SIP PCN + Notice to Owner issued **Notice of Discontinuance received**

[SpaceCowboy55]

I've sorted the file it now shows.

 

that's pretty naughty to do that

make it appear like its from a claim form that box.

 

If you are referring to the Particulars of Claim file it is genuine - I just photo'd part of the form to avoid removing all the identifying info on it : I can attache teh whle thing if you need it / want it or if you tell me what else you want from it : as I've managed to log onto the court system with it I believe it's real.

[SpaceCowboy55]

I have been provided with advice for defence :

1. The Defendant denies he is indebted to the Claimant in any way.

2. Upon the Claimant accepting that the Defendant should be afforded the opportunity of challenging the parking charge by means of an appeal to the facility provided by London Councils Ltd trading as POPLA (Parking On Private Land Appeals Service) and the Court being satisfied that this facility constitutes an appropriate form of alternative dispute resolution procedure for the purposes of CPR 1.4(2)(e) it is requested that the Court makes an order of its own initiative:

1. There be a stay of the proceedings to enable POPLA to adjudicate upon the appeal according to its merits.

 

2. There be permission to either party to apply to have the matter dismissed or restored following the POPLA adjudication; the claim to stand dismissed if no application be made within six months

 

3. No order as to costs.

3. It is submitted that the Claimant is obliged to engage in the POPLA service as a condition of its membership of the trade body The British Parking Association Ltd.

4. It has come to the Defendant's attention that other courts are making such orders as to save the court system time and cost. Please see enclosed a recent order made in the Croydon County Court.

 

The concern I have with the above is I did get a POPLA code earlier and didn't use it ( due to conflicting advice which in hindsight I think I should have ) : will this count against me? - if so do I need to provide an explanation of why I didn't ?

 

Also there are errors in their POC ( on my thread ) and I am not sure how much to respond with ( Defendant parked ... ( it wasn't me I am RK ) ... Valid NTO - no it wasn't it was out of time as I pointed out in a letter to them that they didn't acknowledge and actually in POC say no communication after a date when my letter ( sent twice to different addresses was sent after and final sum free does not reflect loss ( 8 minutes of parking at £1 ) .

 

I will also mention no LBA ( the letter they sent was non compliant at best - no reference to court practice and it was really just another demand for money - also posted on my thread : the quality isn't great : I can do higher quality with all the info but the files are then too big ) . I will also request evidence of contract between PPC and landowner ( it's not obvious who the landowner is ) + amount claimed does not reflect actual loss.

 

Any suggestion as to how better to articulate this greatly received

Edited October 1, 2013 by SpaceCowboy55
formatting for ease of reading

[SpaceCowboy55]

pdf of Court Claim form added - personal details removed ( pinkish colouring due to printing an edited pdf - original is blue )

Edited October 2, 2013 by SpaceCowboy55
wording added

[Scouse Magic]

giving the op benefit of doubt lets see what is posted up

[dx100uk]

I've tidied the thread for you

 

dx

[SpaceCowboy55]

attached in post #28

[SpaceCowboy55]

I have a Defence pack ( letter + supporting files showing correspondence ) prepared for the Court Claim - just waiting to see whether I receive the "evidence" as stated in the POC .

 

Is anyone willing to review it for me please ? ( I would prefer to send by PM or email as the Claimant may see it ( as something posted in a forum is one of their items of evidence )

[Scouse Magic]

PM and emails not recommended, who are the solicitors ?

[ericsbrother]

problem with point 2 is you didnt go to POPLA and it is down to you to initiate the appeal there. No harm in asking for it to be handed back there though, just not likely that judge will order it.

As for procedural errors, judges vary in what they let through, they will often allow anything to be said and then point out why it isnt going to be considerd afterwards rather than preventing it being presented.

Judges again vary in hearsay evidence weight, some will dismiss it completely and some wont so dont make a big thing about what the PPC says about what has been written on this or other forums, it they are trying to get a point agross it will either stand or fall on its merits rather than any weighting given to screen shots of advice or admission by posting here. You could question the burden of proof threshold if you think that the PPC is trying too hard as I doubt if much of what written here can be considered proper "advice" in the same way as talking to a solicitor would be. Even then, how do they get a witness to corroborate it?

