Parking Eye CCJ Challenge

AMP279

Many thanks again Le_Kirk! I will add a section regarding the 'abuse of process' into the defence and make the other changes you have suggested. Should I send this off or can you give it a final check first if I post an updated draft?

Coupon-mad

And do take note that Le_Kirk has crossed out the ''I'' in his revision...no leaving it there.

Le_Kirk

AMP279 wrote: »

Many thanks again Le_Kirk! I will add a section regarding the 'abuse of process' into the defence and make the other changes you have suggested. Should I send this off or can you give it a final check first if I post an updated draft?

You could post a final draft, if you have time before your deadline, there are others who may be able to chip in with bits I/you have missed.

AMP279

Great according to the CCBC I have until the 20th to submit my defence so will send a further draft for checking and comments if thats ok.

Coupon-mad

No, KeithP told you (properly and in detail) how long you have (and he summarises all the first steps, to stop any posts asking what to do next when the D gets the DQ from the Claimant, which we really can't stand!).

1505grandad

You state "Vehicle Registration Number (VRN)"

But then use VRM as abbreviation

Out of interest how is the claimant's name stated in the Court docs?

KeithP

AMP279 wrote: »

...according to the CCBC I have until the 20th to submit my defence...

The CCBC have made a mistake.

Post #8 above is correct where it says...

...you have until 4pm on Monday 23rd September 2019 to file your Defence.

AMP279

Hi 1505grandad good spot regarding VRN! Claimant stated as ParkingEye Ltd or elsewhere PARKINGEYE LTD. Maybe I should lose the space?

Coupon-mad

Maybe I should lose the space?

Space in P/Eye? Yes, there is no space.

AMP279

Ok I have updated my defence with your suggestions, stripped out details that can be used in my WS instead and added further sections regarding Data Protection concerns and a Premature Claim. Rightly or wrongly I have added 'an abuse of process' to finish on. I would really appreciate any comments or further advice that you can offer me. Regarding the date for filing I emailed CCBC and they have given me the date of the 20th, I am nervous of going past this not unless KeithP has factored in a weekend? Keen to send this off on the 20th if I can just so its done.


IN THE COUNTY COURT

CLAIM No: XXXXXX

BETWEEN:

ParkingEye Ltd (Claimant)

-and-

XXXXXX (Defendant)


DEFENCE

Background
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 'of entering and leaving the car park without a valid paid parking ticket’ appears to be based on images by their Automatic Number Plate Recognition (ANPR) camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is not evidence of the registered keeper not purchasing the appropriate parking time 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 flawed payment process which the Claimant benefits as a double recovery
4. According to the signage at the Pay and Display machine but not present on any of the entrance or exit signs, it transpires that to avoid a parking charge visitors are expected to know to input their Vehicle Registration Number (VRN) to validate a ticket. The Particulars of Claim state that the claim is for the Defendant “parking without a valid paid parking ticket”. However, the Defendant purchased a ticket without inputting a valid VRN and made all reasonable efforts to make payment for parking using the approved payment channel and subsequently displaying the ticket.
5. The fact that the pay and display machine accepted money despite NO VRN or a PARTIAL VRN or an INCORRECT VRN being input and registered suggests the machine is accepting a variation to the offered contract; the machine is fully capable of being programmed to disallow null or partial VRNs, and does not, therefore ParkingEye is accepting by conduct this variation. The ticket machines should be linked to the cameras and only allow correct details, and must firstly accept a valid or partial VRN before accepting the customer’s money and issuing a ticket.
6. Not Fit for Purpose Invalid Ticket issued against rules of Consumer Rights Act 2015.
This ticket was bought and paid for in good faith. According to the Consumer Rights Act 2015 any goods purchased should be 'Fit for Purpose'. The ticket that was issued was not 'fit for purpose'. ParkingEye took money to issue an invalid ticket and now want to charge an additional penalty of £100 for having an invalid ticket. The invalid ticket was issued due to the ticket machine allowing the transaction to complete even though the Defendant had initially entered an invalid VRN in the keypad. The ticket machine should not have issued the ticket.
7. 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 its signs or paperwork, prior to commencing proceedings.
7.1. The only route offered was a supposed 'appeal' to ParkingEye, 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.
7.2. 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 was 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.
8. The fact the Defendant made reasonable endeavours and cannot be penalised under UK contract law is also a circumstance supported by trite law. Authority for this is the case of Jolley v Carmel Ltd [2000] 2 EGLR 154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.
8.1 Breach of the BPA Code of Practice Principles
Under section 21 of the CoP, AOS members are only allowed to use ANPR if they:
(a) Use it to enforce parking in a reasonable, consistent and transparent manner.
(b) Have clear signs which tell drivers that the operator is using this technology and what the data captured by ANPR cameras will be used for.
8.2 Automatic number plate recognition (ANPR) General principles; ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.'' The facts are that a ticket was purchased and it was put clearly on display, without entering a correct VRN, and that the driver had paid in good faith. This is not mitigation, this is a fact that I submit cannot give rise to a PCN because it is not 'transparent' or ‘consistent’ in the terms on signs particularly the entrance and exit signs and the Pay and Display machine, that a correct VRN is an 'obligation' which runs such a risk and will be compared to the ANPR data for the purpose of imposing a charge.
8.3 The Defendant requests that the Claimant provides the Court with a copy of its policy and proof that those checks were made in this instance. Further, the Defendant requests proof that ''purchasing a valid ticket without entering a correct VRN' is in fact incorporated into the contract from the landowner as a penalty-generating 'contravention' since this is highly unlikely the retailer/landowner allows this unfair fining of paying customers. If it is not in the contract it is not a contravention that can give rise to a penalty.
8.4 ParkingEye has failed to explain what manual checks were made or why it considers that enforcement is appropriate, nor whether the contract even allows a charge for ''purchasing a valid ticket without entering a correct VRN' and therefore run the risk of a punitive so-called 'parking charge' (unfairly set as a fixed sum at the same level as a non-payer) for that action alone. This is an inappropriate parking charge which should have been cancelled on appeal.
8.5 By creating the Code the parking industry has set out the minimum standards by which you will be judged by anyone coming into professional contact with you. Members of the public should be able to expect that you will keep to the law, and act in a professional, reasonable and diligent way.
8.6 The Code and its appendices cover the operation of parking on private, unregulated land. This includes: designing and using signs, using ANPR and associated systems and appropriate parking charges.
8.7 And in the ANPR section:
The Defendant submits that it was clear that it was not 'appropriate to take action' so the PCN should have been cancelled. The Defendant submits that to pursue a genuine customer who paid and displayed is contrary to the wishes of the landowners and this PCN is unauthorised. As such, the parking charge cannot be considered 'properly given'.
8.8 The 'ParkingEye v Beavis' case exposes this charge as unconscionable, with no overriding 'legitimate interest' to save it from offending against the penalty rule.

