Claim Form Received - Do I have to pay the full amount?

AndrewGogun

Okay. I have submitted my AOS and spent the past few days cobbling my defence from your examples. I apologise for my prior ignorance and now see that fighting The Man is always a good thing.

Also, I know the formatting is bumfluff and I am sorry. In red are things I'm not sure about or that I'm still working on. If there's a better way to present this then please let me know; it doesn't look so bad in Word but I'm not a regular forumite and I'm just praying these damn codes work.

Thank you for all the help

......

IN THE COUNTY COURT
CLAIM No: CLAIM NUMBER

BETWEEN:
Premier Park Ltd (Claimant)

-and-

ME (Defendant)

DEFENCE

Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at Planet Ice Peterborough on 07.04.2018.

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 Parking Charge Notice ('PCN')'.

Data Protection concerns and [fancy word for the illegitimacy of their car park design/!!!!!! business model]

2. The Defendant was an occupant of the car, and they and their companions were patrons of Planet Ice Peterborough on 07.04.2018.

2.1. 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 £100 instead of the £1 tariff, if it is their case that this sum went unpaid.

3. 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. Get footage and photos of the area, print satellite images.

3.1. Collecting VRN data in order to inflate the 'parking charge' from £1 to £100 and to write (more than a month later) to registered keepers - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

3.2. The conditions of parking tip the balance against visitors so 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.

4. Unlike the free car park in ParkingEye Ltd v Beavis [2015] UKSC 67, Planet Ice Peterborough is a site where the Claimant has machines to take payment of tariffs. There will be Premier Park Ltd 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'.

4.1 It is noted that the tariff for parking is £1 for three hours stay, and £2 for up to 24 hours fact check this when you go back. If the expense of the Claimant’s administration of the car park warrants a £100 charge for every £1/£2 tariff unpaid, then it would be reasonable to assume that installing automated barriers at the car park would be cost effective - for both Premier Park Ltd and patrons of Planet Ice Peterborough. 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.

Premature claim - no Letter before Claim, and Inadequate Attempts to Correspond

5. The Defendant avers that the claim was premature and that they did not receive a Letter before Claim. The Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, including evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

5.1 Correspondence from Premier Park Ltd had previously been sent incorrectly to the address of the Defendant’s parents at family address when the Defendant’s actual address is my address (as was registered with the DVLA and all other authorities since November 2017, five months prior to the date of the alleged breach of contract)

5.2 It is noted that the Claimant had corresponded by email with the Defendant, and thus was aware of their email address. Despite this the Claimant made no further attempt to contact the Defendant by this more efficient and traceable means.

5.3 When the Defendant initially disputed the Claimant’s PCN through their internal appeals system and POPLA, they requested a detailed breakdown of the charge made against them, the Claimant did not reply to this specific request which is in non-compliance with PDPAC.

6. The Defendant has sent a subject access request (SAR) to the Claimant, for response during November/December 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.

Denial of contract and denial of any breach, or liability

7.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.

8. 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.

No standing or authority to form contracts and/or litigate

9. 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 Planet Ice Peterborough.

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

10.With no 'legitimate interest' 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, (ParkingEye Ltd v Beavis [2015] UKSC 67) confirmed that the penalty rule is 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 VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent late with a 'parking charge' that bears no resemblance to the £1 'parking tariff,’ and as such, this case is fully distinguished from Beavis, where the decision turned on a legitimate interest:

10.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the facts of this case. To quote from the Supreme Court:

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

11. 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 tariff of £1. Had the Defendant been clearly alerted to the sum on the day - or even simpler, if they could have had the certainty of paying it when buying the tickets to Planet Ice Peterborough, or had the 'parking charge' (tariff) been included within the entry fee itself - there would be no unfair penalty, and Planet Ice (Peterborough) would gain in income and avoid any parking issues at all.

11.1. 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 'parking charge' of £1 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.

11.2. 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 £1 and there was ample opportunity to fairly collect that sum on site, on the material day, or within a matter of days.

