Court Defence - Parking Paid in Full but a day late

[MrRubberDuck]

Hey all,

Been lurking for a while, but unfortunately, due to the arrival of a recent claim form, the keeper is now forced to come and ask questions.

Basics to start with:
- The Driver Parked within a ParkingEye private parking.
- The Driver attempted to make the payment via app when parking was complete, as per instructions.
- The Driver only noticed later that the payment hadn't gone through, likely due to a lack of internet.
- The Driver made the payment straight away, approx. 24 hours late.

- The Keeper received Parking Notice - appealed.
- The Keeper received an appeal notification, but nothing else..
- ...until a recent N1 form, stamped by County Court.

- The keeper returned an Acknowledgment of Service
- The keeper is currently preparing defence.

The keeper's main question is whether late payment is a justified defence, and how to approach that. The keeper couldn't find a similar defence elsewhere on the forums (sorry if it was missed).

Many thanks.

[atticus]

Sorry, but I think you face a steep uphill struggle with this line of argument.

Have you been able to extract evidence from your phone or other device to show your attempt to pay at the time of parking your vehicle?

[atticus]

By "you" I mean the driver!

[MrRubberDuck]

Ah, not great news then.

There’s no real evidence for the previous days attempt, only evidence of the payment the following day (and assume the keeper could request all data from ParkingEye to confirm they weren’t using the car park the following day).

They may have downloaded the app? Therefore would have download records?

If this is a bad line of defence would you advise changing defence to something more generic, or just paying up and getting on with life?

[atticus]

What exactly do you have in mind by a "generic" defence? A defendant has to put forward reasons for contesting a claim that he or she believes that he or she can prove. "I don't want to pay" is not good enough.

Who is the "they" in your second paragraph? You might ask "them" your questions!

Someone else may point to the legislation that permits such claims to be made against the keeper, so that he or she can check whether all the requirements for being able to bring a claim have been met.

The keeper may be able to bring a third party claim (a 'Part 20 Claim') against the driver, should she or he wish.

[R0b]

You may still be able to successfully defend the claim given that these parking companies tend to be pretty poor at case handling, although ParkingEye has been around since the start so they are likely to be more of a well oiled machine than some of the smaller companies.

That said, a coupe of admin questions first:

1. What is the date on the claim form?

2. Have you acknowledged the claim yet, if not you may want to do so immediately otherwise you open yourself up to default judgment if no defence or acknowledgment is received by the court within 14 days. Acknowledging the claim gives you a further 14 days to file a defence.

3. Can you upload the Particulars of Claim as is so we can see what it says? Don't paraphrase or modify, need to see it verbatim.

[MrRubberDuck]

Thank you both for your time and thoughts on this matter.

As a new poster, I am trying to keep to the suggestions regarding posts, and keeping language around keeper and driver. Happy to hear advice if there's a better format for discussion, particularly if the process is obscuring needed information.

Atticus, thank you for the advice. My desire to find a more 'generic' defence would perhaps be better phased as 'do you think there's anything else the driver/keeper could use as defence if a purchase out of hours feels inappropriate' - as ultimately I believe there's moral grounds to defend the claim (as full payment was made), and if common sense is not going to prevail I'd like to find the legal equivalent to support it. Ultimately though, if this is a fruitless task there's no point spending more time and more money - I just hate the fact companies like Parking Eye bully people who have in fact paid up as part of a systematic business model.

I'm attaching everything I have on the case so far.

- Receipt of payment made (attached: PayByPhone_ParkingDetails.pdf)
- The keeper received two letters, attached - case_particulars.pdf (almost identical)
- The keeper sent an online appeal to the first (screengrab from confirmation of appeal attached, see below)
- The keeper never received any written notice of the appeal result from ParkingEye.
- The keeper has now had a Court Claim (attached)

The keeper has made a Subject Access Request to ParkingEye, to see what information they have, and in particular to conclude whether they actually returned any form of appeal result in writing which may have been lost or missed.

Rob, I have acknowledged the claim, thank you for checking. I believe anything is now laid out here, but happy to answer any more questions.

And again, many thanks.

[MrRubberDuck]

Hey R0b,

Just putting together the defence now, and assuming/hoping that there's some hope of support from the court, as payment was made - I suppose a plea of common sense. Not sure what else to do now, but uploaded everything just in case you or others have any further thoughts.

