ParkingEye CCJ - Set aside Order successful - Need to defend

ameerib

Hello all,
I was issued with PCN from parkingeye for parking at the holiday inn in Luton Airport. This then escalated to a default judgement (details below). I used  information from the newbie forums and i applied to set the judgment aside based on the below grounds. I had my hearing today with the court and the judge agreed to issue an order to set aside judgement based on having a real prospect of defending my claim against parkingeye and for the circumstances at which the judgement was issued.
I am waiting for the written confirmation of the order now and have to file/serve my defence to the court by 4th Jan. 
I need your help please, regarding the next steps for going to trial to defend the claim. Can you please read through what I presented to the court and give me some feedback and comments? Do I need to write another document for the defence hearing? 

I am XXXXXXXXX and I am the Defendant in this matter and this is my supporting Statement in support of my application dated XXXXXXX

1        Witness statement 

1.1       Preliminary

1.1.1      (2) The claimant has failed to prove reasonable steps taken to ascertain the address of the defendant’s current residence or place of business as outlined in Civil Procedure Rules 6.9(3)-(4):

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) [i.e. referring to the Defendant's usual or last known address] is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –
(a) ascertains the defendant’s current address, the claim form must be served at that address; or
(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is
(i) an alternative place where; or
(ii) an alternative method by which, service may be effected.

 

1.2       Default Judgement

1.2.1      The claimant should assume that lapse of time, or a failure to respond to correspondence, gives rise to a risk that the defendant has moved.

1.2.2      The claimant took no due diligence to check that the details that they had on their systems were up to date.

1.2.3      The claimant had no correspondence from the defendant to allow them to assume the address was still current;

1.2.4      Despite having no affirmation that the address was current and ample time to check, the claimant issued proceedings anyway.

1.2.5      The measures taken to recover the charges from the defendant are disproportionate to the original tariff of few pounds which was unpaid in this case. Schedule 4.7 points out the government action for protecting consumers from debt claims that have long lasting effects on people’s livelihood.

 

1.3       Circumstances for changing address

1.3.1      The defendant purchased a new property addressed XXXXXXXXXX which was in an extremely dilapidated state and in need of total renovation which planned to commence on 2nd March 2020 (Schedule 4.1)

1.3.2      Shortly after the commencement of the works the defendant received a claim form dated 02 March 2020 for outstanding charges in relation to entering and leaving the car park at the Holiday Inn Luton Airport without paying. (schedule 4.2)

1.3.3      The defendant submitted an acknowledgment of service on 25 March 2020 to the court requesting more time to prepare a defence against the claim (outlined in section 2), there was delay to the submission of the acknowledgment due to the following reasons:

1.3.4      The global coronavirus pandemic made its way to the UK and the UK went into national lockdown on 16 March 2020 (Schedule 4.4)

1.3.5      No response was received to confirm that the Acknowledgement of Service was accepted or rejected in order to prompt the defendant to proceed with the next steps in the process

1.3.6      Due to the national lockdown the renovation works at XXXXXXXX were disrupted and delayed, this was adding additional stress and difficulty to an already unsettling environment. The renovation works were completed up to a liveable standard on 12 May 2020.

1.3.7      On 12 May 2020 The defendant moved from parent’s house at XXXXXXXXX to the new main place of residence at XXXXXXXXX (Schedule 4.3).

1.3.8      The defendant’s job involves frequent travelling to warehouses & construction sites around the country increasing his exposure to people outside of his social bubble. The defendant’s parents are at higher risk from the coronavirus which forced the defendant to practice strict social distancing and avoid visiting the family home after moving out.

1.3.9      On 28 July the defendant carried out a credit check through Experian (Schedule 4.6 page 21) before starting a mortgage application at which point the defendant noticed that a CCJ has been entered on the public record which was significantly impacting the total credit score.

1.3.10   At this point the defendant contacted his parents living at the previous address to check if any letters have arrived, and they informed him that some letters had arrived which they hadn’t been able to pass on due to coronavirus mitigation measures. When the letters were opened, the judgment letter was found amongst them, dated 15 June 2020.

1.3.11   In order to reach a quick resolution and close out the dispute (in haste) the defendant settled the full outstanding debt on the claim on 29 July 2020. This was 15 days beyond the 30-day period where the court must set aside judgment.

1.3.12   The defendant has gone through a significant amount of stress (alongside people around the country) and life changes during a global pandemic, which hindered the defendant from dealing with this claim in a prompt and timely matter, as he would have under normal circumstances.

1.3.13   The implications from this incident are causing the defendant an impact way beyond the value of the claim and the original value of the parking tariff. Citizens around the country are struggling through the deepest recession in 300 years during very unprecedented times.

1.3.14   In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.3.15   As a working professional in a safety critical role within the railway construction (previously) and within the logistics industry currently, the defendant has a track record of adhering to laws, rules and regulations.

