PE discontinued at the site of the Beavis case! (Alleged overstay, Equality Act defence)

drellix

I've produced a draft that's probably insanely long. I wouldn't mind help in thinning it out a little bit; I'm just not sure what's worth keeping and what isn't:

[1. is identical to that in the 2022 template defence.]

2. The Defendant is the registered keeper and driver of the vehicle in question, but liability is denied. The Defendant does not recall the details which led to the alleged infractions that resulted in this alleged ‘parking charge’ as the date in question is unremarkable and took place some 9 months prior to the receipt of the Claim Form. The Defendant avers that irrespective of specific detail, there was no intentional overstay, nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was not unauthorised.

3. However, there are several reasons why an infraction may have occurred:

Firstly, this location is well-known for its heavy congestion due to its layout, number of shops that the car park services, and McDonalds drive-thru contained entirely within its bounds, leading to delays between both entering the car park and entering a valid space, and exiting a valid space and exiting the car park. In ParkingEye v Ms. X (Altrincham, 17/03/2014) the Judge determined that waiting for a space is not parking. The Defendant avers that supplying ANPR camera images and timestamps alone is not sufficient to determine the exact length of time that the vehicle in question was parked; the Claimant is put to strict proof of this.

Secondly, the Defendant is autistic; autism is a lifelong and debilitating condition which meets the definition of disability within the Equality Act 2010 (‘EA 2010’), section 6(1), and is a protected characteristic. Service providers are required to allow reasonable adjustments for people with these protected characteristics (EA 2010 section 29(7a)), and the Courts are obliged to consider the fairness of contract terms even if the subject has not brought them to the attention of the Courts beforehand, as stated within the Consumer Rights Act 2015 (‘CRA’). The Defendant avers that they have been subjected to discrimination by the Claimant, as defined in chapter 4.19 of the Equality and Human Rights Commission’s (‘ECHR’) Statutory Code of Practice regarding Services, Public Functions and Associations (‘SCoP’). Considering their responsibilities under the EA 2010 and chapter 5.37-39 of the ECHR SCoP, the Defendant avers that this Claimant has failed in their legal requirement not to indirectly discriminate against, or make reasonable adjustments for, disabled people, by failing to communicate how persons with protected characteristics can claim more parking time by exempting their vehicle. The Claimant is put to strict proof that they have made anticipatory adjustments of fixed policies for individuals with protected characteristics as defined in chapter 7.20-22 of the ECHR SCoP, that they have undertaken an appropriate risk assessment to produce reasonable adjustments for individuals with protected characteristics, and that they have allowed more time for individuals with protected characteristics than the arbitrary max stay period, as defined in chapter 5.37 of the ECHR SCoP, which applies to inflexible arbitrary time limits just as it does to physical adjustments at any customer-facing location.

Thirdly, it is likely that, given the popularity of the location for shopping, using health and leisure facilities such as gyms, and the aforementioned drive-thru, it is likely that there were delays in the shops due to queues.

With no 'legitimate interest' excuse for charging this unconscionable sum, given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

4. There is also a clear reason why an infraction was likely recorded in error:

The allegation is based on two separately-circuited Automatic Number Plate Recognition (‘ANPR’) camera systems installed at the entrance and exit to the car park, which respectively capture the vehicle in transit whilst entering and leaving the car park in question. No information regarding the method of capture, such as images or timestamps from the ANPR camera systems in question, was provided to the Defendant prior to receipt of the Claim Form. The Defendant regularly visits the location, however was never aware of any ANPR surveillance, as the Riverside Retail Park car park is a free car park without any form of ticketing upon entry or exit, no prominent signage presenting the car park as under the stewardship of a private parking firm is visible from the road outside the site, the only signage at the entrance to the car park is deliberately presented at the same time that a motorist must navigate a sharp right turn and would therefore escape the notice of a sufficiently attentive driver, and the ANPR system itself is deliberately positioned several metres off the ground atop otherwise totally unremarkable metal poles which would escape the notice of a typical driver. The Defendant has never knowingly overstayed, so it is suggested that this instance is more likely to be a typical ANPR error known as a ‘double-dip’ (a phrase even used by Government in the new Code of Practice linked in this Defence). This is known in the industry as an inherent and well-documented flaw of ANPR, which cannot be relied upon alone to sign off a Parking Charge Notice (‘PCN’) and must also be accompanied by manual checks performed by an actual person. British Parking Association (‘BPA’) members are required to carry out these manual checks to discount the possibility of ‘orphan images’ in the middle – denoting multiple visits within 24 hours – which are wrongly read as one period of parking (for instance to return something, buy a forgotten item, or, specific to this location, visit the aforementioned drive-thru, which located entirely within the bounds of the car park). Given that ANPR defaults to ‘first-in, last-out’ images, the Claimant is put to strict proof of all ANPR captures of the vehicle onsite that day, and of their documented manual checks performed by an actual person prior the issuing of this PCN.