11.3. This regime in a car park used exclusively for patrons of Planet Ice Peterborough is not commercially justified, is damaging the reputation of Planet Ice and driving away future visitors, as attested to by an overwhelming majority of independent consumer reviews. (Spend some of your lunch breaks getting metrics from this, print related copies of TripAdvisor/Google reviews, they are both getting shat on all over the internet.) If they try to argue their signage/terms of parking meets BPA guidelines and other such crap, can I refer to the user reviews which indicate feelings of deception and entrapment? Will the reviews be taken seriously at county court? 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.

11.4. 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.''

11.4.1. 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.''

11.5. 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''.

12. 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 £1 and no more.

12.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages otherwise every trader could massage any £5 bill to suddenly become £500.

12.2. 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 £1 and the Claimant is trying to claim damages of £170, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

13. 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, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

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 Legal representative costs of £50, which 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, Premier Park 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' 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.

15. 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.

16.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 £170 can be claimed instead of £1 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.

17. 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

.......

Also; in my first correspondence with the Claimaint I offered to pay £20, I'm not sure whether I should include this in any way or if it would be held against me? (I did not admit liability or name the driver.)

If there are any other details that might be pertinent please let me know, I'm amazed I even managed to compile this heap.

Thanks again,
Andrew

onlyfoolsandparking

Don't be so hard on yourself, you did well composing that defence and with the good help you will get from the regulars/experts here with fine tuning it you will probably do well in court (if it even gets that far)


Keep reading the newbies section especially the Court claim section and learn more about the game you are now playing, these scammers CAN be beaten and ARE beaten so take the emotion out of it and crack on my friend, good luck

Coupon-mad

PDPAC.

Needs stating in full.

And where you say this:

2. The Defendant was an occupant of the car, and they and their companions were patrons of Planet Ice Peterborough on 07.04.2018.

I read it line by line, like I would think a Judge would, and felt the most important fact was omitted and you can't avoid saying it.

I think there you need to say, that the only reason no tariff was paid was...what?

- because the signs and PDT machine were - what - hidden? Illegible?
- or, none of you had any idea it was a PDT car park? What about the P entrance sign?
- or, did you only stay for a few minutes? Or thought the site was closed/out of tariff hours?

You were in the car and will need to say it like it is, so the defence needs to be clearer on why £1 was not paid. Or was it?

AndrewGogun

Hello everybody!

Today I had an interesting telephone conversation from a legal representative of the PPC. They informed me that in their opinion, the guys on this forum are trying to 'sell me down the river.' I hope this isn't the case and will continue to seek advice from yourselves, as so far your points seem sensible and have directed me towards (what I believe to be) a more accurate representation of my position. I requested that we correspond in email as opposed to telephone, below is a copy of the email that was then sent to me.
...

Good Afternoon Mr Gogun, hope you are well.

I write as requested, further to our telephone conversation earlier today.

As I explained on the telephone we have found the MoneySavingExpert Forum post in which you are intending to seek advice regarding our Claim and you are attempting to formulate a Defence to the same via the advice posted there.

Please note that we intend to rely on the attached Forum posts to demonstrate that your genuine account but is a product of dubious and non-legalistic advice.

We are mindful of our obligations to litigate in good faith and your comments that form part of the Forum thread referenced above.

Please note that we are willing to open a dialog with you re settlement of the above referenced PCN if this would be preferential to you.

As discussed we are also willing to allow you reasonable additional time prior to our requesting Judgment in this matter if this is needed for you to seek independent legal advice and to comply with the Courts Directions promptly.

If you require anything further from ourselves or have any further queries please do not hesitate to contact me via the contact details listed below.

Please find below the contact information where free and impartial advice can be obtained.

Kind Regards
Yours Sincerely,
Mr Law

The attachment mentioned is a full transcript of this thread.

I am glad that the PPC have now offered me additional time, as I am quite on the back-foot (with regards to my personal inexperience in these matters, and the lack of time/opportunity previously offered to me by the PPC to resolve this issue.)

Anyway, what do you guys think? I'm confused why unpaid citizens would take their own time to misinform me (and thousands of other strangers) on a forum dedicated to consumer advice, so perhaps this could be explained? I admit now that I am woefully uneducated.

I intend to reply to this email as soon as possible, being mindful of my obligations under PDPAC and having a sincere desire to minimise any burden upon the court.