1.3.16   I (the defendant) have always paid bills on time, adhered to credit agreements and have never knowingly avoided paying debts, which is demonstrated by all accounts being in good standing as reported on the defendant’s credit file (Schedule 7)

1.3.17   The defendant has contacted ParkingEye via email to seek consent for setting aside the judgment however no response has been received from ParkingEye.

2        Defence against the claim

2.1.1      On the evening of XXXXXX, the defendant entered Car Park at the Holiday Inn Luton Airport to meet a friend who was arriving from Athens that day (flight number XXXXXX, schedule 4.8) and staying at the Holiday inn. The flight was delayed by over 1 hour. The defendant was forced to wait in the car park for their friend to arrive. During this time the defendant informed the holiday inn staff of the situation in order to have the registration number input into their database. It is apparent that this was not done.

2.1.2      The vehicle was attended throughout the staying period apart from a couple of minutes when the defendant went to the hotel reception to inform them of their use of the car park

2.1.3      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. It was a rainy evening and the car park wasn’t adequately lit which added further to this issue.

2.2       Denial of contract and denial of any breach, or liability

2.2.1      Due to the sparseness of the PCN 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.

2.2.2      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.

2.2.3      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 does not state clearly that it is affiliated with ParkingEye.

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

2.3.1      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 was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

2.3.2      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 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.

2.3.3      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.

2.3.4      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 Centre, who are being caught out regularly by this trap.

2.3.5      Silently collecting VRN data in order to inflate the 'parking charge' from £4 to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

2.3.6      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) '4hr 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.

2.3.7      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.

2.3.8      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

2.3.9      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.

3        Order Dismissing the claim

3.1       The Defendant seeks an order setting aside the judgment dated 15 JUNE 2020 pursuant to CPR 13.

3.2       The Defendant seeks the order to set aside because he was unaware of the proceedings. The Claimant served proceedings at an address not used by the Defendant since 12 May 2020.

3.3       The claimant has been paid in full. Notification was received by the court on 30/07/2020 at 19:32:13. (Schedule 4.9)

3.4       Considering the above I request for the judgment made against me to be set aside.

"I believe that the facts stated in this Witness 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 in its truth."

Le_Kirk

If you have already had the judgment set aside you need to file a defence to the original claim.  If you go to the NEWBIE sticky second page you will find some pre-written examples of defences and one specifically for ParkingEye and one of them refers to a hidden keypad; whilst not exactly your circumstances you were let down by a member of hotel staff who failed to input the info via the keypad.  You could adapt this defence to suit your circumstances.

nosferatu1001

Yep, you need to file your defence - you should have a good idea based on the newvbies thread. 
Did your costs get reserved or paid?

Redx

So similar steps to this one which may be further on , please read it
https://forums.moneysavingexpert.com/discussion/6189659/ccj-successfully-set-aside/p1

Coupon-mad

Also, contact the Holiday Inn Head Office this week, complain, tell them what has happened (damage to your credit rating that has cost you £255 to put right, for which the Holiday Inn is liable because they caused this loss) and ask them to urgently email ParkingEye to cancel the PCN and the claim so that there are no further hearings now that the CCJ has been set aside. 

Tell them you KNOW that the User Manual ParkingEye provide to every client, gives a cancellations email and steps to take that allow for genuine customers to have their PCNs cancelled and that this is possible if the Hotel's request is very robust, even at court stage. Add that, if ParkingEye want £60 to cancel, as they often do, state that you believe Holiday Inn should take that on the chin and pay it, to go some way to restoring your faith in their brand and customer service. 

Add that you believe Hotels should think twice before contracting with a parking firm who (it seems) insists on charging an extortionate £100 charge at most sites (yet the landowner can choose the level of charge, did they not tell HI that?).  And why choose a notorious ANPR camera harassing firm, who very often fail to check addresses of registered keepers by carrying out no additional trace before suing them (at old addresses purchased from the DVLA) and ruining their credit file, all in the name of Holiday Inn.

ameerib

nosferatu1001 said:

Yep, you need to file your defence - you should have a good idea based on the newvbies thread. 
Did your costs get reserved or paid?

Thank you all for the responses, my costs didn’t reserved. Is this something I should request as part of my defence? Where do I stand given that I have already satisfied the claim. 

I will be writing to the holidayinn to ask them to write to parkingeye. Is there a chance this can be cancelled without going to the defence trial? 

nosferatu1001

No, you were supposed to ask your costs to be paid or reserved to the hesring of the actual claim. It's in the draft order we tell everyone to include.  

It doesn't go in your defence. You file a defence, witness statement, exhibits AND your costs assessment. 

Of course it could be discontinued. If HI insist and instruct, and parking eye should respond. 

Umkomaas

The likelihood is, if HI press PE to discontinue, PE will ask HI to cover the costs of their outlay to date. Then that's a test of how much a customer means to HI.  Will they throw you a life-vest, or cast you adrift to the sharks?

D_P_Dance

The likelihood is, if HI press PE to discontinue, PE will ask HI to cover the costs 

In which case surely  HI may think hard about continuing to employ PE