5. The CRA requires the 'prominence' of both contract terms and 'consumer notices' – signage and any other notices/communications, including the timely service of any PCN in parking cases. Section 71 provides for the duty of Court to consider the test of fairness, which includes whether all terms and notices were unambiguously and conspicuously brought to the attention of the consumer. In the case of correspondence, including the alleged PCN, this means such communications must have been served; the Defendant avers that the CRA has been breached due to the lack of receipt of any such PCN. Contrary to the assertions presented by the Claimant in the Particulars of Claim (‘Particulars’), no correspondence at all, including the PCN upon which the Claimant makes this Claim, was received at any point by the Defendant, prior to the receipt of the Court-level Claim Form. Given that no PCN, no photographic evidence, and no correspondence was received, the Defendant could not have known that any alleged breach of terms or conditions had taken place, and thus was not afforded any time at all to attempt to resolve the situation prior to litigation. 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 has been breached due to unfair/unclear/unreadable terms and notices, pursuant to s62 and having regard to the requirements for transparency and good faith and as guidance, examples 6, 10, 14 & 18 of Schedule2. It is denied that the Claimant’s signage sets out the terms of contract in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The Defendant avers that the signage at the site in question is inadequate, in significant disrepair, and extremely confusing. The signs themselves contain text relating to any terms or conditions in such a small font that it would be challenging for even the most keen-eyed reader to read, let alone understand, and, given the signs’ susceptibility to nominal outdoor conditions and vehicle sizes, most of these signs, including, crucially, the most prominent one at the entrance to the site, are unreadable due to either wear-and-tear, obstruction by larger vehicles, or both. It is obvious that the information which the Claimant expects motorists to read on the sign at the entrance is impossible to reasonably interpret, and information on other signs in the area could easily be obscured by large vehicles, misinterpreted, or simply missed, let alone their frankly atrocious state of repair.

6. The facts in this Defence come from the Defendant's own knowledge and honest belief. The Defendant should not be criticised for using some pre-written wording from a reliable source. The Claimant is urged not to patronise the Defendant with unfounded (and, ironically, also templated) accusations of not understanding their Defence. This Defendant signed it after a great deal of research, after adding facts and reading the Defence through several times because the litigation process is outside of their life experience and this Claim was an unexpected shock.

7. Regarding template statements, the Defendant observes after researching other parking cases that the Particulars set out a generic and incoherent statement of case. The Particulars are sparse on detail or facts about the alleged breach, but they allege that “notice was given to the registered keeper, making them liable for the Parking Charge payable on breach” but, prior to this, and in breach of the Pre-Action Protocol for Debt Claims (‘Protocol’), no such notice was ever received by the Defendant as registered keeper – despite the accessibility of the Driver and Vehicle Licensing Agency (‘DVLA’) Keeper of a Vehicle at the Date of an Event (‘KADOE’) system – affording the Defendant no opportunity at any point to take stock, obtain data, copy letters, obtain images of the contract on signage, or even to acknowledge or understand the allegation, let alone discuss or dispute it prior to Court action, as should have been the case under the Protocol. The Defendant avers that this Claim is premature, and the Claimant is put to strict proof of the letters they say were sent, and where they were posted to, including that of the original PCN. The Claimant is put to strict proof of evidence from their case status data that a Letter before Claim (‘LBC’) and attachments required under the Protocol were issued, as well as when and where they were sent. The Defendant avers that in the case that correspondence was sent to a different address, upon obtaining the “alternate service address” mentioned in the Particulars, the Claimant should have re-issued the PCN to the correct address in a timely manner, as well as directed any further correspondence, including an LBC, to this address, as the Government has mandated in the incoming statutory Code of Practice. 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 Defendant has sent a Subject Access Request (‘SAR’) to the Claimant, for response during February to March 2023, 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 and serve less overtly lazy Particulars. Given the sparse Particulars, the Claimant is put to strict proof of: any formation or breach of contract; of their decision-making in processing the Defendant’s personal data as well as the human intervention in deciding to issue a PCN and why; the reasoning behind attempting to collect £85 when the car park is free to use; and that there is a clear cause of action for this Claim.

8. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap' – whilst Beavis did involve this exact car park, and 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, the Beavis case took place seven years prior to the litigation of this Claim, wherein the facts are now substantially different; namely: that no PCN or any other correspondence was received by the Defendant prior to the receipt of the Claim Form; that the state of repair of signage has significantly deteriorated; and that commercial changes both within and near the site in question have taken place which would undoubtedly affect the Beavis decision that there is a ‘legitimate interest’ in claiming the extortionate £85 ‘parking charge’ – notwithstanding the obvious differences in facts between Mr. Beavis and this Defendant. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage deficiencies at the time and the other facts of this case. To quote directly 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.''

9. Under the UK General Data Protection Regulations 2018 (‘UK GDPR’), the Claimant is put to strict proof regarding the reason for such excessive and intrusive data collection via an ANPR surveillance system at a car park – where there would likely be no cars unconnected to patrons, no trespassing, and no unauthorised parking events – against the rights and interests of thousands of unsuspecting but circumspect visitors to the Riverside Retail Park. Silently collecting VRN data in order to generate a ‘parking charge’ for an otherwise free location without any form of ticketing system to confirm entry times, then to not write to registered keepers, and finally to issue a Court-level Claim Form against registered keepers, several months later, at their own homes is excessive, untimely, and needlessly intrusive to registered keeper data subjects. These clandestine restrictions to an otherwise free parking site are misleading and excessive, tipping the balance so far against visitors that there is a clear imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008 (‘CPUTR’). The Defendant avers that this Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner’s Data Protection Code of Practice for Surveillance Cameras and Personal Information (‘ICO Code’). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator, even in cases taking place at the same site as the Beavis case. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (‘DPA’) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to notice a slight change in the length of a max stay period which would have produced negligible changes to any signage at the site irrespective of their prominence, frequency, distribution, or state of repair. The ANPR system installed at this free parking location represents dishonourable and excessive data processing, given the nature of the location as a central town centre hub which receives thousands of daily visitors, and the Claimant’s Data Protection Officer (‘DPO’) is put to strict proof of their data risk assessment and compliance with all ICO rules and guidelines.

10. Had the Defendant been clearly alerted to the changes in length of a max stay, and had the Defendant received any correspondence whatsoever prior to the receipt of the Claim Form, they would have taken the necessary steps to settle the issue without the need of litigation. Therefore, there would be no unfair penalty, the landowner would continue to gain an income, and avoid any parking issues at all, including the doubtless complaints they would have received from other motorists visiting this otherwise busy and successful site. Instead, this Claimant is clearly operating a punitive, unjustified, and excessively data-intrusive ANPR system to their own ends. This regime, having lasted a further seven years after Beavis, has further damaged the reputation of the Riverside Retail Park, has been seen to drive away business in the form of future visitors as evidenced by the continual closures of larger stores in the area, and is an overt attempt to unfairly and unconscionably extort the general motoring public for an otherwise unrecoverable sum of money. This is not, despite the identical site, the sort of ‘complex’ issue with a ‘compelling’ commercial justification that saved the charge in Beavis from the penalty rule – if anything, this sort of clearly unconscionable and extortionate practice at this site in particular was always going to happen as a direct result of the rulings of the Beavis case. Thus, it cannot be excused from the penalty rule by any form of ‘legitimate interest’, both taking into account the GDPR data principles’ meaning and under the Beavis case definition, and the site today now appears to suffer from precisely the sort of ‘pitfalls or traps’ that the Beavis case Judges warned against. The Claimant’s deliberately unfair business practices initially caused the unjustified PCN to arise. Then, the Claimant’s negligence in failing to adhere to the Protocol directly caused these unwarranted and needless proceedings, costing the Defendant and Court alike needless time and money. This Claimant cannot be heard to blame consumers for any part of this process, given that the entire process hinges upon their hope that the Defendant does nothing to defend themselves against their overtly predatory behaviour, even breaking the law to do so. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the ‘parking charge’ sum owned in this case can, at most, be zero; there was ample opportunity for the Claimant to fairly and transparently contact the Defendant prior to the receipt of the Claim Form which simply did not occur.

