Help defending court claim from ParkingEye for 15 minutes overstay

KeithP

robiee4u wrote: »

Hello,
Sorry if I missed this in the sticky post #2, but I am trying to find out the deadline date of my defence submission after my AOS was received but unable to find it on the money claim website.
Please point me to the page where I will be able to view this date.

My claim history is:
A claim was issued against you on 10/04/2019
Your acknowledgment of service was submitted on 13/04/2019 at 13:19:15
Your acknowledgment of service was received on 15/04/2019 at 01:09:41

Many thanks

Yes, I'll happily do that.

Please re-read post #2 above - the first reply you received on your very own thread.

Ten days of that month you had have already passed. Show us your draft Defence when you are ready.

robiee4u

I have prepared the following defence statement based on the threads I read in this forum. Please guide me as you have done so far. Thanks.

---

In The County Court CLAIM No: XXXXXX

Between

ParkingEye Ltd (Claimant)
-and-
XXX XXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXXXX , of which the Defendant is the registered keeper, was parked on the date at Colne Road, CO151PY and did purchase a valid ticker for the parking.

3. Upon receipt of a parking charge notice from the Claimant, the defendant supplied them with the evidence that ticket for 3 hours was indeed purchased, however, they have elected to pursue this matter via litigation.

4. The claimant is claiming that the defendant has overstayed for 15 minutes since he paid for 3 hours only. The claimant has failed to allow sufficient grace period and observation period for the defendant for both in entry and exit based on the BPA Code of Practice. Moreover, the defendant had no coin and had to pay for the parking ticket using ParkingEye’s online system which was a time-consuming process to register and make the payment.

5. The defendant submits that the POPLA decision should be disregarded. POPLA provided a very low standard of service in this instance for the defendant as the caseworker did not address the ground of the appeal of the defendant. Upon complaining they apologised and agreed that the assessor indeed did not mention the ground in her assessment. But they insisted that POPLA is a one-stage process, there is no opportunity for the defendant to appeal the decision. And they also said that their decision would not have changed since they did not have enough evidence to prove my ground. The ground of POPLA appeal was that the defendant had to enter twice (within about a 15 minutes window) to get a parking space and ParkingEye’s system might have taken the first entry and last exit which is not right. The defendant made it clear so that POPLA consider this and enforce Parkingeye to provide the recorded images/videos with timestamps in the appeal but unfortunately they completely ignored my ground of appeal.

6. The defendant has asked the Claimant on the 13th of April to provide recording of all images with timestamps captured by any of their cameras at Colne Road car park in Clacton-on-sea, C0151PY on that day and but has not received any response from them yet. The defendant strongly believes that ParkingEye’s system has failed to recognise this and in their claim, they are including the first entry of failed attempt to park at the start of the parking in their claim which is not right.
7. 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. The defendant relies upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000, a case won by the consumer on appeal where the Judges also found that clear entrance signs are expected.

8. The terms on the Claimant's signage are also displayed in a font which is too small to be read 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 based on Consumer Rights Act 2015.

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.

10. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court strike out the claim.

11. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.


12. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no right to bring any action regarding this claim.

13. The defendant refers to case Vehicle Services Ltd vs Ibbotson (2012) in which it was agreed that a private parking firm was responsible for mitigating any loss. The Claimant has failed to do so. It is claiming £175 for taking few minutes extra minutes to leave the parking (according to their own record) while they have not considered grace period, observation period and the (extra) time taken for online registration and payment.

14. 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. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

---

I believe the facts contained in this Defence Statement are true.

Name: XXXX XXXX

Coupon-mad

I saw a typo in #2 'ticker'.

And I think this bit below, hidden in part of #5, needs to be made #6 so the Judge reads it and doesn't just think it's a long paragraph about a POPLA appeal, when in fact it's VITAL to your defence!

The ground of POPLA appeal was...etc.

