Unfair Trading Practices

JamaicanRoots

Hi everyone

The good folks at pepipoo have been helping me with my Defence and below is my draft final version. But I have added some additional points about unfair trading practices. Have a read and see if these hold water. Any advice or comments would be greatly appreciated.

I would value some critical analysis of the following points in particular:
8
18
19
20
21
22
25

Many thanks


PRELIMINARY MATTERS
1. I ask that the court use its power under CPR 3.4, 2C to strike out the Particulars of Claim for failure to comply with CPR PD 16.7, 3.1 (a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim but it was not).
2. I formally requested a copy of the contract in an email to Parking Eye dated 10th March 2017. They replied on 16th March 2017 but did not furnish the contract and have not done so since.
3. Thus the Claimant has not provided enough details in the particulars of claim to file a full defence. The Defendant respectfully asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.
4. I have reason to believe that this is a claim that will proceed without full facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

STATEMENT OF DEFENCE
I am xxxxx, defendant in this matter and deny liability for the entirety of the claim for the following reasons:
1. I admit that on the xxxxx I was the owner/keeper of vehicle xxxx
2. I admit entering xxx Car Park on xxx.
3. The Claimant (Parking Eye) asserts that the time spent in the Car Park was 3 hours 21 minutes and 34 seconds. I cannot be sure of the exact time spent actually parked as opposed to merely being in the car park itself.
4. I put £5.00 in £1 coins into the ticket machine situated in the hotel lobby area soon after parking and was given a ticket.
5. The text on the ticket machine and on the car park signage was consistent and clearly stated that the charging rate for parking was “Up to 20 mins ... FREE, Per hour (up to 7 hours) ... £1.50 ”.
6. The signage did not state that the 20 minutes free was included in the calculations for the "per hour" tariff. In fact, in the evidence Parking Eye submitted for the POPLA Appeal, they clearly state (page 5): “Tariffs apply after 20 minutes free stay”. Therefore the 20 minutes free is in addition to any paid-for time.
7. Furthermore, the signage did not state that the tariff was "per hour, or part thereof". Nor did it state that the tariff was “up to 3 hours … £4.50; up to 4 hours ... £6.00”. Therefore, the £5.00 I paid covered me for 3 hours 20 minutes of paid-parking.
8. I asked the Hotel Receptionist if £5.00 would equate to 3 hours and 20 minutes and she said that she thought that that interpretation was correct. Thus this claim represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.
9. Adding the above “paid-for” time to the 20 minute free period gives a total parking time allowed of 3 hours 40 minutes, which amply covers me for the 3 hours 21 minutes and 34 seconds that I stayed in the car park.
10. In addition, the British Parking Association (BPA) states that operators should allow a minimum grace period of 10 minutes to exit the car park, which would increase my total parking time allowed to 3 hours 50 minutes.
11. This grace period for exiting the car park is independent of any grace period allowed for entering the car park and parking the car. The "20 minutes free" could be considered a grace period.
12. I therefore contend that the £5.00 I paid for parking was more than adequate to cover me for the time I spent in the car park and I deny that I parked “without purchasing a valid paid parking ticket”.
13. I was issued with a PCN by the Claimant on 22nd July 2016 and replied on 3rd August 2016 pointing out that I had paid £5.00 in £1 coins, and that I had double-checked with the receptionist that this covered me for 3 hours and 20 minutes.
14. On 24th August 2016, the Claimant asked for “further evidence” that I had visited the Car Park on the date in question and the amount of money I had paid on site. I was confused by this because I assumed they already had this information.
15. The Claimant rejected my appeal on 29th September 2016.
16. The case went to POPLA and in my submission I additionally pointed out that the car park signage clearly stated “20 minutes free”.
17. POPLA rejected my appeal on 1st November 2016.
18. I contend that the signage is ambiguous and open to interpretation. And therefore, under the Consumer Rights Act 2015, the interpretation must be found in favour of the consumer (the Defendant). However, I contend that it goes beyond this. In effect, Parking Eye have deliberately misinterpreted their own signage, and they have done so wilfully or as a result of lack of due diligence. Evidence of such wilful neglect includes the following points below.
19. There is ample and convincing evidence from signage at other car parks managed by the Claimant, that they are fully aware of the important distinctions in wording described in points 6. and 7. above. Their failure to use the clear and unambiguous wording of the signage used in their other car parks is an indication of (at best) lack of due diligence, and at worst, wilful omission. As such, they are in breach of the Consumer Protection from Unfair Trading Regulations 2008 (and Amendment 2014).
20. There is small print on the ticket machine which states that “you can purchase additional time (if required) at the payment machines before leaving”. In other car parks managed by the Claimant this advice appears in large print on the signs in the car park. This is not the case in the present car park and as such is a misleading omission that is once more in breach of the Consumer Protection from Unfair Trading Regulations 2008.
21. Interest of £22 was charged by the Claimant when the CCJ was erroneously granted in March 2017. But this amount seems to be 3 times greater than the amount that should be allowed persuant to S.69 of the County Courts Act 1984 which allows a rate of 8.00% pa from the date of the incident.
22. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
23. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
24. The Claimant is a member of the British Parking Association (BPA) and bound by its rules as a condition of being allowed to access keeper details from the DVLA.
25. In view of the inexcusable lack of due diligence, which has effectively resulted in the misuse of my personal details, and which appears to have adversely affected my credit score rating, all of which has caused me stress, anxiety & insomnia, I will be filing a counterclaim for breach of the Data Protection Act.
26. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

