County Court Defence - ParkingEye ANPR - KFC Carpark

TheBoulder

Hi All,

Firstly a huge thanks for all the work you do here. It amazing the community of people you’ve helped.

 

Background from me;

At the time I was 8 months pregnant and had gone to KFC (please don’t judge, pregnancy hormones do crazy things to you). The KFC is located in a large retail centre. I arrived, realised the KFC was closed and left the car park.

I then received the PCN from ParkingEye, which made it clear that this small area of parking outside the KFC is now controlled by them and they only allow parking during the hours the restaurant is open. The ANPR captured my stay at 10 minutes.

I did appeal the original ticket but at the time I was very heavily pregnant and didn’t do my reading. The appeal was rejected, and I subsequently missed the POPLA appeal due to the birth of my child.

The original PCN was for £100 however in the court claim Parking Eye are now claiming £120, £35 court fee and £50 legal representative’s costs amounting to £205.

After receiving claim I have submitted the AOS via the MCOL.

Claim History

A claim was issued against you on 03/07/2023

Your acknowledgment of service was submitted on 10/07/2023 at 10:49:11

Your acknowledgment of service was received on 10/07/2023 at 14:05:15

My defence is below and I would highly appreciate some feedback. As the cost of the original fine has increased, i used the standard template in the Newbies post. I have only amended up to paragraph 13. The rest is as per the template.

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

ParkingEye LTD

(Claimant)

- and -

The Boulder

(Defendant)

_________________

DEFENCE

 

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

 

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle and driver.

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

4.  At the time of this accusation, the Defendant was 8 months pregnant and was visiting the KFC restaurant to eat. The Defendant arrived at the KFC, realised the restaurant was closed and subsequently left the car park.

5. The Defendant states that they visit the BLANK shopping Centre frequently and this area of the wider carpark controlled by the Parking Eye is not clearly defined and there is no obvious signage to indicate the distinction of the adjacent, free car park. Evidential photograph provided.

6. The Defendant states that in order to read the Terms and Conditions, any driver would have to enter the car park, park the car safely, locate by foot the signage and then make a decision. In the case that the driver would not agree or cannot comply with the Terms and Conditions within a reasonable time (which is the case of the Defendant), the ANPR would be used to trigger a charge to the driver.

7. The Defendant refers to section 13.1 of the BPA (British Parking Association) Approved Operator Code of Practice which states “The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract.” The Defendant states that the Claimant has not adhered to this.

8. The allegation appears to be based on images by their ANPR camera at the KFC restaurant. 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 abiding by the Terms and Conditions or authorisation outlined by Parking Eye.

9. The allegation appears to be based on the claim that “the signage clearly displayed throughout BLANK ADDRESS states that this is private land, managed by ParkingEye Ltd”. This allegation is denied by the defendant.

10. Signage with the Terms & Conditions are within the car park itself. The Defendant states that an individual would have to enter the car park in order to read the Terms & Conditions in order to make an informed decision as to whether they are agreeable to them.

11.  The Defendant states that in order for an individual to review the signage inside the car park with the Terms & Conditions they would be required to safely park their vehicle and exit it.

12.  The Claimant states that the Defendants vehicle was in the car park for 10 minutes. Based on the information provided in points 4-7, 10 & 11 this is a fair amount of time required to take those actions.

13. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for using, in part, pre-written wording suggested by a reliable online help resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

TheBoulder

Further Points:

14. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  In breach of the pre-action protocol for 'Debt' Claims, no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts and specific breach allegations, which makes it difficult to respond in depth at this time; however this claim is unfair, generic and inflated.  

15.  This Claimant continues to pursue a disproportionate fixed sum (routinely added per PCN) despite knowing that this is now likely to be confirmed as banned by the Government this year. It is denied that the purported 'damages' or 'debt fee' sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

16. This finding is underpinned by the Government, who stated in 2022 that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here:Link removed

17.  Whilst the new Code is temporarily stalled for a final Impact Assessment, it is anticipated that adding false costs/damages or 'fees' to enhance a parking charge claim is likely to remain banned. In a section called 'Escalation of costs' the (stalled but incoming in 2023) statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." 

18.  The Code's Ministerial Foreword is unequivocal about abusive existing cases such as this claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

19.  The DLUHC consulted for over two years, considering evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt/robo-claim firms operate on a 'no win, no fee' basis, seeking to inflate these claims with 'costs/damages' in addition to the strictly capped legal fees the small claims track allows.  

