Counter charging for PCN at small claims court

morganbach75

This is very constructive. thank you. I just need to acknowledge and make sure I have the bones of my defence, but then yes, I will comment on the consultations directly afterward (before deadline!)
I really do appreciate the feedback - but will I'm sorry need to continue check some things twice. I don't think this group realises the massed knowledge they've accrued and comes as second nature to them. It's quite impressive if not a little mind boggling. I shall be back with my defence as soon as drafted. Thank you.

morganbach75

Ok, no idea how this sounds, as refers to quite a few legal conventions, while some parts don't sound ideal, I've avoided cutting too much. Here's the draft ...
Thanks,

Claim Number: xxxxxxx

Between

ParkingEye Ltd
v
INSERT

DEFENCE

Background – No clear signage indicated the area used to park was controlled.

1. The Defendant is the registered keeper 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 £90 'parking charge notice' (PCN) for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to park in the car park concerned' 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 neither, evidence of a lack of ‘Authorisation’, or ‘clear signage and further terms or conditions associated’.

3. The Defendant has already demonstrated a lack of signage through formal submission at ParkingEye appeal, both by description and with photographic evidence. It is therefore the Claimant's own failure, caused by their deliberately obscure signage locations and unwillingness to recognise their flaws that causes innocent drivers to understandably park in this location, that has given rise to a PCN that was not properly issued and considered from the outset.

Unclear terms - unconscionable penalty relying upon a poorly located and missing signage

4.0 According to the obscurely located signage, it now transpires that this seeming side-street is in fact a ‘Carp park’ and that to avoid a Parking Charge, visitors are expected to be aware the area requires a permit or consent to park and is subject to a contract and financial penalties; despite a lack of any clear road-side signage, terms or conditions on at the entrance point, nor the locations to which these restrictions relate within that area.

4.1. Prior to the Defendant's visit, historic images show that as recently as May 2018 in association to a physical enclosure ParkingEye considered three signs were necessary, located directly in the driver’s eye-line on entering the site at kerb side, clearly signed ‘private property’, ‘No Entry’ and the fully branded terms and conditions associated with a car park beyond that point. This included all the conventional indications for a driver that the space beyond was not public and clearly subject to control.

4.2 At some point since mid 2018 however, all three roadside signs and physical gateway enclosure have been removed and made good, consequently appearing no more different to the other three public highways onto this junction.

Following research since this point, it appears that alternatively, a single sign, located above a parking bay alongside a section of wall, well outside of a drivers line of sight on his right on crossing a busy junction, has been considered appropriate level of notification for the entire site.

Their Trade Body Code of Practice states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''
4.2. It is contended that the Claimant removed the clear notification on entering the site failed to replace it sufficiently, which included the risk of a £100 penalty, placing an unexpected obligation on visitors using this area. 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, however the landowner details and the option to do this were conspicuous by their absence ParkingEye’s signage and paperwork, prior to commencing proceedings.

5.2. The only route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence 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.

5.4 Nonetheless, the Defendant entered into the appeals process genuinely setting out the lack of any notable signage at roadside and at the location used for parking within the side street, supporting with photographic evidence, submitted online directly to ParkingEye on June 27th 2020.

5.5 Unsurprisingly, a ‘refusal’ of the appeal followed giving reasons which did not address the grounds of appeal, including: -

- stating that the terms of usage were clear on the sign, (despite the defendant’s appeal stating the obscurely located signage could not be seen by a driver on entering, not that the content was unclear)

- that insufficient evidence of a right or permit to park had been provided (despite this never having been claimed by the Defendant)

- and that that imagery showing unmarked bays and unmarked entrance, demonstrating the flaw were not addressed whatsoever

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, when the Claimant has not followed its own published regulatory body’s procedure of considering appeals and only pursuing fair levied charges.

7.1. Further, there was no mischief to deter, by the Defendant, whose car was parked in good faith, not causing an obstruction, nor knowingly parking in an 'unauthorised' fashion. 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 ParkingEye 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 subject to unseen signage and conditions, which nonetheless in retrospect appear to relate to a different space, in what the Defendant was confident was an unrestricted roadside space with no visible restriction or marking 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 public accessing 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 the purpose of the parking restrictions were truly acting in good faith in the interests of protecting this space for authorised legitimate use, they would ensure firstly, that drivers passing could not enter without passing clear roadside signage or markings and secondly, could not park in a bay without highlighting that bay’s status in terms of restrictions being unequivocal.

