County Court Claim - Parking Eye / Birchanger Service Area Bishop Strotford

estevenin

Hi All,

Thank you for validating my account. I came to seek advice on my defense against Parking Eye. I have received a county court claim form and am now in the process of sending my defense. The parking charge was issued on the 9th of October 2020, for a visit on the 6th of October 2020. I am unsure if I have received any document from them and discard it, or if I have not received any at all, regarding this location. I receive quite a few PCN's due to my private hire profession (I always appeal // go to court for each of them), so I get to deal with a bunch of papers. It is, though, the first time that I am defending a parking ticket, in court. (Further I'v been is popla)

I have moved house but at that time, the address was the same, and I have redirected my mail so receiving mail should not be an issue. (I did not change it on my V5C and Licence yet, I'm in the process, not sure if this will be an issue).

That beeing said, I have read the newbies post

Here is the claim form : 

1. I have ackoledged service (AOS) through MCOL. The date of the claim is 10th of June, so my deadline for submitting the defense must be 13th of July I believe
2. I have contacted the landlord :

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Good Morning,

 Thank you for your feedback, I am now in the process of defense against it.

I would imagine businesses such as this service area, would encourage custom during the whole covid crisis, but I see that there is no care nor gratitude for customers. I appreciate your wishes but this was the last time, after many times doing so due to my profession, that I come to consume food or petrol in this service area. I will advise my collegues to do the same, Bishop Strotford is 5mn away. Please be aware that no car is meant to stop in the middle of the road at the entrance of the site to read a 50 lines long sign that first must be seen, as this can cause a road hazard. A time limit should be enforced by a barrier with tickets, as this is the only way consent and ackoledgement can be given. No customer should ever be charged a 185 pounds fine for coming to support your business, it is a disgrace and this will be fought in full.

Best Regards,

 

From: Birchanger Customer Service Manager
Sent: 28 june 2021 23:56
Cc: Birchanger Site Operations Manager
Subject: RE: Complain about a parking charge

 

Good evening

 

Many thanks for your feedback regarding your recent visit to Welcome Break Birchanger Green Services. 

All the appeals about Parking Eye parking charge notices must be done directly to Parking Eye through their online services. 

Please be aware that we have several information signage in our Cap Park as in the entrance of the site, stating the limits of free staying and other T&C`s. 

We look forward to seeing you again as a valued guest. 

 

Kind Regards, 

 

Sergio Santos  

Customer Service 

Birchanger.CustomerServiceManager@WelcomeBreak.co.uk | 01279 653388 | 07866 983935 

Birchanger Green Services | M11 J8 | Old Dunmow Road | Bishop’s Stortford | UK | CM23 5QZ 

=====

Sent: 22 June 2021 19:00
To: Birchanger Site Operations Manager <birchanger.siteoperationsmanager@welcomebreak.co.uk>
Subject: Complain about a parking charge 

 

Dear Sir, Madam, 

I am contacting you regarding a court claim, received after visiting the birchanger service area. This car is a private hire vehicle, and the driver has come to snack at the service area after a trip at the airport, whilst waiting for his next Journey. 

Parking Eye, the company managing your parking space, is claiming an amount of 185 pounds, for an alledged breach of contract, « parking without paying ». 

The parking did not provide any ticket, or had any pay and display ticket machine. I found outrageous the fact that, after visiting your business and consume food and goods, to receive such a letter, mentionning an « out of normal » sum of money. 

Is that the normal procedure when visiting the service area ? If that’s the case I will be very mindful from now on that this car doesn’t risk stepping foot again in the area. If not, is there any procedure or action that can be done, to cancel this charge ? 

=======

3. I sent an email to the solicitor. Parking Eye responded instead, I asked them to forward my request, so far no feedback.

Dear Sir, Madam,

Kindly forward this conversation to Ms. Jayne Leonard, or if you could provide me with her contact details, that would be appreciated.

The content of my first email is a bit technical and requires the answer of the solicitor in charge of the case.