DEFENDANT DECLARATION
I believe the facts stated in this defence claim are true.
Signed ..........................................
Print.............................................
Dated ..........................................

The_Deep

Add a few pounds for stress to the counter claim and an amount for time spend dealing with their unreasonable behaviour.

Unfair Trading Practices are a matter for your local Trading Standards Department to deal with and should be brought to their attention in writing.

JamaicanRoots

Thanks - good points!

JamaicanRoots

I have submitted my Defence to the court via email and I have copied in the Claimant (ParkingEye). So my Defence has been filed and served as per the Court Order.

The final version of the Defence is below:

IN THE COUNTY COURT BETWEEN:

Claim Number: xxxx
ParkingEye Ltd
(Claimant)
vs
xxxx
(Defendant)

PRELIMINARY MATTERS
1. I ask that the court use its power under CPR 3.4, 2C to strike out the Particulars of Claim for failure to comply with CPR PD 16.7, 3.1 (a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim but it was not).
2. I formally requested a copy of the contract in an email to ParkingEye dated xxxx. They replied on xxxx but did not furnish the contract and have not done so since.
3. Thus the Claimant has not provided enough details in the particulars of claim to file a full defence. The Defendant respectfully asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.
4. I have reason to believe that this is a claim that will proceed without full facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

STATEMENT OF DEFENCE
I am xxxx, defendant in this matter and deny liability for the entirety of the claim for the following reasons:
1. I admit that on the xxxx I was the owner/keeper of vehicle xxxx.
2. I admit entering xxxx Car Park on xxxx.
3. The Claimant (ParkingEye) asserts that the time spent in the Car Park was 3 hours 21 minutes and 34 seconds. I cannot be sure of the exact time spent actually parked as opposed to merely being in the car park itself.
4. I put £5.00 in £1 coins into the ticket machine situated in the hotel lobby area soon after parking and was given a ticket.
5. The text on the ticket machine and on the car park signage was consistent and clearly stated that the charging rate for parking was “Up to 20 mins ... FREE, Per hour (up to 7 hours) ... £1.50 ”.
6. The signage did not state that the 20 minutes free was included in the calculations for the "per hour" tariff. In fact, in the evidence ParkingEye submitted for the POPLA Appeal, they clearly state (page 5): “Tariffs apply after 20 minutes free stay”. Therefore the 20 minutes free is in addition to any paid-for time.
7. Furthermore, the signage did not state that the tariff was "per hour, or part thereof". Nor did it state that the tariff was “up to 3 hours … £4.50; up to 4 hours ... £6.00”. Therefore, the £5.00 I paid covered me for 3 hours 20 minutes of paid-parking.
8. I asked the Hotel Receptionist if £5.00 would equate to 3 hours and 20 minutes and she said that she thought that that interpretation was correct. Thus this claim represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.
9. Adding the above “paid-for” time to the 20 minute free period gives a total parking time allowed of 3 hours 40 minutes, which amply covers me for the 3 hours 21 minutes and 34 seconds that I stayed in the car park.
10. In addition, the British Parking Association (BPA) states that operators should allow a minimum grace period of 10 minutes to exit the car park, which would increase my total parking time allowed to 3 hours 50 minutes.
11. This grace period for exiting the car park is independent of any grace period allowed for entering the car park and parking the car. The "20 minutes free" could be considered a grace period allowed for parking the car.
12. I therefore contend that the £5.00 I paid for parking was more than adequate to cover me for the time I spent in the car park and I deny that I parked “without purchasing a valid paid parking ticket”.
13. I contend that the signage is ambiguous and open to interpretation. And therefore, under the Consumer Rights Act 2015 (Para 69), the interpretation must be found in favour of the consumer (the Defendant). Specifically: “If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.”
14. However, I further contend that the ambiguity in the signage is deliberate and represents a wilful action on the part of ParkingEye. So a further part of my defence argues that I was the intended victim of deliberately ambiguous signage. Evidence of such deliberate ambiguity includes the following points below (15, 16, 17 and 18).