Moreover, if they did receive an unfair PCN due to a genuine error in location and clarity of signage, they had a right for those specific circumstances to be considered and addressed at appeal and unless shown to be reasonable, to be cancelled. It appears the Claimants interest is either not to have to invest in considering proper signage or, to intentionally obscurely notify road users, both with a view to simply maximise revenue, regardless of the lack of legitimacy.

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 in addition to a lack of consideration as to why the notice was flawed, directly caused these unwarranted proceedings.

11.1. By failing to adequately notify users to that they are entering controlled space subject to a contract, 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, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

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

Name/signature:

Date:

Redx

Apart from needing a good renumbering , you have failed to use the April 2020 statement of truth , the longer one , your statement is obsolete

Coupon-mad

it now transpires that this seeming side-street is in fact a ‘Carp park’.

Sounds a bit fishy?!

Le_Kirk

Coupon-mad said:

it now transpires that this seeming side-street is in fact a ‘Carp park’.

Sounds a bit fishy?!

That's why OP got caught in the net!

1505grandad

"Their Trade Body Code of Practice states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise

themselves with the changes.''

The parking event appears to have been in June 2020 you should be quoting from BPA CoP dated Jan 2020 (V8) so the relevant signs para is:- 

"19.10 Where there is a change in the terms and conditions that

materially affects the motorist then you must make these

terms and conditions clear on your signage. Where such

changes impose liability where none previously existed then

you must consider a transition to allow regular visitors to the

site to adjust and familiarise themselves with the changes.

Best practice would be the installation of additional/

temporary signage at the entrance and throughout the site

making it clear that new terms and conditions apply. This will

ensure such that regular visitors who may be familiar with

the previous terms become aware of the new ones."

morganbach75

Coupon-mad said:

it now transpires that this seeming side-street is in fact a ‘Carp park’.

Sounds a bit fishy?!

Unless I post an image its difficult to explain, but essentially there is a standard 4-way junction with traffic lights. Three exits leads to other public side streets, the fourth leads to a 'private' side street with none of the trappings I would expect for a carp park. pavements, tarmac road surfaces all look like a standard highway, no barriers or enclosure either (to which I've never seen a 'car park' arranged either side). I'm not actually sure it it definitely all of their property as there are numerous bay, driveways, kerbs etc. and they have no idea where I parked, just entrance and exist images. ... but imagine this would be a nightmare to establish.

Can you think of a better way of phrasing, perhaps '... to a road which bares none of the typical hallmarks of a private car park, but is evidently has been managed as one?" 

morganbach75

Redx said:

Apart from needing a good renumbering , you have failed to use the April 2020 statement of truth , the longer one , your statement is obsolete

This came from the suggested template - where would I find the longer statement? Assuming I'm just replacing this alone?

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

KeithP

where would I find the longer statement?

In the second post of the NEWBIES thread.

Or google those words suggested by @Redx - April 2020 statement of truth

morganbach75

I've corrected the conventions, but aside from rewording of 'fishy' statement, does the actual case make sense/ hold weight? Many thanks
>>DRAFT 2
Claim Number: xxxxxxx

Between
ParkingEye Ltd

v

INSERT

DEFENCE

1.0 Background – No clear signage indicated the area used to park was controlled.

1.1 The Defendant is the registered keeper 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 £90 'parking charge notice' (PCN) for the lawful conduct described below.
1.2 The allegation appears to be that the 'vehicle was not authorised to park in the car park concerned' 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 neither, evidence of a lack of ‘Authorisation’, or ‘clear signage and further terms or conditions associated’.
1.3 The Defendant has already demonstrated a lack of signage through formal submission at ParkingEye appeal, both by description and with photographic evidence. It is therefore the Claimant's own failure, caused by their deliberately obscure signage locations and unwillingness to recognise their flaws that causes innocent drivers to understandably park in this location, that has given rise to a PCN that was not properly issued and considered from the outset.