[11. to end are identical to that of the 2022 template from para 15. onwards, with the following exceptions:
(a) para 18 of the template is edited to:

18. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification. It has been seven years since Beavis; not only are the facts relating to the Defendant different, but the facts relating to the Claimant’s conduct, as well as the facts relating to commercial justification, are likewise distinguished from Beavis.

(b) para 20 of the template is edited to:

20. In the present case, the Claimant has fallen foul of those tests. Despite the Beavis findings, the Claimant’s signs at the site in recent times have vague/hidden terms and a mix of small font, and the prominent sign at the site entrance, as well as others at the site, are in such disrepair to the point where terms are impossible to read, and are considered incapable of binding a driver. Consequently [same as template from here onwards.]

(c) para 25 of the template is removed.]

Help as always is very much appreciated.

Coupon-mad

This case is fully distinguished in all respects from ParkingEye Ltd v Beavis[2015] UKSC 67.

I am really sorry, but if this is an overstay at the same retail park as the Beavis case, unless it is a double dip, or an occupant of the car was disabled and needed more time, or if all the signs there have fallen off(!) I don't see how your case is distinguished.

I don't see how you can win.

I would defend - to buy yourself time - but next month I'd recommend you make an offer to settle at £60 to end the litigation (if this claim was filed by P/Eye themselves).

Complaining to Matalan might help put pressure on PEye to settle for £60.

drellix

I don't understand. They never sent a PCN or LBC to any address, their ANPR evidence has been proven before to not be sufficient, I can get them on the Equality Act (which was almost certainly the reason why an overstay might have happened, if one did - losing track of time is an extremely common autistic trait, which without a physical ticket to take a photo of is a genuine issue for me, and whilst I genuinely don't remember the details I'm very sure it wasn't an overstay), their signs have become much less readable since Beavis, the car park itself is deliberately laid out to ensure motorists must take a full lap around most of the perimeter to get out (which is probably, given its constant congestion, why PE love the place so much; of course it catches everyone out!), and it's a well-known double-dip location.

There's so much other stuff in here that the fact the car park happens to be the same as the Beavis case, which turned on, as far as I can tell, nobody bothering to ask any of the retail managers whether the arrangement with PE was good for business, and Judges getting that assumption wrong, makes no difference. That was seven years ago and they've really let the place go since then.

What I'm getting that is that, based on similar defences, I might have a chance. The acual amount they think I owe makes basically no difference to me (it won't financially ruin me if I lose), and it'll be a good learning experience, so I'm going to try going the whole way anyway.

With that in mind - please, I'd really appreciate it - is there anything here that isn't strictly relevant that I need to remove?

drellix

I called my mum just now to see if she could shed any light on the situation. She's got MS and is a blue badge holder. She thinks that there's a good chance that she was in the car at the time - in which case we may have parked in a disabled bay, but definitely would have displayed her badge. Does the possibility of this tip the scales in our favour again? I've made the relevant change anyway:

