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

The_Deep

The writing is on the wall for these scammers.

https://services.parliament.uk/bills/2017-19/parkingcodeofpractice.html

It passed its third reading in the HOC this week and now goes to the Lords. Ask you friend how he likes them apples.

It is the will of Parliament that these scammers be put out of business. Hopefully that will take place in the near future. 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.

Be sure to mention this to the judge if they are daft enough to take you to court.

Redx

your NTK will tell you what the alleged transgression was

it will also have information in relation to POFA2012 compliance on it, or will have failed that same law (timescales , wording , warning etc)

your POC should also tell you why they are claiming this money

frankly, they talk a load of rubbish and its like the "smiling" spider telling the fly its safe to enter , ot like HENRY 8 telling Ann Boleyn that she wont die if they fall out

so in essence "they would say that , wouldnt they"

what they have failed to tell you is that a judge may award a lesser sum, even if he or she finds in their favour, or that the judge may thrown the case out on a technicality or procedural error or a failure on their part, or not proving that the KEEPER was the DRIVER , assuming PP pay the actual court fee of course

if a judge says for you to pay, pay what they say , IN FULL, within one month , to avoid a CCJ and to avoid your credit rating being trashed

as for getting pictures of signs, you can do so but they are not needed for the defence, they are needed at the WS + evidence stage, if it goes that far

Coupon-mad

Premier Park were famously named and shamed more than once in Parliament, including on Friday:

https://forums.moneysavingexpert.com/discussion/comment/75089298#Comment_75089298

"It would be remiss of me not to mention the role of Premier Park in Exeter in supporting this legislation through its management of Marina car park in the middle of Torquay, which has produced a ton of complaints compared with the entirety of Torbay Council’s enforcement operation at 39 car parks and on-street car parking facilities."

The_Deep

Mr Law, I think you underestimate the calibre of the advice on this board. In my opinion, that is rather foolish. Many of the contributors have successful careers in Law, Property Management, Accountancy, Commerce, etc. I myself spent five year in the Legal Department of the Foreign and Commonwealth Office.

Now be a good chap and stop playing silly !!!!!!s. You know your claim is a scam, we know your claim is a scam, and the judge probably knows your claim is a scam. Cut your losses, buy The Guardian, and find yourself a proper job.

AndrewGogun

"It would be remiss of me not to mention the role of Premier Park in Exeter in supporting this legislation through its management of Marina car park in the middle of Torquay, which has produced a ton of complaints compared with the entirety of Torbay Council’s enforcement operation at 39 car parks and on-street car parking facilities."

Thank you. The claim is going to the Torquay court so that will be of interest.

Coupon-mad

You might want to let your MP know what PP have done to you in terms of intimidation, for daring to get advice on MoneysavingExpert.

I think he will be shocked at this conduct. We are.

Imagine having a law degree and wasting it on propping up this failing, moneygrabbing, anti-consumer, cowboy* scam* industry.


*both from Hansard

AndrewGogun

Hi everyone. Just wrapped up my second draft defence. Highlighted in blue are the new entries. Another big thanks for all the help, starting to feel quite optimistic about this all.

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. The Defendant denies any breach of contract on the grounds that:

1.1. They did not accept any contract with the Claimant.
1.2. They are not assured that they were the driver at the time of the alleged breach.
1.3. They are not assured that they (or the driver) had failed to purchase a parking ticket at the time of the alleged breach.

2. The Defendant also draws attention to the inadequacy of the Claimant’s car park model, the fundamental illegitimacy of their parking charges, and their unethical/unlawful conduct in pursuing the charge.

Data Protection concerns and Illegitimacy of the Car Park

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

4. 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. They are also put to proof of the reasoning behind trying to collect £100 instead of the £1 tariff, if it is their case that this sum went unpaid.

5. 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.

5.1. Collecting VRN data in order to inflate the 'parking charge' from £1 to £100 and to write to registered keepers - whether they were driving or not - is excessive and intrusive to registered keeper data subjects.

5.1.1. It is noted now that the Claimant has been sending correspondence to the Defendant at the address of their parents, and not the Defendant’s 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.) The Defendant has requested that the Claimant explains this error and by which means their parents address was made available to them.

6. 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.

6.1. 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'.

