Parking Eye - County Court Claim Form Received

bighouse911

In the County Court
Claim Number: #########


Between

PARKINGEYE LTD

v

#########




DEFENCE
1. It will be common ground that this claim refers to a private parking charge notice (PCN) relating to a day when the Defendant was authorised to park.

1.1. The Claimant has no cause for action based upon the facts of this case. Any breach of contractual terms are denied, and it is further denied that there was any agreement to pay the Claimant any 'parking charge' or any sum at all.

1.2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.

2. The Defendant made all reasonable efforts to abide by the terms and conditions of the car park.

2.1. No payment for parking was required as this is a free 2-hour stay car park “Wythenshawe Etrop Court, Rowlandsway, Wythenshawe, M22 5RQ which is located at of the offices in which the Defendant occasionally works out of.

3. The “Particulars of Claim” make no reference to the specific breach of the supposed contract the Defendant entered into whilst parking in the Etrop Court car park bar the reference to an “overstay”. The original “Notice to Keeper” references an overstay an overstay identified by the APNR cameras of “12 minutes.

4. In making this claim against the defendant The British Parking Association Code of Practice regarding grace periods was not followed.

4.1.1. A mandatory grace period is required by the British Parking Association (BPA) Code of Practice, which states: “13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.” As well as: “13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

4.1.2. The BPA Code of Practice at the time of the alleged incident also states: “13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

4.1.3. The BPA Code of Practice makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken: “you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes” and “the Grace Period at the end of the parking period should be a minimum of 10 minutes”

4.2. Kelvin Reynolds of the BPA says there is a difference between grace periods and observation periods in parking and that good practice allows for this: “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket … No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” britishparking co uk News good-car-parking-practice-includes-grace-periods


5.1This exact scenario has been tested in the County Court before, and a transcript will be produced which (whilst not binding precedent) is on all fours with this case, namely (3JD08399) Parking Eye v Ms X at Altrincham 17/03/2014, where it was held that driving around the car park was not classed as parking.

5.2 In Jolley v Carmel Ltd [2000] 2 EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

5. The signage located in this car park does not make it clear that you must leave the entire premises within the permitted stay period.

5.1. The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after permitted time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site.

5.2. The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to 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.''

5.3. It is impossible to read the terms on the signage of the site due to the size of the text and the height of the signs.

6. Further, 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. This Claimant has taken no steps to provide evidence that such authority existed, and that they were entitled to pursue drivers for a penalty for the time spent driving around the one-way system before completely leaving the site and passing the ANPR camera upon exit.

6.1. Even if the landowner contract allows for this, it is an unreasonable and unenforceable term, akin to charging a person at the point of joining a queue (to leave the premises).

7. This Claimant uses ANPR camera systems to process data but fails to comply with the Office of 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 IPC Code of Practice breach.

7.1. 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 IPC 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.

7.2. 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 Surveillance Camera 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 or to continue using it in it’s current location, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement or manning the car park with a warden in order to consider the needs of genuine patrons at busy times in queues), and

iv) Failure to prominently inform a driver in visible & legible lettering on clear signage, of the purpose of the ANPR system and how the data stream captured would be used, and

v) 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.

8. This Claimant has therefore failed to meet its legal obligations and has breached the DPA, as well as the IPC Code of Practice.


Unlawful conduct/data use and breach of the Consumer Rights Act 2015

9. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on the rival Trade Body (BPA) website, in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice by the ICO. The force were ordered to stop processing people's information via ANPR until they could comply. The ICO ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.

10. 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.''

10.1. 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.''

11. 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.

11.1. . Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being an 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 they have their own in-house legal team and overseeing solicitor, 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.

11.2. 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.

12. 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. 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 'Damages and indemnity costs if applicable' which the Defendant submits have not actually been incurred by the Claimant.

14. 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.

14.1. 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.

15. 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.


Name/signature


Date

bighouse911

any thoughts?

I pinched a load from someone's defence of a v similar case.

bighouse911

Raised with local councilllors and MP due to it being a place of work and I assume council land

bighouse911

anyone? need to respond tomorrow !!!!

KeithP

bighouse911 wrote: »

anyone? need to respond tomorrow !!!!

And you had four weeks to show us your draft Defence.

Sorry, but your urgency doesn't suddenly become someone else's.

bighouse911

haha yeah I appreciate that. well if anyone has a chance muchos appreciated

Coupon-mad

Jarring end of a sentence here; never end a sentence with 'of', it's horrible:

works out of.

