Court Claim ParkingEye ANPR Vicarage Field Shopping Centre

ice986

Hi All!
I received a PCN from P/E in the post which I had ignored (advice before finding this site) I was then sent a LBCC which I lost track of and now have a claim. 
We entered the ANPR car park and was there for a while whilst shopping and getting food the tariff for this was £2 which I thought had been paid via online app but later realized there was no confirmation.
I have done the acknowledgement and I am writing my defense which I have templated from someone's similar case. I have also written on P/E privacy for SARs and written a complaint to various people associated with the car park. (the manager of the Centre has said he will look into it when he is by a computer so fingers crossed there, although I don't know if its too late for him to get it cancelled)
You will have to forgive me for not being very literate or no understanding of law.
I have invested a lot of time into this and it has been a big un needed headache but I don't want to be beaten by these scamsters
This forum has been very helpful to me so far and I cant thank you all enough. The court letter was issued on the 10th of May 2021 they are claiming £100 plus £25 court fee and £50 legals
I do not live near the area so it is very difficult for me to obtain photos of the site and google images are out of date as they apparently changed the car park in 2019

ice986

My defense is as follows and would appreciate any feedback ... 

IN THE COUNTY COURT

CLAIM No: xxxxxx

ParkingEye Ltd (Claimant)

 

-and-

xxxxxxx (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 Vicarage Field Shopping Centre car park on xxxxx.

 

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')'.

 

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 Vicarage Field Shopping Centre.

 

 

Data Protection concerns

 

3. The Defendant was an occupant of the car and their family were patrons of the Centre. 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 couple 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. 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.

 

4.2. Silently collecting VRN data in order to inflate the 'parking charge' from £2 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.

 

4.3. The Claimant will have some difficulty in justifying their hidden and unexpected terms at a site. 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. Unlike the free car park in Beavis, this Visitor Centre is a site where the Claimant has machines to take payment of tariffs. Clearly there will be ParkingEye staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. 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 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), this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage (especially considering we have had to keep travel outside our area to minimal during this pandemic). 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. 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 mentions ‘by not purchasing the appropriate parking time or by remaining at the car park for longer than permitted’ without providing sufficient evidence that the defendant did not purchase a ticket and may have entered a wrong VRN and 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.

 

8. The Defendant has sent a subject access request (SAR) to the Claimant, for response during May 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 small sign at the car park entrance does not face the drivers line of sight and is obscured by a column which its tucked behind; just before a very busy intersection. All of these combine to make this initial sign easily missed.

 

10.2. The ParkingEye signs within the parking area are equally as hidden with small writing.

 

10.3. It is not remembered whether an occupant of the car did see a PDT machine and pay a tariff/input the VRN, and the Defendant is none the wiser due to the lack of information from the Claimant. The PCN and 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, 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.

 

10.4. Upon receiving this unexpected Claim, the Defendant has researched the site in order to submit a defence. The PDT machine nearest the entrance is nowhere in the line of sight. There is no ''Pay Here'' arrow or other prominent signpost or any 'Have you paid?' reminders as patrons exit the car park.

 

 

ice986

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 shopping Centre.

 

 

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 sent with a 'parking charge' that bears no resemblance to the £2 '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.''

 

 

 

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 £2 according to the recent, frankly awful, Vicarage Field reviews from people who have also been caught here by ParkingEye. Had the Defendant been clearly alerted to the sum on the day - or even simpler, if they could have had the certainty of paying it requiring a ticket to exit their barriers - there would be no unfair penalty, and the Visitor Centre (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 sufficient site.

 

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 £2 unexpectedly becomes an extortionate £100 bill days 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 £2 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

 

13.3. This regime in a car park is not commercially justified, is damaging the reputation of the Vicarage Field Shopping Centre 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 Facebook feedback show that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

 

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 £2 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 £2 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 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 £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.

 

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 £2 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.

 

19.          At NoD stage, or at a hearing if the case proceeds that far, the Court will be taken to facts to support a finding of wholly unreasonable conduct by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer & anor v Paul Jones Financial Services Ltd.

 

 

Statement of Truth

I believe that the facts stated in this Defense are true.

 

Defendant’s signature:  …………………………….…………………………….                   

Defendant’s name:           …………………………….…………………………….

Date:                              …………………………….…………………………….

 

 

I believe the facts contained in this Defense are true.

 

 

Name

 

Signature

 

Date

ice986

Sorry there's a couple of errors here when I was cutting a pasting as it went over the character limit 

Le_Kirk

It is clear that you have used the old statement of truth; it was changed over a year ago  Just ask Auntie Google for the latest version and/or check the NEWBIE sticky or copy the one from the standard defence template.  Don't use all of the standard defence template as it is not suitable for ParkingEye.

Redx

As above , don't use the standard template , don't use examples more than a year old , use the 2020 statement of truth , not that old one , and take note , there is no S in DEFENCE

KeithP

Please confirm that the Issue Date on your County Court Claim Form is 10th May 2021.

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

ice986

KeithP said:

Please confirm that the Issue Date on your County Court Claim Form is 10th May 2021.

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

That's correct the issue date on the form is 10th May 2021 and my Acknowledgment was received on the 20th of May 2021

Redx said:

As above , don't use the standard template , don't use examples more than a year old , use the 2020 statement of truth , not that old one , and take note , there is no S in DEFENCE

Thanks for pointing out what would have been a very embarrassing spelling mistake, spell check made me question myself ... turns out my keyboard was set to US. DOH!
I tried to find the most recent template for P/E it seems there are more defences not relating to P/E than there are for P/E which surprises me as I thought they would be the most litigious. 

So my statement of truth should be:

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.

Defendant’s signature:

Date:

Other than that does this seem okay? I was particularly worried about point 7 I wasn't sure if this actually made sense from a legal point of view?

Redx

Lol , at least you have fixed some of those issues now

As for Parking Eye , we don't see many on here nowadays , strange but true , plus they haven't claimed spurious charges either , they never do , £175 is their typical model

My opinion is that the defence above is far too long ( I won't be reading it , many won't either , I got lost a quarter of the way through ,  you pay a lawyer for diligent legal oversight , not volunteers on a parking charge notice forum for consumer rights ). It's a scattergun approach hoping to hit something !! Bear in mind that you are expected to understand your own submissions

Simple numbering should be employed throughout

Bear in mind that Parking Eye are likely to have complied with POFA and the CRA and the BPA CoP , meaning you have to win on a technicality , if one is found. They are not a pushover , so decide what if any chink is in their armour , otherwise it's like a mouse taking on a raging bull !

If you decide to use the coupon mad template , take out the issues about double recovery and any abuse of process , remove POFA if it's not applicable , you won't have much left , but you probably don't anyway !!

KeithP

ice986 said:

KeithP said:

Please confirm that the Issue Date on your County Court Claim Form is 10th May 2021.

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

That's correct the issue date on the form is 10th May 2021 and my Acknowledgment was received on the 20th of May 2021

With a Claim Issue Date of 10th May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 14th June 2021 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Coupon-mad

It's not a visitor centre so don't copy that entire template quite so exactly. For example, you told us this:

 the tariff for this was £2 which I thought had been paid via online app but later realized there was no confirmation.

Why haven't you replaced half the wording with facts about the app failing (isn't there a 'failed app' example in the NEWBIES thread?  I thought there was).