County Court defence- Parkingeye-Barnet Hospital

Coupon-mad

You have a glitch 'STRIKE /STRIKE' in 12.1.

And loads of irrelevant stuff about a Visitor Centre with a 4 hour max stay (but this is Barnet Hospital)!

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

Google this entire string, for more suitable examples of a Hospital defence:

mustard barnet defence parking eye site:forums.moneysavingexpert.com

RobertPaulson

IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

ParkingEye Ltd (Claimant)

-and-

xxx RobertPaulson xxx(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 defendant'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.




This not apply to this case I guess?
The Landowner Instructed Termination of the PCN
5. When the Defendant reached out to the Landowner, the company’s employee, or “Loyalty Champion”, immediately agreed that the PCN should be cancelled and contacted the Claimant. The Loyalty Champion stated that the staff are told to take time to verbally prompt customers as they check-in, and as no such instruction was given, the PCN should and could be cancelled. The fact that staff are told to point this out every time, is proof that it is not clear enough. The Loyalty Champion agreed a second time over email to get this cancelled and contacted the claimant again. 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.

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.

Defendant’s Dispute Options were Concealed by the Claimant
8. The letter’s say that all appeals should be made in writing and sent directly to ParkingEye. The option to appeal directly to the Landowner was excluded, and only discovered after the Defendant’s own research.

8.1 The only route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence or mischief had occurred and believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

8.2 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 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.

 

There is pay and display machine on this site so I guess this irreverent too ?
The Parking Terms were Unclear
9. 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 were expected to know to input their Vehicle Registration Number (VRN) into a tablet upon arrival behind the door. This was far from clearly signed and the purported keypad was not mentioned by staff in the Holiday Inn when the Defendant checked in and asked permission for his child to use their bathroom.

10. The company’s website states free parking for guests, with no mention of any restrictions or extra requirements. The Defendant was not alerted to the unexpected obligation to use a tablet during booking, over the phone or while checking in, risking a £60 (or full price £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.'

11. It is submitted that, due to the complaints about this system and the BARNET hospital  now having to point out the tablet themselves, the Claimant should have addressed the inadequate signage. The Claimant is put to strict proof of the number of complaints and cancellation requests received this calendar year (2019) from the Barnet hospital , and to show what action if any, they have taken to address the failing signage.

12. It is not enough to have some signs outside, placed high up on poles and in corners/behind foliage, if a driver who stops (perhaps in bad weather, or hours of darkness, or as in this case, when distracted by his child's needs) close to the entrance and then walks into the premises is not informed by a clear and prominent sign inside. The Defendant stopped at the Reception desk - which would be the obvious place for a patron to learn of the terms by which they would later be bound - but had no idea that they are being timed, or about any contractual obligation to now use the keypad. Nothing was seen, so the Defendant avers that the signage fails the requirement for 'adequate notice' of the parking charge which cannot be said to have been 'agreed' and the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished. This was not an 'understandable ingredient of a scheme serving legitimate interests'. The tablet was nondescript and positively hidden from patrons once inside.

13. The Defendant avers that the Claimant knew, or should have known from the number of PCNs issued and cancellations/complaints generated at this location, that their consumer notices breached the test of fairness as set out in the Consumer Rights Act 2015 ('the CRA'), Schedule 2, known as 'the grey list'.

14. An unfair term/consumer notice will not be binding on the consumer and the court has a duty (para 71 of Part 2 'supplementary provisions' of the CRA) to consider unfairness in every case and it is a test from which the official CRA Guidance provided by the Competitions and Markets Authority, states that (unlike certain terms) consumer notices are never exempt, not even those that include a 'price' indication.

15. The CRA requires that to avoid failing for unfairness, all consumer notices must be both 'transparent and prominent' and services (such as offering a car parking space under an alleged contract) must be carried out with 'reasonable care and skill'. Given how onerous the unexpected obligation was, the average visitor would expect as a basic requirement, that the tablet or keypad would be placed in such a prominent and obvious place that it would pass Lord Denning's 'red hand rule' and be drawn to everyone's attention at the Hotel Reception (even if a Receptionist forgot to mention it) so that it stood out like a sore thumb 'like a red arrow with a red hand pointing to it'.

