Taken to Small Claims Court by ParkingEye

alex_knight_2

Hi. Good morning. I have time this morning so have read through and going to start my defense. I found my POPLA appeal refusal so thought I would post just in case I missed anything when explaining to you. The evidence in support of my claim mentioned below is an email from the hockey center saying that my son was playing hockey so would not have been required to pay and that it is not the intention of the hockey center that users are fined for parking



Decision
Unsuccessful

Assessor Name
xxxxxx xxxxxx


Assessor summary of operator case
The operator has issued the Parking Charge Notice (PCN) due to “either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted".


Assessor summary of your case
The appellant’s case is that his son was there playing a hockey match. The appellant explains that he was running late as they had not been to the centre for a number of years, and went to the wrong place. The appellant states that when they found the correct car park, they went straight to the pitch as the game had already started. He highlights that parking has always been free for hockey players, however motorists must now enter their registration, but he did not know this at the time. The appellant has provided evidence in support of the appeal.


Assessor supporting rational for decision
The operator has provided photographic evidence of the appellant’s vehicle entering the car park at 19:24, and exiting at 20:38, totalling a stay of one hour and 13 minutes. The operator has provided evidence to demonstrate that the vehicle was not registered for any authorisation to park. The appellant does not dispute that he did not register the vehicle however highlights that his son was playing hockey at the site, and that he was unaware of the terms and conditions change. When parking on private land, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore, upon entry to the car park, it is the duty of the motorist to review the terms and conditions before deciding to park. Section 18.3 of the British Parking Association (BPA) Code of Practice explains that signs “must be conspicuous and legible and written in intelligible language, so that they are easy to see, read and understand”. The operator has provided photographic evidence of the signage that states, “All Lee Valley Hockey and Tennis paying competitors must enter their full, correct vehicle registration details into the terminal at reception to obtain a 4 hour parking permit… Failure to comply with the terms and conditions will result in a Parking Charge of: £100”. The operator has provided evidence of a banner at the site that reads, “Welcome to Lee Valley Hockey and Tennis Centre, New parking restrictions will be in place from the 25th July 2016”. While I note that the appellant states that they were unaware of the terms and conditions, the driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. Reviewing the photographic evidence of the signage on display at the site, I am satisfied that the appellant as the driver was afforded this opportunity. Section 18.11 of the BPA Code of Practice states that, “Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with these changes”. As the appellant indicates he has not visited the site for a number of years I do not consider he is a regular user so this would not apply. Even if it did, the banner referred to earlier in my report would be sufficient notice of a change to the terms and conditions. I also recognise the appellant’s son may well have been a genuine hockey player, but this is not in dispute. The fact remains the appellant did not authorise his vehicle to park as per the requirements. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant failed to register the vehicle in order to be authorised to park, and therefore did not comply with the terms and conditions of the car park. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

alex_knight_2

[FONT=&quot]Hi all, please find below my defence. One thing I just noticed is that the offence date was 08/08/2017 and in the court papers PARKINGEYE has only stated the Parking Charge issue date that is a week later 15/08/2017. Does that matter?[/FONT]
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[FONT=&quot]Also I cant remember if the signs were lit but being August there would not have been a need so do I need to remove those parts from below please?[/FONT]
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[FONT=&quot]IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No: CXXXXXX

BETWEEN:

PARKINGEYE LTD (Claimant)

-and-

ALEX KNIGHT (Defendant)

________________________________________
DEFENCE STATEMENT
________________________________________


Background - the Defendant was an authorised patron of the Lee Valley Hockey & Tennis Centre, Abercrombie Road, Queen Elizabeth Olympic Park, London, E20 3AB.
1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at Lee Valley Hockey & Tennis Centre car park on 08/08/17. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.

2. The allegation appears to be that 'parking on private land in breach of the terms and conditions (the contract)' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of Lee Valley Hockey & Tennis Centre.

3. The Defendant has already proved that he was a patron of the Lee Valley Hockey & Tennis Centre, and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad that catches out far too many victims at this location, that has given rise to a 'PCN' that was not properly issued from the outset.

Unclear terms - no agreement to pay a penalty for failure to use a hidden iPad

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[FONT=&quot]4. According to the sparse, unlit signs in this car park, to avoid a Parking Charge, users of the service must either purchase a ticket by machine or phone OR must be "Patrons" of businesses, including the Lee Valley Hockey & Tennis Centre.

