County Court Claim ParkingEye / DCB – defence for review (discrimination under Equality Act 2010)

FinancialDunce · 21 February 2023 at 9:19PM

Hello, I’d be really grateful for feedback on my draft ParkingEye / DCB County Court Claim defence (overstay at Welcome Break). The issue date was 26 January, AOS submitted 1 February, and I’ve calculated that the DL for submitting the defence is next Tuesday 28 February.

To confirm, I’ve spent many hours studying the NEWBIE and associated threads, along with combing through MSE related cases, Pepipoo and Parking Cowboys. Please don’t hold back if I’ve missed the obvious though – I get how frustrating it is for you all.

Below is the context, and I’ll paste the draft defence underneath (likely needs cutting down).

Context and basis of defence:

Significant overstay at Welcome Break Membury (12 hours). I have ADHD, which is a protected disability under the Equality Act 2010. A common symptom is extreme fatigue so I rested until I felt safe to drive again.

My defence is based upon discrimination under the Equality Act 2010. To put into one sentence - the two-hour free parking limit does not provide reasonable adjustments for those with protected characteristics who may need to stay longer.

It is distinguished from Beavis as his companion had a temporary disability, which is not protected under the Equality Act.

Re. Beavis and signage, I didn’t see the signage (dark/exhausted), which I know from the ‘irrelevant defence’ thread is usually a pointless argument. However, even if I did see the signage and the terms were clear, the terms can’t be applied to someone who is legally entitled to more time than an able bodied driver. I'm not sure whether to include not seeing the signage though as that could risk undermining myself.

I used the defence in these two threads as a basis/template (many thanks to the OPs of the threads):

July 2019 thread by @Kvotheraven:
https://forums.moneysavingexpert.com/discussion/6026068/parking-eye-court-claim-defence-help-deadline-25-july-to-submit-cannot-find-similar-on-forum/p4

January 2023 thread by @adams-p:
https://forums.moneysavingexpert.com/discussion/6418987/county-court-claim-form-ukpc-dcb-legal/p2

I'm excited as not sure whether ADHD has been used as a defence for private parking tickets before (if it has please direct me to it!). And thank you so much, any feedback will be gratefully received.

FinancialDunce · 21 February 2023 at 9:26PM

OP DRAFT DEFENCE v.1

The Defendant is the registered keeper and driver of the vehicle involved in the claim, which relates to an alleged debt arising from an alleged breach of contract. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is further denied that there was any agreement to pay the Claimant a punitive £100 ‘parking charge’ for using a motorway services area, nor that there was any agreement that the “driver agreed to pay [the alleged debt] within 28 days but did not”.
The Defendant has a disability in that she suffers from Attention Deficit Hyperactivity Disorder (ADHD), a long term and debilitating condition which necessitated a longer stay by virtue of the symptoms at the time from her condition. ADHD meets the definition of disability within the Equality Act 2010 section 6(1) (EA 2010 from hereon) and service providers are required to allow reasonable adjustments for people with such 'protected characteristics' (EA 2010 S.29 (7a)).
A common symptom of ADHD is extreme fatigue, which can occur unexpectedly and necessitate resting for unpredictable periods of time. The Defendant is hypervigilant about noticing the signs of such fatigue and taking the appropriate course action, particularly whilst driving and adhering to motorway signage saying “Tiredness Kills – Take a Break”. The Defendant entered the motorway services area due to aforementioned fatigue, using the facilities and purchasing in the main concourse before resting until certain that she could continue her journey safely.
Considering their responsibilities under the Equality Act 2010 and Chapter 5.37, 5.38 and 5.39 of the ECHR Statutory Code of Practice regarding Services, Public Functions and Associations, the Claimant has failed in their legal requirement not to indirectly discriminate against, or make reasonable adjustments for, disabled people by communicating how persons with protected characteristics can claim more parking time by exempting their vehicle. Whilst the arbitrary “2 hours free parking” limit may be sufficient for able-bodied drivers, it is not enough for those with disabilities (hidden or otherwise).
The Defendant is being subjected to discrimination by association as defined in Chapter 4.19 of EHRC Equality Act Code of Practice (EA CoP from hereon). This sets the case apart from ParkingEye v Beavis [2015] UKSC 67 ('the Beavis case') where HHJ Maloney (at the earliest stage trial) did pay regard to whether the original second Defendant, Mr Wardley - who had an injury accounting somewhat for his overstay - had the protection of the EA 2010. In the Beavis case it was held that Mr Wardley could not rely upon that protection, as the medical condition was not long term and did not meet the definition of disability within the EA 2010. And even the Supreme Court Judges were careful to establish at para 107: ''The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute'' (the consumer in that case was Mr Beavis, an able-bodied driver who was unaccompanied and was not able to rely upon the EA 2010).
In all relevant facts, the Beavis case is distinguished. The charging term does exclude a right which this consumer may be said to enjoy under the general law or by statute. The Claimant cannot justify an arbitrary time limit that causes detriment to disabled people - and nor can they be lawfully heard to say that they 'did not know' about the medical condition of the Defendant, because the Act sets out illegal conduct including by 'indirect discrimination' (EA 2010 S.19).
The claimant has a legal duty to adhere to this Act and must make anticipatory adjustments of fixed policies for the protected population (EA CoP chapter 7.20-22).
No reasonable adjustment was made by the Claimant despite being required by EA CoP (chapter 5.37). No risk assessment has been made to take the needs of people with protected characteristics into account at the time of starting and ending the contract. The Claimant will be unable to demonstrate strict proof that they have allowed more time than able bodied/unprotected people would need.
The law applies as much to inflexible arbitrary time limits as it does to physical adjustments at any consumer-facing location (per example in EA CoP chapter 5 on 'tours').
Furthermore, 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 attempting to read them.
The judgment in Beavis makes clear that if a driver has not had ample opportunity to become acquainted with the full contractual terms then the costs of a private parking company is considered a charge is an unrecoverable penalty or unfair consumer charge.
The Defendant entered the motorway services area in darkness and did not see any signage pertaining to parking, nor was she aware of any parking restrictions for patrons of the site. Upon receiving the Claimant’s County Court Claim Form for alleged breach of contract, the Defendant referred to Google Streetmap, which according to imagery taken in August 2022 shows sparse, unlit signs in this car park.
Even if the Defendant had seen the signage and the court is minded to believe that the terms were clear, they cannot be applied to a driver who is legally entitled to more time than an able bodied visitor.
The Claimant’s particulars disclose no legal basis for the sum claimed, and the court is invited to dismiss the claim in its entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

