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ParkingEye County Court Claim - Genuine Patron of Hotel - ANPR

Hi, I would like some help / feedback for a defence I am writing in relation to a claim from ParkingEye.

The background is that I parked on a hotel car park (managed by ParkingEye), due to being a guest at the hotel for an event I was attending. The Hotel had authorised patrons of the event to park at the hotel for the duration of the event.

Upon entering the hotel, I was directed by a member of the hotel staff to enter my car registration into the device on the reception desk - which I did and was then ushered to the conference room for said event. I left the hotel and car park after the event had finished, which was less than a couple of hours in total.

A few weeks later I received an NTK from ParkingEye stating that i owed them £100 as my number plate was caught on ANPR entering and leaving the car park without a paid for ticket. After putting two and two together, I realised that I must have entered either partly or fully, my vehicle registration incorrectly (or perhaps the device itself recorded it incorrectly, who knows).

I did contest this NTK with ParkingEye at the time but my argument was rejected on their not being sufficient evidence. I chose not to pay the fine and subsequently received a letter before county court claim which stated I now owe them an additional £20.00 - the charge had now risen to £120.00!

I missed the deadline of appealing to POPLA and so have now received a Claim Form, of which I would like to put in my defence as I truly believe I have not done anything wrong here.

In hindsight and only from reading these Forums, I have realised that I should have, at the start, gone straight to the Hotel to ask them to request a cancellation of the NTK. I have done this since receiving the Claim form and the hotel have asked ParkingEye to cancel but ParkingEye are saying there is nothing that can be done at this stage to cancel it! The Hotel has provided me with a letter confirming that I was a guest for this event and had indeed entered my registration into the device at reception when asked to do so.

Since receiving the Claim Form I have filed an Acknowledgment of Service on the MCOL website:

Claim History

A claim was issued against you on 20/11/2023

Your acknowledgment of service was submitted on 27/11/2023 at 21:47:55

Your acknowledgment of service was received on 28/11/2023 at 08:05:58


Particulars of Claim

Claim for monies outstanding from the Defendant in relation to a Parking Charge (Reference xxxxx) issued on the [Date]. The signage clearly displayed throughout the  [Name of Hotel], [Address], states that this is private land, managed by ParkingEye Ltd, and that it is subject to terms and conditions, including the payment of parking tariffs, by which those who park agree to be bound (the contract). ParkingEye’s ANPR system captured vehicle xxxx entering and leaving the site on [Date], and parking without a valid paid parking ticket. The Defendant had the opportunity to appeal to POPLA, the independent appeals service for parking on private land, but has not been taken.

Amount Claimed: 120.00

Court Fee: 35.00

Legal representative’s costs: 50.00

Total amount: 205.00


I have composed my below defence but I’m not sure if it enough or too much, so any advice appreciated:

--------------------------------------------------------------------------------------------------------------------------------

IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between
(full name of parking firm, not the solicitor!) 
(Claimant) 
- and -  
Defendant’s name from N1 claim (can’t be changed to someone else now)                        
 (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. The Defendant visited the [Hotel] on [Date of Offence] as a guest for a pre planned event whereby guests to the event were authorised by the Hotel to park on the Hotel car park, for the duration of the event.

3. The defendant remained on site during the event.

4. The Defendant was advised by Hotel staff to enter their VRN into an ipad type device upon entering the Hotel. The Defendant inputted their VRN into the device as instructed. The Defendant received no feedback from the device that the registration entered was correctly or incorrectly entered.

5. It is admitted that the Defendant was the registered keeper and driver of the vehicle. It must be common ground that the terms have been complied with or substantially complied with. The charge imposed, in all the circumstances, is a penalty (not saved by the ParkingEye v Beavis Supreme Court case, which is fully distinguished).  Further, in a new tactic only seen from this Claimant in Summer 2023, the sum claimed under purported 'contract' is disproportionately exaggerated by £20 which was not mentioned on the signs at the Hotel.  The Defendant takes the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

6. The Claimant 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:

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

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs.