2.0 Unclear terms - unconscionable penalty relying upon a poorly located and missing signage

2.1 According to the obscurely located signage located following the parking charge Notice, this road which bares none of the typical hallmarks of a private car park, is evidently managed as one and that to avoid a Parking Charge, visitors are expected to be aware the area requires a permit or consent to park and is subject to a contract and financial penalties; despite a lack of any clear road-side signage, terms or conditions on at the entrance point, nor the locations to which these restrictions relate within that area.

2.2 Prior to the Defendant's visit, historic images show that as recently as May 2018 in association to a physical enclosure ParkingEye considered three signs were necessary, located directly in the driver’s eye-line on entering the site at kerb side, clearly signed ‘private property’, ‘No Entry’ and the fully branded terms and conditions associated with a car park beyond that point. This included all the conventional indications for a driver that the space beyond was not public and clearly subject to control.

2.3 At some point since mid 2018 however, all three roadside signs and physical gateway enclosure have been removed and made good, consequently appearing no more different to the other three public highways onto this junction.

2.4 Following research since this point, it appears that alternatively, a single sign, located above a parking bay alongside a section of wall, well outside of a drivers line of sight on his right on crossing a busy junction, has been considered appropriate level of notification for the entire site.

2.5 Their Trade Body Code of Practice states at 19.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/ temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

2.6 It is contended that the Claimant removed the clear notification on entering the site failed to replace it sufficiently, which included the risk of a £100 penalty, placing an unexpected obligation on visitors using this area. 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.''

2.7 Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner, however the landowner details and the option to do this were conspicuous by their absence ParkingEye’s signage and paperwork, prior to commencing proceedings.

2.8 The only route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence 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.

2.9 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.

2.10 Nonetheless, the Defendant entered into the appeals process genuinely setting out the lack of any notable signage at roadside and at the location used for parking within the side street, supporting with photographic evidence, submitted online directly to ParkingEye on June 27th 2020.

2.11 Unsurprisingly, a ‘refusal’ of the appeal followed giving reasons which did not address the grounds of appeal, including: -

- stating that the terms of usage were clear on the sign, (despite the defendant’s appeal stating the obscurely located signage could not be seen by a driver on entering, not that the content was unclear)

- that insufficient evidence of a right or permit to park had been provided (despite this never having been claimed by the Defendant)

- and that that imagery showing unmarked bays and unmarked entrance, demonstrating the flaw were not addressed whatsoever

3.0 No legitimate interest - the penalty rule remains engaged
3.1 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, when the Claimant has not followed its own published regulatory body’s procedure of considering appeals and only pursuing fair levied charges.

3.2  Further, there was no mischief to deter, by the Defendant, whose car was parked in good faith, not causing an obstruction, nor knowingly parking in an 'unauthorised' fashion. 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.

3.3 This case is fully distinguished in all respects from ParkingEye 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.

3.4 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 subject to unseen signage and conditions, which nonetheless in retrospect appear to relate to a different space, in what the Defendant was confident was an unrestricted roadside space with no visible restriction or marking of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

3.5 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.

3.6 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 public accessing 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.

4.0 Lack of good faith, fairness or transparency and misleading business practices
4.1 If the purpose of the parking restrictions were truly acting in good faith in the interests of protecting this space for authorised legitimate use, they would ensure firstly, that drivers passing could not enter without passing clear roadside signage or markings and secondly, could not park in a bay without highlighting that bay’s status in terms of restrictions being unequivocal.

4.2 Moreover, if they did receive an unfair PCN due to a genuine error in location and clarity of signage, they had a right for those specific circumstances to be considered and addressed at appeal and unless shown to be reasonable, to be cancelled. It appears the Claimants interest is either not to have to invest in considering proper signage or, to intentionally obscurely notify road users, both with a view to simply maximise revenue, regardless of the lack of legitimacy.

4.3 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 in addition to a lack of consideration as to why the notice was flawed, directly caused these unwarranted proceedings.

4.4 By failing to adequately notify users to that they are entering controlled space subject to a contract, 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.


5.0 Inflation of the parking charge and double recovery - an abuse of process
5.1 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.

5.2 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.

5.3 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.

5.4 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, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

6.0 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.

Name/signature:

Date: