County Court Defence for a parking ticket

Coupon-mad

So they were in charge of the vehicle during that time.

Please edit your thread title as you don't have a CCJ and ths confuses us every time we see your thread.

emjay1926

KeithP said:

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.

Sorry 23rd March...

KeithP

emjay1926 said:

KeithP said:

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.

Sorry 23rd March...

With a Claim Issue Date of 23rd March, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 27th April 2020 to file your Defence.

That's just under two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

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.

emjay1926

Also there was a mistake on the claim form. The claim form stated that the parking charge notice was issued on 31/10/2019 for the parking incident that occurred on 30/09/2019. However my parking charge notice it was actually issued on 08/10/2019. Not sure is this will assist me? 

Any advice please in relation to this and my defence greatly appreciated

emjay1926

Coupon-mad said:

So they were in charge of the vehicle during that time.

Please edit your thread title as you don't have a CCJ and ths confuses us every time we see your thread.

Yes they had my keys
Sorry I have just edited the CCJ part.

nosferatu1001

You state there was no ticket ever issued oin that date, but it doesnt help hugely. Its small claims, its unlikely to e material. 

emjay1926

KeithP said:

emjay1926 said:

KeithP said:

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.

Sorry 23rd March...

With a Claim Issue Date of 23rd March, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 27th April 2020 to file your Defence.

That's just under two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

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.

Thank you dates and link were very useful, I will ensure I adhere to them. There is a lot of recent activity around abuse of process but this does not apply to Parking eye. Would this defence all be suitable:

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.

emjay1926

nosferatu1001 said:

You state there was no ticket ever issued oin that date, but it doesnt help hugely. Its small claims, its unlikely to e material. 

Ok, so should I add another paragraph in my defence stating 
"The claimant details a parking charge notice was issued on 31/10 2019 for an incident that occurred on 08/10/2019, no parking charge notice was issued on this date." 

nosferatu1001

Yep, but of course a defence is an argument as to why youre not liable, so you need to find a reason why that means you re not liablke. For example, that this means the claim as pleaded lays out no cause of action

henrik777

emjay1926 said:

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.

That's your main focus right there. No contract.

Make sure you ram that home, evidence aplenty. 

When it comes to costs ram home that they knew. Their behaviour is wholly unreasonable and you want them to be battered for costs as a result.

You can't have a contractual penalty without a contract, whether the penalty is justifiable or not. Any contract would be deemed accepted by conduct, if you had parked, which you didn't.


Even in darkest Manchester which is very motorist unfriendly, i'd be expecting to win this case.