STATEMENT OF TRUTH

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

KeithP · 21 February 2023 at 9:30PM

FinancialDunce said:

Hello, I’d be really grateful for feedback on my draft ParkingEye / DCB County Court Claim defence (overstay at Welcome Break). The issue date was 26 January, AOS submitted 1 February, and I’ve calculated that the DL for submitting the defence is next Tuesday 28 February.

Yes you are right with your Defence filing deadline but there might be something useful here...

With a Claim Issue Date of 26th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 28th February 2023 to file your Defence.

That's just one week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

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 · 22 February 2023 at 12:06AM

If it was an overnight sleep, I think unlit signage is your best point.

FinancialDunce · 23 April 2024 at 9:32PM

UPDATE - SUCCESS! I've just received a Notice of Discontinuance from DCB Legal. Thank you everyone for your help. I'll post a link to this on the success thread.

After submitting my defence in February 2023, ParkingEye / DCB Legal kept going, and the County Court hearing date was set for October 2024. In February I received a 'Without Prejudice Save as to Costs' offer email from DCB Legal, to which I responded with a 'drop hands' email. And today I finally received the Notice of Discontinuance (nearly two years after the original PCN).

Pasted below is the drop hands email I sent and the final version of my defence. I don't know how much of an impact my claim of disability discrimination (ADHD) had on the final decision, but I hope that this success story might help other neurodiverse people in the future.
_________

*** DROP HANDS EMAIL ***

Re: Your Client: Parkingeye Ltd
Claim Number: XXXXXXX

Further to your email dated DD MONTH YYYY offering a “full and final settlement”, I do not intend to pay you any money because I maintain that your client’s claim has no basis, and therefore there is no debt.

In light of the above, along with the other points raised in my defence, your client’s claim has no realistic prospect of success and the claimant is invited to withdraw the claim with no order for costs. In order to assist the Court with its overriding objective, this is a ‘drop hands’ offer to settle with each party bearing their own costs.

Please be advised that should you continue to pursue this, I shall seek to claim the costs of my defence and additional costs for unreasonable conduct pursuant to CPR Part 27.

I look forward to your reply.

________

*** DEFENCE SUBMITTED ***

IN THE COUNTY COURT

Claim No.: XXXXXXX

Between

PARKINGEYE LIMITED

(Claimant)

- and -

XXXXXXXX

(Defendant)

_________________

DEFENCE
_________________

1. The Defendant is the registered keeper and driver of the vehicle involved in the claim, which relates to an alleged debt arising from an alleged breach of contract. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is further denied that there was any agreement to pay the Claimant a punitive £100 ‘parking charge’ for using a motorway services area, nor that there was any agreement that the “driver agreed to pay [the alleged debt] within 28 days but did not”.

