Help Please - Court Claim [Parking Eye] (Limited Time to Defend)

PS_ParkingHelpNeeded

Apologies but i've been unable to post my defence in a single post (not sure how others have been able to) it says I have exceeded the Character limit.  So I shall upload as Part1of2 & Part2of2.

PS_ParkingHelpNeeded

Defence Part1of2:
 

Using template from:

https://forums.moneysavingexpert.com/discussion/comment/74850073#Comment_74850073

 

IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

ParkingEye Ltd (Claimant)

-and-

xxx PS_ParkingHelpNeeded xxx(Defendant)

DEFENCE

Background

1. Whilst it is admitted that the Defendant was the keeper, they were not the driver of the vehicle at the time. Further, the mandatory requirements to establish 'keeper liability' have not been met and the Defendant is not liable in law

1.1 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 Crowne Plaza Stratford-Upon-Avon hotel car park on XX/XX/20XX.

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

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 registered keeper 'not purchasing the appropriate parking time' or of the driver not being a patron of the Crowne Plaza Stratford-Upon-Avon.

Data Protection concerns

3. The Defendant was not an occupant of the car and can prove that the Driver and the Drivers’ family were patrons of the Crowne Plaza Stratford-Upon-Avon. However, the Defendant had no idea about any ANPR surveillance and received no letters giving any indication as to what the alleged breach actually was. No photographic evidence of any breach or any of the terms on signage had been supplied.

3.1 The Defendant can prove he was not the driver or an occupant of the car on the said date and was in fact with family at home which is over 140 miles away from the car park in question.

3.2. 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 Parking Charge and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, 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 hotel patrons, no trespass nor 'unauthorised' parking events.

4.1. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the Hotel, who are being caught out regularly by this trap.

4.2. Silently collecting VRN data in order to inflate the 'parking charge' from £4 to £100 and then claim to have written (letters never arrived) to registered keepers at their own homes - whether they were driving or not – then issuing a County Court Claim which is the first correspondence ever received (over 18 months later) - is excessive, untimely and intrusive to registered keeper data subjects.

4.3. The Claimant will have some difficulty in justifying their hidden, confusing and unexpected terms at a site where the Defendant now learns from researching online reviews and contacting the Hotel directly, that the Claimant has regularly issued Parking Charges for visitors in error and that the signage is deemed to unfair and confusing even for regular Patrons of the Hotel with several options being listed on their signage which are not clear or easily legible. 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.

5. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.


Premature claim - no Letter before Claim, and sparse Particulars

6. Due to the sparse details of the Particulars of Claim (POC) which are both lacking and embarrassing and the complete lack of any Letter before Claim, Notice to Driver or Notice to Keeper, 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, 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 Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable.

8. The Defendant has sent a subject access request (SAR) to the Claimant, for response during April 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 Hotel staff and management when contacted, confirm that signage is not well placed or clearly visible and is partially obscured by trees and regularly may not be easily seen by visitors or patrons due to the positioning within the car park. All of these combine to make this initial sign easily missed.

10.2. The ParkingEye signs within the parking area are equally as hidden and therefore misleading. Furthermore there are no clear signs that were 'bound to be seen' between where the Defendant believes the car was parked and the entrance to the Hotel and/or the building where the driver entered the Hotel.

10.3. It is not remembered whether an occupant of the car did see a PDT machine and pay a tariff/input the VRN whilst the driver entered the Hotel reception to enquire about reserving a place at the restaurant, and the Defendant is none the wiser due to the lack of information from the Claimant. The absence of a PCN and any letters and the POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, or even the Hotel did not record the VRN accurately while the driver was a Patron, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.


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 Hotel.


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 PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was not received at all, the POC states a 'parking charge' with the amount claimed bearing no resemblance to the £4 'parking charge' 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.''

PS_ParkingHelpNeeded

Defence Part2of2:

Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

13. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £4 according to the recent, frankly awful, Crowne Plaza Stratford Upon Avon Hotel TripAdvisor reviews from people who have also been caught here by ParkingEye. Had the Driver been clearly alerted to the sum on the day - or even simpler, if they could have had the certainty of paying it when buying Food and Beverage or had the 'parking charge' (tariff) been included within the Restaurant/Bar bill itself - there would be no unfair penalty, and the Hotel (or landowner) would gain in income and avoid any parking issues at all, including all the complaints mounting up online about ParkingEye at the otherwise beautiful city of Stratford Upon Avon.