Remove #10, #11, #12 and #13 (unnecessary, repetition and Ibbotson/'mitigating loss' has no relevance) and replace them with points objecting to the added costs, all the stuff under the sub-heading 'Costs on the claim - disproportionate and disingenuous' here:

https://forums.moneysavingexpert.com/discussion/comment/75711757#Comment_75711757

HTH

robiee4u

Many thanks, Coupon-mad. I have updated it according to your suggestions.
Please let me know if I am missing anything else.

---

In The County Court CLAIM No: XXXXX

Between

ParkingEye Ltd (Claimant)
-and-
XXX XXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXXX, of which the Defendant is the registered keeper, was parked on the date at Colne Road, CO151PY and did purchase a valid ticket for the parking.

3. Upon receipt of a parking charge notice from the Claimant, the defendant supplied them with the evidence that ticket for 3 hours was indeed purchased, however, they have elected to pursue this matter via litigation.

4. The claimant is claiming that the defendant has overstayed for 15 minutes since he paid for 3 hours only. The claimant has failed to allow sufficient grace period and observation period for the defendant for both in entry and exit based on the BPA Code of Practice. Moreover, the defendant had no coin and had to pay for the parking ticket using ParkingEye’s online system which was a time-consuming process to register and make the payment.

5. The defendant submits that the POPLA decision should be disregarded. POPLA provided a very low standard of service in this instance for the defendant as the caseworker did not address the ground of the appeal of the defendant. Upon complaining they apologised and agreed that the assessor indeed did not mention the ground in her assessment. But they insisted that POPLA is a one-stage process, there is no opportunity for the defendant to appeal the decision. And they also said that their decision would not have changed since they did not have enough evidence to prove my ground.

6. The ground of POPLA appeal was that the defendant had to enter twice (within about a 15 minutes window) to get a parking space and ParkingEye’s system might have taken the first entry and last exit which is not right. The defendant made it clear so that POPLA consider this and enforce Parkingeye to provide the recorded images/videos with timestamps in the appeal but unfortunately they completely ignored my ground of appeal.

7. The defendant has asked the Claimant on the 13th of April to provide recording of all images with timestamps captured by any of their cameras at Colne Road car park in Clacton-on-sea, C0151PY on that day and but has not received any response from them yet. The defendant strongly believes that ParkingEye’s system has failed to recognise this and in their claim, they are including the first entry of failed attempt to park at the start of the parking in their claim which is not right.

8. 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. The defendant relies upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000, a case won by the consumer on appeal where the Judges also found that clear entrance signs are expected.

9. The terms on the Claimant's signage are also displayed in a font which is too small to be read 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 based on Consumer Rights Act 2015.

10. 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.

Costs on the claim - disproportionate and disingenuous
11). CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred, and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

11)(i). Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were either sent by a third party which offers a 'no collection, no fee' service or were a standard feature of a low-cost business model. The Beavis case is the authority for the recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

11)(ii). The Claimant cannot reasonably recover an additional three-figure sum in damages or costs to pursue an alleged £100 debt. The POFA states that the maximum sum that may be recovered is the charge stated on a compliant Notice to Keeper ('NTK') - in this case, £100 - and it is denied that the NTK or the signage met the high bar set in the POFA for mandatory wording and adequate notice of the charge.

11). (iii). Even the purported 'legal costs' are made up out of thin air. No individual Solicitor has signed the Particulars of Claim - in breach of Practice Direction 22, and rendering the statement of truth a nullity - and this template roboclaim has clearly had no input from any supervising Solicitor, whether in-house or externally. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated clerical staff.

12. 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. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

---

I believe the facts contained in this Defence Statement are true.
Name: XXX XXX

Coupon-mad

You have 'my' at least twice. Should be 'the Defendant's...'

Remove this from 11)(ii) as you are not arguing that the PCN wasn't a POFA one:

and it is denied that the NTK or the signage met the high bar set in the POFA for mandatory wording and adequate notice of the charge.