It is important for the preparation of a defense against the Court Action. Please note that I have also submitted a subject access request (SAR) in a seperate communication, through the privacy page and I will need an answer, this time from your services I believe.

But the request in my initial email below is directed to the solicitor in charge of the case only.

Best Regards,

=====

From: PE_Enforcement

Sent : 24 june 2021 09:58

Dear

Thank you for your correspondence received in relation to claim number H4FC51Z0.

We recently sent you a Letter Before Action, which informed you that the above Parking Charge remains outstanding and had now been processed for further action. This is because we had not received an appeal or payment from you within the time period stated on the first Parking Charge Notice. 

This notice informed you that all appeals should be put in writing and submitted to ParkingEye within 28 days of our initial correspondence. Appealing at that stage would have also given you the chance to lodge a further appeal with POPLA (Parking on Private Land Appeals Service) had your appeal to ParkingEye proved to be unsuccessful. 

Please note that the time to lodge an appeal has now passed and we would advise you to follow the instructions provided with the claim form, wherein you may make payment or submit a defence. 

Payment can be made by telephoning our offices on 0330 555 4444, by visiting www.parkingeye.co.uk, or by posting a cheque/postal order to the below address. Please note that you must quote the above Parking Charge reference on the reverse of the cheque or postal order.

Yours sincerely,

Parkingeye Enforcement Team

e: Enforcement@parkingeye.co.uk | w: parkingeye.co.uk

ParkingEye Limited | 40 Eaton Avenue | Matrix Park | Buckshaw Village | Chorley | PR7 7NA

Registered in England and Wales – No 5134454 

==============

Sent: 22 June 2021 18:46

To: PE_Info <Info@parkingeye.co.uk>

Subject: To the attention of Jayne Leonard, solicitor for Parking Eye - Debt Adivce 

CAUTION: This email originates from an external source.

To the attention of Jayne Leonard

ADRESS
XXX

XXX

22/06/2021

Dear Madam,

I am writing you regarding a letter before county court claim, no. H4FC51Z0. I am seeking debt advice, but I deny any debt and the case must be put on hold for not less than 30 days, under PAP for debt claims 2017.

I have sent Parking Eye, who you represent, a subject access request (SAR), today.

Furthermore, I comfirm that the correct address for service, is the one mentionned above this email, as I have recently moved.

Best Regards,

=====

4. I sent a SAR request throught their privacy page, on the 22nd of June. So far, no feedback. I also requested it directly to them in my answer above.

22/06/2021

Subject access request 

Dear Sir or Madam,

This is a subject access request (Data Protection Act 2018 / General Data Protection Regulations (GDPR)), regarding the letter before county court claim, H4FC51Z0.

Please supply the data about me that I am entitled to under data protection law relating to myself.

This includes but it is not limited to :

- All photos taken.

- All letters/emails sent and received.

- The claim mentions "parking without paying to park". So please also include any Pay and Display Ticket machine record for that day, 09/10/2020.

- All data held, all evidence against me, and a full copy of the parking charge notice, notice to keeper.

- And a list of all PCNs outstanding against me or the vehicle EA66HLZ, as any claim must be for all PCNs, not several separate claims.

If you need any more data from me to confirm my identity please let me know as soon as possible. It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is ico.org.uk or it can be contacted on 0303 123 1113.

Best regards,

estevenin

IN THE COUNTY COURT

CLAIM No: H4FC51Z0

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 Birchanger Green-Bishops Strotford, M11 jct 8, Old Dunmow Road, Bishops Strotford, Hertfordshire, CM23 5QZ on 06/10/2020.

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' or of the driver not being a patron of the Welcome Break Birchanger Green-Bishops Strotford.


Data Protection concerns

3. The Defendant was an occupant of the car and had no idea about any ANPR surveillance and received no letters after the visit. No photographic evidence of the terms on signage has been supplied, not even by POST.

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 Parking Charge 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. 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 Service Area, who are being caught out regularly by this trap.

4.2. Silently collecting VRN data in order to inflate the 'parking charge' from £0 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.

4.3. 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.