Any tips, some kind of gameplan? Many thanks to you all for the continued help. :beer:
-Andrew

The_Slithy_Tove

AndrewGogun wrote: »

Today I had an interesting telephone conversation from a legal representative of the PPC. They informed me that in their opinion, the guys on this forum are trying to 'sell me down the river.'

1. You should not engage them in any phone conversations. Everything must be in writing. If they call, tell them just that.
2. You don't suppose they have some kind of vested interest in trying to denigrate the advice given here?
3. Don't reply to their email. They are not offering you anything to discuss. And you may end up saying something you shouldn't. Just stick to the script.
4. You should have never used your real name as your username here. So easy for them to identify your case.

AndrewGogun

The_Slithy_Tove wrote: »

1. You should not engage them in any phone conversations. Everything must be in writing. If they call, tell them just that.
   Thank you. I will ensure that all correspondence with the PPC is by letter or email.
2. You don't suppose they have some kind of vested interest in trying to denigrate the advice given here?
   Thank you, I had not considered that before. I suppose it does make sense for the claimant to denigrate the users of these forums in pursuit of an illegitimate charge. It occurs to me that it makes little sense for somebody such as yourself, with absolutely zero material interest in my case, to deliberately misinform me
3. Don't reply to their email. They are not offering you anything to discuss. And you may end up saying something you shouldn't. Just stick to the script.
   Thank you. I would not want to be manipulated into a disadvantageous representation of myself by any kind of deceit on the claimaints behalf and will keep this in mind. I do wish to consider my obligation under PDPAC however
4. You should have never used your real name as your username here. So easy for them to identify your case.
   My name is not Andrew Gogon; though I wasn't subtle with the details of the case...

Just to reiterate. My main concern is that I might have an obligation to liaise with the claimant prior to court proceedings. Whilst the points made in my draft defence are true (to the best of my knowledge) and whilst I do believe that the claimant's charge is illegitimate, I would like to consider any means of resolution that would alleviate court burden.

By the way, I truly am thankful to you all for the help

-Andrew Gogon

The_Slithy_Tove

AndrewGogun wrote: »

I suppose it does make sense for the claimant to denigrate the users of these forums in pursuit of an illegitimate charge. It occurs to me that it makes little sense for somebody such as yourself, with absolutely zero material interest in my case, to deliberately misinform me

Most of the regular contributers here have been stung by PPCs in the past, and want to share their knowledge of how to see them off. You only have to read a bunch of threads, especially those that go "all the way" to see that the advice is genuine and helpful (on the whole), and frequently successful.

AndrewGogun wrote: »

Just to reiterate. My main concern is that I might have an obligation to liaise with the claimant prior to court proceedings. Whilst the points made in my draft defence are true (to the best of my knowledge) and whilst I do believe that the claimant's charge is illegitimate, I would like to consider any means of resolution that would alleviate court burden.

It's only worth engaging directly if they have something to offer you rather than wanting the full amount. They normally don't. The best way to resolution (you paying zero) is to go through the motions, submit a humdinger of a defence, such that they realise they're on to a loser and withdraw before it gets to court.

Coupon-mad

AndrewGogun wrote: »

Today I had an interesting telephone conversation from a legal representative of the PPC.

They informed me that in their opinion, the guys on this forum are trying to 'sell me down the river.'

They would say that, wouldn't they?! Hilarious and shows how desperate these parking companies are, seeing as we see 99% wins in court, consistently, since at least 2017 which is when I started keeping a record.

AndrewGogun wrote: »

I hope this isn't the case and will continue to seek advice from yourselves, as so far your points seem sensible and have directed me towards (what I believe to be) a more accurate representation of my position.

Good; we are genuine. You know who is really after selling you down the river...!

I liked your words you used earlier:

AndrewGogun wrote: »

amoral entrapment artists.

Parking firms as a general group are considered by the regulars here, to be peddling a worthless *scam* (Hansard, 2.2.18) and IMHO should not have a job at all in this Country. The industry is rotten to the core and IMHO should be banned, like clamping was, as this is bullying in the extreme.

A person called Matt from Premier Park posted on here briefly this year, then stopped bothering but they are clearly alarmed if they hang around and pay someone to read MSE. So desperate!