4.1. At the time of parking on DATE, the Defendant was a patron of the Lee Valley Hockey & Tennis Centre, and the Defendant has a letter from the Duty Manager at the Lee Valley Hockey & Tennis Centre stating that “I am sorry that you have received parking tickets on the 8th August 2017. I can confirm that you are a valued user of our facility. I can also confirm that you were here on that day legitimately assisting with the playing and officiating of our scheduled hockey programme. You had every reason to be here that evening and for an extended period. It is not our intention that our regular users should be fined for parking and I hope that you are successful in your appeal”[/FONT]
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4.2. Prior to the Defendant's visit, ParkingEye had only recently placed their signage within the car park creating new terms and conditions for motorists. The BPA Code of Practice v6 which applied in December 2017, states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''

4.3. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use an iPad at the Lee Valley Hockey & Tennis Centre or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

Consumer Protection from Unfair Trading Regulations - breach

5.. The Defendant was told for the first time, that if a complaint had been made at the time of receipt of the parking charge notice (PCN), then the businesses on site (including the Lee Valley Hockey & Tennis Centre) had the authority to cancel the charge, but that it may now be 'too late'.

5.1. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to registered keeper recipients, that the onsite businesses could very easily cancel a charge, apparently with one email. By failing to alert cinema-goers to the iPad, and then withholding the Lee Valley Hockey & Tennis Centre route of cancellation/complaint from a consumer are 'misleading omissions' of material facts. These breaches of the CPUTRs 2008 have caused the unfair PCN, prevented its cancellation before proceeding started and this conduct by the Claimant has severely disadvantaged the Defendant.

5.2. The only route offered was an 'appeal' to ParkingEye themselves, but the Defendant knew he had done nothing wrong as a matter of principle, and honestly believed from research that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.3. This fact was later confirmed in the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, where more than one MP named and shamed ParkingEye and the unanimously damning Hansard quotes include: ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; ''wilfully misleading; signage is a deliberate act to deceive or mislead''; ''confusing signs are often deliberate, to trap innocent drivers''; ''unreasonable; operating in a disgusting way''; ''appeals service is no guarantee of a fair hearing''; ''outrageous scam''; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.


No locus standi
6. In order to issue 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. ParkingEye has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.


No 'legitimate interest' or commercial justification - Beavis is distinguished
7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When ParkingEye, all too often at this location, unfairly ticket a patron of the Lee Valley Hockey & Tennis Centre, any commercial justification in the form of support by the Lee Valley Hockey & Tennis Centre for such unfair ticketing is absent.

7.1. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.


Data Protection Act and BPA Code of Practice breach
8. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach.

8.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.

8.2. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:

i) Lack of an initial privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR, together with an iPad as a secondary data processing system at this site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine patrons), and

iv) Failure to consider the number of complaints from the Lee Valley Hockey & Tennis Centre and other businesses, which would have alerted this Claimant to the fact that their 'iPad system' and woeful sign was not being seen by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against Lee Valley Hockey & Tennis Centre patrons, and

v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the iPad system and how the data captured on both would be used, and

vi) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.

9. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.


Unlawful conduct/data use and breach of the Consumer Rights Act 2015
10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.

11. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

11.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

12. Even if there was a purported contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (due to non-compliance with the ICO requirements at the outset, before enforcement started using ANPR systems at this site).

12.1. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

12.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers, whereby they had committed the tort of deceit. : ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.

12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, and given that this Claimant has its own in-house Legal Team and solicitors, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.

12.2.2. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

(i) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.

(ii) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.

(iii) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

13.1. The excessive, inappropriate and unjustified use of ANPR alongside a hidden iPad system by this claimant is both unfair and lacking in transparency for an average consumer and as such, this claim must fail.


Unconscionable and unrecoverable inflation of the 'parking charge'
14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

15. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

15.1. Similarly, in Somerfield a £75 parking charge was not held to be a penalty but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

16. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature

Date[/FONT]
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"I believe the facts contained in this Defence Statement are true."

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Coupon-mad

DEFENCE

not

Defence Statement

One thing I just noticed is that the offence date was 08/08/2017 and in the court papers PARKINGEYE has only stated the Parking Charge issue date that is a week later 15/08/2017. Does that matter?

i would mention in a separate point, near the start, that it is denied that the vehicle was parked at the material location on the only date stated in the Particulars of Claim (15.8.2017) and the Claimant is put to strict proof.

And do NOT say this, as it fills the gap they have omitted by giving the missing date:

The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at Lee Valley Hockey & Tennis Centre car park on 08/08/17.

Also I cant remember if the signs were lit but being August there would not have been a need so do I need to remove those parts from below please?

Yes remove the bits about 'unlit' signs.

Go on more about the fact that there was no 'keypad' anywhere on view inside the Lee Valley Hockey and Tennis Centre, that none of the Defendant's family saw such a machine at all, nor was it drawn to their attention at Reception. Therefore, the Claimant is put to strict proof not only about the prominence of their signs outside in the car park on the material date, but also the transparency and prominence of the iPad/keypad that visitors coming to play sport would otherwise simply not see, unless it was a condition of entry past Reception, which it was not.

Alex_Knight

That is a FANTASTIC point about no obvious signs inside the venue!


Some people are saying what I have copied from someone else is not correct so Im getting confused what I should use and what I shouldnt. I only posted the defence again in a new post as I thought that is what I needed to do?


Do I continue with this defence or do I start again please?


