Parking Eye Fine

sweetgem

I didn't receive anything from them until the 24th September hence I am making the point I cannot appeal To Popla to an invisible non existent NTK if I haven't received ANYTHING UNTIL 24th September

sweetgem

OMG guys I have just noticed on the particulars of the claim that they do not mention the of the alleged offence which was date of event 15/08/2018.
all they have put is
"claim for monies outstanding from the defendant, as registered keeper in relation to a Parking Charge issued 21/08/2018 for parking on private land in breach of the terms and conditions (the contract)
It doesn't give times when entering or leaving

Coupon-mad

sweetgem wrote: »

I didn't receive anything from them until the 24th September hence I am making the point I cannot appeal To Popla to an invisible non existent NTK if I haven't received ANYTHING UNTIL 24th September

That's pointless. It's your word against theirs re the August PCN.

yes I believe they sent a copy of the August NTK which I did not originally receive in the pile of letters they sent in December

So you are wasting pointless stuff in your defence. Stop.

Start again and use the one I pointed you to read, one of those linked in the NEWBIES thread is an Odeon hidden keypad ParkingEye one. I'm surprised in the weeks you've had to read the NEWBIES thread list of example defences, that you didn't find it ages ago and just adapt that one.

You could tweak it to suit within 20 minutes flat.

No, I won't link it! Never do.

My policy here is to encourage people to hop around the forum and learn to search it for what they need, so they can research for themselves at each stage.

When looking at the NEWBIES thread it just took me 0.0001 seconds to do Control & F on my laptop keypad for the single word ODEON to find it.

You can too. This forum is soooo much easier to use than you may realise!

sweetgem

can I include both that I wasn't informed that I was to enter my registration in reception and that I did not receive the NTK
within the 14 day prescribed period

sweetgem

DEFENCE



1. The Defendant is the registered keeper of the Vehicle xxxx. The claim relates to an alleged Parking Charge Notice arising from a driver’s alleged breach of contract when parking at the Holiday Inn Maidenhead Windsor on 15/08/2018 based on images by the claimants 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 ‘NO Authorisation’ or the registered keeper or of the driver not being a patron of the Holiday Inn Hotel.

2. The Driver of the vehicle was in fact a Patron of the Hotel attending a Meeting that had been pre-arranged in the bar area and email evidence of this meeting has been offered to the claimant. Furthermore the driver had no intention of using the Hotel as free Parking for 1 hour and xx minutes as the said Hotel is nowhere near any home, work, social or recreational vicinity relating to the driver denoting that the driver only attended because of the meeting and no other reason.

3. The facts of the matter are that a compliant Notice to Keeper was never served so no Keeper Liability can apply.

4. It is contended that the claimant failed to notify visitors through lack of clear and legible signage that they were to input their Vehicle Registration Number (VRN) at the reception Desk upon entry into the hotel to avoid a parking charge. Furthermore, there were no signs in the reception area guiding and instructing visitors to input their VRN and the reception staff failed to notify the visitors of their car Parking Policy. In addition there was no facility/keypad in which to enter the VRN.


5. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

6. The Defendant denies that the claimant is entitled to relief in the sum claimed or at all and accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.



7. The Notice to Keeper was delivered outside of the relevant period under Schedule 4 sub paragraph 9(4)(5)
POFA Schedule 4 sub-paragraph 9 (4) and (5) states the following:
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the notice to driver was given.

8. Therefore the Claimants failed to deliver the compliant Notice to Keeper in a timely manner and by a method which would guarantee and provide evidence of delivery. Furthermore the Defendant has explicitly communicated to the Claimant that there are 3 Roads of the same name within a 6 mile radius within the area. Thus it is the failure of the Claimant to deliver its correspondence using a tracked method of postal delivery.

9. The Parking Charge Notice was stated by the claimant to be issued on 18th August 2018. The first correspondence and notification of this alleged offence was received by the keeper on the 24th September 2018 and this is outside the 14 days following the initial notice.

10. The claimant has not made any reasonable effort to clear this matter in an amicable way and have refused to offer a late code to allow an appeal to the Parking on Private Land Appeal’s Service after the Defendant had made several requests for this to be offered. Furthermore it is not out of character for the Claimant to offer such a late code for appeal as they have done so in past cases.


11. 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 of the Hotel or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

12. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Driver, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

13. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

14. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN into an unseen keypad, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.


15. 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. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.


16. 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. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.



17. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way ParkingEye make any money.


18. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that ParkingEye withheld the option of landowner cancellation all along.


19. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.



20. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.


21. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £75 which includes a £25 court Fee, which have not actually been incurred by the Claimant. ParkingEye Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

22. The Defendant has the reasonable belief that the Claimant has not incurred £75 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £60. However as previously stated the original Notice to keeper was not received by the Defendant and subsequently the Claimant issued correspondence dated 24th September 2018 pursuing £100.

23. 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. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

24. 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. In addition silently collecting VRN data and to 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.

25. Further and in the alternative, 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 as you would have to be able to see the signs in the first instance. The Defendant claims that adequate clear and bold signage is not apparent and easily missed when entering the car park. Furthermore based on another visit to check the signage it appears woefully inadequate and extremely confusing, misleading and hidden. Furthermore there are no clear signs that were ‘bound to be seen’ between where the Defendant allegedly parked their car and the entrance to the hotel.


26. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and the Claimant's particulars disclose no legal basis for the sum claimed and 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 believe the facts contained in this Defence are true to the best of my knowledge and belief.

sweetgem

what about now is this ok to post
if I don't hear back im going to just send in the next hour and pray for a positive result as I have got work in the morning and wont be back to submit it by 4pm
Keith P your help would be appreciated or anybody online thanks'

sweetgem

if someone could proof read it and edit where appropriate and post back I would be grateful and if necessary if you feel that the Notice to keeper parts are not worth putting in please delete/adjust accordingly. many thanks

Coupon-mad

I assume you signed & emailed this to the CCBCAQ email address we gave you?

Hope so.

Good! Stage one done.

It's a bit repetitive and has stuff about 'not serving a NTK' that have no legs as you can't prove it and in any case, the POFA is out the window as you would be best defending as driver anyway, at the hearing (assuming the appellant keeper was also the driver, be honest at Witness Statement stage).

But it's got the stuff about the hidden keypad that blows the whole argument about the driver having a 'relevant obligation' to input their VRN.

If the PPC hides the keypad then they wantonly frustrate any contract.

sweetgem

Yes I emailed it and removed a few points which were not really relevant. There were a few bits with the previous claims that I didn't really understand. So tried to keep it to layman's terms will post what I wrote in a short while.
CCBCAQ sent me an acknowledgement email straight after.

sweetgem

I received an acknowledgement through the post from the Northampton Business Centre to say they had received my defence as well and they will pass onto the claimant