[SpaceCowboy55]

PM and emails not recommended, who are the solicitors ?

 

I think "Natasha Sarwar" is the Claimant.

 

The way it's written is (Claimant)(Claimant's Solicitor ) and there are XXXXXXs through Claimant's Solicitor - so although it's slightly ambiguous I would say she is the Claimant.

[SpaceCowboy55]

problem with point 2 is you didnt go to POPLA and it is down to you to initiate the appeal there. No harm in asking for it to be handed back there though, just not likely that judge will order it.

As for procedural errors, judges vary in what they let through, they will often allow anything to be said and then point out why it isnt going to be considerd afterwards rather than preventing it being presented.

Judges again vary in hearsay evidence weight, some will dismiss it completely and some wont so dont make a big thing about what the PPC says about what has been written on this or other forums, it they are trying to get a point agross it will either stand or fall on its merits rather than any weighting given to screen shots of advice or admission by posting here. You could question the burden of proof threshold if you think that the PPC is trying too hard as I doubt if much of what written here can be considered proper "advice" in the same way as talking to a solicitor would be. Even then, how do they get a witness to corroborate it?

 

This is the latest version of the main defence that pending change from comments received is what I plane to send back. The beginning is a response I was provided on a forum : and my question to a wider audience is that because I didn't use the POPLA code when I could is it valid ? ( Reason I didn't ( apart from conflicting advice was I submitted a 2nd appeal which I was convinced would stop it - but that wasn't acknowledged or responded to so I timed out : hindsight says I should have done it ...

 

1. The Defendant denies he is indebted to the Claimant in any way.

 

2. Upon the Claimant accepting that the Defendant should be afforded the opportunity of challenging the parking charge by means of an appeal to the facility provided by London Councils Ltd trading as POPLA (Parking On Private Land Appeals Service) and the Court being satisfied that this facility constitutes an appropriate form of alternative dispute resolution procedure for the purposes of CPR 1.4(2)(e) it is requested that the Court makes an order of its own initiative:

1. There be a stay of the proceedings to enable POPLA to adjudicate upon the appeal according to its merits.

 

2. There be permission to either party to apply to have the matter dismissed or restored following the POPLA adjudication; the claim to stand dismissed if no application be made within six months

 

3. No order as to costs.

 

3. It is submitted that the Claimant is obliged to engage in the POPLA service as a condition of its membership of the trade body The British Parking Association Ltd.

4. It has come to the Defendant's attention that other courts are making such orders as to save the court system time and cost. Please see enclosed a recent order made in the Croydon County Court. ( See refertopopla.jpg file)

There are a number of further points I submit as defence :

1. I was not the driver and Claimant has not satisfied the conditions necessary to pursue the keeper under Schedule 4 PoFA. I hereby Request that the court strike the claim out as the claimant has no real prospect of succeeding on the claim. (CPR Part 24.2) ( this is explained in more detail in my letter of 29th June to SIP which they did not acknowledge. I sent this letter to 2 different addresses provided on their letter ). This letter is in file SIP 2nd Response to final. Furthermore in the Particulars of Claim ( POC ) SIP state they have had no further correspondence since their decision letter to uphold the PCN dated 4th June., and this letter from me was sent on 29th June .

2. Reference in the POC to a final letter before court application on 04/09/2013 : ( Letter sent by SIP before the Court Claim included as file SIP LBA 04092013.pdf ) . This is non-compliant as a Letter Before Claim as it does not refer to the “Pre-Action Direction “ :as prescribed in “ Annex A Section 2.3Unless the defendant is known to be legally represented the letter should –

1. (1) refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; “

Furthermore some comments against what the letter should contain from Section 2.1 of the Practice Direction:

2.1 The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –

(1) the claimant’s full name and address; Name spelt incorrectly

(2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);

This is not stated

(3) a clear summary of the facts on which the claim is based; This is not stated

(4) what the claimant wants from the defendant; and Other than a payment of £100 this is not stated

(5) if financial loss is claimed, an explanation of how the amount has been calculated. This is not stated

3. The Claimant has not provided any evidence as to how or why the sum of £100 is a

genuine pre- estimate of loss ( NEEDS MORE ADDING HERE ??? or different wording? )

4. British Parking Association Ltd code of practice v3 secn 7.1 requires the Claimant to have a contract with the landowner : The Claimant has not provided any evidence and more specifically in secn. 7.2 f . whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.

