ParkingEye County Court Defence- I have proof?

JoshBrux · 4 May 2018 at 3:41PM

Coupon-mad wrote: »

Not like a defence! That's like a half-baked Witness Statement.

Read some examples of ParkingEye claim defence* threads; you write it in the third person 'the Defendant avers that...' (not ''I did this'') and there is MUCH more to say to put the Claimant to proof of their claim.

*those are your forum search keywords, I would suggest.

I wasnt going to structure it that way, they were just some points id come up with, but I'll have a search now.

JoshBrux · 5 May 2018 at 10:07PM

Coupon-mad wrote: »

Not like a defence! That's like a half-baked Witness Statement.

Read some examples of ParkingEye claim defence* threads; you write it in the third person 'the Defendant avers that...' (not ''I did this'') and there is MUCH more to say to put the Claimant to proof of their claim.

*those are your forum search keywords, I would suggest.

Ok so ive written up (Probably extremely poorly) A defence of why I didn't enter my registration into the terminal provided, im currently reading into other defences such as ANPR, Rosana Breaks/Roboclaims and only landowners being able to claim in the event of a trespass.

Could you guys let me know what you think?

1.According to the signs erected inside the car park, to avoid a Parking Charge users of the service must either purchase a ticket by machine or phone OR must be "Patrons"; (As seen in the sign) of said businesses (Seen on a different sign) within the car park. At the time of parking on 6/12/17 which resulted in the Parking Charge being issued, the defendant was a patron of the Odeon cinema which works in conjunction with ParkingEyes parking enforcement contract. The defendant has a transaction on a bank statement which shows they had paid for multiple tickets which would have entitled them to 4 hours free use of the car park in question. This evidence has also been accepted by the manager of the Odeon cinema as proof of a paid visit, so therefore fits ParkingEyes definition of A "Patron" leading the defendant to believe that the original Parking Ticket was wrongly issued.

2. The claim form issued on 31/4/18 states that the "Signage is clearly displayed at the entrance to and throughout the car park" The defendant contests this claim. In fact their is very little signage placed within the car park that indicates patrons should input their registration when visiting their desired outlet. There are two signs around the Odeon cinema, one in the middle the car park -Which could not be seen if parked in front of as it is placed perpendicular to the building- and another placed on the wall to the left of the building which would also be illegible if not approached from the correct angle. The defendant has photographic evidence that there is no signage on or within the Odeon cinema they were visiting, nor where they verbally prompted or directed by staff at any point during their visit. A policy which has since been enacted by the new manager of the premises.

A. For clarification the location of the single Ipad in use as a registration terminal is set to one side of the cinema the defendant had no reason to venture near this terminal as their screening was on the opposite side.

Yes i am aware it still sort of sounds like a WS.

KeithP · 5 May 2018 at 10:33PM

Josh, have you read any of the Defences linked from post #2 of the NEWBIES FAQ thread?

Did you do the search that Coupon-mad suggested?

If you did either of those things I am really struggling to understand how you arrived at that.

Yes, as you say, it does look a bit like a Witness Statement and I am sorry to say, nothing like a Defence.

By using C-m's search arguments you will find over 300 posts.
The very first one, After yours, is this one which should give at least some idea of what a Defence might look like:
https://forums.moneysavingexpert.com/showthread.php?t=5828494

Also, as mentioned, there must be at least a dozen Defence example linked from post #2 of the NEWBIES FAQ thread.

JoshBrux · 5 May 2018 at 11:56PM

KeithP wrote: »

Josh, have you read any of the Defences linked from post #2 of the NEWBIES FAQ thread?

Did you do the search that Coupon-mad suggested?

If you did either of those things I am really struggling to understand how you arrived at that.

I did read them, law is quite intimidating for newbies, ive thrown myself in at the deep end and ive started to regret it!

Ive gone through a few more cases and noted points that are relevant to mine.

This is by no means finished, but i hope its bit better.

1. I am the registered keeper of the vehicle in question. This vehicle is routinely used by more than one individual. The Claim relates to an alleged debt arising from the drivers's alleged breach of contract when parking at xxxxx car park on the xxxxxx

2. The defendant has visited the said car park as a result of this claim. It was noticed that there is no signage at the entrances to the site from the main road, nor are the instructions given on the signs clearly indicated. Photos and video footage are to be presented as evidence in this case, illustrating how the site suffers from poor signage and notifications.