It should be made MUCH clearer that you are claiming this was a double dip case (our phrase, not a phrase for court, but the point itself certainly is).

So maybe this:

4. The Claimant is claiming that the defendant has overstayed for 15 minutes since he paid for 3 hours only. In fact, the Defendant tried to park there first, then had to leave since no parking space was available - to be clear, the car left the site without parking. After some 10-15 minutes the Defendant went back and this time, found parking. The Defendant has submitted a SAR to the Claimant for all ANPR image records from that day, which thus far have not been produced. The Claimant is put to strict proof of all images of the car captured that day from the entry and exit cameras.

4.(i) It is known that ANPR has an inherent fault admitted in a British Parking Association ('BPA') article a few years ago that this Claimant is familiar with, that (to quote the BPA): ''As with all new technology, there are issues associated with its use: a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ''overstay''. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.'' It is submitted that the Claimant has not properly checked its records and even if one of the middle 'entry or exit' manoeuvres was not captured - due to something as simple as tailgating traffic - it is likely the other one was picked up yet the system has reverted to the well-known flaw of defaulting to use the 'first in, last out' images to issue a PCN that should never have been issued, had proper, human checks been made for a third ANPR image.

4. (ii) Even if the Claimant produces clear evidence of a search of all images and cannot locate a partial or full image of the Defendant leaving then returning, it is a matter of fact that the Defendant did not park for longer than 3 hours. The Claimant is attempting to sweep together the initial 'observation period' on arrival before parking and paying, with the final 'grace period' after expiry of paid-for time. The latter 'grace period' is stated in the BPA Code of Practice, as a mandatory period of at least ten minutes after a ticket has expired, and this is in fact an industry standard, following the mandatory practice across the Country now, for Council PCNs to allow ten minutes grace after a parking licence expires.

4. (iii) However, the Claimant has ignored the initial (arrival) 'observation period' which was defined in another BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs who this Claimant is well are, is on record as saying: ''there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this. An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our 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. The BPA's guidance defines the 'grace period' as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.''

4. (iv). So the 'observation period' (on arrival before paying at the machine or by phone) is undefined, as the facts differ in each case, according to the BPA. In this case, the Defendant found on second arrival that he had no cash and had to first take time to register online to pay. Setting up a new app for the first time on the spot, and successfully paying for parking at an unfamiliar location inevitably took several minutes, yet this Claimant has not allowed any time at all for that activity which was a pre-requisite of being able to comply with their stated terms. This Claimant offers a contract for a driver to pay by phone and they supply a convoluted (several pages and clicks) phone app for registration - after a driver has already taken a few minutes driving in, finding a space, parking then walking over to the machine - yet have allowed no time at all for any of this time-consuming activity.

P.S. Evidence does not get submitted yet but put these BPA articles in with your Witness Statement later as part of your evidence, pre-hearing:

https://www.britishparking.co.uk/ANPR

and

https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods



P.P.S Send P/Eye a SAR data concern message on their PRIVACY page and ask their DPO for ALL (entry and exit and any cameras in between) images captured of xxxx xxx VRN at xxxxxx location on xx/xx/xx date. Do that NOW at the same time as defending. You want to flush out a 3rd image captured, if you left & came back!


P.P.P.S. I HAVE ONE IMPORTANT QUESTION:

You have the POPLA evidence from P/Eye, and in there, they will have stated the time of arrival, AND the time the ticket was purchased. What are those times, as this will either assist or kill your assertion that they've made a double dip error and included the time you first drove in and left then returned?

robiee4u

Thank you very much, I will update the statement shortly and post it back here again.
To answer your question about double dip error, here are the details:

According to the PCN of P/Eye, my vehicle entered the site at 15:20 pm and exited the site at 18:35 pm.
And here are the details from the receipt of the parking ticket
Start Parking: 2018/09/29 3:44 PM
Stop Parking: 2018/09/29 6:44 PM
Cost: £6.20 including 20% VAT and Service Charge


if you notice, that is 24 minutes between entry and ticket purchase time and I am certain that they have done a double-dip error.