16. The CRA states that a term or notice will be considered unfair if ''contrary to good faith requirements, it causes a significant imbalance in the rights and obligations of the trader and the consumer, to the detriment of the consumer.'' Fairness is unlikely to be achieved where the circumstances in question are effectively under the control of the trader and certainly not when the mechanism that the trader later insists was an obligation, was at the material time, hidden.

17. The CRA grey list at Schedule 2 is breached by the Claimant in this case, as regards paragraphs 10 ''a term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract'' and 18 ''A term which has the object or effect of obliging the consumer to fulfil all of the consumer's obligations where the trader does not perform the trader's obligations.''

18. Unfair business practices are further covered in the Consumer Protection from Unfair Trading Regulations 2008 ('the CPUTRs') and it is submitted that the hidden keypad is an inherently unfair practice. The CPUTRs state in 'Misleading omissions' at 6(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2):
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context;
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise [...] 'material information' means...the information which the average consumer needs, according to the context, to take an informed transactional decision''.

19. It is submitted that the Hotel keypad's lack of prominence made it unlikely that it would be seen and any 'agreement on the charge' was void for impossibility. As such, the Claimant is in breach of the CRA and the CPUTRs as regards this regime at this location.

20. 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.

Signature
Date

RobertPaulson

ahh you can not see colours . 

RobertPaulson

5,9,10,11, not relevant to this case I guess
12- when distracted by his child's needs - 
15- Given how onerous the unexpected obligation was, the average visitor would expect as a basic requirement, that the tablet or keypad would be placed in such a prominent and obvious place that it would pass Lord Denning's 'red hand rule' and be drawn to everyone's attention at the Hotel Reception (even if a Receptionist forgot to mention it) so that it stood out like a sore thumb 'like a red arrow with a red hand pointing to it'.

and 19. need to be take off.

Please let me know if I'm getting any closer? 

RobertPaulson

Hi, I guess that was it. Better to pay up the court? Or there is still a chance to file this defence?

thanks

Coupon-mad

If we don't reply it's just due to how busy this forum is.

You seem to have copied a retail park one?  I said to use one you find when searching for a specific string of words on Google about Hospital defences.  You need the specific stuff about the Govt policy.
 
And can't this be adapted to talk about you complaining to the Hospital about breach of the NHS Guidelines for Car parking?

The Landowner Instructed Termination of the PCN
5. When the Defendant reached out to the Landowner, the company’s employee, or “Loyalty Champion”, immediately agreed that the PCN should be cancelled and contacted the Claimant. The Loyalty Champion stated that the staff are told to take time to verbally prompt customers as they check-in, and as no such instruction was given, the PCN should and could be cancelled. The fact that staff are told to point this out every time, is proof that it is not clear enough. The Loyalty Champion agreed a second time over email to get this cancelled and contacted the claimant again. 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.

RobertPaulson

Coupon-mad said:

If we don't reply it's just due to how busy this forum is.

Appreciate that Im not complaining remember I been already charged by the CC so I only can gain from this conversation. So thanks again.

You seem to have copied a retail park one?  I said to use one you find when searching for a specific string of words on Google about Hospital defences.  You need the specific stuff about the Govt policy.
 
I have searched for the Mustard one which led me to the page with "angry man" defences. thats what I try to use 
And can't this be adapted to talk about you complaining to the Hospital about breach of the NHS Guidelines for Car parking?

The Landowner Instructed Termination of the PCN
5. When the Defendant reached out to the Landowner, the company’s employee, or “Loyalty Champion”, immediately agreed that the PCN should be cancelled and contacted the Claimant. The Loyalty Champion stated that the staff are told to take time to verbally prompt customers as they check-in, and as no such instruction was given, the PCN should and could be cancelled. The fact that staff are told to point this out every time, is proof that it is not clear enough. The Loyalty Champion agreed a second time over email to get this cancelled and contacted the claimant again. 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.

Maybe but not sure how would this apply to this case as the Landowner not been contacted (no pcn number) 
Iam happy to spend more time on this but clearly the whole thing is beyond me. ie.I have spent at least 20 hours chewing trough NEWBEE and other cases but haven't gained much of that with 3 attempt of defeces and still no good at all.  
Makes me wondering if I failed at this stage what am I will be doing front of the judge?  

So if you thing its pointless to carry on rob your and my time just tell me and I'm happy to let it go . This is neither whinging nor excusing but the Defense deadline was 4pm this afternoon so may or may not be too late anyway?  