3.The allegation appears to be that the 'vehicle was not authorised to use the car park' photographed by their ANPR camera at the entrance and exit to the site. This does not prove actual parking of the vehicle and is merely an image of the vehicle in transit. The allegation of 'No Authorisation'; is open to abuse by the claimant as it can be used in all cases regardless of the actual situation, this displays how the claimants!claim!is generic and non-specific.

4.There are no signs at the entrance at all and no additional signs or notices to alert drivers, even in adverse weather conditions.

4a. The length of the script and the minute size of the font renders the signage present simply unreadable whilst driving. In addition it is placed in locations where it is not obvious to the driver i.e. blind spots from the drivers; line of sight, near give way lines and zebra crossings where the driver would be focusing on other vehicles and/or pedestrians instead. Therefore the signage on this site is inadequate to form any contract with the motorist.

4b. Due to this inadequate signage, the defendant also argues that there are a large number of parking bays, proportional to the overall space within the car park, where have no obvious adjacent or nearby signs are in the line of sight of drivers who use the bays. Photos will be provided of the missing signage.

4c. The language on the erected signage its self is also confusing, the sign states that parking tariffs apply "24 hours a day";, however the next piece of writing underneath states patrons can park free for 4 hours.

5.Prior to the defendants visit, Parking Eye had only recently placed their signage within the car park creating new terms and conditions for motorists. The IPC Code of Practice states that;
'Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period

6.The defendant submits that he was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the defendant from being able to get this charge cancelled by the Retailer, a right that the defendant believes existed as an exemption clause for shoppers written into the landowner contract/retailer user manual, but a material fact which is withheld from consumers. If the defendant could have appealed to POPLA or had been informed that the Retailer/landowner could deal with such complaints and cancel charges, the defendant would have done so.!

7. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
-The Defendant has the reasonable belief that the Claimant has not incurred £75 costs to pursue an alleged £100 debt.
-The Protection of Freedom Act Paragraph 4 (5) states that the maximum sum that may be recovered from the Keeper is the charge stated in Notice to Keeper.
The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one.
- Due to this, the defendant would also like to bring to your attention Rosanna Breaks, the solicitor acting on behalf of ParkingEye. In 2014 ParkingEye isssued over 30,000 claims. 30,000 claims is 115 claims a day, or 14 an hour. If Rosanna Breaks worked flat out during and 8 hour working day she would have to issue one claim every 4 minutes. From this information the defendant can only deduce that ParkingEyes claims are fully automated and resemble that of a Robo claim, a simple typed name and lack of signature from Rosanna breaks gives precedent to this.
-The defendant believes the terms of such Robo claims; are against the public interest and show deep disregard for the dignity of the court and unrepresented consumers. The defendant believes that this claim will proceed without any facts or evidence provided by ParkingEye. The defendant also respectfully suggests that parking companies are using the small claims court as a method of aggressive, automated debt collection, something which the courts should not be seen to support.

8.!In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent .ParkingEye has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted contract, or letter of authority, from the landowner to the Claimant.

Coupon-mad · 6 May 2018 at 7:17PM

Try this instead, I have changed 'IPC Code (?!) to BPA of course, as PE are a BPA firm, and I have used your actual words about the issue and written it as driver (no need to hide as keeper in a case like this that turns on other facts):

In the County Court

Claim Number: xxxxxxx

Between

ParkingEye Ltd

v

Xyour nameX

DEFENCE

Background - the driver was an authorised patron of the onsite business

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to use the car park' 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 and is no evidence of 'No Authorisation' or not being a patron of the facility.

3. The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad that catches out far too many victims at this location, that has given rise to a PCN that was not properly issued from the outset.

Unclear terms - unconscionable penalty relying upon a hidden keypad

4. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed and the purported keypad was nowhere to be seen.

4.1. Prior to the Defendant's visit, ParkingEye had recently placed their signage within the car park creating new terms and conditions for motorists. Their Trade Body Code of Practice states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''

4.2. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use an iPad, or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

5. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by ParkingEye in their signs or paperwork, prior to commencing proceedings. The Manager was incensed that these complaints were becoming a daily occurrence, blighting the business and upsetting customers ever since the ill-advised contract began, yet the business was now stuck with it for the time being.