The Claimant's Notices are in breach of the BPA Code of Practice - which is in itself a breach of the CPUTR 2008 by claiming to be regulated by a Code which is then not adhered to. The appellant has pointed out some breaches of the BPA Code to the Claimant but was ignored.

May I respectfully request that if the decision is made to progress with a Court hearing that this is transferred to Manchester.

[SpaceCowboy55]

This is the latest version of the main defence that pending change from comments received is what I plane to send back. The beginning is a response I was provided on a forum : and my question to a wider audience is that because I didn't use the POPLA code when I could is it valid ? ( Reason I didn't ( apart from conflicting advice was I submitted a 2nd appeal which I was convinced would stop it - but that wasn't acknowledged or responded to so I timed out : hindsight says I should have done it ...

 

1. The Defendant denies he is indebted to the Claimant in any way.

 

2. Upon the Claimant accepting that the Defendant should be afforded the opportunity of challenging the parking charge by means of an appeal to the facility provided by London Councils Ltd trading as POPLA (Parking On Private Land Appeals Service) and the Court being satisfied that this facility constitutes an appropriate form of alternative dispute resolution procedure for the purposes of CPR 1.4(2)(e) it is requested that the Court makes an order of its own initiative:

 

1. There be a stay of the proceedings to enable POPLA to adjudicate upon the appeal according to its merits.

 

2. There be permission to either party to apply to have the matter dismissed or restored following the POPLA adjudication; the claim to stand dismissed if no application be made within six months

 

3. No order as to costs.

 

3. It is submitted that the Claimant is obliged to engage in the POPLA service as a condition of its membership of the trade body The British Parking Association Ltd.

 

4. It has come to the Defendant's attention that other courts are making such orders as to save the court system time and cost. Please see enclosed a recent order made in the Croydon County Court. ( See refertopopla.jpg file)

 

There are a number of further points I submit as defence :

 

1. I was not the driver and Claimant has not satisfied the conditions necessary to pursue the keeper under Schedule 4 PoFA. I hereby Request that the court strike the claim out as the claimant has no real prospect of succeeding on the claim. (CPR Part 24.2) ( this is explained in more detail in my letter of 29th June to SIP which they did not acknowledge. I sent this letter to 2 different addresses provided on their letter ). This letter is in file SIP 2nd Response to final. Furthermore in the Particulars of Claim ( POC ) SIP state they have had no further correspondence since their decision letter to uphold the PCN dated 4th June., and this letter from me was sent on 29th June .

 

2. Reference in the POC to a final letter before court application on 04/09/2013 : ( Letter sent by SIP before the Court Claim included as file SIP LBA 04092013.pdf ) . This is non-compliant as a Letter Before Claim as it does not refer to the “Pre-Action Direction “ :as prescribed in “ Annex A Section 2.3Unless the defendant is known to be legally represented the letter should –

1. (1) refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; “

 

Furthermore some comments against what the letter should contain from Section 2.1 of the Practice Direction:

 

2.1 The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –

(1) the claimant’s full name and address; Name spelt incorrectly

(2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);

This is not stated

(3) a clear summary of the facts on which the claim is based; This is not stated

(4) what the claimant wants from the defendant; and Other than a payment of £100 this is not stated

(5) if financial loss is claimed, an explanation of how the amount has been calculated. This is not stated

 

3. The Claimant has not provided any evidence as to how or why the sum of £100 is a

genuine pre- estimate of loss ( NEEDS MORE ADDING HERE ??? or different wording? )

 

4. British Parking Association Ltd code of practice v3 secn 7.1 requires the Claimant to have a contract with the landowner : The Claimant has not provided any evidence and more specifically in secn. 7.2 f . whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.

 

The Claimant's Notices are in breach of the BPA Code of Practice - which is in itself a breach of the CPUTR 2008 by claiming to be regulated by a Code which is then not adhered to. The appellant has pointed out some breaches of the BPA Code to the Claimant but was ignored.

May I respectfully request that if the decision is made to progress with a Court hearing that this is transferred to Manchester.