13.1. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £4 unexpectedly becomes an extortionate £100 bill some 18 months later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

13.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £4 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

13.3. This regime is not commercially justified, is damaging the reputation of the Hotel and driving away visitors in future, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. In addition to the TripAdvisor feedback and conversations with staff show that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

www.tripadvisor.co.uk/ShowUserReviews-g186399-d192850-r562349827-Crowne_Plaza_Stratford_Upon_Avon-Stratford_upon_Avon_Warwickshire_England.html

 

www.tripadvisor.co.uk/ShowUserReviews-g186399-d192850-r547475208-Crowne_Plaza_Stratford_Upon_Avon-Stratford_upon_Avon_Warwickshire_England.html

13.4. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

13.4.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

13.5. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

14. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 and no more.

14.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

14.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £4 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

15. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

16. 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 Solicitor's Costs of £50, which have not actually been incurred by the Claimant.

16.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

17. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK) in this case ‘believed’ to be £100, it is not known for certain, as no Notice to Keeper (NKT) was ever received. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

17.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £100 can be claimed instead of £4 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.

18. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.

I believe the facts contained in this Defence are true.


Name

Signature

Date

=============================END OF DEFENCE============================

 

 

Please note: Doing some digging around have been advised that parking is paid for online via the PayByPhone app or providing VRN details directly to the hotel if you have spent over £6 on food and beverages giving a 4 hour free parking allowance or paid for all day parking for a fee.

Question for Para12: Based on below charging information provided is Para 12 the way I have used it still accurate or should it be modified?

Via PayByPhone App - Parking charges are £4 for 2 hours; £8 for 4 hours; £10 for 8 hours; £15 for 10 hours; £20 for 24 hours. 

Recorded inside the Hotel: With Hotel overnight guests paying £6 per 24 hours. Conference guests its at the discretion of the Hotel, typically Free. Restaurant and Bar visitors 4 hours for £6 minimum spend on Food and Beverages. Leisure Club 4 hours Free.

* Apologies but I had to remove the hyperlinks from the Links, as I'm haven't been around long enough to have permissions to paste hyperlinks

bargepole

That Defence is a rambling load of mostly irrelevant waffle, and reads more like a rant than a Defence. If I was a District Judge reading that, I would have lost the will to live long before even getting to Part 2.

The issues in this case are very straightforward, and I suggest a Defence as follows:

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all, for the reasons stated below.

2. It is admitted that the Defendant is the registered keeper of the vehicle in question, but denied that the Defendant was the driver on the material date.

3. The vehicle was, at the material time, being driven by a family friend who was visiting, while the Defendant was at his home address, some 140 miles away from the material location.

4. In order to hold the Defendant liable for the purported parking charge as the keeper, the Claimant is required to comply with the statutory requirements of Schedule 4 of the Protection of Freedoms Act 2012 (''POFA'').

5. The Claimant does not issue windscreen notices at the location, but relies upon the capture of registration plate details, and times of entry and exit, via ANPR cameras.

6. The applicable part of POFA is therefore Section 9, which mandates at 9 (4) and 9(5) that a Notice to Keeper (''NTK'') must be sent to the keeper within 14 days of the end of the parking event. No such NTK was received by the Defendant, either within the mandatory 14 days, or at all.

7. For the avoidance of doubt, the Defendant confirms that he has been resident at the address for service stated on the Claim Form for some 12 years, and that the vehicle in question has been registered at that address for the past 5 years. All correspondence from the DVLA relating to road fund licence renewals etc., is received at that address.

8. Having failed to comply with POFA, the Claimant is consequently unable to hold the Defendant liable as keeper. The Claimant's only possible cause of action would be against the driver, whom the Claimant does not identify in their particulars.

9. Further to the lack of any NTK, the Claimant has not entered into any form of pre-action correspondence with the Defendant, the first communication in this matter having been the Claim Form issued by the CCBC. The Claimant has, therefore, failed to comply with Part 6a of the Pre-Action Protocols, and the Court is invited to consider what sanctions may be appropriate.

10. For all of the above reasons, the Court is invited to dismiss this claim in its entirety, and to award the Defendant such costs as may be summarily assessed in the event that the matter proceeds to trial.

