PLEASE HELP - POPLA appeal rejected - Minster Baywatch

Coupon-mad

Will i physically have to go to court and verbally defend myself?

Probably. It is best to appear in person (not rely on your paperwork being heard in your absence). But this will be at your local court, and to read what that's like, search the forum for another one bites the dust to read 'court reports' from relieved people who all won!

Plenty were not even required to utter a word...

Umkomaas

Umkomaas wrote: »

Don't feel out of your depth, you will quickly get the hang of this, especially if you don't restrict yourself to just your own thread. Read around some of the others each day on the forum. All adds to your knowledge and understanding - and confidence.

Azure6 wrote: »

Will i physically have to go to court and verbally defend myself?
Kind thanks

I'm very surprised you're not aware of this. Over 4 months ago I suggested you did some advance planning for this by reading other threads on a regular basis.

KeithP

Azure6 wrote: »

Just to update I have received a county court letter from Minster Baywatch dated 07 Nov 18.

It looks like you have a Claim Form with an Issue Date of 7th November 2018.

Is that correct?

With a Claim Issue Date of 7th November, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 10th December 2018 to file your Defence.

That's three weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Azure6

“


IN THE COUNTY COURT
CLAIM No: Removed

BETWEEN:
Minster Baywatch (Claimant)

-and-

xxx car reg xxx (Defendant)



DEFENCE




Background

1. The Defendant is the registered keeper of the vehicle in question. This vehicle is routinely used by more than one individual. The Defendant denies being the driver at the time of the alleged incident. The Claim relates to an alleged debt arising from the drivers alleged breach of contract when parking at xxxxxx xxxxxx car park on the xxth.

1.1 The signage states that it is for use of Banktop Tavern and Mecca Bingo patrons only, and that such patrons be on the authorised user list. The sign does not state how to be on the authorised user list but does state that customers can use the parking site so it is a frustration of contract.

1.2 These are not the 'brief, simple and prominently proclaimed' terms that convinced the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 to bend the penalty rule in that unique, fact-specific case only. The Claimant will have some difficulty in justifying their misleading and confusing terms.

1.3 These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.

1.4 The driver was a customer of Mecca Bingo but was unaware they needed to be on the “authorised user list” as this was written in an unreadable font size. Therefore, any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 Parking Charge Notice.

1.5 The allegation appears to be 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, entering and leaving the car park in question and is not evidence of the driver not being a patron of Mecca Bingo, Oldham.


Denial of contract due to inadequate signage

2. Due to the illegibility of signage font and inherent frustration of contract it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

2.1. Furthermore, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.


2.2. It was noticed that there is no prominent signage at the entrances to the site from the main road and within the car park itself.

2.3 Any signage present is simply unreadable whilst driving. In addition, it is placed in locations where it is not obvious to the driver i.e. blind spots from the driver’s line of sight, near give way lines before mini roundabout where a driver would need to look right opposite where signage is placed. Therefore, the signage on this site is inadequate to form any contract with the motorist. Photos are to be presented as evidence.

2.4 The capital font height of the group 1 text (“Pay & Stay”) on the entry sign to this site is only 30mm high. The entrance sign is located on an access road, so the Appendix B of the BPA code says that the minimum capital height for group 1 text, even on a barrier-controlled site is 50mm for an access road the minimum height is 90mm. The group 1 text is 3x too small and thus does not meet BPA code regulations.


2.5 The sole PDT machine looks like an unremarkable electrical unlit terminal 'box’ camouflaged against an obscure wall and is easily missed. This black ‘box’ has no distinguishing features or signage on the back and from the roadside, to associate it with parking. There is no ''Pay Here'' arrow or other prominent signpost or any 'Have you paid and displayed?' reminders as drivers enter the car park.



Data Protection concerns

3. The Defendant had no idea about any ANPR surveillance and received no letters after the initial 'PCN' a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

3.1 The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £238.16 instead of the few pounds tariff, if it is their case that this sum went unpaid.

3.2 Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

3.3 It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting visitors who are being caught out regularly by this trap.

3.4 Silently collecting VRN data in order to inflate the 'parking charge' from £2 to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.


3.5 Unlike the free car park in Beavis, this car park is a site where the Claimant has machines to take payment of tariffs. Clearly there will be staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.


No standing or authority to form contracts and/or litigate

4. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons.



No 'legitimate interest' or commercial justification - Beavis is distinguished

5. 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. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late with a 'parking charge' that bears no resemblance to the £2 'parking charge' tariff, and as such, 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.

5.1 The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''




Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

6. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £2. Had the Defendant been clearly alerted to the sum on the day - or even simpler, if they could have had the certainty of paying for it upon entry by way of barriers and entrance tickets- there would be no unfair penalty, and the sites (or landowner) would gain in income and avoid any parking issues at all.

6.1. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £2 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

6.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £2 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

6.3. This regime in a car park that was always free until recent years is not commercially justified, is damaging the reputation of the sites and driving away visitors in future and is surely the epitome of unfairness and unconscionableness. Thus, it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. Online complaints from other poor victims show how the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

http://www.chepstowbeacon.co.uk/article.cfm?id=107788&searchyear=2017

6.4 At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

6.4.1 And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

6.5 The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''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''.

6.6 Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £2 and no more.

6.7 No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could do this.

6.8 In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £2 and the Claimant is trying to claim damages of £238.16, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

7. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

8. 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 have not actually been incurred by the Claimant.

8.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, the Claimant has 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. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

9. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

10. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £238.16 can be claimed instead of £2 in this case and appears to be a disingenuous attempt at double recovery.

11. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.

I believe the facts contained in this Defence are true.


Name

Signature

Date

Azure6

Hi everyone,

Just to say thank you firstly for your generous help.

I've heavily adapted and tailored above defense ready for submission

Is this ok?

Thank you kindly,

Azure6

Hi again,

Just to ask again whether the defense I've adapted is ok?
Will email through as soon as it is

Thanks,

Azure6

Hi everyone,

I'll need to submit my defence by Monday 10th

Please please can you let me know if defence is ok?

Many thanks

Azure6

Hi ,

I've managed to create a new title something I've failed to do past few posts

I have until Monday 10th to submit defence

Please let me know If there are any issues

Thank you

Azure6

Hi Keith,

Thank you so much for that advice

I have now submitted defense and will wait for DQ from CCBC

The_Deep

Are you aware of a bill going through Parliamjent to put these rogues out of business

It is the will of Parliament that these scammers be put out of business. Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers. Read this one which I wrote earlier

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of