Many thanks

Coupon-mad

I didn't say the defence was no good, it is OK but needs more tweaking to remove stuff abut retail parks, and doesn't mention the NHS Car Parking Principles, which the ones that come up on Google do.

When I did the Google search, I found lots of threads with Hospital defences that already have the stuff in about the NHS Car Parking Principles and would have been an easier one for you to pick.

It is not too late as long as you email this to the CCBC later today.  ParkingEye don't swoop the same day to get judgment!  You are nearly there and this is not pointless.

RobertPaulson

Background

 

 

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the defendant'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.

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 .
.
The Landowner Instructed Termination of the PCN

3. When the Defendant reached out to the Landowner, the company’s employee, or “Loyalty Champion”, immediately agreed that the PCN should be cancelled and contacted the Claimant. The Loyalty Champion stated that the staff are told to take time to verbally prompt customers as they check-in, and as no such instruction was given, the PCN should and could be cancelled. The fact that staff are told to point this out every time, is proof that it is not clear enough. The Loyalty Champion agreed a second time over email to get this cancelled and contacted the claimant again. 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.

4. 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.

5. 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.

Defendant’s Dispute Options were Concealed by the Claimant

6. The letter’s say that all appeals should be made in writing and sent directly to ParkingEye. The option to appeal directly to the Landowner was excluded, and only discovered after the Defendant’s own research.

6.1 The only route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence or mischief had occurred and believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

6.2 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 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.

 

The Parking Terms were Unclear


7. It is not enough to have some signs outside, placed high up on poles and in corners/behind foliage, if a driver who stops (perhaps in bad weather, or hours of darkness, or as in this case, when distracted by his child's needs) close to the entrance and then walks into the premises is not informed by a clear and prominent sign inside. The Defendant stopped at the Reception desk - which would be the obvious place for a patron to learn of the terms by which they would later be bound - but had no idea that they are being timed, Nothing was seen, so the Defendant avers that the signage fails the requirement for 'adequate notice' of the parking charge which cannot be said to have been 'agreed' and the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished. This was not an 'understandable ingredient of a scheme serving legitimate interests'. The tablet was nondescript and positively hidden from patrons once inside.

8. The Defendant avers that the Claimant knew, or should have known from the number of PCNs issued and cancellations/complaints generated at this location, that their consumer notices breached the test of fairness as set out in the Consumer Rights Act 2015 ('the CRA'), Schedule 2, known as 'the grey list'.

9. An unfair term/consumer notice will not be binding on the consumer and the court has a duty (para 71 of Part 2 'supplementary provisions' of the CRA) to consider unfairness in every case and it is a test from which the official CRA Guidance provided by the Competitions and Markets Authority, states that (unlike certain terms) consumer notices are never exempt, not even those that include a 'price' indication.

10. The CRA requires that to avoid failing for unfairness, all consumer notices must be both 'transparent and prominent' and services (such as offering a car parking space under an alleged contract) must be carried out with 'reasonable care and skill'.

 

11. The CRA states that a term or notice will be considered unfair if ''contrary to good faith requirements, it causes a significant imbalance in the rights and obligations of the trader and the consumer, to the detriment of the consumer.'' Fairness is unlikely to be achieved where the circumstances in question are effectively under the control of the trader and certainly not when the mechanism that the trader later insists was an obligation, was at the material time, hidden.

12. The CRA grey list at Schedule 2 is breached by the Claimant in this case, as regards paragraphs 10 ''a term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract'' and 18 ''A term which has the object or effect of obliging the consumer to fulfil all of the consumer's obligations where the trader does not perform the trader's obligations.''

Premature claim - no Letter before Claim, and sparse Particulars

13. 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.

13.1. 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.

14. 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.

15. The Defendant has sent a subject access request (SAR) to the Claimant, for response during February  2020, 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

 

16. 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.

17. 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.

17.1. 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.

17.2. 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

 

18. 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.

18.1. 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.''






19. 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.

19.1. 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.  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.

20. 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.

20.1. 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.


21. 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.

Signature
Date

RobertPaulson

Okeydokey  
So I have this now but I feel might be too long?I hope I find the right  NHS Car Parking Principles, and also deleted the sign in tablet part as I cant see the need of it.

Please have a check and let me know