Maybe they should offer to pay me, I read every thread - but I wouldn't take their money due to it coming from innocent victims.

I requested that we correspond in email as opposed to telephone, below is a copy of the email that was then sent to me.
...
Good Afternoon Mr Gogun, hope you are well.

I write as requested, further to our telephone conversation earlier today.

As I explained on the telephone we have found the MoneySavingExpert Forum post in which you are intending to seek advice regarding our Claim and you are attempting to formulate a Defence to the same via the advice posted there.

Please note that we intend to rely on the attached Forum posts to demonstrate that your genuine account but is a product of dubious and non-legalistic advice.

We are mindful of our obligations to litigate in good faith and your comments that form part of the Forum thread referenced above.

Please note that we are willing to open a dialog with you re settlement of the above referenced PCN if this would be preferential to you.

As discussed we are also willing to allow you reasonable additional time prior to our requesting Judgment in this matter if this is needed for you to seek independent legal advice and to comply with the Courts Directions promptly.

If you require anything further from ourselves or have any further queries please do not hesitate to contact me via the contact details listed below.

Please find below the contact information where free and impartial advice can be obtained.

Kind Regards
Yours Sincerely,
Mr Law
The attachment mentioned is a full transcript of this thread.

Fine! You have nothing to hide and every chance to win, and will cost them far more if they are one of the 1% of cases won in the end by the wrong side. This is so hilarious it is worth repeating for everyone to read and laugh at:

''Please note that we intend to rely on the attached Forum posts to demonstrate that your genuine account but is a product of dubious and non-legalistic advice''.

So they reckon they can rely on saying to a Judge:

''Yer Honner, look! Eeek, this victim failed to roll over and pay, and OMG, Sir, can you believe the audacity, he actually...dare we utter the words...went on the foremost parking advice forum and they helped with his defence. A heinous crime and we want you to bring the full weight of the law down on consumers who get advice rather than paying for our Christmas jolly...''

''Mr Law'' is amusing as well. Maybe it's a real name, maybe not!

Seems a bit like bigging yourself up as 'Head of Legal' or something similar, when you are just a lowlife no-mark (not saying PP are - I believe they threw money at setting up a 'Legal Team' according to their guest poster who disappeared). Big wow...a Legal Team.

I really hope now you have seen their true colours you've lost the fleeting thought that you might pay this lot to make the bullies go away.

What were the circumstances, you may as well be open here as they know who you are.

Was it their keypad failing to record a correct VRN... again? Seen soooo many times on here.

Or maybe a 12 minute alleged overstay for daring to drive in and out and not use a Tardis to avoid taking any time, and with photos taken from the road, not the car park maybe?

Or a fluttering ticket where the PDT flimsy piece of paper somehow, amazingly, flipped over when someone leaned over the car?

AndrewGogun

Thanks Coupon,

I've replied to Mr Law stating that I intend to defend based on this draft and requesting all documentation relevant to the case that they might rely on at court.

The problem is that I don't remember why I got the charge. I was visiting the ice skating rink regularly with friends/family before and after the time of the perceived violation (we even had member cards.) There's a small bay outside the car park which is free to park in and I preferred to park there . It could be the case that we went into the car park and the machine didn't work, or that we went in and the driver forgot to pay a ticket. (It might have even been my ex-girlfriend driving, I can't tell from the photos they have!) It's making it difficult to write the first paragraph of my defence.

The PPC should provide me with the documentation requested and perhaps there will be further evidence that can inform my defence. I'm also glad they contacted me on my mobile, confirming that they had my contact details all along and only deciding to contact me after seeing this post. I will add that in my defence. :beer:

Cheers,
Andrew

Coupon-mad

Premier Park: as you are reading this thread avidly.

Mr Gogun's request for data must clearly be treated as a SAR, and you must disclose everything including all photos and clarify your vague information, to fairly inform him what the alleged 'contravention' was.

And if you are saying no payment was made, or a typo in the VRN (because we all know you can spot a close match when push comes to shove) then you need to also give him a redacted PDT machine list from the time his car was there, and highlight the 'close match' VRN and partially show all other VRNs that were paid for, so he can discount his ex-girlfriend maybe putting another car numberplate in.

But then your Legal Team will know this.