LBCC - County Court Claim - Enterprise Parking Solutions

1505grandad

A heads-up:-

Para 4  -  Enterprise Parking Solutions are BPA AoS members not IPC

happych4ppy

1505grandad said:

A heads-up:-

Para 4  -  Enterprise Parking Solutions are BPA AoS members not IPC

thanks is there a BPA AoS guidance on signage I can reference? relating to signs. Or should I just cut the paragraph down to... 

"The Claimant provides no evidence that any signage claimed to be at the site on the material date was visible from any car entering, parking in or exiting the parking area. Any photographs purporting to show such signage on a different date cannot be considered sufficient to evidence their presence on the date in question. In addition, any close-up photographs of signage cannot be considered sufficient as evidence of their visibility from the entrance nor from any areas."

?

thanks again

Coupon-mad

is there a BPA AoS guidance on signage

I assume you Googled and found the BPA Code of Practice by now?

I think much of the stuff in the second half of that WS needs replacing with the new words about the fact the Govt has banned debt recovery costs, and why.  Here's how I've worded it in the new Template defence this week:

https://forums.moneysavingexpert.com/discussion/comment/79031299#Comment_79031299

You can grab some of those paragraphs and replace the old stuff about Semark-Jullien, etc.  Have a go and remove some unnecessary stuff.  Show us.  I realise yours is not a defence but a Witness Statement but you can use some of the stuff I've written there.

happych4ppy

Coupon-mad said:

is there a BPA AoS guidance on signage

I assume you Googled and found the BPA Code of Practice by now?

I think much of the stuff in the second half of that WS needs replacing with the new words about the fact the Govt has banned debt recovery costs, and why.  Here's how I've worded it in the new Template defence this week:

https://forums.moneysavingexpert.com/discussion/comment/79031299#Comment_79031299

You can grab some of those paragraphs and replace the old stuff about Semark-Jullien, etc.  Have a go and remove some unnecessary stuff.  Show us.  I realise yours is not a defence but a Witness Statement but you can use some of the stuff I've written there.

Sequence of events and signage:

3.            I did not see any signs upon entering the car park, nor did I see any signs whilst driving into the car park, through the car park, nor whilst parking in the car park. I did not see any signs or ticket machines while leaving the car parked, nor whilst walking towards the venue for which the car park serviced. Any signs were either not clearly displayed, not easy to read and/or not written in big enough font to read. Whilst inside the venue, and now a paying customer, I was neither informed, nor reminded to pay-and-display or register parking or validate parking, nor was it made abundantly clear that a parking charge service was in operation. Had the parking service charge been clear to me, I would have willingly cooperated with the service.

4.            The BPA Code of Practice https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf (Exhibit #) states that “driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start… Entrance signs play an important part in establishing a parking contract and deterring trespassers.” It also states that “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” The Claimant provides no evidence that any signage claimed to be at the site on the material date was visible from any car entering, parking in or exiting the parking area. Any photographs purporting to show such signage on a different date cannot be considered sufficient to evidence their presence on the date in question. In addition, any close-up photographs of signage cannot be considered sufficient as evidence of their visibility from the entrance nor from any areas.

 5.             At the point of entry, the entrance terms and conditions are not visible or readable and do not mention anything of relating to risk of paying a fine of £100 or paying within the first 10 minutes - see Exhibit X(google street view of entrance showing position of small entrance sign) and Exhibit Y (close up on entrance sign provided by the claimant in response to my SAR 22nd September 2021 - showing no terms and conditions). Note the small font and difficulty in reading this in comparison to the Beavis case sign (reference the case?) (Exhibit Z). In the Beavis case … (explain relevance?)

6.             Even taken as an extreme close-up, with no proof as to its visibility from the parking area, the signs that the Claimant has presented as evidence has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, even if I had seen signage of the sort presented by the Claimant – which I didn’t – no contract to pay an onerous penalty would have been seen, known or agreed.

