IMPORTANT REMINDER: Please make sure your posts do not contain any personally identifiable information. If you are uploading images, please take extra care that you have redacted all personal information.

Received a court claim but never a LBCCC

I have read the newbie threads but cant seem to find anything about what to do if you never received a Letter Before County Court Claim.

I received a ticket in the post from ParkingEye for parking on private land a few months ago (a butterfly park in the middle of nowhere. You would only be parked at this location long enough if visiting this business and paying their entry fee). In honesty I don't remember if I paid for parking and may have typed the number plate wrong or just didn't pay at all. The letter was a few weeks after I had been there.

I ignored the original letter and the follow up a couple weeks later saying pay the full £100. I didn't heard anything more about it and a few months went by. No letters from Debt recovery agencies, no thing from parkingEye, nothing. I assumed it had just been forgotten about or cancelled. Who knows.

I was wrong. The next thing I received was a County Court Claim form saying I now owed £175, £100 for the fine, £50 for the Lawyers fee and £25 for the court fee. I checked my mail thoroughly as seen in the NEWBIE section to check for a LBCCC but had never received one.

I submitted to the court website saying I had received the claim form but have yet to write a defence as i'm unsure what happens when ParkingEye hasn't followed the proper precourt protocols.

Thanks in advance for your help!
«1

Replies

  • RedxRedx Forumite
    38.1K Posts
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    Forumite
    they probably havent if no LBCCC arrived, but that isnt your main concern now

    it can be included as a complaint in your defence , but you really should have appealed this at the initial stage, then gone to popla , meaning you may have to account for the reasons why you did not do those prelim stages

    pan calling the kettle black etc ;)

    as you have already done the AOS, post the date of issue on your MCOL

    then start constructing your defence and post the proposed draft below, for critique


    include the lack of any LBC etc, by reading other defences where this has happened
  • UmkomaasUmkomaas Forumite
    36.8K Posts
    Ninth Anniversary 10,000 Posts Name Dropper Photogenic
    Forumite
    i'm unsure what happens when ParkingEye hasn't followed the proper precourt protocols.
    You can refer to it in your defence and witness statement, but it's not your get out of jail card.

    The NEWBIES FAQ sticky, post #2 takes you right through the entire court process, including pictorial advice and guidance about what to expect, how to fill in the various pieces of paperwork, and links to a variety of defences and witness statements.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • QuentinQuentin Forumite
    40.4K Posts
    Hsd you received the lbcca would you have paid??
  • Hi, Ive tried to put together a defence based on things i've found that seemed relevant to my case. Is there anything i need to cange or alter? critiques very much welcome! unforunately im running out of time!!

    DEFENCE

    Background - the Driver was a patron of the Wye Valley Visitor Centre
    1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from a driver's alleged breach of contract, when parking at Wye Valley Visitor Centre car park on 21/05/18. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.
    2. 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 'not purchasing the appropriate parking time' or of the driver not being a patron of the Wye Valley Visitor Centre.
    3. The Driver can prove that they were a patron of the Wye Valley Visitor Centre, and it is the Claimant's own failure, caused by their deliberately obscure terms and terminals that catch 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 - no agreement to pay a penalty for failure to use hidden terminals
    4. ParkingEye clearly relies on contract law, but does not do enough to make clear that a contract exists nor what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.
    4.1. Due to the nature of this small business (A Butterfly Zoo, Hedge Maze and Gift shop) combined with its remoteness from a population centre, one would not expect this to be a paid carpark. Furthermore, onsite facilities are exclusive to and accommodate solely to paying customers making a need to pay additionally for parking seem even more unlikely.
    4.2. The signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with ParkingEye, is partially obscured by a much larger sign directing traffic and placed at an intersection with extremely confusing road markings. All of these combine to make this initial sign easily missed.
    4.3. The ParkingEye affiliated signs within the parking area are equally as hidden and therefore misleading. Between the carpark entrance and the parking spaces closest to the building, where entry tickets are purchased, only one unclear sign is within a driver’s line of sight. Furthermore there are no signs between where a car would be parked and the entrance to the Butterfly Zoo.
    4.4. Two black, unlit terminals are placed within the carpark, both at very obscure and opposite extremities that are extremely easily missed. The terminal nearest the Butterfly Zoo entry is faced away from the roadside, towards a building that is entirely unused by patrons of the visitor centre. The black terminal box also has absolutely no distinguishing features or signage on the back and from the roadside.
    4.5. It is the responsibility of ParkingEye to ensure that the terms and conditions are prominently displayed around the site. By contrast these terms and conditions are displayed at an excessive height that would render a driver and or a pedestrian to clearly see the terms and conditions, stated in very small print. Contrary to Lord Denning’s ‘Red hand rule’ and contrary to the requirements of the Consumer Rights Act 2015, and in agreement to the parking charge there was no agreement to pay additional sums, which in any case are unsupported by the Beavis case and unsupported for cases on the small claims track.

