PCN Appeal to IAS? ES Parking Enforcement

Kingofspain2k1

Coupon-mad wrote: »

Leave it in. We assume you've sent the PPC's DPO a SAR to ask for all photos?

Yes I have done this as well as data rectification notices to Gladstones and the County Court address. Not had anything back yet.

Kingofspain2k1

nosferatu1001 wrote: »

Indeed, hopefully you have a SAR already in place, covering ALL your data for both alleged events?
Dont call them an offence

State that you have no fatcs about the events of... howver you are presuming the facts are similar enough and relate to the same site, that this defence is appropriate for both.

Well worded. I have added that to the end of para 2.

The SAR was sent to the PPC's DPO last month.

Kingofspain2k1

Should I consider removing para 9.7 entirely? My concern is I have delved too deep into the rabbit hole and lost sight of the core of the defence. Or is it a necessary follow up to para 9.6 such that 9.6 would be ineffective without 9.7?

nosferatu1001

Keep it. It is what means the judge HAs to consider the CRA2015, when otherwise they may forget

Kingofspain2k1

I have finished drafting the defence and sent it via email to CCBC. I am pasting it here for future reference:


IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BETWEEN:

ES PARKING ENFORCEMENT LTD (Claimant)

-and-

XXXXXXXXXXXXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident. 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 XXXXXXX (hereby ‘the vehicle’), of which the Defendant is the registered keeper, was situated on the material date by the side of a road in the Spinningfields Estate, Manchester between 20:04:50 and 20:04:53 on 11/07/2019. The Defendant is unable to present facts for the alleged event on 23/07/2019 as no notice or evidence has been delivered to the Defendant by the Claimant and/or their representatives. The Defendant presumes, however, that the facts are similar enough and relate to the same site, that this defence is appropriate for both.

3. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

4. The Claimant has not provided enough details in the particulars of claim to file a full
defence. The Particulars of Claim contains no details and fails to establish a cause of action
which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

4.1 On the 20th September 2016 another relevant poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’


Lack of Clear Signage

5. 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. Between the road entry on Bridge Street at the start of the road in question and the location in which the vehicle was photographed, there is no signage at all warning the Claimant of any liability for stopping. In ES Parking Enforcement Ltd v Limited Company C2GF3D6K 18/01/2017 the Judge ruled that “a contract was not made as there were no signs on the road entrance”.

5.1. The first sign to appear along the road in question is approximately 20 metres beyond the point in which the vehicle has been photographed by the Claimant. Being the first sign along the route it is contended that the logical interpretation of any terms presented on the sign would only be applicable, and therefore potentially enforceable, beyond that point in the road and not before it.

5.2. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a vehicle at that distance, 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.

Abuse of Process

6. The Defendant asserts that the Claimant has no legal right to claim unpaid charges for the land mentioned in this claim. Manchester City Council has provided the Defendant with confirmation that the street in question is adopted land. Therefore it is not relevant land for the purpose of Schedule 4 of the Protection of Freedoms Act 2012. Paragraph 1(1)(a) makes clear that claims are only allowed to be made for alleged events on “relevant land”. As the parking place in this claim is provided by a traffic authority, the land can not be relevant as per Paragraph 3(1)(b).

6.1. 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.

7. The PCN received by the Defendant is for £100, yet the Claimant is trying to recover an eye-watering £320 (plus interest and legal costs). The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 ('the CRA') 'terms that may be unfair'.

7.1. The arbitrary addition of a fixed sum purporting to cover 'recovery costs' is potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

7.2. The Defendant has the reasonable belief that the Claimant has not incurred an additional £120 in damages or costs to pursue an alleged £200 debt. This is true, whether or not they used a third party debt collector during the process, because parking charges (unlike other 'debt' claims) must by definition, already encompass the costs of the operation.

7.3. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £120 “contractual costs” are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added again, to the 'parking charge'.

The Beavis case is against this Claim

8. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

8.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. And at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

8.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

The POFA 2012 and the ATA Code of Practice are against this Claim

9. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' ('NTK'). Further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is no more than £100, and in this case the parking charge in the small print on the signs, and in each NTK, was stated to be £100 and this must have been set to include the costs of recovering the charge, or it falls foul of the Beavis case.

The CRA 2015 is against this claim

10. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% to the parking charge, in a double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is astounding to this Defendant, that this has been allowed to continue unabated for so many years. Even if most courts are routinely disallowing the added £60 'costs' of all parking charge cases now (and it is clear from online reports that almost all courts are disallowing that sum) this is not enough.

10.1. It is especially unacceptable that parking firms are still filing claims including what they know is a tainted and unrecoverable sum. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source, including in the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

10.2. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. Cases summarily struck out in that circuit, included BPA members using BW Legal's robo-claim model and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in the Beavis case. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

10.3. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

10.4. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the CRA, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

10.5. At the hearing, the Judge refused their request to appeal. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

10.6. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

10.7. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

10.8. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out another parking ticket claim. The Judge mentioned the POFA 2012 and the Beavis case, and determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' Further, in issuing his Order without a hearing, the Judge stated that he had ''considered S71(2) of the CRA 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

10.9. The Defendant requests that this Court - using its case management powers pursuant to CPR 3.4. - recognises its duty to consider the CRA 2015 in the same way as the Southampton and Warwick courts recently have done, and opts to summarily strike out this entire claim due to the Claimant's flagrant disregard for consumer rights as set out in statute.

10.10. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

10.11. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

Summary

11. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant has not provided any clear signage or evidence of the requisite authority to administer parking charges on the land in question. The Claimant's vexatious conduct from the outset has been intimidating and egregious, and indeed untrue in terms of the added costs alleged and the statements made.


Statement of Truth:

I believe the facts contained in this Defence are true.

Kingofspain2k1

SMALL UPDATE

1) CC has replied via letter to confirm receipt of the defence. This was sent to my current address so that is reassuring in that all future correspondence relating to the CC will should be sent to the correct address going forward.

2) ESPE replied to my SAR. The DPO attached three documents - 1 is their data protection policy, and the other two are just password protected PDF copies of my SAR letters on page 1 and a blank page 2. They have now offered to send again without password protection in a bid to reveal the information within the PDFs

nosferatu1001

Makes sense, but how lcose to the deadline are they?

Tell them to send them within a password protected zip file, obviously. Then the actual files arent changed. Why they didnt do this in the first place is a mystery...

Kingofspain2k1

UPDATE
Filled out the Direct Questions as per the instructions in the Newbie Thread. Sent a copy to both the CCBC and ESPE.
Still not received the SAR info from ESPE. 

KeithP

Kingofspain2k1 said:

Still not received the SAR info from ESPE. 

If it's over a month, then send them a reminder, pointing out that if they don't comply within seven days you'll be reporting them to the ICO.

Kingofspain2k1

UPDATE
Received a letter from the court requesting the Claimant submit their reasons for bringing the claim by 18 April 2020. No mention of any action that I should be taking from what I can see.
I couldn't see anything in the newbie thread about this step of the process and instead have been waiting for the witness statement stage.
Should I just continue waiting?