7. The allegation appears to be that the motorist fails 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 'parking without a valid paid parking ticket' or of the driver not being a patron of the Hotel, when in fact the Defendant was a guest at the hotel and followed instructions from staff in inputting their VRN into the device at the Hotel reception upon arrival.


8. When the Defendant advised the Landowner of the PCN, the company’s management contacted the Claimant to advise that the Defendant was a guest at the hotel for a planned event hosted by the Hotel and had followed instructions by inputting their VRN into the device on reception. The Hotel asked the Claimant to cancel the notice but were advised by the Claimant that there was nothing that could be done as the matter is now in its legal stages.

9. 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.

10. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.

11. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When ParkingEye unfairly harvests the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

12. The letter’s say that all appeals should be made in writing and sent directly to ParkingEye. The option to appeal directly to the Landowner was excluded, and only discovered after the Defendant’s own research.

13. The initial route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence or mischief had occurred and believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

14. 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.

15. The Defendant remembers inputting the VRN on the device at the hotel reception when the staff member asked the defendant to do so upon entry and the Defendant is none the wiser due to the lack of information from the Claimant whether the VRN was entered incorrectly. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the device, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.

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 Solicitor's Costs of £50, which have not actually been incurred by the Claimant.

17. 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.

18. 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.

19. The Defendant denies the claim in its entirety voiding any liability to the Claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.


Conclusion

20.  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.


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:





«1

Comments

  • Half_way
    Half_way Posts: 7,005
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    tell the hotel that they must instruct their agents to discontinue the claim with immediate effect, and ask them why your personal data which you provided to the hotel  has been miss used  and incorrectly processed, remind the hotel that they are jointly liable for the actions of their agents, in this case the un regulated parking company  parking eye
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
  • Coupon-mad
    Coupon-mad Posts: 128,920
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    edited 6 December 2023 at 11:43AM
    I'd add to para 3:

    The allegation in the POC is denied "parking without a valid paid parking ticket" because the Defendant's vehicle was exempted by the keypad system. There was no relevant obligation to obtain a 'parking ticket'.  The Claimant has failed to explain what went wrong with their keypad nor even tell the Defendant if it is their position that there was perhaps a minor 'keying error' with the VRM.  The Government's new statutory Code of Practice first published in February 2022 (linked later in this defence) requires that all keying error cases be cancelled and if this was the case, this Claimant's much vaunted '19 human checks' should have identified any minor VRM digit(s) error, matched the exemption to the vehicle, and not issued a PCN at all.  It is appalling that the Defendant is reduced to guessing what happened at this stage, when the Claimant already knows that there is no commercial or landowner justification to support proceeding.
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  • Thanks @Coupon-mad

    I have added that section to point 3. You mention the part about the Code of Practice that I later link in my defence, but I don't think I do mention it anywhere else in the defence - am I best putting a mention to the code of practice somewhere later in the defence?

    Defence now reads:

    IN THE COUNTY COURT
    Claim No.: XXXXXXXX
    Between
    (full name of parking firm, not the solicitor!) 
    (Claimant) 
    - and -  
    Defendant’s name from N1 claim (can’t be changed to someone else now)                        
     (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. The Defendant visited the [Hotel] on [Date of Offence] as a guest for a pre planned event whereby guests to the event were authorised by the Hotel to park on the Hotel car park, for the duration of the event.

    3. The defendant remained on site during the event.The allegation in the POC is denied "parking without a valid paid parking ticket" because the Defendant's vehicle was exempted by the keypad system. There was no relevant obligation to obtain a 'parking ticket'.  The Claimant has failed to explain what went wrong with their keypad nor even tell the Defendant if it is their position that there was perhaps a minor 'keying error' with the VRM.  The Government's new statutory Code of Practice first published in February 2022 (linked later in this defence) requires that all keying error cases be cancelled and if this was the case, this Claimant's much vaunted '19 human checks' should have identified any minor VRM digit(s) error, matched the exemption to the vehicle, and not issued a PCN at all.  It is appalling that the Defendant is reduced to guessing what happened at this stage, when the Claimant already knows that there is no commercial or landowner justification to support proceeding.

