County court claim, what to do now?

flateric2002

Hi, I've been trolling the forums the last few weeks dealing with a claim by Parking eye.
I have filed the AOS on MCOL 30/1/20.
I am now looking to write a defence and am struggling somewhat as to what is relevant, as many of the defence statement's wording is not that easy to decipher.
The claim form issue date is 13/01/2020

The particulars of the claim.
"Claim for monies outstanding from the defendant in relation to parking charge (ref x) issued on 19/06/2019. The signage clearly displayed throughout Keepmoat Stadium, Doncaster Three, Stadium way, Doncaster DN4 5JW states that this is private land, managed by ParkingEye Ltd, and that it is subject to terms & conditions, including authorisation being required for parking, by which those who park agree to be bound (the contract). Parkingeye's ANPR system captured vehicle XXXX entering and leaving the site on 15/06/2019, and parking without authorisation. The Defendant had the opportunity to appeal to POPLA, the independent appeals service for parking on private land, but this has not been taken."

An appeal was sent to parking eye immediately after stating:

"Personal Details

Declared as the: Driver
xxxxxxxxx
Reason For Appeal

I was a visitor / guest of the site

Appeal Details

I was attending a charity football match put on by my workplace Palram

Appellant Provided No Reraise Details

Name:

Address:

Town:

County:

Postcode:

Country:

Appellant confirms all supporting information attached

Yes"

This is the only correspondence sent to parkingeye by the defendant (information copied from SARS).

I have been to the site this week to look at the signage and taken photos to back up the claims below..
1. The entrance has a sign that is covered by a tree.
2. The route taken to the parking space had only the rear of signs visible (assuming the driver was looking where they were going)
3. The Car Park is connected directly to the all weather pitch hired for the charity event, why would the defendant think this wasn't to be used for this purpose?
4. The fencing for the all weather pitch that the defendant parked next to has signs on, but none about parking.

I have read similar defence in a post by bargpole but that was valid permit not sown & a windscreen ticket.
Thanks in advance.

D_P_Dance

PE's sins leave much to be desired.  They have lost them a couole of court claims recently, read this 

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading

Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

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.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

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

flateric2002

Thanks for the response, having had a look through & using the defence as a template i have included all that could apply.
The problem in this case is the parking keypad at reception was for users of the "Athletics track" or "Club doncaster academy"
Apparently the defendant was neither, although when seeing the photograph of the sign, believed they were visiting "club doncaster academy" by visiting the all weather pitches for the charity event.
Any feedback much appreciated.

flateric2002

In the County Court

Claim Number:
Between
ParkingEye Ltd
v
T

DEFENCE

Background - the driver believed they were an authorised patron of the onsite business

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 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 transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors to Club Doncaster Academy were expected to know to input their Vehicle Registration Number (VRN) at the Club Doncaster Academy Reception, although you must also be expected to know that the adjoining football pitches are not part of Club Doncaster Academy.

5. Upon receiving the claim, the only route offered was a supposed 'appeal' to ParkingEye 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.

5.1. 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 themselves 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.

flateric2002

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 at the venue reception, 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.

12. 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.


T
10th February 2020

flateric2002

Is a section needed stating the route taken to the parking space had only the rear of signs visible (assuming the driver was looking where they were going) or is that just whinging?

Le_Kirk

You send evidence, such as the route to the parking space with your witness statement later in the process.  There are some standard arguments you could use about signs.  Look in the NEWBIE sticky, what used to be post # 2 but is now just the second post and you will find links to 17 pre-written defences.  In those you will find the signage paragraphs.

flateric2002

added these points.

 

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

12.1. The Claimant's signage at the entrance is obscured by trees and all signage on the route to parking space is facing away from the line of view.

renumbered old 12 to 13

KeithP

flateric2002 said:

The claim form issue date is 13/01/2020.
I have filed the AOS on MCOL 30/1/20.

With a Claim Issue Date of 13th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 17th February 2020 to file your Defence.

That's just over a week 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:

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5. 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'.
   
6. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
   After filing your Defence, there is more to do...
   
   
7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
8. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet - https://www.gov.uk/government/publications/form-n180-directions-questionnaire-small-claims-track , and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of he NEWBIES thread - https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou"]
   
9. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
   
10. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

Le_Kirk

5. Further and in the alternative, 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. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.
6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, 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.

You need to introduce the signage aspect and then continue with ...... also.  I would go first with 5 above, then your 12.1 then your 12.

flateric2002

redone 12.

Unclear signage

12. Further and in the alternative, 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. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

12.1. The Claimant's signage at the entrance is obscured by trees and all signage on the route to parking space is facing away from the line of view.

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