Parking Eye - County Court Claim Form Received

hatman404

Hi everyone
First of all I'd like to inform I've read The Newbies Thread and following the instructions I was advised to create my own thread,
So far I've done the first step, which was - Start AOS on MCOL website. Date of issue was 02/03/20 and I've finished that about 10 min ago so as far as I uderstand that gives me 28 days to prepare strong defence.
Unfortunately I've ignored and bined all the previous letters but as far as I remember I overstayed not more than 30 min at paid carpark near Asda @ Wythenshawe in Manchester, which is limited up to 2h.
What am I supposed to do next?
Thanks very much for all your advice & instructions so far.

D_P_Dance

What am I suppose (sic) to do next?

Read the stickies.

Coupon-mad

You do a SAR to the DPO of the PPC (not the solicitor) to get all the photos and letters with your data and car on, and you read the example PARKINGEYE defences in the sticky thread.

P/Eye have a data privacy concerns page where you fill in a form for a SAR.

KeithP

hatman404 said:

So far I've done the first step, which was - Start AOS on MCOL website. Date of issue was 02/03/20 and I've finished that about 10 min ago so as far as I understand that gives me 28 days to prepare strong defence.
Thanks very much for all your advice & instructions so far.

With a Claim Issue Date of 2nd March, and having filed an Acknowledgment of Service on 5th March (after 4pm on 4th March counts as 5th March), you have until 4pm on Thursday 2nd April 2020 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.
Unfortunately, by filing an AoS so early, you have cut short your Defence preparation time by four days.

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.

Coupon-mad

Except don't use that template defence at the top of the link, as this is P/Eye.

hatman404

Coupon-mad said:

Except don't use that template defence at the top of the link, as this is P/Eye.

which one shall I use then?

nosferatu1001

One that fits your situation, which only you know and you have to work out. 
This is YOUR defence. If you dont understand it, youre in trouble. This is not a five minute find a template and submit job, it requires effort. 

Le_Kirk

hatman404 said:

Coupon-mad said:

Except don't use that template defence at the top of the link, as this is P/Eye.

which one shall I use then?

The aforementioned NEWBIE sticky contains 17 pre-written defences (actually 16 as one link now does not work) which can be found HERE.  Follow that link and scroll down until you see:-

The exception is PARKINGEYE
If you get a LBCCC from ParkingEye,

..... and then continue down until you see: -

Here are some cases won or in progress:
Here is a defence...........

Use the defence that most nearly matches your circumstances and adapt to suit.

hatman404

Guys can you please have a look on my draft defence please?
Also do I have to fill up the Clam form that I received and send it back?

In the County Court

Claim Number: #########

Between

PARKINGEYE LTD

v

#########

DEFENCE

1. It will be common ground that this claim refers to a private parking charge notice (PCN) relating to a day when the Defendant was authorised to park.

1.1. The Claimant has no cause for action based upon the facts of this case. Any breach of contractual terms are denied, and it is further denied that there was any agreement to pay the Claimant any 'parking charge' or any sum at all.

1.2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.

2. The Defendant made all reasonable efforts to abide by the terms and conditions of the car park.

2.1. No payment for parking was required as this is a free 2-hour stay car park “Wythenshawe Etrop Court, Rowlandsway, Wythenshawe, M22 5RQ which is located at of the offices in which the Defendant occasionally works at.

3. The “Particulars of Claim” make no reference to the specific breach of the supposed contract the Defendant entered into whilst parking in the Etrop Court car park bar the reference to an “overstay”. The original “Notice to Keeper” references an unproven overstay according to the unsynchronised ANPR cameras of (apparently) some 12 minutes. This is disputed and has not been evidenced, and is based upon two separate cameras with two separate and unsynchronised timers.

4. In making this claim against the defendant The British Parking Association Code of Practice regarding grace periods was not followed.

4.1.1. A mandatory grace period is required by the British Parking Association (BPA) Code of Practice, which states: “13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.” As well as: “13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

4.1.2. The BPA Code of Practice at the time of the alleged incident also states: “13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

4.2. Kelvin Reynolds of the BPA says there is a difference between grace periods and observation periods in parking and that good practice allows for this: “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket … No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” britishparking co uk News good-car-parking-practice-includes-grace-periods

5. The signage located in this car park does not make it clear that you must leave the entire premises within the permitted stay period. Indeed the final image is of the car in moving traffic, waiting to leave onto a main road, and the car was certainly not parked in a bay for longer than permitted.

5.1This exact scenario has been tested in the County Court before, and a transcript will be produced which (whilst not binding precedent) is on all fours with this case, namely (3JD08399) Parking Eye v Ms X at Altrincham 17/03/2014, where it was held that driving around the car park was not classed as parking.

5.2 In Jolley v Carmel Ltd [2000] 2 EGLR -154, 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.

5. The signage located in this car park does not make it clear that you must leave the entire premises within the permitted stay period.

5.1. The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after permitted time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site.

5.2. The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to 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.''

5.3. It is impossible to read the terms on the signage of the site due to the size of the text and the height of the signs.

6. Further, in order to issue and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. This Claimant has taken no steps to provide evidence that such authority existed, and that they were entitled to pursue drivers for a penalty for the time spent driving around the one-way system before completely leaving the site and passing the ANPR camera upon exit.

6.1. Even if the landowner contract allows for this, it is an unreasonable and unenforceable term, akin to charging a person at the point of joining a queue (to leave the premises).

7. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

8. 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 'Damages and indemnity costs if applicable' which the Defendant submits have not actually been incurred by the Claimant.

9. 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. In Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

10.. Similarly, in Somerfield a £75 parking charge was not held to be a penalty, but a sum mentioned in the harassing letters of double that amount almost certainly would be.

11. 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

hatman404

Coupon-mad said:

You do a SAR to the DPO of the PPC (not the solicitor) to get all the photos and letters with your data and car on, and you read the example PARKINGEYE defences in the sticky thread.

P/Eye have a data privacy concerns page where you fill in a form for a SAR.

Might be a silly question but can you advise me please how do I do SAR on P/Eye website?
I don't understand those acronyms - DPO, PPC. 

Le_Kirk

All acronyms are explained in NEWBIE sticky 5th post, how to submit SAR is explained in NEWBIE 2nd post.  To find the address for any DPO go to the web site of the PPC and click on their privacy page.