Parkingeye overstay with breastfeeding

Steparius

Can you copy and paste your defece into a reply (or split across 2 replies if it's long) so we can see it please?

PART 1

BACKGROUND
_____________________________
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at Westgate Department Store car park, St Neots on XX/11/2020.

1.1 The driver paid for 2 hours. The keeper still has the ticket purchased.

1.2 The driver intended to leave but the contract was frustrated. The wife of the keeper was a passenger of the vehicle and had to breastfeed the baby before the exit which caused an unexpected but justified overstay. 

1.3 Once the driver realised that there was an overstay they tried (to be on the safe side) to rectify but couldn’t find a sign, a machine or a way explaining how to retroactively pay for the overtime, since such option didn't exist. This search caused additional involuntary overtime.

1.4 As a result of both the breastfeeding and the absence of signs or ways to allow rectification, a total of 19 minutes overstay was incurred, from which 10 minutes grace are usually allowed, limiting the overstay to 9 minutes. 

1.5. Since no means of rectification are enabled any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.  

2. The allegation appears to be based on images by their Automatic number-plate recognition (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 Westgate Department Store (BEALES) car park.

Equality Act 2010 (EA2010) discrimination 

3. Under the EA2010, the passenger of the vehicle should not be discriminated against for breast feeding her baby. 9 extra minutes was a reasonable extra grace period that the mother required to feed her baby.

3.1 Breastfeeding is a protected characteristic protected by the EA2010 that justifies adding 9 minutes to the minimum grace period of 10 minutes allowed by the British Parking Association code of Practice. Considering this grace period no breach of contract has been infringed by the defendant.

 3.2 At most this situation should be considered a s a frustration of contract since breastfeeding is an event outside the control of the defendant which could not be reasonably foreseen.

Data Protection concerns

4. The driver and the passengers were occupant of the car and patrons of the Westgate Department Store car park. However, the Driver had no idea about any ANPR surveillance. The Keeper received no letters after the initial Parking charge Notice (PCN) a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

4.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the £0.60 tariff, if it is their case that this sum went unpaid.

5. Under the General Data Protection Regulation (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 car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

5.1. It is one thing to install Portable Data Terminal (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 Department Store, who are being caught out regularly by this trap.

5.2. Collecting Vehicle Registered Number (VRN) data in order to inflate the 'parking charge' from £0.60 to £100 and write to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects. 

5.3. The absence of retroactive payment methods of small overstays is an excessive and artificial restriction on the methods of payments 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.

6. Unlike the free car park in Beavis, this Department Store is a site where the Claimant has machines to take payment of tariffs. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's Data Protection Officer (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

7. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police ) and the equally lacking and embarrassing Particulars of Claim (POC) and the complete lack of any Letter before Claim, 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.

7.1. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

8. The Defendant has sent a subject access request (SAR) to the Claimant, for response during June 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. The absence of retroactive payment methods of small overstays is an excessive and artificial restriction on the methods of payments 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. 

10. 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, overstay or trespass. The PCN and POC could mean that the Claimant is suggesting the car never paid for any ticket, or even that a wrong VRN was recorded by the PDT keypad, 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. 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.

11. 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. 

11.1. The Defendant avers that the small parking entrance through Huntingdon Street is totally absent of any signage stating that the parking is a pay and display parking. Entering through that street a driver has no information that the parking requires payment. This causes discrimination of conditions to the parking users depending on which entry they use.

11.2. The Defendant avers that the signage inside the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance from Tebbutts Road does not state clearly that it is affiliated with ParkingEye, is largely obscured by a large bush and placed at an intersection with extremely confusing road markings where the driver is forced to focus his attention on a close narrow entrance. All of these combine to make this initial sign easily missed.

No standing or authority to form contracts and/or litigate

12. 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 Westgate Department Store.

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, there is one small entry to the parking with no signage at all, 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 sent with a 'parking charge' that bears no resemblance to the £0.60 '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.''

KeithP

What is the Issue Date on your County Court Claim Form?

Steparius

DEFENCE PART 2

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

13. If the 'parking charge' (the first interpretation meaning the car park overstay tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £0.60. Had the Defendant been allowed a method to pay that sum on the day itself there would be no unfair penalty, and the Department Store (or landowner) would gain in income and avoid any parking issues at all, including all the complaints mounting up online about ParkingEye.

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. An alleged overstay of 19 minutes that would have had a cost of £0.60 if the Claimant had a method to pay for overtime unexpectedly becomes an extortionate £100 bill several weeks 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.

13.3. This regime in a car park is not commercially justified, is damaging the reputation of the Westgate Department Store and driving away customers, 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 newspaper articles show that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against. St Neots town councillor Barry Chapman, who was fined at the car park, has publicly criticised this practice at the same parking place after having received complaints from hundreds of people with unfair penalty notices:

(link to video)

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 £0.60 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 £0.60 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 the overstay was just £0.60 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 At most this situation should be considered a s a frustration of contract since breastfeeding is an event outside the control of the defendant which could not be reasonably foreseen. This is also a distinctive trait from the Beavis case.

16. 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 Information Commissioner’s Office (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.

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 £100. 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.

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 that the facts and matters contained in this statement are true

Steparius

KeithP said:

What is the Issue Date on your County Court Claim Form?

15th June. I asked for the 28 days extension

nosferatu1001

...and as pointed out, you do NOT GET 28 days extension, you get an extension TO 28 days
You get a total of 28 days from the date of service, which is presumed to be 5 days after date of issue unless you acknowledge earlier than 5 days.
So your deadline is 33 days from 15th june IF and ONLY IF you acknowledged on or after the 20th june. 

Steparius

nosferatu1001 said:

...and as pointed out, you do NOT GET 28 days extension, you get an extension TO 28 days
You get a total of 28 days from the date of service, which is presumed to be 5 days after date of issue unless you acknowledge earlier than 5 days.
So your deadline is 33 days from 15th june IF and ONLY IF you acknowledged on or after the 20th June. 

Yes, thanks ! this is how it went, so I have until the 17th/18th July

nosferatu1001

Well it isnt the 17th or the 18th, as the 18th is a non-working day
It is either the 17th or the 20th. I would suggest you work on the 17th. 

Le_Kirk

@KeithP will be along to give you exact dates (along with some more advice) but I believe he will tell you that 20th July is your deadline.

Redx

Ditto , you get a 14 day extension to the 5 + 14 on offer , so 33 days , so yes work on it being 4pm on Friday , just to be sure

You will email the signed and dated defence as a pdf to their current email address , no posting , no pasting it into the defence box online either , email only

Use the 2020 statement of truth too , not the intended one above

Steparius

Redx said:

Use the 2020 statement of truth too , not the intended one above

Thanks! Changed to:
"I believe that the facts contained in this statement 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 if its truth."

Any comments on the defence posted above?