County Court - Claim form received

LittleBiker5

OK here goes. I've pasted it all, but highlighted the new and edited parts in BOLD.
It may be that I've added too much, as I knew that I had to pay for parking but couldn't due to the broken pay machines!

Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt of monies outstanding arising from a driver's alleged breach of contract, when parking at Wye Valley Visitor Centre car park on 02/05/2022.

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')' for the lawful conduct described below.

2. The allegation appears to be that the ‘motorist failed to make the appropriate tariff payment' 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 'not purchasing the appropriate parking time' or of the driver not being a patron of the Wye Valley Visitor Centre.

4. The Defendant visited the Wye Valley Visitor Centre with family and paid for all of the on-site attractions. A parking payment machine was only noticed due to it being directly in front of the Defendants parking space, otherwise it wasn’t apparent that the car park was no longer free as it had been when the Defendant previously visited. The Defendant attempted to use this machine, but a printed note was taped over the screen which read ‘MACHINE NOT WORKING. PLEASE USE MACHINE ON OPPOSITE SIDE OF CAR PARK’.

The Defendant found the second machine and made a second attempt to make payment. However, it was not possible as there was a message on the screen which read ‘OUT OF SERVICE – PLEASE USE ANOTHER MACHINE’.

It was at this stage that the Defendant believed that there was no way to pay for parking. There was no message on or around either machine to direct the Defendant to any other methods.

Before leaving the car park, the Defendant took photographs of both machines as evidence that payment was not possible.

5. The Defendant received a PCN around 3 weeks later from the Claimant. This was appealed within hours of its receipt, and the photographs of the payment machines were included. On the 15th June (6 weeks after the alleged offence) an email was received by the Defendant which included this statement:

Dear Sir / Madam,

Thank you for your appeal in relation to the Parking Charge incurred on 02 May 2022 at 12:42, at Wye Valley Visitor Centre, Ross-on-Wye car park. We have reviewed the details outlined in your appeal, but we are not in receipt of sufficient evidence to confirm that the terms and conditions were not breached. Our records confirm that no parking was purchased on the date of the parking event, despite there being payment methods available.

In this correspondence, there was no mention of what payment methods were available other than the 2 inoperative machines. Since the date of the alleged offence, it was discovered that payment could have been made by phone or via a smartphone application. Both of these methods cannot be included in the list of available methods to pay as they would require the payee to have a device to do so. It is reasonable to expect a user of a paid car park to be carrying money (cash and/or cards), but the Claimant cannot expect that everyone has a phone.

Data Protection concerns

6. The Defendant was an occupant of the car and can prove that their family were patrons of the Wye Valley Visitor Centre. However, the Defendant had no idea about any ANPR surveillance. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

6.1. 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 £3 tariff, if it is their case that this sum went unpaid.

7. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

7.1. It is one thing to install PDT machines that don’t work, 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 thousands of unsuspecting but circumspect visitors to the Centre, who are being caught out regularly.

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

7.3. The Claimant will have some difficulty in justifying their hidden and unexpected terms at a site where the Defendant now learns from researching online reviews, that many people are complaining about being issued a PCN even after paying for parking. These are not the 'brief, simple and prominently proclaimed' terms that convinced the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 to bend the penalty rule in that unique, fact-specific case only.


8. This Visitor Centre is a site where the Claimant has machines to take payment of tariffs. Clearly there should 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, most importantly, to ensure that the machines are in working order. It is understood from online reviews of the visitor centre that the payment machines are still out of order over a year later which could suggest that the Claimant hasn’t visited this site in that time. If there has been no attempt to fix them in that time combined with the evidence of recent reviews and research, this could be considered by many as a form of deliberate entrapment. The ANPR cameras represent disproportionate and excessive data processing, given the nature 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.

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), is partially obscured by a much larger sign directing traffic and placed at an intersection with extremely confusing road markings. All of these combine to make this initial sign easily missed.

10.2. The ParkingEye affiliated signs within the parking area are equally as hidden and therefore misleading. Between the carpark entrance and the parking spaces closest to the building, where entry tickets are purchased, only one unclear sign is within a driver’s line of sight. Furthermore there are no clear signs that were 'bound to be seen' between where the Defendant believes the car would was parked and the entrance to the Butterfly Zoo and/or the building where the Defendant paid for entry.

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 patrons of the Visitor Centre.

Unconscionable, punitive 'parking charge'

12. 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 to the recent, frankly awful, Wye Valley TripAdvisor reviews from people who have also been caught here by ParkingEye. Had the Defendant been able to pay the sum on the day via the PDT machines - or even simpler, if they could have had the certainty of paying it when buying the Visitor entry tickets or had the 'parking charge' (tariff) been included within the entry fee itself - there would be no unfair penalty, and the Visitor Centre (or landowner) would gain in income and avoid any parking issues at all, including all the complaints mounting up online about ParkingEye at the otherwise beautiful site.