The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and inputting a VRN) were said at the Court of Appeal stage to be likely to fall foul of Lord Dunedin's four tests for an unenforceable penalty. ParkingEye should be well aware that the circumstances of the Beavis case were entirely different. In this case, we have an authorised user using the car park appropriately where there has been no loss to the owner and no abuse of a parking space, nor any overstay. While the courts might hold that a large charge might be appropriate in the case of a 'free stay' car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept that a £100 penalty is a conscionable amount to be charged for the simple problem of a VRN error.
8.9 The purported contract with the motorist is an ordinary 'financial contract' where the loss that ParkingEye thought had arisen (non-payment of a tariff) is easily calculable. Without intellectual dishonesty, it cannot be argued that there is a commercially or socially justifiable deterrent value in this charge, especially that in fact that the Defendant paid and displayed. Any putative contract needs to be assessed on its own merits as regards what would be deemed 'out of all proportion' to the tariff paid and 'unconscionable' given the circumstances. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.
8.10 In this case the specific question is whether a reasonable person would, when parking in a place where they had paid the correct tariff for the privilege, also accept a further unknown liability in the case of a VRN error. I would suggest that a court would not accept that £100 was a reasonable amount given these specific circumstances. Although the charge was different, the Beavis case was 'entirely different' and does not save the charge in this case, from being held to be unconscionable. This is an unenforceable penalty and cannot be upheld as properly given.
8.11 Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 and no more.
8.12. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

Data Protection concerns
9. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.
10. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the hotel, who are being caught out regularly by this trap.
11. Silently collecting VRN data in order to inflate the 'parking charge' from £4 to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.
12. Concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.
13. Unlike the free car park in Beavis, this hotel is a site where the Claimant has machines to take payment of tariffs. Clearly there will be ParkingEye staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any Pay and Display machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.

Premature claim - no Letter before Claim, and sparse Particulars
14. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and arrived weeks later) and the equally lacking and embarrassing Particulars of Claim (POC) and the complete lack of any Letter before Claim, this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.
14.1. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.
15. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper’ of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
16. The Defendant has sent a subject access request (SAR) to the Claimant, for response during October 2019, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file and serve better particulars.



No legitimate interest - the penalty rule remains engaged
17. 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.
18. 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.
18.1. 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.
18.2. 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.
18.3. 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). By allowing patrons to purchase a parking ticket with a partial or incorrect VRN at the pay and display machine and then issuing a ticket, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

Lack of good faith, fairness or transparency and misleading business practices
19. 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 purchase a ticket without firstly inputting a valid or partial VRN 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.
20. 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.
20.1. By allowing patrons to purchase a parking ticket without entering a valid VRN 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
21. 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.
22. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported "Legal representative's costs" of £50, which have not actually been incurred by the Claimant. ParkingEye has 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 and paste' robo-claims per annum. No genuine legal costs arise, per case, and the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services. This work is done as part of the Claimant's everyday routine and no "expert services" are involved. The Claimant is put to strict proof, by way of timesheets or otherwise, to show how this cost has been calculated and incurred.
23. 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.
24. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the sum of the 'parking charges' which remain unpaid - with no double recovery allowed.
25. Claim number is F0DP201T District Judge Taylor, Southampton Court, 10th June 2019 :
"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 not with reference to the judgement in ParkingEye v Beavis. 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 "
26. 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