Unfortunately, POPLA Assessor's supporting rationale for decision never mentioned about the time I bought the ticket and ignored the ground of double dipping.

Here is POPLA assessment and decision that was sent to me

Decision Unsuccessful
Assessor Name Safoora Sagheer
Assessor summary of operator case
The operator’s case is that the appellant remained at the car park for longer than permitted.

Assessor summary of your case
The appellant’s case is that he entered the car park and he found no space to park after waiting for a while, he had to exit and come back to the car park about 20 minutes later. He says he then found a space. He says he did not have any change, he had to use their website to pay. To support the appeal, the appellant has provided POPLA with a receipt of the payment made and a screenshot of payment options.

Assessor supporting rational for decision
The appellant has indicated that he was the driver on the date of the contravention. I will therefore be considering his liability as driver of the vehicle. When it comes to parking on private land, a motorist accepts the terms and conditions of the site by parking their vehicle. The terms and conditions are stipulated on the signs displayed within the car park. The operator has provided both PDF document versions and photographic evidence of the signage displayed on site. The signs state “Parking tariffs apply 24 hours a day, 7 days a week. Failure to comply with the terms & conditions will result in a Parking Charge of: £100.” The car park in question is monitored by Automatic Number Plate Recognition (ANPR) cameras. The operator has provided photographic evidence of the appellant’s vehicle entering the site at 15:20pm and exited the site at 18:35pm. The images captured by the ANPR cameras confirm that the appellant’s vehicle remained on site for a total of three hours and 15 minutes. The operator has provided a copy of a system generated print out that shows that insufficient parking was purchased on the date of the event. I note the appellant’s comments and the evidence provided to support their reason for parking at the site in question. I acknowledge the appellant’s comments, however, the onus is on the appellant to ensure a valid payment is made for duration of stay. As the appellant has failed to make a valid payment, he has breached the terms and conditions. Ultimately, it is the responsibility of the motorist to ensure that when they enter a car park, they have understood the terms and conditions of parking. If the appellant suspected that the terms and conditions of the site could not be complied with, there would have been sufficient time to leave the site without entering into a contract with the operator. By remaining parked on site, the appellant accepted the terms and conditions. On this occasion, the appellant has failed to follow the terms and conditions of the signage at the site. I conclude that the operator issued the Parking Charge Notice correctly. Accordingly, I must refuse this appeal.

Umkomaas

Send a SAR to PE asking for all ANPR photographs for vehicle with a VRM AB12CDE at XYZ site for the day in question. See what they come back with.

robiee4u

P.P.S Send P/Eye a SAR data concern message on their PRIVACY page and ask their DPO for ALL (entry and exit and any cameras in between) images captured of xxxx xxx VRN at xxxxxx location on xx/xx/xx date. Do that NOW at the same time as defending. You want to flush out a 3rd image captured, if you left & came back!

based on suggestions from KeithP and Coupon-mad, I did fill in the form on P/Eye's privacy-policy page and requested data based on the format suggested on the 13th of April.

Unfortunately, I have not received any confirmation email from them that they have received my request and I have no way to prove that I have actually sent the request, apart from a screenshot of the filled up form on their website.
Should I send it again?

OK, first thing apart from acknowledging the claim on MCOL and diarising your defence deadline, as described by KeithP, is to use P/Eye's data concerns online contact page to ask as a SAR, for the data from the ANPR system, dated/timed photos showing ALL times that car was captured passing any camera at xxxxxx location on xx/xx/xx date.

Do that now, this weekend.

To save delays, also attach a copy of your V5C as proof this data is yours to request.

Umkomaas

They have a month to respond. When did you send it?

robiee4u

Here is a screenshot of the form I sent on the 13th April.