County Court letter for parking at my own gym

nabz19

Hi Guys, I've got two county court letters for parking in my own gym (i used my wife's car). I've written the response - found it in one of the threads. Just wondered if i should include the evidence as well as my name (in the defence), please let me know what you guys think.

nabz19

Background - the driver was an authorised patron of the onsite business

1. The Defendant is the registered keeper of the vehicle in question however the driver and user of the vehicle at the time of the allegation was the defendant’s husband, MY NAME. 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, (please see attached “Defence Evidence” showing the register which proves that the driver was a member of and used the gym when PCN’s were issued), and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad 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 sparse signs 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, UK Car park management LTD (UK CPM) had recently placed their signage within the car park creating new terms and conditions for motorists. Their Trade Body Code of Practice states at 18.11:!''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 an iPad, or risk £100 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 UK CPM 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, yet the business was now stuck with it for the time being.

5.1. The Manager stated that the staff now have to take time out to verbally prompt the customers that come in because the iPad 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 mentioned he’d send a clear email stating his wish that the unfair PCN be cancelled.

5.2. The only route offered was a supposed 'appeal' to UK CPM 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 of which UK CPM is a member, 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.

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 - UK CPM 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 UK CPM 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 UK CPM 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. UK CPM 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.

nabz19

Sorry about the lengthy defence statement... i also have an email from the gym with a log of the gym use (which shows i clearly was a member of the gym when the pcn were issued), Should i attatch that evidence in my defence also?

Look forward to hearing from you experts...

KeithP

Stop!! Slow down!!

That looks like a mix between a Defence and a Witness Statement.

What is the Issue Date on your County Court Claim Form?

Have you received two County Court Claim Forms?
For different incidents?

There are seventeen examples of Defences linked from post #2 of the NEWBIES thread.

nabz19

Wow.. that was quick, thanks for getting back keith.... I've recieved 2 different claim forms, one has two pcns worth £427 the the other has one pcn worth £245.

Both for same offence "parked in breach of the terms of parking stipulated on the sinage".

The issue date on the first one is 7th October and Second one is 9th october.... I've done the acknoledgements for both claims as advised in newbies forum.

But i need to submit my response by Monday 11th... so time is of the essense for me, sorry for not posting earlier.

I hope to hear from you soon.

KeithP

nabz19 wrote: »

I've recieved 2 different claim forms...

The issue date on the first one is 7th October and Second one is 9th october.... I've done the acknoledgements for both claims as advised in newbies forum.

But i need to submit my response by Monday 11th...

With a Claim Issue Date of 7th October, or one issued on 9th October, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 11th November 2019 to file your Defence.

You are right with your target date.


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 the NEWBIES FAQ sticky thread to find out exactly what to do with it.

nabz19

Thanks Keith - I will do all of the above!!

Do you think my defence is ok? As it was my wife's vehicle and i was the driver would you suggest me to not use my name in the defence as the the driver of the car, i'm insured to drive the vehicle as at the time I my insurance allowed me to do this.

I've seen in the newbies thread to not put any names what so ever in the defence. However the reason I want to use my name, is because I'd like to attach an email from the gym stating that I used the gym during the dates I recieved the pcns which mentions me (proving my patronage).

Kind regards,

KeithP

Sorry, I don't comment on Defences unless I spot really simple errors.

However, I can say that nothing, absolutely nothing, gets filed with a Defence. Evidence, which is what the email from the driver's gym is, follows later.

You need to read bargepole's 'what happens when' post linked from post #2 of the NEWBIES thread.

The_Deep

[FONT=Times New Roman, serif] [FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP after the election, it can cause the scammer extra costs and work.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]




[/FONT]

Le_Kirk

nabz19 wrote: »

Do you think my defence is ok? As it was my wife's vehicle and i was the driver would you suggest me to not use my name in the defence as the the driver of the car, i'm insured to drive the vehicle as at the time I my insurance allowed me to do this.

I've seen in the newbies thread to not put any names what so ever in the defence. However the reason I want to use my name, is because I'd like to attach an email from the gym stating that I used the gym during the dates I recieved the pcns which mentions me (proving my patronage).

Who is named on the claim form from Northampton? That is the ONLY person who can/needs to complete a defence. Don't put names in defences posted on here for critique but of course put names in anything you sent to CCBC.

Coupon-mad

You need the wording you find when you search the forum for:

two claims? abuse of process