    Consumer Protection from Unfair Trading Regulations – breach
    5. The only route offered was an 'appeal' to ParkingEye themselves, but the Driver having done nothing wrong as a matter of principle, and honestly believed from research that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.
    5.1. At no point was the registered keeper of the vehicle informed by ParkingEye that the alleged debt cancelled by contacting the land owner, this information was only discovered by the keepers own research into such matters and this omission has severely disadvantaged their ability for the matter to be dealt with, without the need for court proceedings. The Private Parking Code of Practice Bill on 2nd February 2018, where more than one MP named and shamed ParkingEye and the unanimously damning Hansard quotes include: ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; ''wilfully misleading; signage is a deliberate act to deceive or mislead''; ''confusing signs are often deliberate, to trap innocent drivers''; ''unreasonable; operating in a disgusting way''; ''appeals service is no guarantee of a fair hearing''; ''outrageous scam''; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

    No locus standi
    6. In order to issue and to pursue unpaid charges, 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.

    The Claimant has not complied with the pre-court protocol.

    6.1 Referring to Para 4 on non-compliance and sanction, and the defendant also points out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
    i) There was no compliant Letter before County Court Claim, under the Practice Direction.
    ii) This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.
    iii) The Schedule of Information is sparse of detailed information.

    6.2. The Claimant's increasingly demanding letters failed to evidence any contravention or
    clear/prominent signage.

    6.3. The claimant has not provided enough details in the particulars of claim to file a full
    defence. In particular, the full details of the contract which it is alleged was broken
    have not been provided.
    i) The Claimant has disclosed no specific cause of action to give rise to any debt.
    ii) The Claimant has stated that a parking charge was incurred.
    iii) The Particulars of Claim contains no details and fails to establish a cause of action
    which would enable the Defendant to prepare a specific defence.
    It just states “parking charges” which does not give any indication of on what basis
    the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.
    No 'legitimate interest' or commercial justification - Beavis is distinguished
    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 ParkingEye, all too often at this location, unfairly ticket a patron of the Wye Valley Visitor Centre, any commercial justification in the form of support by the Wye Valley Visitor Centre for such unfair ticketing is absent.
    7.1. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

    Data Protection Act and BPA Code of Practice breach
    8. 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.
    8.1. 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.
    8.2. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:
    i) Lack of an initial privacy impact assessment, and
    ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
    iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR, together with the payment terminal secondary data processing system at this site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine patrons), and
    iv) Failure to consider the number of complaints from the Wye Valley Visitor Centre, which would have alerted this Claimant to the fact that their poorly placed payment terminals and woeful signage was not being seen by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against the Wye Valley Visitor Centre patrons, and
    v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the payment terminals and how the data captured on both would be used, and
    vi) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.
    9. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.