No Evidence of Payment or Registration

7.             On 22nd September 2021 I issued my initial Subject Access Request upon the Claimant (Exhibit #), requesting all data held and evidence they will rely upon including machine record etc. As seen in their initial reply October 14th 2021 (Exhibit #), the Claimant states “we are not able to provide a payment machine record to you for the day/time in question due to ICO guidance on handling of vehicle registration mark data by car park operators”. On Upon further request asking exactly how they intend to evidence the case, the Claimant replied “ The ICO has made it clear that all VRM data held by Car Park Operators with a DVLA KADOE license are not permitted to disseminate the data publicly. For more information please visit the ICO website.” To which I replied, (Exhibit #) “The ICO saying PPCs are not allowed to 'disseminate the data publicly' simply means you are not allowed to put data about people/their cars on public view on your website or elsewhere. "Publicly." That is not to say that you can't provide a machine log with VRMs partially redacted, as PPCs do all the time for POPLA/IAS appeals, and will certainly have to in evidence for court. Please provide me with machine logs, because you are now wilfully withholding evidence that the pre-action protocol requires to be shown to the Defendant.” I have since had zero contact from the Claimant and assert that they do not have sufficient evidence to make their case.

8.             On November 23rd, I received an email someone at Smart Parking Ltd. (Exhibit #) In the email they state, “recently Smart Parking Ltd have acquired Enterprise Parking Solutions – and therefore, I will now be continuing the Subject Access Request you have submitted.” They then continue to explain how they have “looked through the below and I can confirm that through the platform Enterprise Parking Solutions utilise – they do not have a facility to track payments made and therefore, this cannot be provided to you” I would therefore assert, again, that the Claimant does not have sufficient evidence to make their case.

 Abuse of process – the quantum

9.            The quantum and interest has also been enhanced beyond the parking charge sum.  It is denied that the sum sought is recoverable and this claim seems to represent (in whole or in part) a penalty, applying the authority from two well-known ParkingEye cases.  The court's attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet this was a case where the learned Judge also considered added 'costs'.  The parking charge was set at £75 (discounted to £37.50 for prompt payment) then increased ultimately to £135.  At paras 419-428, HHJ Hegarty sitting at the High Court (decision later ratified by the Court of Appeal) found that adding £60 on top and taking the sum sought to £135 'would appear to be penal' and was unrecoverable.

10.            My stance regarding the pseudo 'debt recovery/admin fees' enhancement is supported by the Government. The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice

11.      The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unjustified and is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  

12.    This particular Claimant continues to add a sum on top of each PCN, despite indisputably knowing that these are banned costs which they have neither paid nor incurred.  The DLUHC considered evidence and took over two years to consult a wide mix of stakeholders before deciding this contentious issue.  According to the DLUHC, almost a fifth of all respondents in 2021 'called for the proposal to be scrapped and debt collection to be banned altogether'.  Although the parking industry flooded both public consultations, some even resorting to masquerading as consumers, the DLUHC saw through this and identified in its published Response to the Technical Consultation (also on 7/2/22) that some respondents were clearly 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis and are effectively Trade Body Board/member colleagues, passing data around electronically.  Parking firms such as the Claimant have not incurred any additional costs (not even for their own letters) because the full parking charge itself more than covers what is merely a 'letter chain' business model that generates a healthy profit.

13.     The Ministerial Foreword to the new Code is unequivocal, saying this about existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

14.    The Government banning such add-ons altogether must be viewed as a clear steer for the Courts in existing cases and overrides the mistakes and/or presumptions in the appeal cases the parking industry used to rely upon (Semark-Jullien, Wilshaw or Percy) where Circuit Judges who appeared to be somewhat inexperienced in niche private parking law, DVLA rules about landowner authority and the proper application of the CRA 2015, were led in one direction by legally trained counsel for the parking firms, and were not in possession of the same level of facts and evidence as the DLUHC considered.

Protection of Freedoms Act 2012 and Consumer Rights Act 2015

15.    Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm may have complied with the other requirements (e.g. adequate signage, correct wording and dates of Notice to Keeper, and the existence of a relevant contract/relevant obligation that was properly communicated).  The Claimant is put to strict proof of full compliance, if attempting to seek keeper/hirer liability under the POFA, because liability for a PCN is not accepted by the Defendant. 