2. The Defendant has a disability in that she suffers from Attention Deficit Hyperactivity Disorder (ADHD), a long term and debilitating condition which necessitated a longer stay by virtue of the symptoms at the time. ADHD meets the definition of disability within the Equality Act 2010 section 6(1) (EA 2010 from hereon) and service providers are required to allow reasonable adjustments for people with such “protected characteristics” (EA 2010 S.29 (7a)).

3. A common symptom of ADHD is extreme fatigue, which can occur unexpectedly and necessitate resting for unpredictable periods of time. The Defendant is hypervigilant about noticing the signs of such fatigue and taking the appropriate course action, particularly whilst driving and adhering to motorway signage saying “Tiredness Kills – Take a Break”. The Defendant entered the motorway services area due to aforementioned fatigue, using the facilities and purchasing in the main concourse before resting until certain that she could continue her journey safely.

4. The Defendant entered the motorway services area in darkness and did not see any signage pertaining to parking, nor was she aware of any parking restrictions for patrons of the site. Upon receiving the Claimant’s County Court Claim Form for alleged breach of contract, the Defendant referred to Google Streetmap, which according to imagery taken in August 2022 shows sparse, unlit signs in this car park.

5. Even if the Defendant had seen the signage and the court is minded to believe that the terms were clear, they cannot be applied to a driver who is legally entitled to more time than an able bodied visitor.

6. Considering their responsibilities under the Equality Act 2010 and Chapter 5.37, 5.38 and 5.39 of the ECHR Statutory Code of Practice regarding Services, Public Functions and Associations, the Claimant has failed in their legal requirement not to indirectly discriminate against, or make reasonable adjustments for, disabled people by communicating how persons with protected characteristics can claim more parking time by exempting their vehicle. Whilst the arbitrary ‘2 hours free parking’ limit may be sufficient for able-bodied drivers, it is not enough for those with disabilities (hidden or otherwise).

7. The Defendant is being subjected to discrimination by association as defined in Chapter 4.19 of EHRC Equality Act Code of Practice (EA CoP from hereon). This sets the case apart from ParkingEye v Beavis [2015] UKSC 67 ('the Beavis case') where HHJ Maloney (at the earliest stage trial) did pay regard to whether the original second Defendant, Mr Wardley - who had an injury accounting somewhat for his overstay - had the protection of the EA 2010. In the Beavis case it was held that Mr Wardley could not rely upon that protection, as the medical condition was not long term and did not meet the definition of disability within the EA 2010. And even the Supreme Court Judges were careful to establish at para 107: ''The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute'' (the consumer in that case was Mr Beavis, an able-bodied driver who was unaccompanied and was not able to rely upon the EA 2010).

8. In all relevant facts, the Beavis case is distinguished. The charging term does exclude a right which this consumer may be said to enjoy under the general law or by statute. The Claimant cannot justify an arbitrary time limit that causes detriment to disabled people - and nor can they be lawfully heard to say that they 'did not know' about the medical condition of the Defendant, because the Act sets out illegal conduct including by 'indirect discrimination' (EA 2010 S.19).

9. The claimant has a legal duty to adhere to this Act and must make anticipatory adjustments of fixed policies for the protected population (EA CoP chapter 7.20-22).

10. No reasonable adjustment was made by the Claimant despite being required by EA CoP (chapter 5.37). No risk assessment has been made to take the needs of people with protected characteristics into account at the time of starting and ending the contract. The Claimant will be unable to demonstrate strict proof that they have allowed more time than able bodied/unprotected people would need.

11. The law applies as much to inflexible arbitrary time limits as it does to physical adjustments at any consumer-facing location (per example in EA CoP chapter 5 on 'tours').

12. Furthermore, 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 attempting to read them.

13. The judgment in Beavis makes clear that if a driver has not had ample opportunity to become acquainted with the full contractual terms then the costs of a private parking company is considered a charge is an unrecoverable penalty or unfair consumer charge.

14. The Claimant’s particulars disclose no legal basis for the sum claimed, and the court is invited to dismiss the claim in its entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

STATEMENT OF TRUTH

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

Signed: XXXXXX
Date: DD MONTH YYYY
Position: Defendant

Coupon-mad · 23 April 2024 at 9:41PM

Brilliant! Took over a year but well done you!

ANOTHER ONE BITES THE DUST!

And another one for @Umkomaas to add to the hall of fame on his DCB Legal disco thread.

I like that bespoke and well-argued Equality Act defence too, which might help others who are neurodiverse.