13. 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 parking charge of £3 unexpectedly becomes an extortionate £100 bill several weeks later.

13.1. 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 and it is not fair or just that the claimant can penalise the Defendant for not paying when 100% of the PDT machines were out of order.

13.2. This regime in a car park that was always free until 2017 is not commercially justified, is damaging the reputation of the Visitor Centre and driving away future visitors, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. In addition to the TripAdvisor feedback, newspaper articles show that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against.

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 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 Legal representative’s costs of £50, which I submit 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.

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.

Coupon-mad

I'd remove 16, 16.1, 17 and 17.1 because they aren't relevant. PEye hasn't added anything they aren't allowed to add.

And remove the quoted template rejection letter where you talk about appealing; too much information.

Then re-number every paragraph with normal numbering, not '.1'. Some of your paragraphs aren't numbered at all

LittleBiker5

Thanks so much @Coupon-mad. I have made the changes as you suggested, and for clarity, here is the edited version:

Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt of monies outstanding arising from a driver's alleged breach of contract, when parking at Wye Valley Visitor Centre car park on 02/05/2022.

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

3. The allegation appears to be that the ‘motorist failed to make the appropriate tariff payment' 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 'not purchasing the appropriate parking time' or of the driver not being a patron of the Wye Valley Visitor Centre.

4. The Defendant visited the Wye Valley Visitor Centre with family and paid for all of the on-site attractions. A parking payment machine was only noticed due to it being directly in front of the Defendants parking space, otherwise it wasn’t apparent that the car park was no longer free as it had been when the Defendant previously visited.

5. The Defendant attempted to use this machine, but a printed note was taped over the screen which read ‘MACHINE NOT WORKING. PLEASE USE MACHINE ON OPPOSITE SIDE OF CAR PARK’. The Defendant found the second machine and made a second attempt to make payment. However, it was not possible as there was a message on the screen which read ‘OUT OF SERVICE – PLEASE USE ANOTHER MACHINE’. It was at this stage that the Defendant believed that there was no way to pay for parking. There was no message on or around either machine to direct the Defendant to any other methods.

6. Before leaving the car park, the Defendant took photographs of both machines as evidence that payment was not possible.

7. The Defendant received a PCN around 3 weeks later from the Claimant. This was appealed within hours of its receipt, and the photographs of the payment machines were included. On the 15th June (6 weeks after the alleged offence) an email was received by the Defendant.

8. In this correspondence, there was no mention of what payment methods were available other than the 2 inoperative machines. Since the date of the alleged offence, it was discovered that payment could have been made by phone or via a smartphone application. Both of these methods cannot be included in the list of available methods to pay as they would require the payee to have a device to do so. It is reasonable to expect a user of a paid car park to be carrying money (cash and/or cards), but the Claimant cannot expect that everyone has a phone.

Data Protection concerns

9. The Defendant was an occupant of the car and can prove that their family were patrons of the Wye Valley Visitor Centre. However, the Defendant had no idea about any ANPR surveillance. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

10. 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 £3 tariff, if it is their case that this sum went unpaid.

11. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

12. It is one thing to install PDT machines that don’t work, 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 thousands of unsuspecting but circumspect visitors to the Centre, who are being caught out regularly.

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

14. The Claimant will have some difficulty in justifying their hidden and unexpected terms at a site where the Defendant now learns from researching online reviews, that many people are complaining about being issued a PCN even after paying for parking. These are not the 'brief, simple and prominently proclaimed' terms that convinced the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 to bend the penalty rule in that unique, fact-specific case only.

15. This Visitor Centre is a site where the Claimant has machines to take payment of tariffs. Clearly there should 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, most importantly, to ensure that the machines are in working order.

16. It is understood from online reviews of the visitor centre that the payment machines are still out of order over a year later which could suggest that the Claimant hasn’t visited this site in that time. If there has been no attempt to fix them in that time combined with the evidence of recent reviews and research, this could be considered by many as a form of deliberate entrapment.

17. The ANPR cameras represent disproportionate and excessive data processing, given the nature 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.

Denial of contract and denial of any breach, or liability

18. 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.

19. 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.

20. 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), is partially obscured by a much larger sign directing traffic and placed at an intersection with extremely confusing road markings. All of these combine to make this initial sign easily missed.

21. The ParkingEye affiliated signs within the parking area are equally as hidden and therefore misleading. Between the carpark entrance and the parking spaces closest to the building, where entry tickets are purchased, only one unclear sign is within a driver’s line of sight. Furthermore there are no clear signs that were 'bound to be seen' between where the Defendant believes the car would was parked and the entrance to the Butterfly Zoo and/or the building where the Defendant paid for entry.

No standing or authority to form contracts and/or litigate

22. 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 patrons of the Visitor Centre.