    4. The Defendant was advised by Hotel staff to enter their VRN into an ipad type device upon entering the Hotel. The Defendant inputted their VRN into the device as instructed. The Defendant received no feedback from the device that the registration entered was correctly or incorrectly entered.

    5. It is admitted that the Defendant was the registered keeper and driver of the vehicle. It must be common ground that the terms have been complied with or substantially complied with. The charge imposed, in all the circumstances, is a penalty (not saved by the ParkingEye v Beavis Supreme Court case, which is fully distinguished).  Further, in a new tactic only seen from this Claimant in Summer 2023, the sum claimed under purported 'contract' is disproportionately exaggerated by £20 which was not mentioned on the signs at the Hotel.  The Defendant takes the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

    6. The Claimant 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:

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

    (Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs.


    7. The allegation appears to be that the motorist fails 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 'parking without a valid paid parking ticket' or of the driver not being a patron of the Hotel, when in fact the Defendant was a guest at the hotel and followed instructions from staff in inputting their VRN into the device at the Hotel reception upon arrival.


    8. When the Defendant advised the Landowner of the PCN, the company’s management contacted the Claimant to advise that the Defendant was a guest at the hotel for a planned event hosted by the Hotel and had followed instructions by inputting their VRN into the device on reception. The Hotel asked the Claimant to cancel the notice but were advised by the Claimant that there was nothing that could be done as the matter is now in its legal stages.

    9. 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.

    10. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.

    11. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When ParkingEye unfairly harvests the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

    12. The letter’s say that all appeals should be made in writing and sent directly to ParkingEye. The option to appeal directly to the Landowner was excluded, and only discovered after the Defendant’s own research.

    13. The initial route offered was a supposed 'appeal' to ParkingEye themselves, but the Defendant knew that no offence or mischief had occurred and believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

    14. 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.

    15. The Defendant remembers inputting the VRN on the device at the hotel reception when the staff member asked the defendant to do so upon entry and the Defendant is none the wiser due to the lack of information from the Claimant whether the VRN was entered incorrectly. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the device, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.

    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 Solicitor's Costs of £50, which have not actually been incurred by the Claimant.

    17. 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.

    18. 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.

    19. The Defendant denies the claim in its entirety voiding any liability to the Claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.


    Conclusion

    20.  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.


    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:


  • Coupon-mad
    Coupon-mad Posts: 128,920
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    edited 6 December 2023 at 12:44PM
     I don't think I do mention it anywhere else in the defence.
    Then you have gone wrong. I can see you haven't used the Template Defence.

    No idea how people end up using an old version, TBH! Use the Template Defence.
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  • PART 1

    It is not obvious to me which thread contains a template for ParkingEye defences. I started using the one posted in the second post of the 'Template defence to adapt for all parking cases with added 'admin/DRA' costs - edited 31st July 2023' thread but I avoided using it as on the first post of that same thread, it states:

     

    "Below in the 2nd post of THIS thread, is some wording that newbies can choose to copy & adapt for your own defence for all PARKING CLAIMS (except PARKING EYE - see NEWBIES thread for those claims)."

     

    I went to the Newbies thread but I cannot see a Template Defence for ParkingEye defences so I used other posters defences that I felt were similar so I must have gone wrong somewhere as you say.

     

    I have now altered #2 of the template defence contained in the second post of the thread mentioned above, and added my own facts of the case from 3 onwards and renumbering the remaining points of the template to follow on consecutively.

     

    My defence now reads as per the below. I'll look at sending this off it is OK now!

    -----------------------------------------------------------------------------------------------------------------------------------------------

     

    IN THE COUNTY COURT

    Claim No.:  xxxxxx

    Between

    Full name of parking firm Ltd, not the solicitor!

    (Claimant) 

    - and -  

    Defendant named on claim (can’t be changed to driver now)                        

     (Defendant)

    _________________

    DEFENCE

    1.  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 in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

    The facts known to the Defendant:

    2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver.

    3. The Defendant visited the [Hotel] on [Date of Offence] as a guest for a pre planned event whereby guests to the event were authorised by the Hotel to park on the Hotel car park, for the duration of the event.