16.    Claiming unexpected ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3, being the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015').  This consumer legislation goes further than the UTCCRs, in that it introduced a new requirement for 'prominence' and states that both contract terms and 'consumer notices' (i.e. signage and any other notices/communications, including the timely service of any PCN in parking cases) must be fair.

 17.  Section 71 provides for the duty of court to consider the test of fairness and this includes whether all terms and notices were unambiguously and conspicuously brought to the attention of the consumer.  In the case of letters/the PCN, this means such communications must have been served.   In the case of signage, this must be prominent, plentiful, well placed and lit, and the terms clear and unambiguous.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices, pursuant to s62 and having regard to the requirements for transparency and good faith, taking into account as guidance, examples 6, 10, 14 & 18 of Schedule2.  

 The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

 18.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN and overcame the possibility of it being dismissed as punitive and unrecoverable.  However, their Lordships were clear that ‘the penalty rule is plainly engaged’ in these cases.  Their decision mentioned a 'unique' set of facts including the legitimate interest, the car park location and prominent, clear signs with the parking charge in the largest/boldest text.  The unintended consequence is that, rather than persuading Judges that all parking charges are automatically justified, the Beavis case facts (and in particular, the brief and conspicuous yellow/black warning signs) set a high bar that this Claimant has failed to reach.

19.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

20.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests.

 21.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

22.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.  The Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  

23.   Fairness and clarity of terms and 'consumer notices' are paramount in the new statutory Code and this stance is supported by the BPA and IPC Trade Bodies.  In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the terms the Claimant is relying upon were unclear/unfair and the Beavis case is fully distinguished.

happych4ppy

Do I still need the bit about still need bit about Lack of landowner authority evidence and lack of any fair ADR ?

Also, do I need to explain the Beavis sign comparison? Am I saying the Beavis sign has clear terms in comparison? or am I saying that the Beavis sign is also unclear/misleading?

thanks

D_P_Dance

Yes to all, insert the kitchen sink.

happych4ppy

D_P_Dance said:

Yes to all, insert the kitchen sink.

thanks very much - does anyone know what I should say relative to the Beavis sign comparison?

Am I saying the Beavis sign is clear and demonstrates what a terms/conditions sign should say?  or am I saying that the Enterprise sign is similar to the Beavis sign which had "vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed." ?

What are the particulars of that Beavis case relative to the sign (vs. the Enterprise sign) that I need to reference?

Thanks again

Coupon-mad

You are saying the Beavis yellow and black warning sign is clear.

Remove this in your case as you are admitting to driving:

 The Claimant is put to strict proof of full compliance, if attempting to seek keeper/hirer liability under the POFA, because liability for a PCN is not accepted by the Defendant. 

And you account doesn't quite gel.  Think about this:

- on the one hand, you are saying you saw no signs or machines (therefore by your own admission, you neither paid a fee nor exempted your VRM at a keypad in the building).

- yet you go on to make a big thing of the fact that the Claimant has no records of whether payments were made, or not.  How would that matter, if in your words above, you've jumped through that hoop for them?

Would it not be better to say in the earlier parts that you have no clear recollection of an unremarkable event xx months ago, nor whether the reception/pay desk staff exempted vehicles and you are wondering if the keypad signal failed, a commonly-reported issue/flaw for this type of parking model.  Regarding proof of breach, the Claimant is put to strict proof*

* IF THAT WAS AN OPTION AT THAT PLACE, WAS IT A VENUE WHERE YOU CAN PUT IN YOUR VRM AND PARK FREE?

You can still say the signs are unclear, either from your local knowledge or by visiting to take photos as evidence.  You can also suggest this was an unknown new system if you'd visited that venue before and it used to be free parking.  As such, you believe the parking firm (Enterprise?) failed to put up extra, conspicuous signs, alerting regular local visitors to the change, because otherwise a driver would have no cause to know anything had changed.  This is a breach of the BPA CoP (quote the paragraph about new or changed rules in car parks needing additional signs).

Who is the Claimant on the Claim form, Smart?  Or Enterprise?

But whose name was on the sparse signs at the time, Enterprise?

Who issued the postal PCN?