5.1. The Manager stated that the staff now have to take time out to verbally prompt the customers that come in because the iPad used for signing in VRN details, and the sign used to indicate this, are far from obvious. The Manager expressed his disgust with the Claimant suing their patrons and driving away business, and sent a clear email stating his wish that the unfair PCN be cancelled.

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

5.3. This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating 'an outrageous scam' typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and indeed, ParkingEye themselves were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self regulation has failed, and in many cases any 'appeal' is futile.

No legitimate interest - the penalty rule remains engaged

6. 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.

7. 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 - all too often at this location - ParkingEye unfairly harvest 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.

7.1. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. 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.

7.2. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

8. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN into an unseen keypad, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

9. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

9.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.

Lack of good faith, fairness or transparency and misleading business practices

10. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way ParkingEye make any money.

11. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that ParkingEye withheld the option of landowner cancellation all along.

11.1. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.

Inflation of the parking charge and double recovery - an abuse of process

12. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.

13. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. ParkingEye Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

14. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

15. 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.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

Name/signature

Date

Shenstar · 12 May 2018 at 10:13PM

Some useful information here

JoshBrux · 18 May 2018 at 4:10PM

Coupon-mad wrote: »

Try this instead, I have changed 'IPC Code (?!) to BPA of course, as PE are a BPA firm, and I have used your actual words about the issue and written it as driver (no need to hide as keeper in a case like this that turns on other facts):

Thank you Coupon-Mad, thats alot more extensive than i thought!

Apologies for the delay in getting back to you, ive been incredibly busy with work, in fact i almost forgot about the case until i recieved a "Without prejudice (Save as to costs)" letter yesterday morning stating that PE are willing to accept a sum of just £60 'To make this all go away'.

Obviously it would be nice for this all to go away, but i dont think id ever forgive myself if i gave them even a penny of my money.

I haven't submitted an actually defence yet, so either theyve responded to the managers request that they cancel or im assuming this is another automated letter they send out once they get wind of your AOS?

Ive done some research and read up about the 'Drop hands' letter listing my costs and acknowledging that i would seek to recover them should the case be dropped now, would that be my next move?

Coupon-mad · 18 May 2018 at 4:16PM

I haven't submitted an actually defence yet, so either theyve responded to the managers request that they cancel or im assuming this is another automated letter they send out once they get wind of your AOS?

It's not done in most cases, this is rare. This is what they do, when the landowner/retailer gets annoyed with them, PE still want £60 which is diabolical, look:

https://forums.moneysavingexpert.com/showthread.php?t=5831595&page=2

That one is paying the £60, then they are being encouraged to sue the landowner for that loss.

If you want to keep going then we will support you and without landowner backing, you can argue there is no 'legitimate interest' unlike the Beavis case. So they have no cause of action.

I think I covered the above important point, in the defence draft I wrote for you, anyway.

SIGN, DATE & SUBMIT IT! YOUR TIME MUST BE CLOSE...DON'T LET IT GO TO A DEFAULT LOSS.

JoshBrux · 23 May 2018 at 9:36PM

Coupon-mad wrote: »

SIGN, DATE & SUBMIT IT! YOUR TIME MUST BE CLOSE...DON'T LET IT GO TO A DEFAULT LOSS.

All done, submitted via email and have recieved the letter of confirmation from the Tribunals service, so now its the 28 day waiting game i guess.

Re the previous letter asking for £60, is there any point in responding to this?

Coupon-mad · 23 May 2018 at 11:08PM

No need, just ignore it.

I think PE might fold in this case; hope so, even though I would like to see that specific defence tested at a hearing. Must use the above defence again as it says everything I would want it to say if I were in your shoes.

And lots of people are in your shoes with a PCN churned out without sufficient checks, by an automated (hidden cameras) ANPR system that uses data that clashes with another data processing system (in your case a hidden iPad).

The same sort of defence (suitably tweaked) would work in a ANPR/PDT machine clash of data sets that I would call an 'unfair and unconscionable conflict of two data processing systems', which used together, work against consumers and fail the mandatory ICO rules for ''evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle''.

Cases like this are well worth defending and nothing like the 'free retail park' licence to park ''breach'' in Beavis.

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ParkingEye County Court Defence- I have proof?

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