    Unlawful conduct/data use and breach of the Consumer Rights Act 2015
    10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.
    11. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''
    11.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''
    12. Even if there was a purported contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (due to non-compliance with the ICO requirements at the outset, before enforcement started using ANPR systems at this site).
    12.1. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.
    12.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers, whereby they had committed the tort of deceit. : ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.
    12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, and given that this Claimant has its own in-house Legal Team and solicitors, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.
    12.2.2. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:
    (i) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.
    (ii) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.
    (iii) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.
    13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

    Unconscionable and unrecoverable inflation of the 'parking charge'
    14. 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 I submit have not actually been incurred by the Claimant.
    14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
    15. 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. In Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.
    15.1. Similarly, in Somerfield a £75 parking charge was not held to be a penalty but a sum mentioned in the harassing letters of double that amount, almost certainly would be.
    16. 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.
  • edited 1 October 2018 at 9:15PM
    Coupon-madCoupon-mad
    107K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Forumite
    edited 1 October 2018 at 9:15PM
    I've changed it quite a bit; my suggestion would be:



    IN THE COUNTY COURT
    CLAIM No: Removed

    BETWEEN:
    ParkingEye Ltd (Claimant)

    -and-

    xxx mf87 xxx(Defendant)


    DEFENCE




    Background

    1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at Wye Valley Visitor Centre car park on 21/05/18.

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

    2. The allegation appears to be [STRIKE]that the 'motorist fails to make the appropriate tariff payment'[/STRIKE] based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing the appropriate parking time' or of the driver not being a patron of the Wye Valley Visitor Centre.


    Data Protection concerns

    3. The [STRIKE]Driver[/STRIKE] Defendant was an occupant of the car and can prove that [STRIKE]they[/STRIKE] their family were [STRIKE]a[/STRIKE] patrons of the [STRIKE]Wye Valley[/STRIKE] Visitor Centre. However, the Defendant had no idea about any ANPR surveillance and received no letters after the initial 'PCN' a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

    3.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.

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

    4.1. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the Centre, who are being caught out regularly by this trap.

    4.2. Silently collecting VRN data in order to inflate the 'parking charge' from £4 to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

    4.3. The Claimant will have some difficulty in justifying their hidden and unexpected terms at a site where the Defendant now learns from researching online reviews, that the Claimant has also added an unexpected and unwarranted (given the nature of the remote location) '4hr max stay' rule on top. These are not the 'brief, simple and prominently proclaimed' terms that convinced the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 to bend the penalty rule in that unique, fact-specific case only.

    4.4. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.

    5. Unlike the free car park in Beavis, this Visitor Centre is a site where the Claimant has machines to take payment of tariffs. Clearly there will be ParkingEye staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.



    Premature claim - no Letter before Claim, and sparse Particulars

    6. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and arrived weeks later) and the equally lacking and embarrassing Particulars of Claim (POC) and the complete lack of any Letter before Claim, this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.

    6.1. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

    7. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

    8. The Defendant has sent a subject access request (SAR) to the Claimant, for response during October 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.


    Denial of contract and denial of any breach, or liability

    9. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

    10. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.


    10.1. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with ParkingEye, is partially obscured by a much larger sign directing traffic and placed at an intersection with extremely confusing road markings. All of these combine to make this initial sign easily missed.

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

    10.3. It is not remembered whether an occupant of the car did see a PDT machine and pay a tariff/input the VRN whilst the Defendant obtained the entry tickets, and the Defendant is none the wiser due to the lack of information from the Claimant. 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 PDT keypad, 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.


    10.4. Upon receiving this unexpected Claim, the Defendant has researched the site in order to submit a defence. Two black, unlit terminal 'boxes' are placed within the carpark, both at very obscure and opposite extremities that are extremely easily missed. The [STRIKE]terminal[/STRIKE] PDT machine nearest the Butterfly Zoo entry is faced away from the roadside, towards a building that is entirely unused by patrons of the visitor centre. The black [STRIKE]terminal[/STRIKE] PDT machine looks like an unremarkable electrical box or bin, with [STRIKE]also has[/STRIKE] absolutely no distinguishing features or signage on the back and from the roadside, to associate it with parking. There is no ''Pay Here'' arrow or other prominent signpost or any 'Have you paid and displayed?' reminders as patrons enter the Visitor Centre.


