County Court Defence for a parking ticket

Coupon-mad

Don't forget DJ Iyer is a Manc Judge and he is anti-PPC and I heard from another Judge, that he runs webinars for other Judges about parking claims!

Le_Kirk

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. 

Your paragraph 4 is a partial repeat of your paragraph 2.  Could you combine them?  Not a deal breaker but tidier if you can.

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. 

emjay1926

Le_Kirk said:

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. 

Your paragraph 4 is a partial repeat of your paragraph 2.  Could you combine them?  Not a deal breaker but tidier if you can.

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. 

Thank you! I have amended it now.
(Ive had a very busy few days, as I'm sure everyone has at this unprecedented time) 

emjay1926

henrik777 said:

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.

Thank you! I have amended this now. Your post has given me so much help. 

emjay1926

Thank you for all your comments and helpful advice, its brilliant!
Ive had a busy couple of days in these crazy unprecedented times. 

I've been working on an updated version of my defence, any more advice would be greatly apreciated. 
Yesterday the land owners sent me an email confirming they have sent ParkingEye a cancellation for this occasion. However I still need to submit my defence to county court. 

My claim form was issued on the 23rd of March 2020, 28 days From this date is Monday 20th April. Am I correct in thinking this? or is it 28 working days? excluding bank holidays etc? Thank you all so much! 

------ 

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’. At no stage did the defendant park the vehicle in the car 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 defendant has been made aware by the Hotel that the Car Wash company rent an area from the Hotel within the Car Park of the hotel grounds. Thus, the defendant drove to this area and only exited the vehicle when it was in the Car Wash facility area, whilst it was being cleaned internally. During this period the Car Wash staff had control of the defendant’s vehicle, the keys remained in the vehicle for purpose of moving the vehicle/opening the boot etc. The defendant remained close by.

4. 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.

5. The circumstances which led to the Defendant entering the car park were explained 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 was aware that there are no charges incurred for customers using the car cleaning facility. The claimant had no interest in resolving the issue or understanding the unfortunate circumstances that led to this situation and are being wholly unreasonable.

6. 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

7. 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 the 30 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.

7.1. 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. The defendant was in a queue for the whole duration and did not see any signage regarding this. 

7.2. 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.''

8. 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 and the car cleaning company. The Claimant never offered this as an option to the defendant when they issued the Parking charge notice or when they received the defendant’s explanation circumstances. 

8.1 The defendant has received and email from the landowner informing the defendant the due to the circumstance she supported the cancellation of the parking charge notice and claim. She sent an email to Parking Eye requesting their cancellation of this parking charge. At this stage the defendant has not received the cancellation from Parking Eye.

8.2. 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. 

8.3. 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.

8.4. 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

9. 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 does not support this and supports the unfair charge to be cancelled.

10. 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.

10.1. 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.

10.2. 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.

11. 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'.

12. 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.

12.1. 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

13. 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.

14. 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. 

14.1. 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.


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.

 

16. The claimant details in their claim that a parking charge notice was issued on 31st October 2019 for an incident that occurred on 8th October 2019, no parking charge notice was issued to the defendant on the 31stOctober 2019. Thus, the claim as pleaded lays out no cause of action.

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:

My claim form was issued on the 23rd of March 2020, 28 days From this date is Monday 20th April. Am I correct in thinking this? or is it 28 working days? excluding bank holidays etc?

Was my post on Tuesday not clear enough?

Please re-read my post of 14 April at 8:51PM <<<=== that's a link. click on it.


This is confirmed in the Money Claim Online (MCOL) - User Guide.

On page 14 of that document it says:

How long does the defendant have to respond to my claim?

The court will send out a claim pack to each defendant once the claim has been issued and allows 5 calendar days from the date of issue for the service of the claim. Therefore the 'date of service' is the 5th calendar day after issue.

