Update Judgement - Both struck out (29th Feb) - Victoria Quays - Sheffield, S2 5SY

Anto_28

I think this make the land ownership clearer. I was parked in Area 1 (where I have put the car emoji :P)

Johnersh

Curious.

So let's assume the parking geezer was NOT employed by VCS, assumed. Does that make a difference? Maybe not. Because no PCN was issued on site.

The notice affixed to the car (irrespective of who put it there) was a data protection notice and expressly referred to as such. That means the only PCN issued was one issued by VCS days later. The contract doesn't permit that though. It is a contract to process PCNs issued by the client and to account to the client for payments received in respect of the clients issued PCNs.

The contract may well have been varied, but where is the proof of that? There's an argument that it was impliedly varied by conduct, but the contract excludes that unless notice is given in writing and approved by a director.

It follows that if the client is the primary, does that contract entitle VCS even to commence proceedings on their own behalf?

The wording in the original email with the parking operative essentially says "I didn't see it" not it wasn't there before or, as is contended on the pleading (entirely without evidence) that it might have been put in the car after the event.

Castle

Johnersh said:

Curious.

So let's assume the parking geezer was NOT employed by VCS, assumed. Does that make a difference? Maybe not. Because no PCN was issued on site.

The notice affixed to the car (irrespective of who put it there) was a data protection notice and expressly referred to as such. That means the only PCN issued was one issued by VCS days later. The contract doesn't permit that though. It is a contract to process PCNs issued by the client and to account to the client for payments received in respect of the clients issued PCNs.

The contract may well have been varied, but where is the proof of that? There's an argument that it was impliedly varied by conduct, but the contract excludes that unless notice is given in writing and approved by a director.

My thoughts too given it was signed in 2007 and referred to "clamping" and that VCS was regulated by the SIA.

Anto_28

It’s really frustrating that this document I requested a long time ago would only appear now, as part of Exhibit JB1.

We wont be able to advance arguments around it can we? if they were not in the PoC/Reply/P20 Defence or my WS

My boss is a VQMC director, I could ask him if another contract was signed 🤔

Anto_28

Castle said:

Johnersh said:

Curious.

So let's assume the parking geezer was NOT employed by VCS, assumed. Does that make a difference? Maybe not. Because no PCN was issued on site.

The notice affixed to the car (irrespective of who put it there) was a data protection notice and expressly referred to as such. That means the only PCN issued was one issued by VCS days later. The contract doesn't permit that though. It is a contract to process PCNs issued by the client and to account to the client for payments received in respect of the clients issued PCNs.

The contract may well have been varied, but where is the proof of that? There's an argument that it was impliedly varied by conduct, but the contract excludes that unless notice is given in writing and approved by a director.

My thoughts too given it was signed in 2007 and referred to "clamping" and that VCS was regulated by the SIA.

They are no longer regulated by the SIA. From what I’ve read, the SIA dont cover parking anymore. VCS are regulated by the IPC 🤔

If there is no new contract or variation 🤔🤔🤔

Johnersh

Well you can because the PPC rely on the document in evidence as a basis of their authority to ticket. If the DJ finds that it is evidence to the contrary that's hardly the o/p's fault.

I'd not spend hours on it, because a pragmatic judge may just crack on, as some have, presuming that VCS would've been kicked off site if not wanted.

That still doesn't stop a PCN being incorrectly issued or from decent argument being made that the sums sought amount to an impermissible penalty in respect of the alleged breach on the specific facts of this case.

LoneStarState

IPC CoP makes self ticketer/sub contractor adherence to the code the operator's responsibility (sections 11/12 for the relevant V8 of the code in your case) so they shouldn't be able to hide behind that.

Anto_28

First draft of my Skeleton Argument, moved all the legal stuff out of the WS and put it in here instead.

 

SKELETON ARGUMENT FOR THE CLAIMANT

 

 

Introduction

1.      By his claim form, dated 30/10/2023, the Claimant brings a claim for non-material damages after he suffered stress and anxiety arising from the Defendant’s continuous processing and sharing of his personal data by the Defendant, its servants, and its agents.

2.      The Defendant has advanced a part 20 counter claim against the Claimant, claiming they are owed damages for an alleged parking contravention on 15/06/2023.

Summary of Claimant’s position

3.      As set out in the Claimant’s Particulars of Claim, the Claimant’s position is that he had a right to park his vehicle at the location in question. For clarity, this is 24 hours per day, 7 days per week.

4.      The Claimant had displayed his parking permit which the Defendant’s patrol officer missed on first inspection; however he inspected the permit soon after the permit was brought to his attention.

5.      It is the Claimant’s position that this action satisfied the terms and that no terms of the Defendant’s parking contract were breached.

6.      It is also the Claimant’s position that the Parking Charge Notice issued by the defendant amounts to nothing more than an impermissible penalty.

Outline

7.      This skeleton argument addresses the following matters / issues:

a.     Material facts

b.     Relevant legal principles

                                               i.     DVLA Keeper at date of event (KADOE) rules

                                             ii.     GDPR Regulations Article 5 & Data protection act principles Sections 34 & 36

                                           iii.     Consumer Rights Act 2015 – Section 69

c.     Exaggerated claim by the defendant

(a) Material facts

8.      The Claimant has been employed by XXXXXX (Formally XXXXXXX) for a period of 6 years and 5 months and has throughout that time been in possession of a parking permit issued by the Defendant to the Claimant’s employer.

9.      The parking permits issued by the Defendant are open permits, meaning they are not tied to any one person or vehicle.

