MCOL Stage with Part Admission v. PE - outside GP Surgery

Chris2334343

and here's my defence to be submitted to the court within the next 14 days. I try to make my case as relevant as possible but not having too much similarity to the two samples you have provided.

IN THE COUNTY COURT at XXX

CLAIM No: XXX

BETWEEN:

ParkingEye Ltd (Claimant)

-and-

Chris2334343 (Defendant)

DEFENCE

Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXX College – Drop Off on 10th November 2019.

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

2. The allegation appears to be 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 vehicle having been parked for a total duration of 50 minutes’ or not being a patron of the XXX Health Centre.

 

2.1 There is no ticket machine or ticketing system in operation at this car park

Data Protection concerns

3. The Defendant was an occupant of the vehicle. However, the Defendant had no idea about any ANPR surveillance and received no letters after the initial 'PCN' a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

3.1. 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, 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. To run a hidden ANPR camera would be against the rights and interests of thousands of unsuspecting but circumspect visitors to the Health Centre, who are being caught out regularly by this trap.

4.2. Silently collecting VRN data in order to inflate the 'parking charge' to £100 and write to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

4.3. The Claimant will have some difficulty in justifying their hidden and unexpected terms at a site where the Defendant now learns from Claimant’s reply to defence, that the Claimant has an unexpected and unwarranted ‘For use only whilst on site’ and '15 minutes max stay' sign type. 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.

4.4. 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.

British Parking Association (BPA) Approved Operate Scheme Code of Practice – non-compliance

 

5.  In making this claim the Claimant must reference ‘British Parking Association (BPA) Approved Operate Scheme Code of Practice – Version 7’.

 

 

 

5.1. Section 9.3 states that, “You must respect the needs of the emergency services to carry out their duties without your taking enforcement action against them. This means that you must not issue parking charge notices to: liveried vehicles being used for operational fire, police or ambulance purposes; vehicles being used by a doctor or other health worker (such as a midwife or district nurse) who is on an emergency call at the address under control, and the vehicle is displaying a BMA badge or authorised Health Emergency badge.”

 

5.2. The defendant is a registered pharmacist working in XXX NHS Trust. On 10th November 2019, the defendant was performing emergency on-call duties at the address under control and required seamless handover of pager to the member of staff who could take over the on-call duties.

 

5.3 The defendant provides exhibit 1 to proof that he is a member of staff from XXX NHS Trust.

 

5.4 The defendant provides exhibit 2 to proof that he was participating emergency on-call duties on the date and time the allegation was made by the claimant.

 

5.5 The defendant provides exhibit 3 as a witness statement from the member of staff who shall be taking over the on-call duties from the defendant at the address under control but failed to.

Premature claim and sparse particulars

6. Due to the sparse details on the 'PCN' since it did not come from any Authority or the Police and the equally lacking and embarrassing Particulars of Claim (POC), 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 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 on 21 March 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

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 complicated road layout   and confusing road markings in the dark. All of these combines to make this initial sign easily missed.

10.2. The ParkingEye signs within the Drop Off area are equally invisible and misleading.

10.3. The Defendant avers there was no mention of a charge being issued upon entering the drop off area. Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site in question.

10.4. 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, and or, with a red hand pointing to it before the notice could be held to be sufficient.”

10.5. It is impossible to read the terms on the signage of the site due to the size of the text, the height of the signs, and the insufficient lighting at night.

No standing or authority to form contracts and/or litigate

11. 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, and to pursue payment by means of litigation against patrons of the Health Centre.

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

12. 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 signs/terms are not prominent, the VRN data is harvested excessively by automated ANPR and PCN was sent with a 'parking charge' that bears no resemblance to any 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.

12.1. 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 £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] 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.''

Inflation of the parking charge and double recovery - an abuse of process

13. 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.

14. 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. ParkingEye Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and 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.

15. 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.

16. 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 stated in this defence are true to the best of my knowledge and belief.

 

 

Name

Signature

Date

KeithP

What's going on here?

In early March you told us:

A claim was issued against you on 24/02/2020
Your part admission was submitted on 28/02/2020 
Your part admission was received on 02/03/2020 

That gave you until until the end of March to file a Defence.