4.4. 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. The car park is a free car park. ParkingEye claims that the vehicle has been “parking without paying to park”, however this Service Area is a site where the Claimant does not have acess to any machines to take payment of tariffs, or if so, those are hidden with no clear instruction on where, when, and why to find them. ParkingEye can’t argue that a payment was missing without providing a clear, and accessible way to pay, and inform the defendant of the tariff. No ticket is being provided in entry either, to clearly inform the customer of the tariff and bound them to any contract. 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 and sparse Particulars

6. Based on internet researches, it is understood that the sparse details on the 'PCN' initially sent (which would look to be a scam piece of junk mail, since it would 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. 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.

6.1. The Defendant avers that the claim is premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, proof of reception.

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 alleges that the Defendant was 'the registered keeper’ 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.

8. The Defendant has sent a subject access request (SAR) to the Claimant, for response during June 2021, 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 state clearly that it is affiliated with ParkingEye, is partially obscured by a much larger sign behind it, any many other signs around. All of these combine to make this initial sign easily missed.

10.2. The ParkingEye signs within the parking area are equally as hidden and therefore misleading. Between the carpark entrance and the parking spaces, only one unclear sign is within a driver’s line of sight, not readable whist driving. Furthermore no clear signs that were 'bound to be seen' between where the Defendant believes the car was parked and the entrance to the building.

10.3. It is not remembered whether an occupant of the car did see a PDT machine in the parking, but it is believe that there is not, 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, 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.

There was no clear path that could lead the Defendant to safely read and agree to a contract, before entering the Service Area, and whilst using the premises where no other signs or machines are present (Starbucks Coffee), therefore no contract could have been agreed beforehand.

10.4. Upon receiving this unexpected Claim, the Defendant has researched the site in order to submit a defence. No 'boxes' or terminals are placed within the carpark, or no information could be found if there is inside the food court building and where. No boxes or terminals are placed either, in the other facilities such as the petrol station and the starbucks coffee. Therefore there was no clear path that could lead the Defendant to be faced with such a machine, at any time.


No standing or authority to form contracts and/or litigate – Fairness of the contract

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 Service Area.

12. Civil contracts are not normally allowed to punish or penalise the consumer – only criminal law can do that. This is backed by common law and statute. The Unfair Terms in COnsumer Contracts Regulations 1999 provides protection to consumers from unfair contracts.

In particular, it defines where a term is considered as unfair:

5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

The terms of the contract as defined by parking eyes, are considered unfair, it is therefore not binding :

8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

 

Considering the terms to be unfair, it would not be possible to enforce them.

Schedule 2 of the document gives indicative information about terms which may be considered unfair. In particular:

1.  Terms which have the object or effect of–
(e) requiring any consumer who fails to fulfill his obligation to
pay a disproportionately high sum in compensation.

 

The Office of Fair Trading has issued guidance on its view of this legislation :

5.1  It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law. Other types of disproportionate sanction are considered below – Part III, Group 18(c).

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 are non existants or hidden, and signs/terms are not prominent, the VRN data is harvested excessively by one automated but conflicting data systems, the PCN has not been received, no Letter Before Claim was sent and the claim for the 'parking charge' is excessive, climbing from Free to £100 '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.''

estevenin

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 POC does not precise the sum owed after the free period, therefore the sum 'owed' was nil, according to the recent, frankly awful, Birchanger Service Area TripAdvisor 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 when entering the car park or being given an entry ticket - there would be no unfair penalty, and the Service Area (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 useful 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 free parking unexpectedly becomes an extortionate £100 bill several weeks 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 £0, or the sum advertised had the signs be seen, and there is 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 Service Area 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 TripAdvisor feedback, newspaper articles show that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

(http // cheptsowbeacon . co . uk / article .cfm?id=107788&searchyear=2017

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 £0 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 £0 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 £0 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.

 

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

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.

16.2. 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.

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 £0 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. 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 believe the facts contained in this Defence are true.