Many thanks.

[R0b]

Here's my thoughts

1. The PCN to the keeper I presume doesn't look like a valid notice on the face of it, is that all? To hold the keeper liable under POFA 2012 they would need to comply with paragraph 9 of Schedule 4 (see link here). You could specify each of the points they have failed to comply with.

2. What's not clear from the POC is why they are claiming against you. There's nothing in there that suggests they are claiming against you as the keeper but it would probably be best to cover that off anyway. If they are seeking to argue you that you were the driver, the onus is on them to prove as much. Do you have anyone else that uses the car, is registered on the insurance as a named driver? Any of these points could be used to counter any suggestion that simply because you are the registered keeper, it's reasonable for them to believe you were driving.

3. You could also argue that contrary to the POC you did file an appeal but PE did not respond to you. Your line of defence on this point may be a case of estoppel which means that you relied on a particular set of facts (here, the opportunity to appeal which you took up) and because PE failed to provide a response to the appeal but instead choosing to initiate legal proceedings, they are prevented from pursuing their claim. You may also want to add that PE are subject to the Code of Conduct of the British Parking Association and you may want to look at the Code of Conduct to see what it says about appeals and if they followed the correct process.

4. Paragraph 4 of Schedule 4 of POFA says that the creditor has the right to recover the unpaid parking charges from the keeper if it can satisfy paragraph 5. Para 5 states that the creditor must have the right to enforce the parking charge and that would assume that they have a contract in place from the landowner to (a) issue parking tickets and (b) take action up to and including legal proceedings for unpaid tickets and (c) there are no conditions or exceptions that might prohibit PE from enforcing the unpaid parking charge. You could argue this in your defence and put the onus on PE to provide evidence that it has the right to enforce the unpaid parking charge from the landowner. Again, I would suggest you read up on the BPA Code of Practice and add that to your defence as I believe it also says in there that members must have a written agreement in place that covers things like boundaries, the right to enforce etc.

Can't think of anything else right now but that should be enough to get you started. Feel free to post up a draft defence for comment when your ready, but keep an eye on deadlines for submission and don't leave it last minute if you cna help it.

[MrRubberDuck]

Thank you so much for the thoughtful reply.

It's about 2 weeks until the need to submit, but agree the earlier the better.

[MrRubberDuck]

Hey,

I tried posting a reply to this a while back, but it looks like it failed (just assumed there was a moderation process going on previously).

I'll try again, more succinctly.

Although warned by R0b, a bout of illness and Easter meant I was too late writing my defence to post it here. But attaching a redacted version now for your thoughts.

The core argument: Appeal was never an option, Court is expensive and wasteful, let's simply go to POPLA to complete this process.

[MrRubberDuck]

There's more...

Soon after posting the above reply I received a reply to a Subject Access Request I'd made to PE regarding the keeper.

To my surprise there were two pieces of correspondence I'm 99% sure they have never delivered to me.

The first is a reply to my appeal. As this is to my [insert popular online account here - stops me posting otherwise] account - an account which I never delete from, due to the quality of the search function - I'm sure it never arrived. I can see many other emails from that specific date, but nothing from PE. Unfortunately, although I know this, it is not provable.

There's also a Letter Before Claim, which I also believe I've never recieved. Harder to be sure with letter boxes and postal service, but still - I have every other piece of correspondence.

What does this mean?

I'm kind of suspicious, as my defence was also amongst the SAR, and this now ruins my defence. But I know I'll sound like a crazy paranoid man, as this would mean PE are fabricating stuff, which sounds a little extreme... even for them, right?

If anyone else has experienced anything like this? Or has any advice, I'm interested, as I'm not sure where to go with this now.

[MrRubberDuck]

Hello all,

I appreciate a bump is not really a polite process in a forum, but I'm just trying to ascertain whether people have read this and thought "god! no idea what to do here, this is a dead end", or whether it's floated past in forum ether and been missed. I'm assuming I'll get the response from PE soon, and then must decide how to proceed.

I'm torn between what feels like a huge injustice, at worst a company fiddling evidence (still feels a little over dramatic to write that) and the visible facts which suggest I just pay up and walk away.

Does anyone know where the emphasis of proof of delivery lies with emails? Will they be forced to prove delivery, or even more, prove I received something, or is it on me to prove that I never received it?

Many thanks for anything as always.