 

 

 

 

 

 

I want to get the defence submitted this week : Has anyone got any observations / comments / improvements please? I haven't received the " separate detailed particulars " as mentioned in the POC so I will add that : My thinking also is to change the order so the request to dismiss comes before the POPLA request

[SpaceCowboy55]

I will create a new defence and post up over the weekend

 

I received the "Evidence" pack today - and guess what - included in it is this Pepipoo thread http://forums.pepipoo.com/index.php?showtopic=79614: could be interesting when it is shown to the judge and it says why their claim isn't valid - let's hope he questions them .

 

I should have received this by 9/10 according to the Particulars of claim - so I guess timed so that I wouldn't see it before I submit my defence - or am I being cynical.

 

Reminder to self : Have to submit defence by 23/10

Edited October 18, 2013 by SpaceCowboy55

[SpaceCowboy55]

Just realised how to update the title...

[ericsbrother]

No, what has happened is normal for many companies like this, it is de rigeur for employment tribunals, councils and hospital trusts etc as what they say will normally comment on your correctly submitted defence or they dig up new evidence or witnesses. IF possible you exchange bundles face to face to avoid cheating but when this involves travel it is not always practical.

[SpaceCowboy55]

*********** Latest Defence for Review *************

Point 2 needs sorting as it is a combination of 2 points and I need confirmation of how to sort it ...

1. The Defendant denies he is indebted to the Claimant in any way.

 

I was not the driver and have a witness statement to support this. SIP have not complied with POFA as described below and cannot pursue me as the keeper. Should I continue to be pursued I will be making an application for costs under section 27.14

Quote:

(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably;

http://www.justice.gov.uk/courts/pro...l/rules/part27

 

The claimant is pursuing a Penalty and not a genuine loss . After this time a claimant has no pre-estimate of a loss, they either have accounted it as a loss or they have not.

 

2. The Claimant has not identified the driver and is therefore pursuing me under the Protection of Freedoms Act 2012. However their Parking Charge Notice to Registered Keeper was sent on 10 May 2013 relating to the alleged incident on 9 Feb 2013. This far exceeds the requirement under Schedule 4 para 8.5 of PoFA 2012 to send the notice no later than 56 days after the incident and is in breach of the BPA Code of Practice. If PCN placed on car valid then Notice to Owner should have been sent between 09th March and 6th April ( If not valid as I have documented in File 2 it should have been sent before 23rd February).

The PCN has therefore been served out of time and is invalid and I request that the court strike the claim out as the claimant has no real prospect of succeeding on the claim ( CPR Part 24.2 ).

It is the defendant's case that the claimant has no cause of action against the defendant as it has failed to meet the legal requirements under POFA 2012. Accordingly the defendant respectfully requests the court to list this case for a Preliminary Hearing to consider the defendant's application for an Order striking out the claimant's claim.

 

3. The Notice to keeper was itself defective in that it:

· Failed to explicitly and clearly identify the “creditor” (para 9(2)(h) PoFA 2012)

· Did not specify the maximum additional costs that they may seek to recover

· The discount for payment within 14 days was not 40%

 

4. The letter sent on 04 September 2103 by the Claimant was defective and did not comply with Annex A Section 2 of the Practice Direction on Pre-Action Conduct in a number of ways, as a “Letter Before Action” including:

· Failure to mention the Practice Direction itself and draw attention to para 4 concerning sanctions for failure to comply with the Practice Direction

· Failure to give the Claimant’s full name and address

· Failure to state clearly the basis on which the claim is made (i.e. why the claimant says the defendant is liable);

· Failure to explain how if financial loss is claimed the amount claimed has been calculated

· Failure to list the essential documents on which the Claimant intends to rely

· Failure to set out the form of Alternative Dispute Resolution that the Claimant considers most suitable and invite me as defendant to agree to

This letter was obviously sent to intimidate me into paying a speculative charge and not sent with a view to reaching an agreement, in particular as I could not identify it as a “Letter Before Action”.

5. If the charge is supposed to be a penalty for “breach of contract” the penalty of £100 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915], clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss.

6. The initial charge of £100 is a penalty, not a genuine pre-estimate of loss since the Claimant is not the landowner and has suffered no loss.