XXXX

The 1st of July 2021

=============================================

=============================================

=============================================

If someone has any advice regarding my defense (anything to remove / anything that I forgot), or any evidence I should gather (knowing that I will have to deal with this claim, from abroad, so not possible to go in situ). I discovered whilst researching on the website of the service area, that ticket machines are meant to be available inside the main building, for stay after 2 hours, costing 15 pounds. I didn't know machines were provided, I'm not able to proove it and pointcase where they are, that beeing said I'm pretty sure all the buildings around don't have any.

Thank you in advance for your time.

Redx

The statement of truth in the defence ( no S in defence by the way) is totally incorrect !! It changed 15 months ago , so that definitely needs the new version

Edit your post and remove identifying personal details like your name etc

If you are abroad , then you are not in an English jurisdiction !!

Coupon-mad

Start again, you’ve used a non ParkingEye defence that is far too long and has links in it (not right for a defence) and it talks about the claim being inflated by false costs, which it is not. 

You need a shorter, ordinary defence admitting to driving, telling the Judge that you are are private hire driver and that you had no knowledge of this parking charge.

Suggest it could well be a case of two  visits, picking up fares that day or even one visit on the northbound carriageway for petrol or food and a return visit on the Southbound could be likely. Due to your job you have to stop to take rest breaks, food and toilet breaks during trips when you can. Capturing two visits as if they are one is a known fault of ANPR and the Claimant knows this but still features in hundreds of news articles about this system failure.

You don’t live abroad or in Scotland, do you?

KeithP

estevenin said:

1. I have ackoledged service (AOS) through MCOL. The date of the claim is 10th of June, so my deadline for submitting the defense must be 13th of July I believe.

With a Claim Issue Date of 10th June, and assuming you filed an Acknowledgment of Service sometime between 15th June and 29th June, you have until 4pm on Monday 19th July 2021 to file your Defence.

That's 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.

Please confirm you filed an Acknowledgment of Service sometime between the dates mentioned.

As stated above, because the Claimant is ParkingEye, you will not be using the default Defence template, but do look at the template Defence thread for instructions on filing your Defence.

estevenin

Redx said:

Edit your post and remove identifying personal details like your name etc

Sorry my bad. Could a moderator edit the 2nd post to remove my name please ? I don't have any option to edit the post for some reason.

Redx said:

If you are abroad , then you are not in an English jurisdiction !!

Coupon-mad said:

You don’t live abroad or in Scotland, do you?

I live in england, I meant that I am abroad on holiday, and that I won't be able to go in-situ to gather evidence

KeithP said:

estevenin said:

1. I have ackoledged service (AOS) through MCOL. The date of the claim is 10th of June, so my deadline for submitting the defense must be 13th of July I believe.

With a Claim Issue Date of 10th June, and assuming you filed an Acknowledgment of Service sometime between 15th June and 29th June, you have until 4pm on Monday 19th July 2021 to file your Defence.

That's 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.

Please confirm you filed an Acknowledgment of Service sometime between the dates mentioned.

I confirm that I filed an AOS on the 23rd of June

Coupon-mad said:

Start again, you’ve used a non ParkingEye defence that is far too long and has links in it (not right for a defence) and it talks about the claim being inflated by false costs, which it is not. 

You need a shorter, ordinary defence admitting to driving, telling the Judge that you are are private hire driver and that you had no knowledge of this parking charge.

Suggest it could well be a case of two  visits, picking up fares that day or even one visit on the northbound carriageway for petrol or food and a return visit on the Southbound could be likely. Due to your job you have to stop to take rest breaks, food and toilet breaks during trips when you can. Capturing two visits as if they are one is a known fault of ANPR and the Claimant knows this but still features in hundreds of news articles about this system failure.

Redx said:

The statement of truth in the defence ( no S in defence by the way) is totally incorrect !! It changed 15 months ago , so that definitely needs the new version

KeithP said:

estevenin said:

1. I have ackoledged service (AOS) through MCOL. The date of the claim is 10th of June, so my deadline for submitting the defense must be 13th of July I believe.

As stated above, because the Claimant is ParkingEye, you will not be using the default Defence template, but do look at the template Defence thread for instructions on filing your Defence.

