LBCC - County Court Claim - Enterprise Parking Solutions

Coupon-mad

I get what you are saying but if you are 100% admitting to not using any machine or keypad (and haven't said you used the premises - restaurant, cinema, hotel, what? - and mused that their staff may have entered your VRM on a keypad as a customer?)  then you are absolving Enterprise of any need to prove payment or keypad use,

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

Not if it doesn't contain your data.

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.

Yes, that's the idea.

> on the claimant for is Enterprise however i think it's now a solicitor that i'm dealing with.

The claimant is still Enterprise.  They are legally represented, that's all.  Most PPCs issue claims using a useless robo claim legal firm.  Unless they decide to discontinue, you will get their WS just in time and should hold off emailing yours till the last minute.

happych4ppy

Coupon-mad said:

I get what you are saying but if you are 100% admitting to not using any machine or keypad (and haven't said you used the premises - restaurant, cinema, hotel, what? - and mused that their staff may have entered your VRM on a keypad as a customer?)  then you are absolving Enterprise of any need to prove payment or keypad use,

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

Not if it doesn't contain your data.

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.

Yes, that's the idea.

> on the claimant for is Enterprise however i think it's now a solicitor that i'm dealing with.

The claimant is still Enterprise.  They are legally represented, that's all.  Most PPCs issue claims using a useless robo claim legal firm.  Unless they decide to discontinue, you will get their WS just in time and should hold off emailing yours till the last minute.

Thanks for the feedback - I am admitting to being a customer at the venue (pub) and that I didn't pay/register anything because I had no awareness of any such parking service due to poor signage...

... like you say might it be better to state that "I have no clear recollection of an unremarkable event 18 months ago, nor whether the reception/pay desk staff exempted vehicles. I also wonder if the keypad signal could have failed. Regarding proof of breach, the Claimant is put to strict proof." (rather than just say I was not informed and therefor I assume that I didn't register VRM)

So am I suggesting that any failure to register VRM is their responsibility? 

and "Regarding proof of breach, the Claimant is put to strict proof" - what am I asking them to prove? prove that I didn't register? How will this work?

thanks again

Coupon-mad

Maybe you'd find it easier to word, if you read the 'hidden keypad Odeon' example of a defence.  It's among the specific ParkingEye defences in the 2nd post of the NEWBIES thread.

Putting them to strict proof of breach is a good phrase to use, and it is after all, their case to prove, not yours.

happych4ppy

Coupon-mad said:

Maybe you'd find it easier to word, if you read the 'hidden keypad Odeon' example of a defence.  It's among the specific ParkingEye defences in the 2nd post of the NEWBIES thread.

Putting them to strict proof of breach is a good phrase to use, and it is after all, their case to prove, not yours.

Latest draft incorporating parts from the Odeon defence...

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. Any signs were either not clearly displayed, not easy to read and/or not written in big enough font to read. I did not see any signs while leaving the car parked, nor whilst walking towards and entering the venue for which the car park serviced. Whilst inside the venue, and now a paying customer, I was neither informed, nor reminded about the parking charge service, 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. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge, visitors were expected to know to input their Vehicle Registration Number (VRN) somewhere inside the venue or to pay. This was far from clearly signed. It is contended that the Claimant failed to alert visitors to an onerous change and unexpected obligation to register or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

5. 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.” At the point of entry, the entrance terms and conditions are not visible or readable and do not mention anything relating to risk of paying a fine of £100 or registering VRN inside the venue. (see Exhibit #X+#Y: google street view of entrance showing entrance sign and close up of entrance sign showing no terms and conditions)

6. 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. 

7. 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. Note the small font and difficulty in reading this in comparison to the Beavis case sign (Exhibit #Z), which demonstrates clear terms and conditions (ref Paragraph 20 and Paragraph 23.). 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.

8. The Claimant provides images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of having not paid, registered VRM or not being a patron of the facility. Regarding proof of breach, the Claimant is put to strict proof.

No Evidence of Non-Payment/Registration

9. 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.” 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.

10. 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 “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 that the Claimant does not have sufficient evidence to make their case. Again, regarding proof of breach, the Claimant is put to strict proof.

Abuse of process – the quantum

11. 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.

12. 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

13. 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."  

14. 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.

15. 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." 

16. 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

17. 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). 

18. 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.

19. 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

20. 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.

21. 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.  

22. 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.

23. 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.

24.   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. 

25.  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.

Lack of landowner authority evidence and lack of any fair ADR

26.  DVLA registered keeper data is only supplied to pursue parking charges issued on private land, where there is an independently signed landowner agreement ...

27.  The Defendant further avers that the Claimant failed ...

happych4ppy

I am wondering if I should remove the google street view screenshot exhibit of the entrance. This is only adding to their case that there was an Entrance sign right? and kind of contradicts my position that I didn't see any signs?

Coupon-mad

Yes, remove any signs you think might assist them.

This WS is looking good now (I assume it continues to the end and has a WS statement of truth (not a defence one) and just got cut off in your reply above as it's so long!

Don't forget your costs assessment, in case the Judge is so minded to award costs.

happych4ppy

Coupon-mad said:

Yes, remove any signs you think might assist them.

This WS is looking good now (I assume it continues to the end and has a WS statement of truth (not a defence one) and just got cut off in your reply above as it's so long!

Don't forget your costs assessment, in case the Judge is so minded to award costs.

Yeah it was too big for the text box. Does this seem sufficient?

My fixed witness costs – ref PD 27, 7.3(1) and CPR 27.14

28.            Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

CPR 44.11 – further costs

29.             As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records.

24.             Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX-05) which covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).

Statement of Truth

I believe that the facts stated in this witness statement are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 Witness’ signature:

<SIGN HERE>

XX-05            Schedule of costs 

DEFENDANT’S SCHEDULE OF COSTS

Ordinary Costs

Loss of leave through attendance at court hearing:

£95.00

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

 Research, preparation and drafting documents:

(20 hours at Litigant in Person rate of £19 per hour):           

£380 (£20 x £19)

 TOTAL COSTS CLAIMED:

£475 (£380 + £95)

 

Signed <NAME>, Defendant:

 <SIGN HERE>

Date:            <DATE>

Also what do I need to reference in the Exhibit regarding cases?

 > The Beavis Case paragraphs paras 98, 193 and 198 ? (also the Beavis case sign)

> Copy of Excel Parking Services vs Wilkinson (G4QZ465V) Approved Judgement by Judge Jackson of Bradford County Court

>>>if so where/how should I reference the Excel Parking Case in my WS?

> the Approved Judgment from Southampton? (what is this? where can I find it? how do I reference it?)


Thanks again

Coupon-mad

Not the Southampton case. We don't use that now, but yes to the others.  Just add a line somewhere sensible, referring to the attachments and call them Exhibits.  Give each a number, made up of your initials 1, your initials 2, etc.

happych4ppy

Coupon-mad said:

Not the Southampton case. We don't use that now, but yes to the others.  Just add a line somewhere sensible, referring to the attachments and call them Exhibits.  Give each a number, made up of your initials 1, your initials 2, etc.

thanks. Could you tell me where/how to reference the Excel v Wilkinson case, what am I saying? That my case should be struck out because that one was too? 

thanks again

Coupon-mad

Have a look at the WS by @rapidon.

That WS covered Excel v Wilkinson, as did the WS by @jrhys

But both were done in 2021, before the debt recovery fees were banned by the published Code of Practice, so you have that advantage to include!