evidence of date, time or location in an attempt to profit by charging a disproportionate sum where no loss has
been caused as parking was FREE anyway.
I put The Claimant to strict proof to justify their claim, under the circumstances described. I respectfully request that based on the information provided, that my appeal is upheld and the charge is dismissed.
Yours sincerely. xxxxxxxxxx (The Defendant)"
The County Court subsequently acknowledged my defence and said they would put it to CEL.
I have now received "Notice of Proposed Allocation to the Small Claims Track It states:
1. This is now a defended claim . The defendant has filed a defence.
2. It appears that this case is suitable for allocation to the small claims track.
If you believe that this track is not the appropriate track for the claim, you must complete box C1 on the Small Claims Questionnaire N180 explaining why.
3. I must complete the Small Claims Directions Questionnaire (Form N180) and file it with the court office and serve copies on all other parties by 8th April.
(Yes, I realise that is Monday. Not sure where the time has disappeared to)
It states that mediation is available free of charge through HM courts & Tribunals Service. I have said YES to mediation.
I have completed and sent the Directions Questionnaire as per the info in the Shortcuts on the site. Is there anything else I should know or do in reference to the Small Claims Track. What should I expect now?
Thank you for your advice.
I ignored their continued letters as they supposedly passed the claim to the debt collectors while all the time increasing the fine, until finally a County Court Business Centre Claim came through.
I disputed their claim with the following defence:
"The Claimant issued a Parking Charge Notice Ref: XXXXXXXXX stating that vehicle WXXX RXX had been recorded via their automatic number plate recognition system and that the ‘Payment
(was) not made in accordance with terms displayed on signage’ The Claimant states that on the 18/3/2018, the ANPR cameras monitored the vehicle entering the car park at 15:30:46 and exiting the car
park at 16:16:51. The Claimant claims the sum of £193.93 plus Court Fee & Legal Representative’s costs. A Total Amount of £268.93. It should be noted that the car park in question is a FREE car Park for the first 30 minutes, and then £1.00 for the subsequent 2 hours of parking.
As the previous registered keeper of the vehicle, (I am no longer keeper) I wish to refute The Claimant’s charges on the following grounds:
1) Grace Period: BPA Code of Practice – non-compliance
The BPA’s Code of Practice (13) states that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start (of a minimum of 10 minutes)
BPA’s Code of Practice (13.1) states that: “If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and
conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” BPA’s Code of Practice (13.2) states that: “If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.” BPA’s Code of Practice (13.4) states that: “You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.” The BPA Code of Practice clearly states that the a ‘reasonable grace period’ after entering the car park should be a minimum of 10 minutes and the reasonable grace period to leave the car park after the parking contract has ended should be a minimum of 10 minutes. Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA): “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.” “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on
various factors, not limited to disability.” In the case in question the claimed period of parking of a total of 46 minutes, was not in breach of the terms and conditions. 30 minutes of FREE parking and a total of 20 minutes MINIMUM grace period would permit a minimum stay of 50 minutes. The grace period in this case is required for finding a space, park, locate and read signage, given the failure to make signs visible from all parking spaces (which they are not), read the full terms and conditions and then the time taken to exit from the car park at the end of the parking period.
2) The Charge is not a genuine pre-estimate of loss. The Claimant states that the charge is for ‘failure to comply with the terms & conditions’ so The Claimant must prove the charge to be a genuine pre-estimate of loss. As parking was FREE for the first 30 minutes, there can be no loss to The Claimant, and therefore no loss flowing from the parking event. The Claimant cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable.Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver’s alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Claimant would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. Given that The Claimant charge the same lump sum for a 30 minute overstay as they would for 3 hour overstay, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this alleged incident in this car park.
3) No Evidence of Period Parked – Notice to Keeper does not meet PoFA 2012 requirements
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was actually parked versus attempting to read the terms and conditions before deciding
against parking or remaining, & the subsequent time taken to exit the car park. By virtue of the nature of an ANPR system recording only entry and exit times, The Claimant have not definitively stated the period of actual parking.
4) The ANPR system is neither reliable nor accurate.
The Claimant’s Notice to Keeper provides no evidence of the time the vehicle was parked, merely two photos of the car claiming to be images of arrival and departure. There is no identifiable connection to the car park in question, nor do the photos show a time of arrival or departure. It is unreasonable for this operator to record the start of ‘parking time’ as the moment of arrival in the car park if they offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of ‘parking time’ either & has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event that day.
In conclusion I contend that if the vehicle was in fact parked for the period stated by the Claimant, it clearly was not in breach of the parking terms and conditions, as it was in accordance with the
Grace Period permitted by the BPA Code of Practise.
I contend that it is wholly unacceptable to rely on unclear photos that provide no evidence of date, time or location in an attempt to profit by charging a disproportionate sum where no loss has
been caused as parking was FREE anyway.
I put The Claimant to strict proof to justify their claim, under the circumstances described. I respectfully request that based on the information provided, that my appeal is upheld and the charge is dismissed.
Yours sincerely. xxxxxxxxxx (The Defendant)"
The County Court subsequently acknowledged my defence and said they would put it to CEL.
I have now received "Notice of Proposed Allocation to the Small Claims Track It states:
1. This is now a defended claim . The defendant has filed a defence.
2. It appears that this case is suitable for allocation to the small claims track.
If you believe that this track is not the appropriate track for the claim, you must complete box C1 on the Small Claims Questionnaire N180 explaining why.
3. I must complete the Small Claims Directions Questionnaire (Form N180) and file it with the court office and serve copies on all other parties by 8th April.
(Yes, I realise that is Monday. Not sure where the time has disappeared to)
It states that mediation is available free of charge through HM courts & Tribunals Service. I have said YES to mediation.
I have completed and sent the Directions Questionnaire as per the info in the Shortcuts on the site. Is there anything else I should know or do in reference to the Small Claims Track. What should I expect now?
Thank you for your advice.
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