Court Claim ParkingEye ANPR Vicarage Field Shopping Centre

ice986

Redx said:

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 !!

GULP!
 Coupon-mad said:

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).

Great I will look into this and try to focus on this point. Thank you.
The manager of the shopping centre has no interest as it has "gone to legals" and the local MP doesn't want to know as I'm not a constituent. Not looking good so far lol.

Redx

Go with what may work , especially the failed app angle  , but don't expect any guarantees !! No scattergun approaches

Parking eye usually have a good case if they issue court claims , the iffy ones are normally farmed out to dubious debt collectors and never see a courtroom

ice986

Fortunate turn of events I've just managed to find a receipt ... 

Parking transaction details

Started 24 Aug 2020 19:55

Expired 24 Aug 2020 21:55

Vicarage Fields Shopping Centre’

ParkingEye - UK

 Location number 802977

 License plate XXXXXXX   < My Old Car Number Plate

Total cost £2.20

Including service charge

I assume I have a solid case now?

Coupon-mad

Well you have something tangible to say, that it was a keying error of your old car numberplate and you have the evidence of paying for your parking.  It's not a silver bullet because you paid for the wrong car but you can say that the old car was not in the car park, and the Claimant's ANPR records will have confirmed this so they could and should have considered the possibility that it was a keying error and that the payment related to the only vehicle that had recently driven in and apparently not paid.  In any case, a major keying error is something that has been recognised by the BPA as evidence of paying, and operators are encouraged to settle cases for £20 these days, an approach mirrored in the new draft statutory Code of Practice from the MHCLG, which in 2022 is intended to replace the failed self-regulating attempts at Codes of Practice.  You could say the D is happy to show the C the evidence of paying, to resolve this matter.

D_P_Dance

Many judges regard keying errors as trivial, not really a breach of contract at all, and a waste of court time..  Read this and complain to your MP..

https://en.wikipedia.org/wiki/De_minimis#:~:text=De minimis is a Latin,court refuses to consider trifling

ice986

So I've taken your advice and cut out a lot of this defence. If successful I hope it is of use to someone else in the same position as me.
If anyone spots any mistakes please alert me lol

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

ParkingEye Ltd (Claimant)

 

-and-

 

xxxxxxx (Defendant)

 

 

DEFENSE

 

 

 

 

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 xx/xx/xxxx.

 

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.

 

Premature claim - sparse Particulars

 

3. 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 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.

 

4. 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.

 

4.1 The Occupants did in fact pay the correct tariff; it was a app error of an old car number plate which was already registered on the app and purchased by an occupant not being the registered keeper which made this error easy to make. The Defendant has the evidence of the parking time.  The old car was not in the car park, and the Claimant's ANPR records will have confirmed this so they could and should have considered the possibility that it was a keying error and that the payment related to the only vehicle that had recently driven in and apparently not paid. 

 

4.2 A major keying error is something that has been recognised by the BPA as evidence of paying, and operators are encouraged to settle cases for £20, an approach mirrored in the new draft statutory Code of Practice from the MHCLG, which in 2022 is intended to replace the failed self-regulating attempts at Codes of Practice.  The Defendant is happy to show the Claimant the evidence of paying, to resolve this matter.

 

5 The Defendant wrote to Parkingeye via their website with an appeal on the 17th of November which was acknowledged but had no further response.

 

6. The Defendant has sent a subject access request (SAR) to the Claimant, for response during May 2020 via the same Parkingeye website for appeals, 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 any breach, or liability

 

7. Due to the incorrect 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.

 

 

 

No 'legitimate interest' or commercial justification - Beavis is distinguished

 

8. 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.

 

8.1. 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.''

 

8.2. 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 without the possibility of errors, pitfalls and traps, on the material day.

 

8.3. 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; shows that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

 

8.4. 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.''

 

8.4.1. 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.''

 

8.5. 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''.

 

 

9. 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, sparse POC and a pitfall/trap of app errors when purchasing a ticket transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

 

10. 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.

 

10.1. 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.

 

In the matter of costs, the Defendant seeks:

11.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

 

12.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

 

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:

Coupon-mad

DEFENSE

Are we in America?!