Thank you for the precious advice. Sorry my bad, I have used one of the only two recommended Parking Eye template from the Newbie Thread, featured in the thread 74850073 : https://forums.moneysavingexpert.com/discussion/comment/74850073#Comment_74850073

I will start over and look up for the Defense Template thread as advised, and use most recent Parking Eye templates and adapt that according to your suggested arguments Coupon-mad. Thanks again for the guidance, will get to the task and post back here again shortly

D_P_Dance

Have you complained to your MP?  This may amuse you

https://www.thesun.co.uk/news/4352343/parking-firm-sued-lawyer-sleeping-service-station-fined/

Le_Kirk

estevenin said:

Redx said:

Edit your post and remove identifying personal details like your name etc

Sorry my bad. Could a moderator edit the 2nd post to remove my name please ? I don't have any option to edit the post for some reason.

You won't get editing privileges until a certain number of posts under your belt and some time has passed.  There are no moderators but there are board guides.  Send a PM to one of them (Savvy or Soolin) and ask if they would edit you name out of the relevant post.  There is no "S" in defenCe.

Coupon-mad

I live in england, I meant that I am abroad on holiday, and that I won't be able to go in-situ to gather evidence.

No evidence goes yet, not at defence stage.  There is more than one stage, as the NEWBIES thread explains.

estevenin

Hi everyone,

D_P_Dance said:

Have you complained to your MP?  This may amuse you

https: www thesun co uk/news/4352343/parking-firm-sued-lawyer-sleeping-service-station-fined/

I haven't, but will do It was a very satisfying read!

I re-wrote my defence. The NEWBIES thread only features 2 parking-eye defence from 2018, one beeing the one I used above that I then discarded, and the other quite different from my case. It is specified not to use the 2020 standard defence template from the thread (although I picked one paragraph from it, and might have been able to get some there too hadn't I chose to use one member's defence), so I couldn't find any standard template that I could use (maybe it's better this way ? As standard defence might give a standard attack).

So I used the defence wrote by another member in a recent Parking-Eye win, where the judge made the difference between time parked and time in transit. I tried to adapt it to my case and your suggestions, looked around in the forum for others Parking-Eye arguments and added my own, I think I have derived quite a bit (And used my own words in most places) and might have added some that I shouldn't, and miss some too, so if I have to tweak or re-write again, I will.

I realized before posting that I got confused with "you need a shorter defence", and that I only need to submit my full (long) defence when the time of the witness statement comes, as only a short resume is needed for now. I wrote a full defence once again, but then shrinked it to focus on the main points that will be defended for now.

Any comments or suggestion is welcomed. 

Also here goes the claim, where the details of the POC can be found. I realized that the link I included in my first post didn't go through :

 

1/ I have no contract with the Claimant.

I, the Defendant, am private hire driver, the registered keeper and driver of the vehicle involved in the claim. The Claim relates to an alleged debt arising from an alleged breach of contract, which I deny. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below, as I had no knowledge of such parking charge.

2/ Unclear terms – no signs readable at entry / inadequate signage to form a contract

The small signs at the entrance are in a confusing location, with most of it written in small prints (particularly whilst driving), with any potential contract terms too small to be visible, ParkingEye can’t realistically expect a driver to notice the sign amongst all the others, stop the car in the only – one carriage – slip road towards the car’s parking (and become a road hazard), read it in full, proceed it and agree to the terms, so they can claim that entry to the service automatically form a contract between the driver and Parking Eye. The distribution of the signage around the car park is also inadequate.


3/ Unclear terms - unconscionable penalty relying upon a hidden pay and display machine

According to the sparse signs in this car park, it transpires that to avoid a Parking Charge, drivers are expected to pay a fee after a 2h free stay limit. That would only be possible if a pay and display machine or similar would be available and visible, in the car park. Or a barrier ticket would be provided at entry and exit. It is unclear where those machines are and it appears that most facilities (such as Starbucks Coffee) do not provide such a machine.