Secondly, the Defendant is autistic; autism is a lifelong and debilitating condition which meets the definition of disability within the Equality Act 2010 (‘EA 2010’), section 6(1), and is a protected characteristic. Service providers are required to allow reasonable adjustments for people with these protected characteristics (EA 2010 section 29(7a)), and the Courts are obliged to consider the fairness of contract terms even if the subject has not brought them to the attention of the Courts beforehand, as stated within the Consumer Rights Act 2015 (‘CRA’). The Defendant’s mother, who is disabled and is likely to have been an occupant of the vehicle during this parking event, possesses a disability ‘Blue Badge’ – allowing for a minimum of three hours’ stay plus ‘reasonable adjustments’ – which would have been prominently displayed on the dashboard; the Claimant is put to strict proof of the contrary, but is reminded that, irrespective of proof, the aforementioned EA 2010 and CRA policies still apply to the Defendant even if they were the sole occupant of the vehicle at the time of the parking event. The Defendant avers that all likely occupants of the vehicle have been subjected to discrimination by the Claimant, as defined in chapter 4.19 of the Equality and Human Rights Commission’s (‘ECHR’) Statutory Code of Practice regarding Services, Public Functions and Associations (‘SCoP’). Considering their responsibilities under the EA 2010 and chapter 5.37-39 of the ECHR SCoP, the Defendant avers that this Claimant has failed in their legal requirement not to indirectly discriminate against, or make reasonable adjustments for, disabled people, by failing to communicate how persons with protected characteristics can claim more parking time by exempting their vehicle. The Claimant is put to strict proof that they have made anticipatory adjustments of fixed policies for individuals with protected characteristics as defined in chapter 7.20-22 of the ECHR SCoP, that they have undertaken an appropriate risk assessment to produce reasonable adjustments for individuals with protected characteristics, and that they have allowed more time for individuals with protected characteristics than the arbitrary max stay period, as defined in chapter 5.37 of the ECHR SCoP, which applies to inflexible arbitrary time limits just as it does to physical adjustments at any customer-facing location.

drellix

I've also rewritten the Beavis bit to refute each individual point; since the facts genuinely are different:

8. Aside from the fact that the location at which this parking event took place is identical, this case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67.

Aside from the obvious facts that this case takes place seven years after Beavis and that the Defendant is different, that Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case turned on a 'complex' and compelling legitimate interest, very clear notices where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap', and 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. Each of these were elucidated through the following paragraphs of the final Supreme Court decision, which the Defendant avers do not apply to this case:

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'' – the Defendant avers that the state of repair of signage has significantly deteriorated to the point that this point is rendered no longer valid, particularly that of the most prominent sign at the entrance to the site, and the Claimant is put to strict proof of the contrary;

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'' – the Defendant avers that significant commercial changes both within and near the site in question have taken place within a seven-year period which render this point no longer valid, and the Claimant is put to strict proof that their continued presence at this site still serves any kind of ‘legitimate interests’, commercially or otherwise;

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.'' – the Defendant avers that, notwithstanding the aforementioned signage deterioration, the Government’s own admission that ANPR alone is not sufficient alone to sign off a PCN renders this point no longer valid, as this is a known ‘pitfall’; and, additionally, the fact that this Claim Form was received without any form of prior correspondence (which would have afforded the Defendant time to rectify the issue prior to litigation) means that this Claim does not adhere to the Pre-Action Protocol, is also a clear ‘pitfall’, and renders this point invalid.

The Defendant avers that the factually different Beavis decision confirms the assertion that this charge is unconscionable, given the above.

Coupon-mad

Yes it does change things, like I already said in my earlier reply about disabled people having the right to more time.

They never sent a PCN or LBC to any address.

Oh yes they did.  Your SAR will show which address it all went to.

drellix

Right you are. The defence only mentions that nothing was ever received, which is at least true.

Coupon-mad

The good news is you have now established some grounds for a defence now.

Search the forum for Equality Act car park defence.

Umkomaas

drellix said:

I've just noticed that this car park is the same one from the Beavis case.

Given this, I think I need to make my Defence as robust as humanly possible.

I'll post a draft this evening. Now I know that this is where a battle was once lost, I want to completely obliterate PE in Court so that Beavis can forever be consigned to the rubbish bin.

Even if you were to 'obliterate' PE in the small claims court, it will have absolutely zero impact on the judgment of the highest court in the land - The Supreme Court' (note the word 'Supreme'!).  There is no prospect of the Beavis judgment being 'forever consigned to the rubbish bin' via the small claims track.  Not a chance. 

drellix

Yeah, you're right. I admit I wasn't thinking straight whilst writing that...