PE Court Defence but Manager responded

sodthebullies

Still haven't filed the defence.

Umkomaas

Poker time. Sometimes they discontinue if there is no agreement to pay them, but there is no tried and trusted formula to determine if they are bluffing or not. Hope others might have spotted something that I haven't, but I guess ultimately you have to make the decision/take the gamble. 

twhitehousescat

you wont be paying not even reduced , so something new , gosh they dont go into details do they 

another SAR , and find out what this "new info" is , poker is nice especially if you can see there cards , if they have been told to discontinue , it would be naughty of them to continue 

sar ,, 

Coupon-mad

sodthebullies said:

Still haven't filed the defence.

What is your defence deadline?  Why not file a defence anyway, stating the facts (but you can't refer to that WP offer letter).

And do this, asking for copies of the 'new information' emails/notes of calls:

another SAR , and find out what this "new info" is , poker is nice especially if you can see there cards , if they have been told to discontinue , it would be naughty of them to continue 

D_P_Dance

Personally, I would be inclined to ignore.  You can SAR them for the "new information".  

Le_Kirk

D_P_Dance said:

Personally, I would be inclined to ignore.  You can SAR them for the "new information".  

Indeed but not at the risk of failing to file a defence and giving the claimant a default win!

Coupon-mad

D_P_Dance said:

Personally, I would be inclined to ignore.    

IGNORE, when there is a defence deadline?!  Absolutely not, DPD.

Redx

Le_Kirk said:

D_P_Dance said:

Personally, I would be inclined to ignore.  You can SAR them for the "new information".  

Indeed but not at the risk of failing to file a defence and giving the claimant a default win!

That is what I would be doing too , it's not over until it's officially over , in writing

Would be extremely stupid to throw it away now with a default CCJ

sodthebullies

Coupon-mad said:

sodthebullies said:

Still haven't filed the defence.

What is your defence deadline?  Why not file a defence anyway, stating the facts (but you can't refer to that WP offer letter).

And do this, asking for copies of the 'new information' emails/notes of calls:

another SAR , and find out what this "new info" is , poker is nice especially if you can see there cards , if they have been told to discontinue , it would be naughty of them to continue 

It's Monday 7th Dec according to calculation by @KeithP . I had a deeper search through MSA forums but can't seem to find a relevant Defence template for PE and Welcome service, I even went through page by page looking through it. 

So I've followed the advice the best I could on this forum and updated the defence. Again, this is the first defence I've prepared. Any advice much appreciated.

sodthebullies

Updated defence and I've removed any points with reference to PDT. 

----------

IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

ParkingEye Ltd (Claimant)

 

-and-

 

(Defendant)

DEFENCE

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 

Welcome Break Oxford-Waterstock, Junction 8, M40 Motorway, OX33 1LJ on 07/06/2020. 

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')' for the lawful conduct described below.

2. The allegation appears to be that the 'motorist fails to make the appropriate tariff payment'  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'.

Data Protection concerns

3. The Defendant was an occupant of the car and can prove that they visited Welcome Break after a serious break to make amendments with their spouse. However, the Defendant had no idea about any ANPR surveillance and received no letters after the initial '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.

3.1. 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 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 patrons, no trespass nor 'unauthorised' parking events.

4.1. Silently collecting VRN data in order to inflate the 'parking charge' from £10 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.

4.2. The Claimant will have some difficulty in justifying their hidden and unexpected terms at a site where the Defendant now learns from researching online reviews, that the Claimant has also added an unexpected and unwarranted (given the nature of the remote location) '2hr max stay' rule on top. 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.

4.3. 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. 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.

5.1. 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.

6. 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. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

7. The Defendant has sent a subject access request (SAR) to the Claimant, for response during November 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

8. 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.

9. 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.

9.1. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with ParkingEye, is partially obscured by a much larger sign directing traffic and placed at an intersection with extremely confusing road markings. All of these combine to make this initial sign easily missed.

9.2. The ParkingEye affiliated signs within the parking area are equally as hidden and therefore misleading. Between the carpark entrance and the parking spaces closest to the building, where entry tickets are purchased, only one unclear sign is within a driver’s line of sight. 

10. 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, 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 £10 '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.

10.1. 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.''

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