Statement of Truth
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.

Umkomaas

^^ Absolute gold dust ^^

Bargepole is legally qualified and is responsible for much of the professional legal input to the NEWBIES FAQ sticky, second post. Absolutely go with his draft - it is a very rare gift for you. 

nosferatu1001

Use the above. Without a doubt. 

The C would have to prove they sent it and then that you received it

PS_ParkingHelpNeeded

Hi,
Thank you all for your feedback, I do appreciate the time and replies. 
Question: The defence I put together was originally put together by Coupon-mad. I followed the advise on the NEWBIES thread and used one of the Templates specifically advised for use in putting together a ParkingEye defence.  
Surprised to have this mentioned as irrelevant waffle . . . sounding like a rant?
In suggested defence (bargepole) above, there is no reference to Beavis and omits other sections.
Feeling more confused I'm afraid.

bargepole

For all the good work that C-M does on this forum, she does tend to use 1,000 words where 10 will do,
Quoting case law, and extracts of judgments, should not appear in a Defence. Nor should there be sub-paragraphs, and sub-sub-paragraphs, numbered 10.2, 13.4.1 etc. Much of the stuff in there actually belongs in a skeleton argument, if relevant at all.

The Defence should be a concise statement, admitting or denying the allegations made in the Claimant's particulars. The facts can be expanded upon in the Witness Statement, and the legal arguments in the Skeleton.

You can also pretty much guarantee that if a Judge saw your Defence as originally posted, he would think 'Oh no, not another template cribbed from the internet. I bet the Defendant has no real understanding of what he has written'.

Avoid templates.

Coupon-mad

I say bargepole is right and there was too much in that draft (e.g. links that are not part of a defence and older wording that we don't use now).

But what if P/Eye come to court with copies of letters that they say were sent and what if the Judge is minded to believe them and thinks that someone in the household probably binned the demands?   

I am not saying that's what happened but ParkingEye are not known for not sending letters.  They have a postal PCN, then a reminder, followed by a liability notice, then a LBCCC, and only then does a claim arrive.  So they WILL show copies of those 4 letters as part of ther bundle.   If the Judge is with the C on the service of the letters, with their legal rep relying on the Interpretations Act and holding copies of the 4 letters, then the D will be up the creek with no method of propulsion, no fallback, not even signs/grace periods.

I would go with the above but I would add a paragraph (sorry bargepole)! 

And what if the Court says they will hear this on the papers due to the pandemic?  The papers will look like 4 letters were sent, and the OP will have nothing else to offer in defence...same with a telephone hearing.  ParkingEye's bundle will have the letters & photos in it.

I would personally be very uncomfortable (if this was me as the D) with not having just one more paragraph, stating that:

It is not accepted that the driver breached any relevant contract or obligation and that the Claimant is put to strict proof regarding what the alleged breach actually was.  Given that the Claimant has provided no facts or photographs, the Defendant has had to seek facts from TripAdvisor reviews and has learnt that the Crowne Plaza allows patrons have a meal free parking for 4 hours, yet the reviews also say that it is a chargeable car park.  Due to conflicting and ambiguous contractual terms that have caught out many people reviewing this hotel, and the driver's insistence that they complied with the rules, the Defendant has no idea whether the driver is accused of exceeding an allowed grace period, or not paying the correct tariff for the time parked, or the hotel failing to register and pass on the numberplate for free parking, or the hotel noting the numberplate wrongly - known as a 'keying error' in the British Parking Association Code of Practice ('the CoP').  The Claimant is put to strict proof that their ANPR cameras captured a single parking event and that they fully complied with the applicable CoP, including landowner authority, clear and unambiguous signs (including inside the hotel beside the keypad) adherence to rules about minimum grace periods and to show that checks were made for a possible keying error.  Whatever the issue is, it has not been pleaded clearly.

PS_ParkingHelpNeeded

Hi,
Many thanks for the replies and advice given to date. All greatly appreciated.

I have today received ParkingEye's Directions Questionnaire (N180).
However I have not received any communication for me to complete one.

I was under the assumption that CCBC would send me instructions to complete it. Is this true?
Is there a timeframe for a Directions Questionairre (N180) to be completed by the Defendant?

Many thanks,
PS