Have you got the Claimant's WS yet, including the landowner authority?

happych4ppy

Coupon-mad said:

You are saying the Beavis yellow and black warning sign is clear.

Remove this in your case as you are admitting to driving:

 The Claimant is put to strict proof of full compliance, if attempting to seek keeper/hirer liability under the POFA, because liability for a PCN is not accepted by the Defendant. 

And you account doesn't quite gel.  Think about this:

- on the one hand, you are saying you saw no signs or machines (therefore by your own admission, you neither paid a fee nor exempted your VRM at a keypad in the building).

- yet you go on to make a big thing of the fact that the Claimant has no records of whether payments were made, or not.  How would that matter, if in your words above, you've jumped through that hoop for them?

Would it not be better to say in the earlier parts that you have no clear recollection of an unremarkable event xx months ago, nor whether the reception/pay desk staff exempted vehicles and you are wondering if the keypad signal failed, a commonly-reported issue/flaw for this type of parking model.  Regarding proof of breach, the Claimant is put to strict proof*

* IF THAT WAS AN OPTION AT THAT PLACE, WAS IT A VENUE WHERE YOU CAN PUT IN YOUR VRM AND PARK FREE?

You can still say the signs are unclear, either from your local knowledge or by visiting to take photos as evidence.  You can also suggest this was an unknown new system if you'd visited that venue before and it used to be free parking.  As such, you believe the parking firm (Enterprise?) failed to put up extra, conspicuous signs, alerting regular local visitors to the change, because otherwise a driver would have no cause to know anything had changed.  This is a breach of the BPA CoP (quote the paragraph about new or changed rules in car parks needing additional signs).

Who is the Claimant on the Claim form, Smart?  Or Enterprise?

But whose name was on the sparse signs at the time, Enterprise?

Who issued the postal PCN?

Have you got the Claimant's WS yet, including the landowner authority?

Thanks for your feedback much appreciated I will amend my WS are repost the draft ASAP.

Yeah I'm assuming it's the type of car park where I could have registered my reg plate number to be exempt from parking charge however I was totally unaware that this was the case. Looking at the signs now, the entrance sign says "PAY & DISPLAY, FREE FOR CUSTOMERS - terms and conditions apply see notices in the car park  for details"

However my argument against this is that the BPA code of practice state that “driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start…… Entrance signs play an important part in establishing a parking contract and deterring trespassers" - the terms and conditions are not clear from the start, one has to go seek the terms and conditions sign in the car park, which I also did not see.

My logic with the referencing the machine log was that they have cannot provide "proof" that I registered my reg or did not, seeing as they could not provide this for me and even Smart (who have since acquired Enterprise (and are now handing my SAR), say "looked through the below and I can confirm that through the platform Enterprise Parking Solutions utilise – they do not have a facility to track payments made and therefore, this cannot be provided to you"

Do they also not have an obligation to provide me the machine log evidence as part of my SAR?

Also, should I remove the bit where I reference google street view? (I guess this doesn't really do anything to support my case, if anything it could work against me because I'm supporting the idea that the signs exist)

Regarding the Beavis case sign reference, when I want to reference this earlier on in the WS, can I just reference paragraph 18 where it's explained that the Beavis case facts (in particular the black/yellow signs) set a high bar that this Claimant has failed to reach.

This was the first time i've visited the venue/car-park and will certainly be the last

happych4ppy

Coupon-mad said:

Who is the Claimant on the Claim form, Smart?  Or Enterprise?



But whose name was on the sparse signs at the time, Enterprise?



Who issued the postal PCN?



Have you got the Claimant's WS yet, including the landowner authority?

> on the claimant form is the Enterprise but the Solicitor's address for sending document/payments

> the signs are Enterprise, it's their name is on the signs

> Enterprise issued the PCN

> not heard anything yet, not head anything since Enterprise refused to provide me with any machine logs. Only had contact from Smart Parking since to say they have acquired Enterprise and that information (SAR for machine log) cannot be provided to me (because Enterprise did not have the function to track payments) and i'm not sure about landowner authority I can't find this in the SAR, there's a contract service agreement but can't see no real proof of land ownership type thing

> we've got until the 11th March to file the evidence (is it a good sign that i've not had it yet?)