Help defending court claim from ParkingEye for 15 minutes overstay

robiee4u

@KeithP, sorry if I have disappointed you. I did read the post about Court Claim Procedure by bargepole which says the statement below but does not says anything about the N9B (SDT) form, hence I asked to clarify it.

Your Defence does not need to be War and Peace, but it must mention, however briefly, every point of fact and law that you intend to rely on. You won't be able to amend it or add extra points later without paying a court fee, but you can expand on the original points in more detail. The Defence should be headed 'In The County Court', then show the case number, the names of the parties indicating who is the Claimant and who is the Defendant, and have the word 'Defence' at the top, and at the bottom say 'I believe the facts stated in this Defence are true' then your signature and date. It should all be formatted with numbered paragraphs and pages, in Times Roman 12pt, with 1.5 line spacing. I recommend printing and posting (registered) to Northampton, trying to fit it in the online box destroys the formatting, and makes it hard for the Judge to read.

Coupon-mad

That's because you do not use the paperwork at all. We email signed defences.

KeithP

You asked:

robiee4u wrote: »

I have read other threads but still unsure about, sending the Defence...

The very first reply you received on this thread - your thread - told you exactly how to do that.

Not sure that it can be made clearer, but I am always open to suggestions.

robiee4u

I am about to send my defence and here is a copy of the final version.

In The County Court CLAIM No: XXXX

Between

ParkingEye Ltd (Claimant)
-and-
XXXXX 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 XXXX, of which the Defendant is the registered keeper, was parked on the date at Colne Road, CO151PY and did purchase a valid ticket at 3:44 pm which covered the full parking period. This ticket was purchased within a reasonable observation period of grace, some 5-10 minutes after driving in for a second time that afternoon. This second entry was on/after 3.30pm but the Claimant has failed to show that entry image. From the time relied upon by the Claimant, it appears they are relying upon using the first ANPR image, captured a little earlier that day, but this was not part of any 'parking event' as defined by the applicable law regarding parking on private land, because the car left due to no spaces being available and returned shortly after. The Claimant cannot add the two events together, but given the inexplicable alleged '24 minutes' between their first ANPR capture time and the ticket purchase time, it is submitted that this is what this Claimant has done. The Claimant is put to strict proof otherwise.

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. 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 the 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 the 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.

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 the defendant's 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 the defendant's 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.

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: XXXX XXXX
Date: 30/04/2019

Coupon-mad

Remove this from 11(i) as ParkingEye do not add a debt collection cost, do they:

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.

And adjust/edit this if I am right that they are NOT trying to get an additional 3 figure sum on top of the PCN:

11)(ii). The Claimant cannot reasonably recover an additional three-figure sum in damages or costs to pursue an alleged £100 debt.

Other than that, it's ready to signs & date and email to the CCBC.

robiee4u

I received the Directors Questionnaire from Parking Eye today and I have downloaded the form and filled up my version of the DQ.
Am I right to assume that I can use the email address (CCBCAQ@Justice.gov.uk) to send it to the court? Also, I have the email address of parking eye from their DQ, can I use that to send a copy to them or I need to post it? Thank you.

KeithP

robiee4u wrote: »

Am I right to assume that I can use the email address (CCBCAQ@Justice.gov.uk) to send it to the court?

Yes, in the same manner as you sent your Defence.
Refresh your memory by re-reading post #2 above.

robiee4u wrote: »

Also, I have the email address of parking eye from their DQ, can I use that to send a copy to them...

That's fine.

robiee4u

I have contacted PE using their email address as they haven't responded back on my request on privacy page. And this is what their response:

Thank you for your email in relation to the above referenced Parking Charge which has been passed to us by the Enforcement Team.



We are unable to locate your original request, however please note that any images pertaining to non-contravening visits to our car parks are only retained for 90 days. Therefore the only images we hold of your vehicle on the date of the parking event are those in relation to the Parking Charge. To access these images, you will need to enter your Parking Charge Reference and vehicle registration number as found on the correspondence issued by us.

Please visit: https://portal.parkingeye.co.uk/

Surely, their are lying.

Coupon-mad

Why do you think they are lying, remind us?

They are likely to only have the in/out images, I think, albeit I would expect them to have captured the car a couple of times by each camera then chosen to use the one that paints the worst picture for you.

robiee4u

I am not sure what do they mean by non-contravening visits in their response, they said.

any images pertaining to non-contravening visits to our car parks are only retained for 90 days. Therefore the only images we hold of your vehicle on the date of the parking event are those in relation to the Parking Charge.

Now, they are not able to provide any recordings which I could use to prove the double dip error. how does this affect my defence?