20.  This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an 'automated letter-chain' business model that generates a healthy profit.  In Beavis, there were 4 or 5 letters including reminders.  The parking charge was held to cover that work.

21. The driver did not agree to pay a parking charge, let alone these unknown costs, which were not quantified in prominent text on signage.

22.  Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice.  The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  A clear steer for the Courts which it is hoped overrides mistakes made in a few appeal cases that the parking industry desperately rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).

23.  Far from being persuasive, regrettably these one-sided appeals saw Circuit Judges led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal. In case this Claimant tries to rely upon these, the Defendant avers that errors were made in every case.  Evidence was either overlooked (including signage discrepancies in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted parking contract in Beavis. Those learned Judges were not in possession of the same level of information as the DLUHC, whose incoming statutory Code of Practice now clarifies such matters as a definition of 'parking' as well as consideration and grace periods and minor matters such as 'keying errors' or 'fluttering tickets/permits' where a PCN should not have been issued at all, or should have been cancelled in the pre-action dispute phase.

 

POFA and CRA breaches

24.  Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred. 

25.  Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

26.  Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith. 

 

ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

27.  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 each be determined on their own facts.  That 'unique' case met a commercial justification test, and took into account the prominent yellow/black uncluttered signs with £85 in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts set a high bar that this Claimant has failed to reach.

28.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'.

29.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous 'penalty' was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).  

30. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." 

 

Lack of standing or landowner authority, and lack of ADR

31.  DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that this Claimant (an agent of a principal) has authority from the landowner to issue charges in this place in their own name.  The Claimant is put to strict proof that they have standing to make contracts with drivers and litigate in their own name.

32.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new incoming statutory Code shows that genuine disputes such as this would see the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair appeal was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  

 

Conclusion

33.  The claim is entirely without merit. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

34. There is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of intimidating pre-action threats.

35.  In the matter of costs, the Defendant asks:

(a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5. 

36.  Attention is drawn specifically to the (often-seen from this industry) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

 

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.

Defendant’s signature:

Date:

B789

That’s a very good defence. As PE have now started adding £20 for some obscure reason, the whole of the template is now valid.

You may want to hold off sending your defence until the end of the month (you have time as it can be filed by 4pm on 7th August but @KeithP will confirm) as there may be beneficial changes due to the DLUHC PPCoP public consultation should be out by then.

KeithP

TheBoulder said:

A claim was issued against you on 03/07/2023

Your acknowledgment of service was received on 10/07/2023 at 14:05:15

With a Claim Issue Date of 3rd July, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 7th August 2023 to file your Defence.

That's over three weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute. However, you should leave the filing of it as late as possible.

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

B789 said:

That’s a very good defence. As PE have now started adding £20 for some obscure reason, the whole of the template is now valid.

You may want to hold off sending your defence until the end of the month (you have time as it can be filed by 4pm on 7th August but @KeithP will confirm) as there may be beneficial changes due to the DLUHC PPCoP public consultation should be out by then.

As above! 

There is now good reason to delay defence submission till close to/at your deadline (as long as you've done the AOS), Sorry if it might look conflicting with the usual advice "not to leave it till the last minute"!

It's because we are now in July and something big is coming.  Things are changing quickly this Summer and as you are now so close to the DLUHC's Announcement I would PREPARE the defence but hold off emailing it, wait and see (and of course diarise an alert for the date so you don't actually miss your deadline).

Your timing is perfect if the DLUHC in their Draft Impact Assessment (due in a couple of weeks) give us all some damning words to add!

In the meantime, have you tried to see if KFC will step in and cancel it?
https://www.newarkadvertiser.co.uk/news/amp/kfc-cancels-pregnant-woman-s-parking-fine-9320910/

TheBoulder

Hi All,

Thanks for all the responses and feedback.

I have contacted KFC and complained as above. They essentially washed their hands of the situation and stated that any appeal needed to be made to ParkingEye.

For submission I can likely hold off until w/c 31st but we are going abroad the following week and i wouldn't like to trust the hotel WiFi etc. When the new information is available will there be a post on the main forum? Or am i best checking back in here

Coupon-mad

The parking forum will be ALL OVER IT!