Now, at 12:42am, you are telling us that ParkingEye have sent you a 'Reply to Defence'.

That's all fine so far.

But your latest post tells us:

...and here's my defence to be submitted to the court within the next 14 days.

You have already filed a Defence. PE have replied to your Defence.

You should now be providing a Witness Statement and evidence.

Sorry, I don't have time at this time of night to study that in detail, but at first glance it does read like a Defence rather than a Witness Statement. Also just to note that a Witness Statement is written in the first person and your Statement of Truth needs updating - the newest one is in the NEWBIES thread.

Umkomaas

Whatever it is (Defence or Witness Statement), it argues 'Abuse of Process' which is never to be used in a ParkingEye case. They do not add on unlawful charges. 

Chris2334343

Right....I should have followed more closely to the forum. Again I have learnt a (expensive) lesson 
at MCOL stage I should have submitted a defence not WE and at the court I should have submitted a WE within 14 days to supported the defence made previously.....
So there's nothing I can do with regard to the defence now? because my 'defence' was basically my WE....and I'm now just writing another WE with exhibit etc

Redx

The defence is already filed months ago , it costs a lot of money to issue an amended defence unless a judge had ordered it

You appear to be at the WS stage , so prepare a WS plus Exhibits plus summary costs assessment which are your current 3 tasks

nosferatu1001

WE? Do you mean Witness Statement? 
Prepare a witness statement
Drop the abuse rubbish. THis is PE. THey dont add on fees they are definitely not allowed to. 
WS
Exhibits
Summary costs
Do that. Forget anything else. Rescue the situation 

Coupon-mad

Remind us what your defence said please - repost it here now and we can help you build a WS & evidence. 

Have you got a court date?

Chris2334343

Yes, I mean WS, my mistake. I was totally exhausted for the past few months due to covid, there's just too much going on and I was haunted by PE since 2019, totally want to give up at some points. 
I really should have followed the post and advice from you guys closely. I regretted that I didn't follow step-by-step.
Here's the "Defence" I have submitted in March 2020 (which was already too late when you guys told me at that time it's not a defence that I worte)....:(  

1. The reason I stopped at the indicated location was to drop off and handover my pharmacy on-call pager to my pharmacist colleague XXX who worked in XXX Surgery on that day.

2. She agreed to come out from the surgery and picked up the pager at 6pm, as previously arranged

3. For the whole period time I have not left my vehicle and therefore I would have no opportunity to read the terms and conditions under the dark environment as stipulated by ParkingEye Ltd. This can be evidenced by their ANPR system

4. I have to remain in the car and wait for her appearance to complete the handover process as this involved in continuity of patient care

5. XXX did not turn up at 6pm. I called and there was no one answer. I thought she might be seeing patient and hence not able to take my call. I tried to call again but to no avail

6. With no collection of how long had it past, I had to leave the car park and continued to assume my on-call duty until I got response from her

7. XXX called later and said she has left her phone at home and therefore not been able to reach me either until she got home. We eventually handed over the on-call pager that night

8. I felt that it is not fair to claim such amount of money without acknowledge the parking restriction in that area. I expected it would be a quick handover of on-call pager but unfortunately not on that day

9. XXX could be the witness to verify the incident and so did our pharmacy on-call record from the XXX Hospital

10. In this circumstances, you have violated BPA Approved Operator Scheme Code of Practice Section B2.1 "The following vehicles must not be issued with a parking SUBJECT ACCESS COPY 18 ticket: vehicles being used by a doctor or other health worker (such as a midwife or district nurse) who is on an emergency call at the address under control and the vehicle is displaying a BMA badge or authorised Health Emergency badge"

I got 3 Exhibits to submit : 1)  my staff ID to proof I'm a pharmacist working for the Trust 2.) My emergency on-duty sheet showing that I'm actively on call at that time (without patient details and nature of calls) 3.) my colleague WS, I'm still 'drafting' for her to read

My court date is on 5 August 2020

Le_Kirk

With a court date of 5 August, have you been given a date for filing a Witness Statement and evidence or did it just state 14 days before court hearing?

Chris2334343

It only says  "Each party must deliver to the other party and to the court office copies of all documents on which that party intends to rely at hearing no later than fourteen days before the hearing"