6.2. It is noted that the tariff for parking is £1 for three hours stay, and £2 for up to 24 hours. 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 Attempts to intimidate the Defendant

7. 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.

7.1. As noted, correspondence from Premier Park Ltd had previously been sent incorrectly to the address of the Defendant’s parents. This includes the actual claim form.

7.2. The Claimant has possessed knowledge of the Defendant’s mobile telephone number and email address and yet had made no attempt to contact them by these effective and traceable means until 21.11.2018 - 13 days after the date of service for the claim form – when they did phone the Defendant.

7.2.1. This phone call was prompted by them having electronically monitored the Defendant’s activity on ‘moneysavingexpert.com,’ a consumer advice website that the Defendant had been using to seek advice for their court defence. In this telephone correspondence a legal representative of the Claimant asserted that. ‘These guys [Moneysavingexpert] were selling this guy [the Defendant] down the river.’

It is believed by the Defendant that the Claimant has intentionally neglected to contact the Defendant earlier to resolve this issue and that they have attempted to intimidate and manipulate the Defendant. This is in non-compliance with the PDPAC (PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS.)

7.2.2. When the Defendant initially disputed the Claimant’s PCN through their internal appeals system and POPLA (on the basis that the charge was unreasonably high and did not relate to any actual cost incurred) they requested a detailed breakdown of the charge made against them. The Claimant has made no reply to this specific request which directly related to the original appeal. This is in non-compliance with the PDPAC.

8. 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

9. It is denied that the Defendant, or any driver of the vehicle accepted or breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

10. 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

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 Planet Ice Peterborough.

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

12. 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 no attempt has been made by the Claimaint at genuine resolution, 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:

13. 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

14. 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.

15. 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 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.

15.1. 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.

16. 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 Premier Park Ltd, and is driving away future visitors, as attested to by an overwhelming majority of independent consumer reviews. 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.

16.1. For the sake of a more accredited source, the Defendant quotes the MP for Torbay, Kevin Foster, as he spoke in the House of Commons. (Parliament. House of Commons (2018) Parking (Code of Practice) Bill. 23 November 2018 Volume 649.

Column 1220: ‘It would be remiss of me not to mention the role of Premier Park in Exeter in supporting this legislation through its management of Marina car park in the middle of Torquay, which has produced a ton of complaints compared with the entirety of Torbay Council’s enforcement operation at 39 car parks and on-street car parking facilities.’

17. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] UKHL 1:

‘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.’

17.1. And at #32 in Beavis: ''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.''

17.2. 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''.

17.3. 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.

17.3.1. 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.
17.3.2. 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.

17.4. 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.

17.5. 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.

17.5.1. 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 many 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 are not believed to be paid in the millions per annum for their services.

17.5.2. 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.

17.5.3. 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.

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

Coupon-mad

Looks to cover all the bases and I like the inclusion of PP's intimidatory conduct to you over the phone (good point that they could have taken reasonable steps to find out your address, by phoning or emailing you).
I also like the inclusion of the MP's damning words about them. Bet they are proud...should be an interesting one for the Judge in the end.

AndrewGogun

Hi all,

I have now submitted my defence (a little earlier than I would have liked, there was a mix up with the CCMCC but their staff have been very plain-speaking and helpful.)

There was also been some correspondence with the Claimant:

Please note that your blanket request as to all documentation relevant to the case is not overly clear nor concise enough for ourselves to action the same.

to which I replied

Please do not try to evade my specific wording, copied below for reference:

'I would also hold it against you if you later relied in court, any documentation which is not provided to me, as it is my desire to present an accurate and concise court defence - for the benefit of the court.'

If you intend to rely on any documentation in our court proceedings, then I want to be supplied with copies of those documents. That is a very clear, and very specific request. I am not psychic or possessed of an eidetic memory, and as these events occurred back in April, I don't recall the details - so I need you to provide all relevant information. You know what you would take into court, so give me it.

Getting a straight answer is like pulling teeth with this guy though.

ANYWAY.

I've re-read the newbies thread and am ready for my directions questionnaire and witness statement. In the mean-time are there any recommendations for where I should focus my efforts? I'm currently planning on a thorough review of all my references; though I'm quite confident I can present them in court with what I have learnt so far.

Many thanks,
Andrew

Coupon-mad

Andrew I think you have it nailed, and I hope you nail them to the Judge's desk on the day!