County Court defence- Parkingeye-Barnet Hospital

Redx

I doubt that Parking Eye added spurious charges , their typical court total is say £175 and that is the default tariff of up to £100 plus legal fees , no abuse of process, plus coupon mad did say that PE was exempt from the new defence and attachments

Stick to the core terms , the signage , the contract , the issues , BPA CoP , POFA , CRA , not unwarranted claims about non existent charges or abuse of process

I doubt that Judge Wright would strike out a Parking Eye case to £175 , or Taylor or Grand etc either

As stated above , the first postal PCN is the NTK , check it for POFA compliance

KeithP

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

Coupon-mad

That defence template clearly says it is never to be used for P/Eye cases because they don't add a debt collector sum.  Start again an use/adapt a ParkingEye defence example from the NEWBIES thread 17 'example defence' links.

RobertPaulson

RedX- I do not have any of the old letter I am afraid.
KeithP- The issue date is 27/01/2020

Coupon-mad - I have a look for that thread 17 for the example defence

Redx

but eventually your SAR will get you the docs, and pics, but probably not before your defence is due , so check them later

meantime , follow the advice by coupon mad etc, plus KeithP when he posts some info for you

KeithP

The issue date is 27/01/2020
AOS was done at 14/02/2020 but some reason I remembered 28 days from this point not in total so a bit late to the party but still ok till 29/02/2020 4pm if I am correct .

With a Claim Issue Date of 27th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 2nd March 2020 to file your Defence.

As you say, not long now, but still plenty of time to produce a Defence.

To file a Defence, follow the guidance in this post:

https://forums.moneysavingexpert.com/discussion/comment/76880595#Comment_76880595

Don't miss the deadline for filing a Defence.

RobertPaulson

IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

ParkingEye Ltd (Claimant)

-and-

xxx RobertPaulson xxx(Defendant)

DEFENCE

1.     



Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt  arising from a driver's alleged breach of contract, when parking at Barnet hospital car park on XXsept/19.

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant for the lawful conduct described below.

2. The allegation appears to be that the 'motorist fails to make the appropriate tariff payment 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, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing the appropriate parking time' or of the driver not being a patron of the Barnet hospital .


Data Protection concerns



3. 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.

4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

4.1. 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 Centre, who are being caught out regularly by this trap.

4.2. The Claimant will have some difficulty in justifying their hidden and unexpected terms at a site where the Defendant now learns from researching online reviews, that the Claimant has also added an unexpected and unwarranted (given the nature of the remote location) '4hr max stay' rule on top. These are not the 'brief, simple and prominently proclaimed' terms that convinced the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 to bend the penalty rule in that unique, fact-specific case only.

4.3. These 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.

5. Unlike the free car park in Beavis, this Visitor Centre 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 PDT 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

6. 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.

6.1. 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.

7. 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 and/or the driver' 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.

8. The Defendant has sent a subject access request (SAR) to the Claimant, for response during October 2018, 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 & serve better particulars.


Denial of contract and denial of any breach, or liability

9. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

10. 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.

10.1. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with ParkingEye, is partially obscured by a much larger sign directing traffic and placed at an intersection with extremely confusing road markings. All of these combine to make this initial sign easily missed.

10.2. It is not remembered whether an occupant of the car did see a PDT machine and pay a tariff/input the VRN whilst the Defendant obtained the entry tickets, and the Defendant is none the wiser due to the lack of information from the Claimant. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.





No 'legitimate interest' or commercial justification - Beavis is distinguished

11. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late with a 'parking charge' that bears no resemblance to the £4 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

11.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

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 £100''.

Para 199: ''What matters is that a charge of the order of £100 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

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.''






12. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which  have not actually been incurred by the Claimant.

12.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. [STRIKE]I put[/STRIKE] The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

13. 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 charge stated on the Notice to Keeper (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

13.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £100 can be claimed instead of £2 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.

14. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.

I believe the facts contained in this Defence are true.


Name

Signature

Date

RobertPaulson

Ok second attempt  
On #2 Iam not too sure

Tell if I am ready to start up my own lawsuit firm if not yet tell me that as well . 

Le_Kirk

RobertPaulson said:

Coupon-mad - I have a look for that thread 17 for the example defence

It is not THREAD 17, it is the NEWBIE thread, second post where you will find links to 17 pre-written defences: -
https://forums.moneysavingexpert.com/discussion/comment/64350585#Comment_64350585

RobertPaulson

Le_Kirk said:

RobertPaulson said:

Coupon-mad - I have a look for that thread 17 for the example defence

It is not THREAD 17, it is the NEWBIE thread, second post where you will find links to 17 pre-written defences: -
https://forums.moneysavingexpert.com/discussion/comment/64350585#Comment_64350585

Yes I realized that there is no Thread 17 but winning defenses at the end of the #2. I have used the one : where ParkingEye use ANPR alongside a Pay & Display machine. - removed the ones I feel that does not apply to the case but still looks to much  to be honest.