WON - Small Claims court case

MrMercury

Hi, After receiving a small claims court case dated 15th August for an unpaid PCN I found this forum. I have read all the newbie posts and have my defence and would be grateful if you could check it over please.
I did appeal the original PCN which was rejected but ignored all the other follow up letters, inlclding an appeal to POPLA as per advice on other google searches.

PCN was for parking 30 minutes in a restaurant/take away car park, which I visit regularly, to collect a takeaway. I have a credit card statement with the transaction and name of the restaurant.
On this occasion I didn't see the new signage about parking restrictions.
Some weeks later I received the PCN and immediately visited the restaurant.
The staff member told me I'm one of many who has complained, including staff members, and told me to call the owner and he will arrange fro it to be cancelled. Owner asked me to text him the reg number which I did.
Next time I visited saw the sign, on a dark wall side on as you drive in so not clearly visible, which stated a permit must be displayed.
I asked for the permit and they told me no permit but I need to type my reg number in a machine, which was positioned on the floor behind the counter, not visible.
On the next occasion I visited I asked to put my number in and was told the owner has switched it off due to the company aggressively chasing his customers.

Is this how I should word it?

Thank you.

Quentin

Everyone is asked to read up on this in the newbies FAQ thread near the top of the forum before starting a new thread

Go there now to get an understanding of the game you are now caught up in

Post #2 there covers Court claims right through to the hearing with walkthroughs on what to do and when and links to defences you can crib from

After studying there you will want to redo your defence

Post it up here for comments before sending it

You didn't read here to ignore a popla appeal!

Throughout here you are advised never to reveal who was driving

You need to edit your post to remove details of who was driving

If you have used your real name as your forum name then get mse to change it to something anonymous

The ppcs monitor this forum and can use posts in your thread against you in Court

The_Deep

… On the next occasion I visited I asked to put my number in and was told the owner has switched it off due to the company aggressively chasing his customers.

Read up on frustration of contract and get you MP on board.

machine, which was positioned on the floor behind the counter, not visible.
On the next occasion I visited I asked to put my number in and was told the owner has switched it off due to the company aggressively chasing his customers.

KeithP

DVincent wrote: »

Hi, After receiving a small claims court case dated 15th August...

Hi and welcome to the forum.

I am going to assume that means you have received a Claim Form from the County Court Business Centre in Northampton and it has an Issue Date on it of 15th August. Please shout if I've got that wrong.


With a Claim Issue Date of 15th August, you have until Tuesday 3rd September to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL]. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Tuesday 17th September 2019 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could 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 an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

MrMercury

After reading all the posts I have written the following defence. I also have back statements showing I was a patron of the establishment and can get a written statement from the owner saying I was a patron and he asked for the PCN to be cancelled. Should I also attach those to the defence and reference them?

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 and keypad screen 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 only sign 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. Prior to the Defendant's visit, xxxxxx had recently placed their signage within the car park creating new terms and conditions for motorists. Their Trade Body Code of Practice states at 18.10: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''

4.2. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use a keypad, or risk £xxx penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

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 xxxxxx 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.

5.1. The Manager stated that the staff now have to take time out to verbally prompt the customers that come in because the keypad used for signing in VRN details, and the sign used to indicate this, are far from obvious. The Manager expressed his disgust with the Claimant suing their patrons and driving away business, and sent a clear instruction stating his wish that the unfair PCN be cancelled. Xxxx trade body states at section 7.2 “If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”

5.2. The only route offered was a supposed 'appeal' to xxxx 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. The British Parking Association ('BPA') Trade Body 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 into an unseen keypad, 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.


Name/signature


Date

Coupon-mad

Should I also attach those to the defence

Bargepole's Court Procedures thread in the NEWBIES, tells you nothing is attached.

I would add to 5.3:

However, the Defendant did appeal to the parking firm and this as of course rejected out of hand, with a template letter and no specific information or consideration of the facts.

KeithP

You have given absolutely no indication that you have even read post #4 above.

Did you do the Acknowledgement of Service in a timely manner? If not, the filing of your Defence is already well overdue.

MrMercury

Hi, sorry, yes I did the AoS on time and have been reading all the threads trying to put the defence together.

MrMercury

Hi,
I now have a court date provided and writing the witness statement and exhibits now. I have received a without prejudice letter from the company offering a settlement out of court.. is the below an ok response?

Without Prejudice

I have received your letter dated xxx offering settlement of the claim above for a payment of £xxx. By now you will have seen the Defence Statement and I am about to submit the Witness Statement and Exhibits. It will be clear that I had permission to park and that you were instructed to cancel the PCN by the landowner.

Whilst the principle of settlement is acceptable to me, the terms that you have set are not. It has taken considerable time to prepare the Defence Statement, Witness Statement and Exhibits, as well as significant printing charges and I am therefore willing to accept a drop hands offer where both parties walk away and bear their own costs.

I look forward to hearing back from you that the case is closed.

waamo

MrMercury wrote: »

Hi,
I now have a court date provided and writing the witness statement and exhibits now. I have received a without prejudice letter from the company offering a settlement out of court.. is the below an ok response?

Without Prejudice

I have received your letter dated xxx offering settlement of the claim above for a payment of £xxx. By now you will have seen the Defence Statement and I am about to submit the Witness Statement and Exhibits. It will be clear that I had permission to park and that you were instructed to cancel the PCN by the landowner.

Whilst the principle of settlement is acceptable to me, the terms that you have set are not. It has taken considerable time to prepare the Defence Statement, Witness Statement and Exhibits, as well as significant printing charges and I am therefore willing to accept a drop hands offer where both parties walk away and bear their own costs.

I look forward to hearing back from you that the case is closed.

Very noble of you. I would have asked them to cover my expenses given the strength of the case but ultimately it's your call.

MrMercury

Thanks for the reply.. Ive sent it but expect they will ignore. On to the WS and exhibits now.