    No standing or authority to form contracts and/or litigate

    11. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of the Visitor Centre.



    No 'legitimate interest' or commercial justification - Beavis is distinguished


    12. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late with a 'parking charge' that bears no resemblance to the £4 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

    12.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

    Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

    Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

    Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''




    Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

    13. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £4 according to the recent, frankly awful, Wye Valley TripAdvisor reviews from people who have also been caught here by ParkingEye. Had the Defendant been clearly alerted to the sum on the day - or even simpler, if they could have had the certainty of paying it when buying the Visitor entry tickets or had the 'parking charge' (tariff) been included within the entry fee itself - there would be no unfair penalty, and the Visitor Centre (or landowner) would gain in income and avoid any parking issues at all, including all the complaints mounting up online about ParkingEye at the otherwise beautiful site.

    13.1. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £4 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

    13.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £4 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

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

    http://www.chepstowbeacon.co.uk/article.cfm?id=107788&searchyear=2017

    13.4. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

    13.4.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

    13.5. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

    14. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 and no more.

    14.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

    14.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £4 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

    15. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.


    16. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which [STRIKE]I submit[/STRIKE] have not actually been incurred by the Claimant.

    16.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. [STRIKE]I put[/STRIKE] The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

    17. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

    17.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £100 can be claimed instead of £4 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.

    18. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.

    I believe the facts contained in this Defence are true.


    Name

    Signature

    Date

    The letter was a few weeks after I had been there.
    How long EXACTLY?

    Date of event, and date of issue of the PCN, please? NOT the reminder, that's just trash.

    You need to send ParkingEye a SAR online to their privacy team (see their website privacy page) as well, once this defence is finalised. You will be asking them in the SAR, for copies of all letters sent and all relevant machine records (with VRNs partially redacted if necessary), all internal file notes, decision-making and status updates whether automated or with human intervention.

    Can you show us how the defence looks with all the above alterations, if you are happy with them? It's better to see it from you in a new post, with no red font.
    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
  • This is potentially about to sound really stupid but.... how do i submit my defence?

    On the MCOL website there isnt really an option to attach the printed, signed and dated PDF. Also should i be counter claiming for my time and effort and everything on there too??
  • Never mind. found the answer - Ill pop my defence in a new thread tomorrow
  • You surprise me that you appear NOT to have checked the NEWBIES thread about how to submit a defence - and it's not by MCOL.

    Please read bargepole's summary of what happens when & how to do it.

    Also read any post by KeithP which tells people where to email a defence to the CCBC. He repeats it on defence threads every single day - please don't tell us you aren't reading other threads each day when you are here? You are missing a trick if you sit in isolation on your own thread only, as you miss learning from all the similar threads ahead of you in this game.
    Also should i be counter claiming for my time and effort and everything on there too??
    Well no, because that's your costs - not a counter claim - and you know from the newbies thread when to submit a costs schedule later.
    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
  • KeithPKeithP Forumite
    30.3K Posts
    Part of the Furniture 10,000 Posts Name Dropper
    Forumite
    mf87 wrote: »
    Never mind. found the answer - Ill pop my defence in a new thread tomorrow
    No, please do not start a new thread.

    Please continue in this thread.

    Mf87, what is the Date of Issue on your Claim Form?

    Have you done the Acknowledgement of Service yet?
  • IbcusIbcus Forumite
    165 Posts
    I've cleaned the link up that Coupon-mad used in post #6 to make it easier to read if it's any help
    http://www.chepstowbeacon.co.uk/article.cfm?id=107788&searchyear=2017
Sign In or Register to comment.
Latest MSE News and Guides

Gin, gee-gees & groceries

This week's MSE Forum highlights

Team Blog

2for1 adult tickets to theme parks

Via selected £1-£3 Kellogg's promo packs

MSE Deals