See References 1 – 9 in Appendix 1 : Court References in support of Points 5 and 6 above

7. British Parking Association Ltd. code of practice v3 section 7.1 requires the Claimant to have a contract with the landowner : The Claimant has not provided any evidence and more specifically in section. 7.2 f . whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.

 

8. Signage :

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:

“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of acontracthave not been met. Any allegedcontract wouldbe formed at the entrance to the premises, prior to parking.It is not formed after thevehicle has already been parked, as this is too late

SIP donot provide signage of sufficient written text size or at a suitable height to be read from the vehicleat the entrance or at any location on thepremises.They may claim that generic signage is displayed around the car parkon polesbut this doesnot meet the requirements for consideration when forming the alleged contract. I suggestSIP need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.

 

9. BREACH OF UTCCR 1999

Finally, I believe SIP are in breach of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

 

Schedule 2, paragraph 1:

...terms may be unfair if they have the object or effect of:

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

 

Unfair Terms

5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

And from the Office of Fair Trading, Unfair Contract Terms Guidance:

 

''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

 

Group 18(a): Allowing the supplier to impose unfair financial burdens

18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract...

Group 18(h): Unreasonable ancillary obligations and restrictions

18.8.1 There is a clear risk of unfairness where terms put consumers at risk of incurring contractual penalties that are more severe than is necessary to protect the real interest of the supplier. This form of unfairness most obviously arises where a term provides for an excessive penalty...

 

Group 19: Regulation 7 – plain and intelligible language

19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.

 

Response to Particulars of Claim:

1. Defendant parked in contravention … : See point 2 of Defence above

2. PCN received on 09/02 : I was not the driver and did not receive a valid NTO … : See point 3 of Defence above and File 2

3. The appeal letter on 04/06 stated I had not been served with a valid NTO and challenged the charge.

4. Appeal letter stated as being received on 16/06 , yet the “evidence” provided by SIP has a handwritten date of 12/06 ( it was sent by Royal Mail on 4th June )

5. Decision letter to uphold with POPLA code sent 20/06 : what is sent is a 3 sheet document with Request for Case Review ICR on one side and a POPLA appeal form on the reverse : the most confusing 3 pages I have ever seen.

6. We have had no further correspondence …( since 20/06 ) : My letter of 29 June 2013 ( supplied as File 2 , referred to earlier ) was sent to 2 different SIP addresses : so denied .

7. Final sum fee of £100 : See Points 5 and 6 of Defence.

8. Evidence consists of .. : There are photos of the car but there is no evidence of when and where they were taken

9. Online forum evidence : I wasn’t aware I had left the PCN number on any documents visible to the public , however I am unsure of why this is submitted as evidence as I know of no reason why an online forum cannot be used to seek advice from others ; this forum thread a identifies point 2 of the Defence which states why the claim is invalid : so if SIP are reading this online forum I fail to understand why the matter is being brought to court when it stands no real prospect of succeeding.

10. I will provide… within 14 days after service .. : This date would be 9th October and I received on 18th October ( posted on 16th October ).

 

I have written to SIP to request information to support point 7 of the Defence. ( ref FILE 3 )

The information requested and required within 14 days is this and that it is required for the defence:

· Name and address of the party contracting with Claimant for the provision of car park management services

· Name and address of landowner if different from above

· Copy of the contract the claimant has with the landowner entitling them to bring these proceedings

· A breakdown of the charges and how calculated, showing how any loss by the Claimant has been incurred to justify the amount claimed

 

 

May I respectfully request that if the decision is made to progress with a Court hearing that this is transferred to Manchester.

 

Appendix 1 : Court References

Ref 1

In Aintree University Hospitals NHS Foundation Trust v. Paul Helmn (20th August 2010) the claimant tried to claim £50 from Mr Helmn for parking in a disabled bay in the hospital car park without displaying a blue badge. The judge found that the sum was a contractual penalty was not a genuine pre-estimate of loss; therefore unenforceable.

