County Court Defence for a parking ticket

emjay1926

Hello,

I have received a County Court claim form from Parking eye. I had entered a hotel site soley to get my vehicle cleaned, there was a long queue.  If using the car cleaning you are meant to enter your vehicle registration - which I was completely unaware of, no barriers, poor/lack of signs, you get 30 minute free parking but due to the queue I had been in there longer.

I have drafted the defence below, any help/advice will be greatly appreciated.

Background - the driver was an authorised patron of the onsite business

1. The Defendant was the driver 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. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct. The defendant never used or entered the land to park. The Defendant entered the location to use a drive through car cleaning business based on site and not to ‘park’. Customers that attend the site for the cleaning services are exempt from paying parking charges. The service of cleaning is advertised externally of the hotel, for low rates, directing customers onto the site. 

3. The allegation appears to be that the 'vehicle was parked without a valid parking ticket’ 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 the vehicle parking on site. Infact the images held should identify that the defendant’s vehicle had been using the car cleaning service as the vehicle entered in a dirty condition and left the site clean.

5. The circumstances which led to the Defendant entering the car park were soley to use a drive through car cleaning company that advertises their services and low prices on sign boards externally of the hotel site. The Defendant explained this to Parking Eye, the Defendant was hoping that the Claimant would have had some understanding and cancel the excessive charge under mitigating circumstances. The Claimant had no interest in resolving the issue or understanding the unfortunate circumstances that led to this situation.

4. The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms and a payment keypad 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 now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines, or similar (and barriers at the site have been removed by parking eye), visitors to the car cleaning service were expected to know to input their Vehicle Registration Number (VRN) if they exceeded the30 minute grace period. This was far from clearly signed and the purported keypad was nowhere to be seen. The defendant was not advised of this obligation by onsite employees cleaning the vehicle.

4.1 There was insufficient signage at the site and there was no signage in the location at which drivers would drive to use the drive through vehicle cleaning service. Including the area in which they would be expected to wait in a queue for their vehicle to be cleaned. 

4.2. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use an iPad, or risk £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.''

5. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by ParkingEye in their signs or paperwork, prior to commencing proceedings. The manager advised the defendant that parking charges could be requested to be cancelled by the hotel. Due to Covid 19 there were insufficient staff to be able to assist further at this time.

5.1. The Hotel staff did state that the staff at the car cleaning are now having to verbally prompt the customers that come in. This is because the keypad used for signing in VRN details, and the sign used to indicate this, are far from obvious.

5.2. The only route offered to the defendant was a supposed 'appeal' to ParkingEye themselves, although 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.

5.3. 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/landowner may not support this and may support the 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 – Parking Eye unfairly harvest the data of a registered keeper to charge a genuine patron who has entered the site to utilise an onsite drive through car cleaning business, 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 not parked at the location, 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.

7.2. This case is fully distinguished in all respects from Parking Eye 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 into an unseen keypad, in what the consumer is confident is a free car park for patrons of the car cleaning service, 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.


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

12. 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.

13. 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 (shamefully) 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.

14. 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.

15. 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 in its entirety.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

Redx

It's not a CCJ , edit that to say court claim

Remove your name and any other identifiers from that post above

What is the issue date from the claim form ??

Fruitcake

In addition to the advice by Redx, please note that this is not a penalty.

Parking Lie do not add fake amounts to their charges, so sections 12, 13, and 14 need to be removed. They are allowed to claim the initial PCN amount of £100 plus £25 court filing fee plus £50 legal costs. 

You need to check your spelling and grammar, for example, solely, not soley.

You need to look up the new requirements for a statement of truth comment from the CPR and change yours accordingly.

Complain to the landowner/hotel manager/hotel chain CEO.

Complain to your MP about this unregulated scam.

If possible, get pics of the site and signage within the current permitted daily exercise rules. 

Le_Kirk

You need to edit the statement of truth as follows: -

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

henrik777

Did you park or leave the car in the custody of the car cleaning company ?

emjay1926

Thank you for the advice everyone. The claim was issued on 23rd March. I submitted an acknowledgement of service to allow myself some time to do the defence. Though this time is nearing the end.  With Covid 19 getting information and speaking to the Hotel  and attending the venue has not been easy. 

I have amended the defence as per your advice as follows:

Background - the driver was an authorised patron of the onsite business

1. The Defendant was the driver 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. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct. The defendant never used or entered the land to park. The Defendant entered the location to use a drive through car cleaning business based on site and not to ‘park’. Customers that attend the site for the cleaning services are exempt from paying parking charges. The service of cleaning is advertised externally of the hotel, for low rates, directing customers onto the site. 