10.   The Defendant’s patrol officer on the day of the alleged contravention took sight of and confirmed to the Defendant of the existence and possession of said parking permit.

11.   The Defendant notwithstanding the information provided by the patrol officer issued a Parking Charge Notice to the Claimant regardless of the knowledge they had of his right to park.

12.   After obtaining the Claimant’s details from the DVLA some days later, the Defendant then further rejected his appeal even after both the Claimant and the Defendant’s patrol officer had shown significant evidence of his right to park.

13.   The Claimant has refused to pay the charge and the Defendant has then instituted directly and via its servants or agents a line of correspondence likely to cause distress.

(b) Relevant legal principles

(i) DVLA Keeper at date of event (‘KADOE’) rules

14.   The DVLA KADOE website states that keeper information will be made available to those who have “reasonable cause” to request the information and provides four reasonable causes for cars parking on private property as evidenced in Exhibit AH05 of the Claimant’s witness statement. Yet the Defendant in this case had no reasonable cause for the following reasons.

a.     The Claimant’s vehicle was not obstructing access to land or property.

b.     The Claimant’s vehicle had not been abandoned on private property.

c.     The Claimant’s vehicle had not been parked without payment of the relevant fee as this was not a pay and display or a pay at exit car park.

d.     The Claimant’s vehicle had not been parked without the right to do so, as he had a permit, which the patrol officer had seen, photographed and made the Defendant aware of on the day of the alleged parking contravention.

15.   The Claimant therefore avers that in the event the court agrees that none of the above reasonable causes apply to this case; the Defendant therefore had no reasonable cause to request his personal data from the DVLA and did so both in breach of these rules and the GDPR.

(ii) GDPR Regulations Article 5 & Data protection act principles Sections 34 & 36

16.   Due to the reasons outlined in (b) Relevant legal principles (i); the Defendant obtaining the Claimant’s personal data, choosing to issue a PCN with those said details, and then sharing the personal data with ELMS Legal were all breaches of Article 5 of the GDPR and Sections 34 & 36 of the Data Protection Act 2018.

a.     GDPR Article 5(1)(a) states that “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’)”

                                               i.     The processing of personal data must be lawful, fair, and transparent. Companies should have a lawful basis for processing, such as the necessity of processing for the performance of a contract, compliance with a legal obligation, protection of vital interests, consent, the performance of a task carried out in the public interest or in the exercise of official authority, or legitimate interests pursued by the data controller or a third party.

b.     GDPR Article 5(1)(b) states that “Personal data shall be collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes”.

                                               i.     Personal data should be collected for specified, explicit, and legitimate purposes. If a company obtains and shares personal data without a clear and lawful purpose, it is clearly in violation of this principle.

c.     Chapter 2 Section 34 of the DPA 2018 sets out the six data protection principles. Section 36 requires that “the law enforcement purpose for which personal data is collected on any occasion must be specified, explicit and legitimate”.

d.     The Defendant's acquisition and subsequent processing of the Claimant’s personal data from the DVLA, despite being aware of his lawful parking rights, raises a crucial question about their legitimate purpose. The fact that they processed his information in a manner inconsistent with any justifiable purpose demonstrates a concerning disregard for GDPR compliance.

(iii) Consumer Rights Act 2015 – Section 69 - Contract terms that may have different meanings

17.   The term the Defendant alleges the Claimant breached “Permit holders must clearly display a valid permit (with all details clearly visible) inside the front windscreen of the vehicle at all times” is ambiguous. There are many meanings of the wording “inside the front windscreen”, with the possible meanings of this including but not limited:

a.     Placed on the dashboard

b.     Affixed to the interior side of the front windscreen

c.     Positioned inside the vehicle cabin specifically near or close to the front windscreen area where the permit would be visible from outside

a.     Infused into the glass of the front windscreen

18.   The plain English meaning of the wording “inside the front windscreen” is that the permit should be visible through the front windscreen. The signage does not specify where the permit must be located (as it could have done) much less require the permit to be affixed to the windscreen itself.

(c) Exaggerated Claim and 'market failure' currently examined by the Government

19.   The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). The Claimant has seen no evidence that the added damages/fees are genuine.

20.   The Claimant avers that debt recovery fees were not paid out or incurred by this Defendant, who is put to strict proof of:

a.     The alleged breach, and

b.     A breakdown of how they arrived at the enhanced quantum claimed.

21.   This Defendant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

a.     a strong 'legitimate interest' extending beyond mere compensation for loss, and

b.     ‘adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines

22.   This Defendant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This counter claim is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

23.   The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice

“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."

24.   Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

25.   Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

26.   With that sum in mind, it is clear that the counter claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment (included in the Claimant’s witness statement bundle Excel v Wilkinson) by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Claimant also takes that position.

27.   The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

28.   In support of the Claimants contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). 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 (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal’.

29.   This Defendant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

30.   Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

31.   In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

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

33.   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 in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

34.   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 (NB: this does not necessarily mean there has to be a finding of bad faith).

35.   Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (Included with the Claimant’s witness statement bundle)

Conclusion

36.   The Defendant issued the PCN to the Claimant against DVLA rules breaching the GDPR and DPA 2018.

37.   There is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

38.   With the DLUHC's ban on the false 'costs' 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 the intimidating pre-action demands. 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.

pould

Awesome. Would you like to see my skeleton? 

Anto_28

pould said:

Awesome. Would you like to see my skeleton? 

Please do, (DM me if you prefer to keep it out of the Public forum)