Many thanks for your help

Alex_Knight

Hi Coupon. You advice has been brilliant. I had two threads as I misunderstood how to post. Would you mind looking at the other thread please as hopefully my newly written defence is much better as I have added in your thoughts/comments


Many kind thanks

Coupon-mad

Add it here please, instead!

Alex_Knight

Hi. I hope this is better and appreciate all your help..






In The County Court Business Centre

Claim No. XXXXXX

Claimant ParkingEye Ltd

Defendant XXX

Defence

I am XXXX, the defendant in this matter of alleged parking infringement at Lee Valley Hockey & Tennis Centre and I assert that the claimant has no cause for action for the following reasons.

1. Proceedings are issued in connection with a parking event on 15.8.2017 date at Lee Valley Hockey & Tennis Centre. The defendant, whilst not a regular visitor to the sports facilities at Lee Valley Hockey & Tennis Centre never visited on the date pleaded in the PoC.

2. It is denied that the vehicle was parked at the material location on the only date stated in the Particulars of Claim (15.8.2017) and the Claimant is put to strict proof.

3. Prior to parking at Lee Valley Hockey & Tennis Centre the defendant had parked at this venue before and the parking was free for users participating in either Hockey or Tennis at the centre.

The claimant states, The signage, which is clearly displayed at the entrance and throughout the site, states this is private land, is managed by ParkingEye, and is a paid parking site. However, On the material date, there was no 'keypad' anywhere on view inside the Lee Valley Hockey and Tennis Centre, that none of the Defendant's family saw such a machine at all, nor was it drawn to their attention at Reception. Therefore, the Claimant is put to strict proof about the transparency and prominence of the iPad/keypad that visitors coming to play sport would otherwise simply not see, unless it was a condition of entry past Reception, which it was not.

4. The defence has supplied supporting evidence by the Lee Valley Hockey & Tennis Centre. The Duty Manager has given in writing that,

I can confirm that you are a valued user of our facility. I can also confirm that you were here on that day legitimately assisting with the playing and officiating of our scheduled hockey programme. You had every reason to be here that evening and for an extended period. It is not our intention that our regular users should be fined for parking and I hope that you are successful in your appeal!

5. The defendant was on site legitimately and has provided the supporting evidence supplied by the Management at the Lee Valley Hockey & Tennis Centre to the claimant and to the POPLA appeal. There are therefore no grounds for the claim that the defendant parked without purchasing a valid parking ticket.

6. The claimant clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of the contract. It is the claimants responsibility to ensure that the terms and conditions are prominently displayed around the site. Lord Dennings Red hand rule and contrary to the requirements of the Consumer Rights Act 2015, and in agreement to the parking charge there was no agreement to pay additional sums, which in any case are unsupported by the Beavis case and unsupported for cases on the small claims track.

. I would assert that under the principle of Contra Proferentem and the Unfair Terms in Consumer Contracts Regulations 1999 any ambiguity in the term of a contract must be read in the manner most beneficial to the consumer.

. The claimants legal representative XXX XXXX is the claimants in-house solicitor. The charge of £50 for these solicitor fees is not supportable. In 2014 the claimant filed over 30,000 claims which would represent a total of £1,500,000 in solicitor filing costs. It is difficult to see how the claimant can justify this amount: XXX XXX would have to file one claim every 4 minutes every day for an 8 hour working day, without a break. I believe that the claimants filings are almost completely automated and there is no evidence of any wet or otherwise signature on the claim form just a typed name.

9. The defendant believes the terms for such conduct are Robo Claims which is against the public interest and demonstrates a disregard for the dignity of the court and is unfair towards unrepresented consumers. The defendant believes that this is a claim that will proceed without any facts or evidence until the last possible minutes to their significant detriment as an unrepresented defendant. The defendant respectfully suggests that parking companies such as the claimant are using the small claims track as a form of aggressive, automated debt collection and the defendant believes that this is not something that the courts should be seen to support.

10. Non-disclosure of reasonable grounds or particulars for bringing a claim. The claimant is not the lawful owner-occupiers of the land or the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract. The claimant suffers no loss whatsoever as a result of the vehicle in question being parked at the site. The particulars of claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered a trespasser if not allowed to park there free of charge, then only the landowner can pursue a case under the tort of trespass not the claimant. As the Supreme Court in the Beavis V Parking Eye (2015) UK SC 67 case confirmed such a matter would be limited to the landowner themselves for a nominal sum.

11. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the claimant is wholly unreasonable and vexatious.

I believe that the facts stated in this defence are true.

Alex_Knight

Hi all, good morning. I hope this defence is far more to the point for me to put forward and would like to change as per your comments. Many kind thanks

Alex_Knight

Hi all Any feedback on my defence would be great as Im not sure how much work i need to do or start over from new. Many thanks all, your time and help is really appreciated


Kind regards

Coupon-mad

and the Unfair Terms in Consumer Contracts Regulations 1999

should be, instead, because the UTCCRs are obsolete:

and the Consumer Rights Act 2015