4/ Lack of good faith, fairness or transparency and misleading business practices

Parking firms should concentrate on ensuring that consent from the car driver is collected, by requiring an action from them, such as collecting a ticket on entry, or displaying a ticket through Pay and Display machines. By failing to adequately alert patrons to Pay and Display machine could be considered as '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.

5/ Insufficient evidence from the claimant that a breach of contract occurred

According to the POC, the car has “parked without paying to park”. A 'parked car' is a stationary car, the time spent looking for a parking space (or taking petrol or ordering a coffee in a drive-through) is not deemed as parking, as found in case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. ParkingEye has no evidence of how long the vehicle was in a “moving situation” vs. “stationary”, and there is no provision made for a “grace period”, in their terms. Therefore, the enforcement of “overstaying” after 2h free parking is hazardous, and does not rely on any concrete action or timeline. Due to the nature of my profession, I am due to make some safety stops to rest, for food, toilet and petrol brakes between fares. As such, it could also be that the ANPR camera has captured two or more visits (one on the northbound carriageway for petrol or food and one on the southbound carriageway for coffee), whilst on a shift in that area. Capturing two visits as if they are one is a known fault of ANPR, which is known by the Claimant as well, as suggested in the many news articles featuring the matter.

The ANPR camera provides evidence of a vehicle entering and exiting the facility. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of the facility. It does not exclude that the car could have entered and exit twice either, only capturing the first entry and the last exit.

6/ Lack of willingness from the claimant

As of today’s date, ParkingEye did not send me a letter before claim which was compliant with practice directions. As a result the parties have not been able to complete the exchange of information needed for me to file my full defence and have not been able to complete Alternative Dispute Resolution (ADR). I have learned of Parking Eye claims on the 15th of June 2021, for an alledged breach of contract that occurred on the 6th of October 2020, more than 9 months after, time in which the matter could have been resolved without wasting the court’s time.

Upon receiving the claim, I researched this all too common issue and was advised to communicate with the solicitor in charge, Mme Jayne Leonard, employee of ParkingEye, to seek debt advice (yet I deny any debt) and asked that the case to be put on hold for not less than 30 days, under PAP for debt claims 2017. I contacted ParkingEye on the 22nd of June, and I responded to their answer on the 26th of June, in both occasion ParkingEye ignored my request, did not contact their in-house solicitor on my behalf as requested, preventing any mediation other that court proceedings and breaking the PAP for debt claims 2017.

A request for Subject Access Request (SAR) has been made on the 22nd of June 2021. As of today, the request hasn’t been fulfilled either.

 

7/ No genuine pre-estimate of loss or breach of contract

The initial charge is arbitrary and in no way proportionate to any alleged breach of contract, ParkingEye is unable to justify that figure. I would also question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with. The fee being charged contravenes the Unfair Contract Terms Act 1997.

If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The POC does not precise the sum owed after the free period, therefore the sum 'owed' was nil, according to the recent, frankly awful, Birchanger Service Area TripAdvisor reviews from people who have also been caught here by ParkingEye. Had I been clearly alerted to the sum on the day - or even simpler, if they could have had the certainty of paying it when entering the car park or being given an entry ticket - there would be no unfair penalty, and the Service Area (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 useful site.

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 £0, or the sum advertised had the signs be seen, and there is ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

8/ No legitimate interest - the penalty rule remains engaged

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.

9/ Arbitrary court costs

The claim includes a sum of £50, described as ‘Solicitor’s costs’. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service. Since these are fully automated and the “in-house solicitor” is already paid for their time, the Solicitor’s fee of £50 is redundant. No intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred.
As a result of the above, I deny the claim in full and intend to fully defend it, and submit that it ought to be struck out as having no reasonable prospect of success due to the Claimant’s failure to comply with the statutory requirements for Keeper Liability.

10/ In the matter of costs, I seek :

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. I seek a finding of unreasonable behaviour in the pre-and post-actions phases by this claimamt, and will seek further costs pursuant to CPR 46.5

Conclusion

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 need to use a Payment machine at the venue reception, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

There also can't be any contract, had the car not be parked (stationnary) for more than 2 hours, hence no breach can be claimed.

I deny 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.

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.