3. The allegation appears to be that the 'vehicle was parked without a valid parking ticket’ 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 the vehicle parking on site. In fact the images held should identify that the defendant’s vehicle had been using the car cleaning service as the vehicle entered in a dirty condition and left the site clean.

4. The circumstances which led to the Defendant entering the car park were solely to use a drive through car cleaning company that advertises their services and low prices on sign boards externally of the hotel site. The Defendant explained this to Parking Eye, the Defendant was hoping that the Claimant would have had some understanding and cancel the excessive charge under mitigating circumstances. The Claimant had no interest in resolving the issue or understanding the unfortunate circumstances that led to this situation.

5. The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms and a payment keypad 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

6. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines, or similar (and barriers at the site have been removed by parking eye), visitors to the car cleaning service were expected to know to input their Vehicle Registration Number (VRN) if they exceeded the30 minute grace period. This was far from clearly signed and the purported keypad was nowhere to be seen. The defendant was not advised of this obligation by onsite employees cleaning the vehicle.

6.1. There was insufficient signage at the site and there was no signage in the location at which drivers would drive to use the drive through vehicle cleaning service. Including the area in which they would be expected to wait in a queue for their vehicle to be cleaned. 

6.2. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use the keypad, or risk £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.''

7. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by ParkingEye in their signs or paperwork, prior to commencing proceedings. The manager advised the defendant that parking charges could be requested to be cancelled by the hotel. Due to Covid 19 there were insufficient staff to be able to assist further at this time.

7.1. The Hotel staff did state that the staff at the car cleaning are having to verbally prompt the customers that come in. This is because the keypad used for signing in VRN details, and the sign used to indicate this, are far from obvious.

7.2. The only route offered to the defendant was a supposed 'appeal' to ParkingEye themselves, although 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.

7.3. 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

8. 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/landowner may not support this and may support the unfair charge to be cancelled.

9. 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 – Parking Eye unfairly harvest the data of a registered keeper to charge a genuine patron who has entered the site to utilise an onsite drive through car cleaning business, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

9.1. 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 not parked at the location, 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.

9.2. This case is fully distinguished in all respects from Parking Eye 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.

10. 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 into an unseen keypad, in what the consumer is confident is a free car park for patrons of the car cleaning service, with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

11. 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.

11.1. 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

12. 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.

13. 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.

13.1. 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.


14. 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 in its entirety.

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

KeithP

emjay1926 said:

The claim was issued on 21st March.

Please check again. I have never seen a County Court Claim issued with a Saturday's date.

emjay1926

Redx said:

It's not a CCJ , edit that to say court claim

Remove your name and any other identifiers from that post above

What is the issue date from the claim form ??

Thank you. I will edit this now to say Claim.
The claim was issued on 21st March 2020

emjay1926

Le_Kirk said:

You need to edit the statement of truth as follows: -

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Thank you very much.I have now added this. I hope it looks a bit better. I'm a novice to this.

emjay1926

Fruitcake said:

In addition to the advice by Redx, please note that this is not a penalty.

Parking Lie do not add fake amounts to their charges, so sections 12, 13, and 14 need to be removed. They are allowed to claim the initial PCN amount of £100 plus £25 court filing fee plus £50 legal costs. 

You need to check your spelling and grammar, for example, solely, not soley.

You need to look up the new requirements for a statement of truth comment from the CPR and change yours accordingly.

Complain to the landowner/hotel manager/hotel chain CEO.

Complain to your MP about this unregulated scam.

If possible, get pics of the site and signage within the current permitted daily exercise rules. 

I have edited the defence now to remove the sections that you advised. Hope it reads a little better. Thank you very much, I really appreciate it. I have amended it above with all the information. Spell check completed again too.
I have struggled with the hotel as there is limited staff there due to Covid, they gave me an email which was parking eyes!! No use. I can't go there wither due to Covid. I will definitely do that now though complain to their chain, thank you and MP.
I did go and get a few pics thank you.

emjay1926

henrik777 said:

Did you park or leave the car in the custody of the car cleaning company ?

You drive through the car park to get to their area, you wait in a queue in your vehicle. I exited the vehicle whilst they cleaned the inside, and left the keys in it as they sometime move it further forward due to the cars behind or to open the boot of the vehicle. I was stood beside the car during this time. Once they finished I got back in and left.