Unconscionable, punitive 'parking charge'

23. 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 to the recent, frankly awful, Wye Valley TripAdvisor reviews from people who have also been caught here by ParkingEye. Had the Defendant been able to pay the sum on the day via the PDT machines - or even simpler, if they could have had the certainty of paying it when buying the Visitor entry tickets or had the 'parking charge' (tariff) been included within the entry fee itself - there would be no unfair penalty, and the Visitor Centre (or landowner) would gain in income and avoid any parking issues at all, including all the complaints mounting up online about ParkingEye at the otherwise beautiful site.

24. 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 parking charge of £3 unexpectedly becomes an extortionate £100 bill several weeks later.

25. 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 and it is not fair or just that the claimant can penalise the Defendant for not paying when 100% of the PDT machines were out of order.

26. This regime in a car park that was always free until 2017 is not commercially justified, is damaging the reputation of the Visitor Centre and driving away future visitors, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. In addition to the TripAdvisor feedback, newspaper articles show that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against.

27. 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.

28. 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.

29. 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.

30. 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 and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

31. 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.

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.

Umkomaas

Please just show us the paragraphs you've added or changed, not the standard template paragraphs every time - showing those leaves some doubt as to whether you have altered some of them, potentially causing regulars to have to pick through them each time they are regurgitated. 

LittleBiker5

Hi all,
So here's a weird one.
Parking Eye sent a letter to me saying:

Please find attached Parking Eye's Directions Questionnaire (N180) for the above claim. A Directions Questionnaire assists the court with the future management of the claim. A copy has been filed with the court.

Yours Sincerely,

ParkingEye Enforcement Team

First the letter isn't dated which may not be an issue. But the attached N180 is blank!
Also, I can't see that they've filed anything with the CCBC.

Am I missing something?

KeithP

Ignore it and wait patiently for your DQ to arrive from the CCBC.

Coupon-mad

LittleBiker5 said:

Hi all,
So here's a weird one.
Parking Eye sent a letter to me saying:

Please find attached Parking Eye's Directions Questionnaire (N180) for the above claim. A Directions Questionnaire assists the court with the future management of the claim. A copy has been filed with the court.

Yours Sincerely,

ParkingEye Enforcement Team

First the letter isn't dated which may not be an issue. But the attached N180 is blank!
Also, I can't see that they've filed anything with the CCBC.

Am I missing something?

Follow what the Template Defence thread first 12 steps says.  This is normal for all PPCs.

And I now suspect (having seen other cases) that you didn't tell us that in fact ParkingEye DID add an unjustified admin fee.

They added £20 but this wasn't mentioned in your posts, so we made you remove sections of the Template Defence that you could have included after all.  Never mind - you will have to cover the £20 added imaginary fee in your later submissions & evidence bundle.

And we sincerely hope that you are au fait with the need to respond to the final Government Consultation?

Anticipated to start THIS MONTH. 

We all need to ram the nail in the coffin of the false £70 'DRA fee' add-on, that actually funds the court claim and toxic threatogram / gaslighting conduct.

Please come back here when it opens.

If you are not a regular reader, to be alerted you'll need to bookmark the thread by MSE_JC at the top of the forum and enable (on your profile) email alerts for bookmarked threads.

Then join us when the Consultation opens.  We need all MSE-reading victims of this horrific harassment and bullying by parking firms and their hired 'legals' to be heard by the DLUHC team.

See you back here in a couple of weeks please if you and your motoring family want to stop this litigation rush by banning the £70 add-on fee that disproportionately funds the roboclaim firms.

Nothing will happen until you get your DQ from the CCBC (which often takes 2 months) but don't let the fact the case is quiet make you miss the DLUHC's new draft Impact Assessment and analysis.

LittleBiker5

Thanks @Coupon-mad,
So I'm waiting to for the DQ from the CCBC which is what I'm aware of.

Regarding the final Government Consultation - I'll respond to everything that comes my way.
I'll look out for the DLUHC's new draft Impact Assessment and analysis!

LittleBiker5

Good morning all,

Latest update - Still nothing added on the CCBC since my defence back in June.
However, I received a load of paperwork from PE yesterday that included the following:

 1) 16 page defence from PE which addresses the points in my defence (7 pages) then loads of detail about won cases by PE (11 pages)

2) Case details and all documents and letters sent to me related to this case.

3) 6 pages of data showing parking payments made at the site in question on the date of the alleged offence.

4) Details of signage and payment machines on the site including photographs from 2018...

Even though I supplied photos of both payment machines showing that they were out of order, their defence claims that there was no evidence to suggest that both payment machines were not working on this site on the date of the parking event. I may have to pop by there and see if the machines are working now.

Does anyone have any comments regarding any of this please?
Thanks very much!

Coupon-mad

Check on MCOL to see if a DQ has now been sent to you.