PCN from Parking Eye at Lee Valley Tennis Centre - Should I go to court?

BenjaminK

Have drafted my written defence which I will submit online (by this weekend), I read through the threads on this forum and used a previous defence by Coupon-mad against Parking Eye as a template for mine. Any feedback would be great before I send it through today or tomorrow. (I've removed names and claim number)

In the County Court

Claim Number:
Between
ParkingEye Ltd
v
B

DEFENCE
Background - the driver was an authorised patron of the onsite business

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) 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 facility.

3. The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms that catches out far too many victims at this location, that has given rise to a PCN that was not properly issued from the outset.


Unclear terms - unconscionable penalty relying upon a hidden keypad

4. According to the sparse signs in this car park, it 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) at the Hockey & Tennis Centre reception desk.


5. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by ParkingEye in their signs or paperwork, prior to commencing proceedings. The Manager was incensed that these complaints were becoming a daily occurrence, blighting the business and upsetting customers ever since the ill-advised contract began, yet the business was now stuck with it for the time being.

5.1. The Manager provided a letter proving the Defendant was a patron of the Business (Lee Valley Hockey & Tennis Centre).

5.2. The only route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence or mischief had occurred and honestly believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.3. This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating 'an outrageous scam' typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and indeed, ParkingEye themselves were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self regulation has failed, and in many cases any 'appeal' is futile.


No legitimate interest - the penalty rule remains engaged

6. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.

7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location - ParkingEye unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

7.1. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

7.2. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

8. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN at the venue reception, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

9. 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. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

9.1. 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. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.


Lack of good faith, fairness or transparency and misleading business practices

10. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way ParkingEye make any money.

11. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that ParkingEye withheld the option of landowner cancellation all along.

11.1. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.


Inflation of the parking charge and double recovery - an abuse of process

12. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.

13. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. ParkingEye Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-claims per annum. No genuine legal costs arise, per case, and their 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. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

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.

D_P_Dance

In my opinion you should attack their signage.

Have you complained to your MP yet? On 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

KeithP

BenjaminK wrote: »

Issue date is 4th March

With a Claim Issue Date of 4th March, you had until Monday 25th March to do the Acknowledgement of Service.

I'm going to assume you did the AoS by that date. Please confirm.

Having done the AoS, you have until 4pm on Monday 8th April 2019 to file your Defence.

That's just a few days away.


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 "defence received". 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.

BenjaminK

Thanks Keith - Yes I filed the AOS in time.

Coupon-mad

Take them to county court

I think we already responded about that defence in another thread.

BenjaminK

Update - I entered a defence online, and have now received a "Notice of Proposed Allocation to the Small Claims Track".

Should I agree to this being referred to the Small Claims Mediation Service?
And should I agree that the small claims track is the appropriate track for this case? (I'm guessing the Parking Eye solicitor is trying to avoid having to go to court for a day)

Many thanks in advance for any advice...

waamo

The small claims track is the correct track. It is, after all, a relatively small sum.

Decline mediation as there is nothing to negotiate about. They want the whole sum and you don't want to pay it.

BenjaminK

Thanks Waamo

Coupon-mad

Take them to county court

I'm guessing the Parking Eye solicitor is trying to avoid having to go to court for a day

You guess wrong. This is all standard stuff.

All of this is fully covered in the NEWBIES thread section about what happens when, and bargepole took the trouble to write a thread called 'Court Procedures' telling you all about this and the other things you need to know.

I am concerned that you need to re-read that section of the NEWBIES thread.

BenjaminK

Update - this has progressed to County Court with a date set for 24th Sep (next Tuesday), I have received Witness Statement from Parking Eye - they will not attend court but have appointed a local agent from LPC Law.

Any advice on how the case will be heard and how I should argue my side would be much appreciated, also how much is the max they can claim in costs / fines?

Refresher of the case: I parked at Lee Valley Hockey & Tennis Centre for a tennis match in October last year, parking is free for patrons but they need to register their reg. plate at the reception, which I wasn't aware of, so didn't do. Appeal was rejected by POPLA...