ParkingEye court claim, no letters before hand

hgbond999

Hi all,

Thank you for all the advice on here. The claim was made against me on 17/10/2022, this was the first letter I remember seeing regarding this. As far as I can remember, I was dropping my partner at the train station and the train was stuck at the station before so we pulled up in the car park to see if it would move. I think I was there maybe 15 minutes and didn't get out of the car.

I have read the newbies thread, requested a SAR and applied for an acknowledgement of service on 20/10/2022 so I need to submit my defence by 18/11/2022. I have copied my defense from https://forums.moneysavingexpert.com/discussion/5899258/received-a-court-claim-but-never-a-lbccc written by coupon mad and ammended to apply to my case.

Because I haven't received the SAR, it is difficult to write a defense. I wondered if someone would be able to review and and let me know if I should add anything? i would be very grateful for any advice you could give me.

IN THE COUNTY COURT

CLAIM No: REMOVED

BETWEEN:

ParkingEye Ltd (Claimant)

-and-

hgbond999 (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 Warrington Bank Quay Station car park on 16/06/22.

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

2. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper ‘parking without a valid paid parking ticket'.


Data Protection concerns

3. The Defendant had no idea about any ANPR surveillance and received no letters before  the court claim form, which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied to date.

3.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.

4. 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 unsuspecting but circumspect motorists, who are being caught out regularly by this trap.

4.1. Silently collecting VRN data in order to inflate the 'parking charge' from £3 to £100 and write to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

5. Unlike the free car park in ParkingEye Ltd v Beavis [2015], this car park is a site where the Claimant has machines to take payment of tariffs. Clearly there will be ParkingEye staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the size of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.


Premature claim - no Letter before Claim, and sparse Particulars

6. Due to the sparse details on the Particulars of Claim (POC) and the complete lack of any Letter before Claim, 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 was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

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. 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 October / November 2022, 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 it does not state clearly that it is affiliated with ParkingEye and unlit which combine to make this initial sign easily missed.

10.2. It is not remembered whether an occupant of the car did see a PDT machine and pay a tariff/input the VRN whilst the Defendant, and the Defendant is none the wiser due to the lack of information from the Claimant. The POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.


No standing or authority to form contracts and/or litigate

11. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against users of the car park.



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

12. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the POC was sent with a 'parking charge' that bears no resemblance to the £3 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

12.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''



Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

13. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £3 according a Google search of Sunday charges for car parks around Warrington Bank Quay, as it is unknown where this alleged breach of contract actually took place.

13.1. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £3 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 £3.

13.3. 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.''

13.3.1. 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.''

13.4. 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 £3 and no more.

14.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

14.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £3 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, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

16. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which have not actually been incurred by the Claimant.

16.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

17. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

17.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £100 can be claimed instead of £3 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.

I believe the facts contained in this Defence are true.

KeithP

hgbond999 said:

The claim was made against me on 17/10/2022.

I have read the newbies thread, requested a SAR and applied for an acknowledgement of service on 20/10/2022 so I need to submit my defence by 18/11/2022.

I have copied my defense from https://forums.moneysavingexpert.com/discussion/5899258/received-a-court-claim-but-never-a-lbccc written by coupon mad and ammended to apply to my case.

Because I haven't received the SAR, it is difficult to write a defense. I wondered if someone would be able to review and and let me know if I should add anything? i would be very grateful for any advice you could give me.

Hello and welcome.

That's a very old Defence you have dug up from somewhere. The ancient Statement of Truth gives it away.

Are you saying that you have a County Court Claim Form with an Issue Date of 17th October and you filed an Acknowledgment of Service on 20th October? Please confirm.

If so, then by my calculation you have until 4pm on Thursday 17th November 2022 to file a Defence.

That's two weeks away. Plenty of time to produce a Defence and it is good to see you are not leaving 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.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

I'd remove 4 and 4.1 and replace them with your para 8 which is better there.

I'd also add a new paragraph near the start saying what you told us - that you didn't actually park, were merely dropping off a passenger to catch a train, activity that is not 'parking' and most stations reasonably offer up to 20 minutes for pick-up/drop off.

Was this really only in June this year and it's already reached a court claim?

hgbond999

Thank you for both replying...

Keith P, I took my defence from the second post in the newbies thread. And yes, the issue date is 17th October 2022 and I filed the Acknowledgment of Service on 20th October 2022.

Coupon-mad. I'll add that now about what happened and change 4/4.1 with 8. Yes, it was June this year and the first letter I saw was this court claim! I've just realised, it wasn't a Sunday so I need to remove that and stop saying £3. Do I need to take a drive down there to see what I should have paid?

Coupon-mad

No - because it is your case that you were merely dropping off a passenger, not paying to park and stay.  The tariff was irrelevant to your circumstances, otherwise it would be absurd at a station - all circulating taxis and cars dropping off would be expected to pay & display!

hgbond999

It was a small car park next to the station, there was no room to park outside the station. We waited there to see if his train moved as they had been stuck at the previous station all day. Here is all the info I have -

Coupon-mad

On Google Streetview, at the station, I see an entrance to the left for taxis and other traffic, but no ParkingEye entrance sign.

Can you show is this car park if it's not those bays right outside? GSV 'copy link'.

hgbond999

I can't post links yet I'm sorry. It says I haven't been here long enough. This is it though, hopefully you can see where I am looking -

Coupon-mad

Oh dear. I'd never have driven in there without paying a tariff.  Clearly an ANPR trap private car park.  Avoid such places.  

You have no choice but to defend, though. As I said, defend on the fact you were dropping off a passenger.

You could also separately email ParkingEye and offer to settle at the discount - £60.  They often agree.

enforcement@parkingeye.co.uk

hgbond999

Yeah, I regret it now...

So I say I was dropping a passenger off, I owe £15 which is the daily parking charge, not £100, and definitely not £150?

Is the rest of the defence okay?

Coupon-mad

You do not admit to owing anything. I did not advise you to say that.

I told you what to put and (separately) how to get it settled out of court and exactly which email to use to offer £60 to (hopefully) resolve the matter.