The defendant has 14 calendar days from the 'date of service' to file a response. If the last day for filing the response falls on a day that the court is not open (i.e. a weekend or public holiday), the court will allow the next full working day for a response. The defendant can extend the time to respond to 28 calendar days by filing an acknowledgment of service (AOS).

Coupon-mad

Defence looks good except for a typo and omissions in wording I've adjusted here:

8.1 The defendant has received and an email from the landowner informing the defendant the that, due to the circumstances, she supported the requires and supports the cancellation of the parking charge notice and claim. She sent an email to ParkingEye this week, requesting their cancellation of this parking charge and she is horrified that it has unreasonably escalated to a claim without the Defendant ever being informed that there were other routes to cancel it, not just the so-called 'appeal' run by the parking firm themselves. At this stage the defendant has not received the required cancellation from ParkingEye but clearly any 'legitimate interest' or commercial justification that they may have asumed existed, is not valid.

8.2. The Hotel staff did state that the staff at the car cleaning area 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.   Yet  Importantly, since this is a contractual 'parking event' allegation, at the time of cleaning the cars inside and out, ParkingEye are aware, or ought to take into account, that the cleaning staff are in possession of the car and keys and thus those staff are in charge of and 'keeping' the vehicles for that time.  The definition of 'keeper' in the POFA 2012 Schedule 4 makes it clear that a registered keeper is not necessarily the 'keeper' in events where the contrary has been established, as in this case at the material time.

NB:  just being pedantic, 'ParkingEye' is one word, no gap, but 'E' is a capital.

nosferatu1001

Neither, it's 28 days from date of service, usually 5days after issue. 

emjay1926

Coupon-mad said:

Defence looks good except for a typo and omissions in wording I've adjusted here:

8.1 The defendant has received and an email from the landowner informing the defendant the that, due to the circumstances, she supported the requires and supports the cancellation of the parking charge notice and claim. She sent an email to ParkingEye this week, requesting their cancellation of this parking charge and she is horrified that it has unreasonably escalated to a claim without the Defendant ever being informed that there were other routes to cancel it, not just the so-called 'appeal' run by the parking firm themselves. At this stage the defendant has not received the required cancellation from ParkingEye but clearly any 'legitimate interest' or commercial justification that they may have asumed existed, is not valid.

8.2. The Hotel staff did state that the staff at the car cleaning area 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.   Yet  Importantly, since this is a contractual 'parking event' allegation, at the time of cleaning the cars inside and out, ParkingEye are aware, or ought to take into account, that the cleaning staff are in possession of the car and keys and thus those staff are in charge of and 'keeping' the vehicles for that time.  The definition of 'keeper' in the POFA 2012 Schedule 4 makes it clear that a registered keeper is not necessarily the 'keeper' in events where the contrary has been established, as in this case at the material time.

NB:  just being pedantic, 'ParkingEye' is one word, no gap, but 'E' is a capital.

Thank you so much! It's always good to have another eye over to re-read it. 
I have added you'r additions now too. Its sounds great! 

emjay1926

KeithP said:

emjay1926 said:

My claim form was issued on the 23rd of March 2020, 28 days From this date is Monday 20th April. Am I correct in thinking this? or is it 28 working days? excluding bank holidays etc?

Was my post on Tuesday not clear enough?

Please re-read my post of 14 April at 8:51PM <<<=== that's a link. click on it.


This is confirmed in the 'money claim online' (website) 

On page 14 of that document it says:

How long does the defendant have to respond to my claim?

The court will send out a claim pack to each defendant once the claim has been issued and allows 5 calendar days from the date of issue for the service of the claim. Therefore the 'date of service' is the 5th calendar day after issue.

The defendant has 14 calendar days from the 'date of service' to file a response. If the last day for filing the response falls on a day that the court is not open (i.e. a weekend or public holiday), the court will allow the next full working day for a response. The defendant can extend the time to respond to 28 calendar days by filing an acknowledgment of service (AOS).

Thank you, I was just a little confused and wanted to double check with you guys. 
I am hoping to send my defence off today.