Ref 2

In Aintree University Hospitals NHS Foundation Trust v. William Forshaw (6th June 2011) the judge stated: “Only the police and local councils can issue parking tickets in the normal sense of the word; landowners, on the other hand, rely on contract law. Therefore, some landowners put up signage when you enter their property, saying that you have entered into a contract with them, and that you must park in a certain way or in certain places. If you do not, the contract you have entered into states that you have to pay a sum, as per that stated in the contract. This is where it gets interesting. Case law dating back 100 years or more stating that if the sum of money demanded is more than the losses that the landowner has suffered, then it is considered a contractual penalty, and is therefore unenforceable. In other words the landowner can claim for genuine pre-liquidated losses, not demand a penalty on event of a contractual breach. For example, if the cost of parking is £2, which a motorist does not pay, then the landowner can make a claim for that £2, not for a £50 ‘charge’, even if this is on the signage, as £50 would constitute a penalty, which then becomes unenforceable”.

 

Ref 3

Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd Lord Dunedin offered as tests which might prove "helpful, or even conclusive":

 

"(A) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach..….

 

(B) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ….. This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable ….. is probably more interesting than material.

 

( C) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

 

Ref 4

- Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G,

discussing Dunlop:

"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

Ref 5

 

- Excel Parking Services v Hetherington-Jakeman, Mansfield County Court, March 2008.

“I have already decided that the charges are not recoverable anyway, but it is important I think for me to say whether I think it is a penalty, and I think it is a penalty. It seems to me that it is not a pre-estimate of damages. It is a payment of a sum of money that is intended to effectively frighten or intimidate someone into making a payment promptly. It is a figure that is far beyond any costs that could realistically or reasonably be incurred by the claimants in trying to run this system.”

Ref 6

 

- In OBServices Parking Consultancy Ltd vs Thirlow 10th February 2011 (on appeal) the Circuit Judge ruled:

- the sum amounted to an unenforceable penalty clause

- no loss caused by breach of contract

- common discount reinforced lack of pre-estimate of loss

 

 

Ref 7

 

- In UKCPS Ltd v Murphy (10th April 2012) it was found that the sum claimed for failing to display a blue badge whilst parking in a disabled bay in Deepdale Retail Park in Preston was in fact a contractual penalty and that UKCPS suffered no loss from the alleged breach of contract.

 

 

Ref 8

This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946.

"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

Ref 9

At the Parking Eye v Smith (Manchester County Court December 2011) hearing the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

 

 

[SpaceCowboy55]

http://forums.moneysavingexpert.com/showthread.php?t=4784029&highlight=parking

 

Update : Notice of discontinuance received today.

 

A bid thank you to all who have helped ,

 

I guess we;ll never know what caused the change of heart : Letter to BPA? Strong defence which meant they shouldn't win?

 

P.S. Natasha Sarwar is identified as " Case Handler" - this question has come up on a few threads.

 

Lessons learnt for me :

 

1. Message needs to be spread not to read old info and get people directed to the beginning of the forum , so the step by step robust advice can be followed : I made the mistake when I googled at first of finding old info

2. Do go to POPLA - on a different forum I got conflicting info and didn't use the code I got ( largely becuase I was so confident my second appea; would stop it I didn't bother - not realising that these companies don't follow common sense or logic - or the law for that matter )

3. DO THE WORK - don't expect others to do it for you , but then put it up for comment .

4. Don't timeout.

 

I like my early Christmas present : best wishes to all

 

has the latest info : including Notice of Discontinuance received today.

 

Thanks to all for help along the way

[ericsbrother]

Not surprised.

 

I would imagine anyone who shows intent on defending against them will get the same.

 

I doubt if it was the letter to the BPA though if the BPA gets dozens of a similar nature they may be forced to say something otherwise questions could get asked in the House about their lack of willingness to enforce their code of practice

 

. SIP know that a defended claim is going to cost them money so they are going to swallow on the £25 court fee paid so far, it is cheaper than losing at POPLA rather than risk looking foolish and getting clobbered for a lot more in costs.

 

Some people will pay up so they get their money back in the long run unless you tell all of your friends about how this abuse works and what to do to avoid paying unreasonable, unfair and unlawful charges.

 

Also, tell your MP that you are absolutely livid that these bandits have made this unwarranted claim and ask them to raise the whole parking contracts with third parties with the relevant minister as the PoFA isnt solving the problems.

 

BTW, well done for standing up and glad for that result.