Claim form Received - Help

Skydiver7878

OK got my claim from Parking Eye and have responded AOS using MCOL as advised in newbies thread. Having worried all day and trawled through the forums, I now realise I did everything wrong by ignoring all previous correspondence.

Skydiver7878

Redacted Claim form
hxxps://postimg.cc/4KjgMBMK

System

What happened on the day? It says "without authorisation" so was this a Pay & Display or some other kind of car park?

Also do you have pics of the signs there?

The_Deep

https://postimg.cc/4KjgMBMK

I note thsat they are charging legals, yet IIMU that they have their own in- house lawyers.

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.

Parking Eye, CPM, 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. It has even been suggested that some of these companies have links with organised ccrime.

Watch the video of the Second Reading and committee stage in the House of Commons recently. MPs have a very low opinion of this industry.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

https://hansard.parliament.uk/commons/2018-07-19/debates/2b90805c-bff8-4707-8bdc-b0bfae5a7ad5/Parking(CodeOfPractice)Bill(FirstSitting)

and complain in the most robust terms to your MP. With a fair wind they will be out of business by early in the New Year.

beamerguy

https://postimg.cc/4KjgMBMK

I note that they are charging legals, yet IIMU that they have their own in- house lawyers.


At least this shows what a proper claim should look like

TOTAL £175

Compare that to the fake scam claims by BWLegal and Gladstones being £242 on average

Skydiver7878

Parking eye site at Hotel ANPR failed to enter reg number in terminal at receptionI took photos at the site yesterday will upload

hxxps://postimg.cc/CRw58y2F
hxxps://postimg.cc/8fPJV2Vk
hxxps://postimg.cc/ph5cJ6ST

Umkomaas

Get in touch with the hotel, ask them to intervene because PE are suing one of their genuine customers through the courts. Surely that's not what this car park management arrangement they have signed up to with PE was ever intended for?

Press the hotel hard. But PE are notoriously stubborn once they've kicked off court proceedings (even when their contract principal has requested cancellation), but if the hotel can't get them to cancel, try to at least get a letter from the hotel saying that they do not want this action to be taken against you.

A couple of people (Holiday Inn guests) have even badgered the hotel to pay the charge on their behalf. You'll need dermination and resilience to get that done, but I guess you might have that if your username reflects a hobby of yours!

Skydiver7878

Did that yesterday. The Duty Manager was polite and apologetic and asked that I email the details I did this also including the invite to the hotel (interveiw proceedings) She said this could take up to 28 days to cancel. As yet no reply. I also noted that the hotel think PE signage is inadequate and have now got a chalkboard in the entrance and a dry wipe board in the foyer.

hxxps://postimg.cc/5XTf4Z89

Umkomaas

Skydiver7878 wrote: »

Did that yesterday. The Duty Manager was polite and apologetic and asked that I email the details I did this also including the invite to the hotel (interveiw proceedings) She said this could take up to 28 days to cancel. As yet no reply. I also noted that the hotel think PE signage is inadequate and have now got a chalkboard in the entrance and a dry wipe board in the foyer.

hxxps://postimg.cc/5XTf4Z89

https://postimg.cc/5XTf4Z89

If you get the hotels perceived inadequacy of the signage confirmed in writing, to support their attempt to warn guests about the 'bite' awaiting them.

Presumably the whiteboard notice was not there when you visited? As them for approx date they put it up. Also approx how many guests were caught out, prompting them feeling the necessity to supplement the PE signs.

KeithP

With a Claim Issue Date of 31st October, and having done the AoS in a timely manner, you have until until 4pm on Monday 3rd December 2018 to file your Defence.

That's four weeks 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.

Skydiver7878

In the County Court
Claim Number: **********
Between ParkingEye Ltd v ********************

DEFENCE
Background – Legitimate reason to park as Hotel Patron

1. The Defendant is the registered keeper of the vehicle *********. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at Hotel Ibis car park on
*******. 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 the 'vehicle was not authorised to use the car park' 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 the Hotel Ibis.

3. The Defendant has already proved that he was a patron of the Hotel Ibis, and it is the Claimant's own failure, caused by their deliberately obscure terms and Terminal that catches out far too many victims at this location, that has given rise to a 'PCN' being issued.

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

4. According to the sparse, ambiguous signs in this car park, to avoid a Parking Charge, users of the service must be a Patron of the Hotel

4.1. At the time of parking on 31 May 2018, the Defendant’s vehicle entered the car park as patrons of the Hotel, and the Defendant has supplied evidence to the Hotel Duty Manager which entitled the driver to free use of the car park in question. This evidence has been accepted by the manager of the Hotel as proof of patronage. This was confirmed by email from the duty manager dated 10 November 2018.

4.2. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use a small terminal smaller than an iPad at the Hotel 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. Upon receiving the claim, the Defendant went straight to Hotel and had a fairly long conversation with the Duty Manager, who was unhappy that these complaints were becoming frequent, ever since the enforcement started. The Hotel have also started displaying their own warnings in the entrance on a Dry-wipe board opposite reception and a Chalkboard because the terminal used for signing in VRN details, and the sign used to indicate this, are 'far from obvious'. The Duty Manager was apologetic and advised that an email would be sent to the claimant requesting that the unfair PCN be cancelled.

5.1. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to registered keeper recipients, that the Hotel as the landowner could very easily cancel a charge, apparently with one email. By failing to alert legitimate Patrons to the Terminal, and then withholding the Landowner 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 Hotel, any commercial justification in the form of support by the Hotel 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 Hotel, which would have alerted this Claimant to the fact that their VRN terminal 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 Hotel patrons, and
v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the terminal VRN 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 terminal 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.