15. There is ample and convincing evidence from signage at other car parks managed by ParkingEye, that they are fully aware of the important distinctions in wording described in points 6. and 7. above. Their failure to use the clear and unambiguous wording of the signage used in their other car parks is evidence that ParkingEye have failed to take reasonable care and they are thus once more in breach of the Consumer Rights Act 2015 (Section 49), specifically: “Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill.”
16. Moreover, the deliberate ambiguity of the car park signage (when similar unambiguous signage was used in their other car parks) represents a wilful action on the part of ParkingEye and is therefore a breach of the Consumer Protection from Unfair Trading Regulations 2008 (and Amendment 2014). This legislation protects consumers from unfair or misleading trading practices and bans misleading omissions.
17. Another example of a wilful action is the small print on the ticket machine in the hotel lobby which states that “you can purchase additional time (if required) at the payment machines before leaving”. In other car parks managed by ParkingEye this advice appears in large print on the signs in the car park. If the above wording was more prominently displayed on the signage in the present car park, motorists would be likely to avail of the offer and thus reduce their likelihood of being issued a Penalty Charge Notice. This is not the case in the present car park and as such is another example of a deliberately misleading and wilful omission that is once more in breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Rights Act 2015 (Section 49).
18. The practice of using clear, unambiguous signage in some car parks and confusing, ambiguous signage in other car parks amounts to Unfair Trading Practices. The deliberate nature of these practices strongly suggests the intentional entrapment of motorists. I will be bringing these to the attention of the local Trading Standards Department so that they can take appropriate action.
19. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by ParkingEye or their legal representatives, and ParkingEye is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to ParkingEye. A Managing Agent is not the Landowner.
20. ParkingEye is a member of the British Parking Association (BPA) and bound by its rules as a condition, including those in relation to being allowed to access keeper details from the DVLA. In view of the deliberate (and apparently intended) ambiguity of the car park signage, and ParkingEye’s full knowledge of such, I contend that there never was any “reasonable cause” to ask the DVLA for my keeper details. Therefore, ParkingEye is in breach of the Data Protection Act. ParkingEye are also in breach of the Code of Practice of the British Parking Association, and consequently of the Consumer Protection from Unfair Trading Regulations 2008.
21. The breach of the Data Protection Act has effectively resulted in the misuse of my personal details and appears to have adversely affected my credit score rating. Dealing with the unreasonable behaviour of ParkingEye has caused me time, money, stress, anxiety and insomnia. I will be filing a counterclaim.
22. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

DEFENDANT DECLARATION
I believe the facts stated in this defence claim are true.
Signed ..........................................
Print.............................................
Dated ..........................................

Loadsofchildren123

You should have made the counterclaim with the defence.


You have an excuse as you are a litigant in person so it is hard to understand the rules.


The counterclaim is already made out in this defence. So two options:


1. Call the court and say that it should be treated as a defence and counterclaim - point out the counterclaim is in paras 20 and 21, and ask if you can pay the fee (the fee will be £25 - the only thing you haven't done is said that you are seeking damages and in what amount but you may get away with that as a litigant in person - if you keep it under £500 I think the fee is £25).
Then let the Claimant know that you've paid the fee and the defence is a defence and counterclaim.

2. An alternative to the above is to ask the court in the Directions Questionnaire to make an order that your defence be treated as a defence and counterclaim. The DQ is the next stage in the process and you'll be sent it by the court and asked to fill it in and return it by a certain date. There will be a box in it that asks if there are any orders you think the court should make - this is where to put in the request for an order that the defence be treated as a defence and counterclaim, and draw attention to the fact that the counterclaim is set out in paras 20 and 21.


If you don't do either, you will have to issue the counterclaim later and I think the rules will say that you will need the court's permission to do this at a later date.


I'd do Option 1 and see what the court advises you to do. They may advise Option 2.