    4. The defendant remained on site during the event.The allegation in the POC is denied "parking without a valid paid parking ticket" because the Defendant's vehicle was exempted by the keypad system. There was no relevant obligation to obtain a 'parking ticket'.  The Claimant has failed to explain what went wrong with their keypad nor even tell the Defendant if it is their position that there was perhaps a minor 'keying error' with the VRM.  The Government's new statutory Code of Practice first published in February 2022 (linked later in this defence) requires that all keying error cases be cancelled and if this was the case, this Claimant's much vaunted '19 human checks' should have identified any minor VRM digit(s) error, matched the exemption to the vehicle, and not issued a PCN at all.  It is appalling that the Defendant is reduced to guessing what happened at this stage, when the Claimant already knows that there is no commercial or landowner justification to support proceeding.

    5. The Defendant was advised by Hotel staff to enter their VRN into an ipad type device upon entering the Hotel. The Defendant inputted their VRN into the device as instructed. The Defendant received no feedback from the device that the registration entered was correctly or incorrectly entered.

    6. It is admitted that the Defendant was the registered keeper and driver of the vehicle. It must be common ground that the terms have been complied with or substantially complied with. The charge imposed, in all the circumstances, is a penalty (not saved by the ParkingEye v Beavis Supreme Court case, which is fully distinguished).  Further, in a new tactic only seen from this Claimant in Summer 2023, the sum claimed under purported 'contract' is disproportionately exaggerated by £20 which was not mentioned on the signs at the Hotel.  The Defendant takes the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

    7. The allegation appears to be that the motorist fails 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 'parking without a valid paid parking ticket' or of the driver not being a patron of the Hotel, when in fact the Defendant was a guest at the hotel and followed instructions from staff in inputting their VRN into the device at the Hotel reception upon arrival.


    8. When the Defendant advised the Landowner of the PCN, the company’s management contacted the Claimant to advise that the Defendant was a guest at the hotel for a planned event hosted by the Hotel and had followed instructions by inputting their VRN into the device on reception. The Hotel asked the Claimant to cancel the notice but were advised by the Claimant that there was nothing that could be done as the matter is now in its legal stages.

    9. The Claimant 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, in addition to evidence there must also be:

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

     

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

     

    10. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.


  • PART 2

    Exaggerated Claim and 'market failure' currently being addressed by UK Government

    11. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

    12. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

    13. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

    14. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: private-parking-code-of-practice.

    The Ministerial Foreword is damning: "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." 

    14. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here:  Private_Parking_Code_of_Practice

    15. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

    16. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

    17. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the  fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

    18. It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  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 ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

    19. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

    20. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

    21. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

    22. 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 from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

    23. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

    CRA breaches

    24. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3): Unfair_Terms_Main_Guidance

    25. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

    26.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).  

    ParkingEye v Beavis is distinguished

    27.  Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

    28. The Supreme Court held that 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 alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

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

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

    both leading authorities 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''. 

    29.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In 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." 

    Lack of standing or landowner authority, and lack of ADR

    30. DVLA data is only supplied 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 to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

    31. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

    Conclusion

    32. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

    33. In the matter of costs, the Defendant seeks:

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

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

    34.  Attention is drawn to the (often-seen) 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.

    Signature:

    Date:


  • KeithP
    KeithP Posts: 37,016
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    Forumite
    With a Claim Issue Date of 20th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Thursday 28th December 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.
    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
    Coupon-mad Posts: 128,920
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    Forumite
    edited 6 December 2023 at 2:04PM
    That is better but decide on VRM or VRN throughout.

    Thanks for pointing out the legacy wording in the first post of the Template Defence which goes back to when ParkingEye didn't add £20. Now removed!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • There is a part at the bottom of the defence that mentions costs. I seem to remember reading somewhere on the forum that ParkingEye defences should not have anything about claiming costs back in them so not sure if I should keep in or remove this section:

    33. In the matter of costs, the Defendant seeks:

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

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

    34.  Attention is drawn to the (often-seen) 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))." 

  • 1505grandad
    1505grandad Posts: 2,841
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    Forumite
    Does the POC not give any breach details at all?  -  also just checking  -  has claim been filed by PE i.e. no solicitors involved?

    "13. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC)."
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