Parking Eye - County Claim Form

hsadat

Hi everyone

I received a PCN in August 2018 from Parking Eye for parking at the Greenwich Peninsula Golf Range without authorising my vehicle reg on the iPad terminal at the reception desk for obvious reasons for not seeing the signs.

So anyway I decided to ignore their letters and now got issued a county court claim form on the 7th January 2019. Long story short, I think I messed up a little bit as I filed an AoS with MCOL without contacting the Greenwich Peninsula manager to get the ticket cancelled.

However only days after filing an AoS I remembered I made some bank transactions on the day of using the premises so then I contacted the manager of the venue and she told me to send her a copy of the bank transaction along with county claim form to her email so that she could contact Parking Eye to cancel claim form. She also said I don't have to do anything and she'll handle everything even but a part me of cant trust her and still want to make sure I have a defense ready before my deadline just in case....

So my question is, can the county claim form be cancelled like the manager said despite the fact I already filed an AoS? Or do I have no choice but to put up a defence at this late stage?

Any advice would be much appreciated

Thank you

KeithP

Yes, the Claim can be cancelled.

But it is by no means certain that PE will agree to do that..

At this stage I would continue as if the court case is going ahead until you actually receive written confirmation from the Claimant that it is not.

With that in mind...

With a Claim Issue Date of 7th January, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 11th February 2019 to file your Defence.

That's nearly two weeks away. Loads of time to produce a 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.

The_Deep

The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

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 Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..

All five readings are available to watch on the internet, (some 7-8 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

nosferatu1001

HOw did you contact?
Email?
Phone?
How did you send documents?
Email? Post?

Basically - if needed, can you PROVE the conversation and agreement to cancel?

hsadat

nosferatu1001 wrote: »

HOw did you contact?
Email?
Phone?
How did you send documents?
Email? Post?

Basically - if needed, can you PROVE the conversation and agreement to cancel?

Hi, I initially contacted the lady via phone and then emailed her the documents as attachments so I don't have any proof of the conversation or agreement. However she did she seem nice and very helpful over the phone, perhaps I could get some form of agreement from her if visited her in person ?

Thanks

Coupon-mad

You have 10 days or so before the defence needs to go in, therefore why not follow up with the lady this week? Do it by email this time, so you get something back in WRITING/EMAIL (as evidence for later in case PE say no)!

PE are far more likely to refuse to cancel unless someone pays sixty quid...PE will probably email you the usual rubbish that says that due to receiving 'further information' they want you to settle at £60. Up to you, most people here refuse...

I doubt VERY much that this will be cancelled, unless the lady is very robust.

If you hear nothing by this time next week, draft a defence that (as part of it) talks about the fact the Defendant was a genuine patron and that the venue has promised to cancel this aggressive parking charge and thus, there is no 'legitimate interest' or 'commercial justification'. As such, the Beavis case is fully distinguished and the penalty rules remains 'engaged' and the charge is punitive & unconscionable, given the facts.

hsadat

Thank you so much for advice guys

I'm going away on holiday from 2nd February - 11th Feb (just my luck) so I'm going to try and draft a defence letter before then as Parking Eye is the last thing I want think about when I'm away on vacation!!

And I'll follow up with the lady tomorrow morning via email, if she doesn't respond then I'll go see her in person and see what she says. I'll keep you guys posted.

hsadat

Hi everyone, just a quick update on the situation

I have finally received an email from the site manager which says:

" Hi XXXX,

I am sorry I haven’t been in touch regarding the PCN you have received I have been having trouble with my work email.

I have cancelled this for you they will send you a letter within 28 days.

Kind regards

Reception manager "

What's your thought on this ? Should I assume that the claim is now cancelled or still submit a defence regardless of what she says ?

Redx

submit a defence anyway, they can decide not to go ahead at any time

Coupon-mad

She thinks she's cancelled it, but you can't be sure. Maybe she's only ASKED and has assumed her email will mean it's cancelled, as it would have been if you'd complained straight away, months ago. It would have been easy then.

I say at this stage, they will not cancel this easily, and will want sixty quid, but don't worry about that.

Cover yourself.

You are going to have to put a signed & dated defence in tomorrow by email to the CCBCAQ email, to put your mind at rest while you are away.

Adapt the hidden ipad Odeon defence which I trust you'll have seen already in the NEWBIES thread in the defence examples. It's one that will easily suit your case and would only need slight tweaks of facts, then can be emailed and done in the morning.

hsadat

Hi guys

I haven't had the chance to properly draft up my defence until nowt. After digging around and looking at examples I have primarily adapted the "iPad Odeon Defence" according to my case so it is pretty much a copy and paste with a change of words and addition of extra paragraphs. Please advice me what I can do to improve it and make my defence stronger. Much thanks



In the County Court
Claim Number: xxxxxxx

Between

ParkingEye Ltd

v

Xyour nameX

DEFENCE


1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at Greenwich Peninsula Golf Range car park on 23/8/18. 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 Greenwich Peninsula Golf Range.

3. The Defendant was a genuine patron and the venue has promised to cancel this parking charge and thus, there is no 'legitimate interest' or 'commercial justification'. As such, the Beavis case is fully distinguished and the penalty rules remains 'engaged' and the charge is punitive & unconscionable, given the facts.



4 According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed and the purported keypad was nowhere to be seen.

4.1 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.

4.2 Furthermore, the terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle or from the parking bay in which the vehicle was parked, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4.3. At the time of parking on 23/8/18, the Defendant was a patron of the Greenwich Peninsula Golf Range, and the Defendant has bank transactions that shows payments which entitled them free parking of the car park in question. This evidence has been accepted by the manager of the Greenwich Peninsula as proof of patronage.

5. 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.

6. 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 Greenwich Peninsula Golf Range, any commercial justification in the form of support by the Greenwich Peninsula Golf Range for such unfair ticketing is absent.

6.1. 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.


7. 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.

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 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.

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 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 prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the iPad system and how the data captured on both 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 principle 1 (at least) of the DPA, as well as the BPA Code of Practice.


9. 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.

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. 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).

11.1. 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.

11.2. 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.

11.2.1. 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.

11.2.2. 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.

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).

12.1. The excessive, inappropriate and unjustified use of ANPR alongside a hidden iPad system by this claimant is both unfair and lacking in transparency for an average consumer and as such, this claim must fail.



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 Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

13.1. 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.

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