'...works at' would be fine.

Typo here, and always refute the ANPR timings as they are skewed/untrue, IMHO:

The original “Notice to Keeper” references an unproven overstay according to the unsynchronised [STRIKE]identified by[/STRIKE] [STRIKE]APNR[/STRIKE] ANPR cameras of (apparently) some 12 minutes. This is disputed and has not been evidenced, and is based upon two separate cameras with two separate and unsychronised timers.

Remove 4.1.3. because this is NOT TRUE; there is not a total of 20 minutes allowed:

4.1.3. The BPA Code of Practice makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken: “you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes” and “the Grace Period at the end of the parking period should be a minimum of 10 minutes”

I would add to this:

5. The signage located in this car park does not make it clear that you must leave the entire premises within the permitted stay period. Indeed the final image is of the car in moving traffic, waiting to leave onto a main road, and the car was certainly not parked in a bay for longer than permitted.

And remove all the dross about the DPA and Andre Agassi, I edited that OUT of the example about 10 days ago to stop people copying it!

Approx 7.v through to 11.2 (all of it) inclusive all needs to go.

bighouse911

In the County Court
Claim Number: #########


Between

PARKINGEYE LTD

v

#########




DEFENCE
1. It will be common ground that this claim refers to a private parking charge notice (PCN) relating to a day when the Defendant was authorised to park.

1.1. The Claimant has no cause for action based upon the facts of this case. Any breach of contractual terms are denied, and it is further denied that there was any agreement to pay the Claimant any 'parking charge' or any sum at all.

1.2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.

2. The Defendant made all reasonable efforts to abide by the terms and conditions of the car park.

2.1. No payment for parking was required as this is a free 2-hour stay car park “Wythenshawe Etrop Court, Rowlandsway, Wythenshawe, M22 5RQ which is located at of the offices in which the Defendant occasionally works at.

3. The “Particulars of Claim” make no reference to the specific breach of the supposed contract the Defendant entered into whilst parking in the Etrop Court car park bar the reference to an “overstay”. The original “Notice to Keeper” references an unproven overstay according to the unsynchronised ANPR cameras of (apparently) some 12 minutes. This is disputed and has not been evidenced, and is based upon two separate cameras with two separate and unsynchronised timers.

4. In making this claim against the defendant The British Parking Association Code of Practice regarding grace periods was not followed.

4.1.1. A mandatory grace period is required by the British Parking Association (BPA) Code of Practice, which states: “13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.” As well as: “13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

4.1.2. The BPA Code of Practice at the time of the alleged incident also states: “13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

4.2. Kelvin Reynolds of the BPA says there is a difference between grace periods and observation periods in parking and that good practice allows for this: “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket … No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” britishparking co uk News good-car-parking-practice-includes-grace-periods

5. The signage located in this car park does not make it clear that you must leave the entire premises within the permitted stay period. Indeed the final image is of the car in moving traffic, waiting to leave onto a main road, and the car was certainly not parked in a bay for longer than permitted.

5.1This exact scenario has been tested in the County Court before, and a transcript will be produced which (whilst not binding precedent) is on all fours with this case, namely (3JD08399) Parking Eye v Ms X at Altrincham 17/03/2014, where it was held that driving around the car park was not classed as parking.

5.2 In Jolley v Carmel Ltd [2000] 2 EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

5. The signage located in this car park does not make it clear that you must leave the entire premises within the permitted stay period.

5.1. The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after permitted time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site.

5.2. The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to 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.''

5.3. It is impossible to read the terms on the signage of the site due to the size of the text and the height of the signs.

6. Further, 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. This Claimant has taken no steps to provide evidence that such authority existed, and that they were entitled to pursue drivers for a penalty for the time spent driving around the one-way system before completely leaving the site and passing the ANPR camera upon exit.

6.1. Even if the landowner contract allows for this, it is an unreasonable and unenforceable term, akin to charging a person at the point of joining a queue (to leave the premises).


7. 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).

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 'Damages and indemnity costs if applicable' which the Defendant submits have not actually been incurred by the Claimant.

9. 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.

10.. 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.

11. 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.


Name/signature


Date

Coupon-mad

Here you need to give the full name of the Somerfield case as it's been removed from the paragraphs that were above it in the longer version:

Similarly, in Somerfield

Always put case name in italics, including all others, like ParkingEye Ltd v Beavis.

Apart from that, sign & date it and get it submitted by email to the CCBCAQ email.

bighouse911

great I will do so in the morning thanks for your help!