Keeper vs Parking Eye CC Claim Stage (MK Central Holiday Inn)

IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

ParkingEye Ltd (Claimant)

-and-

WiltshireD (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 Holiday Inn, Milton Keynes Central on 15/06/2018 between 04.15am and 05.07am. Communications from Parking Eye appear to be compliant with the Protection of Freedoms Act 2012 - and have thus have resulted in a claim against the Defendant, who does not recall driving his vehicle on the day, or visiting the location in question. The Defendant arranged for an independent third party to survey the site on 27 Sep 2018, and photographs were collected.

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')'.

2. The allegation appears to be 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 MK Central Holiday Inn.


Data Protection concerns

3. Under the GDPR, the Claimant is put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at 4-5am in a hotel car park where there would be no rational justification for non-customers or non-customer visitors to leave a vehicle for a chargeable time period, due to the presence of an adjacent council car park (free at time of use). All drivers must pass through the council car park to enter the Holiday Inn car park.

3.1. Silently collecting VRN data in order to inflate the 'parking charge' from £2 to £100 and write to registered keepers at their own homes - whether they were driving or not - is excessive and intrusive to registered keeper data subjects.

3.2. The concealed (as it will later be shown) 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.


Absence of contract, any breach, or liability

4. 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.

5. 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. The Defendant avers that the signage at the site in question is inadequate when compared to the signage in Beavis' case, and poorly lit - considering the context of the claim (between circa 4 and 5am).

5.1. No proof has been provided that there was signage present at the entrance of the car park. This is particularly relevant, given that Parking Eye have a proven history of moving their entrance warning signs around the entrance area of this site. For example, Google (capture Jun 2017, now unfortunately removed and not cached in the historical archive for this location) shows two signs to the right of the entrance and one directly behind the entrance. With this format, any driver entering from the right fork of the council car park would have no first opportunity to see the warning sign, and one opportunity upon entry. The Sep 2018 photographs, however show no warning sign after entry, with two on the right hand side and one on the left hand side of the entrance bottleneck. Parking Eye have not put forward any proof of what signs were present in June 2018, and, where they were located and if their recent moving of signage related to any decisions regarding its legality.

5.2. It was observed that the signage at the entrance to the car park (seen on Sep 2018) was not located in proximity to a light source, and the reference to further T&C signs was on a dark background, in inadequately small print for reading by headlamp, especially (assuming Sep 2018 signage provisions) during or immediately after making a right or left hand turn into a bottleneck, as required by the layout. Thus, in twilight hours, the hotel car park could have been assumed to be part of the larger, identically designed council car park, just closer to the Holiday Inn.

5.3. The presence of a (now disabled, ticket machine removed) barrier motor box as in the photographs, could also create the illusion of a car park, that despite the signage, had been left "open for all", perhaps during early hours - or due to discontinuation of a charging scheme. Hotel car parks in which barrier systems are left unsecured at times the intercom is unmanned are a common occurence in the UK, and no monies are pursued after entry. A poorly lit sign referencing "payable at machine" just before (disabled) ticket-entry-validation-exit furniture, would appear to imply that the scheme is inactive or being overhauled. Further confusion is added by Parking Eye's use of the unmodified, Holiday Inn liveried "Hotel Car Park" sign as an anchor point for their own signage - which makes the identical grey liveried (disabled) barrier entry system look like it is intended to be part of the Parking Eye operation, but is out of order/out of hours. The area around the entrance has been haphazardly modified by ParkingEye, with makeshift signs going up, and part of the entrance (Sep 2018) resembles a junkyard, with discarded objects in front of the bollards.

5.4. Only a small minority of the "small print" signage located throughout the car park is located in proximity to an artificial light source (both in Google 2017 and observed by the third party who photographed the signs). These signs are almost all located on top of unlit poles, which are well above the eyeline of a passing motorist. When compared to the signage from the Beavis case (an example of clear signage, when visible), the penalty amount stated is given less prominence, in a smaller font and is not located on a clearly visible yellow sign, but a white background obfuscated by lines of barely-legible small print. Evidence of a stationary vehicle in close proximity to light sources and signage would be crucial to establish likely contract - and has previously been requested by the Defendant, to no avail.

5.5. The photographic evidence timestamps on the Parking Eye website (entry just after 4am, exit just after 5am) imply that any signage, even if in close proximity to the vehicle, would most likely have not been visible without an artificial light source such as a directly trained headlamp. Indeed, Parking Eye's own ANPR images of the vehicle evidence poor visibility (total darkness) on entry and severely reduced visibility on departure - where only an experienced nighttime motorist might identify it as a Ford Focus. The Defendant therefore believes Parking Eye's context-devoid, punitive "robo-claim" actions to be violation of the BPA code of conduct, with respect to claiming for monies owed based on an implied contract. The formation of a meaningful contract is dependent upon the driver being able to see these poorly designed, unlit signs in poor natural light conditions, and thus it would be unsafe to assume that any meaningful contract has been formed - even if initial entry signage were visible.

5.6. There is no sign of a Pay and Display machine in any of Google's most recent captures, which seems to indicate that the machine is located inside the hotel, and thus any driver can easily walk off the ends of the car park in any direction (other than the hotel), without seeing a sign or a machine. There is no ''Pay Here'' arrow or other prominent signpost or any 'Have you paid and displayed?' reminders as patrons enter the Hotel - just the inadequate signage.

5.7. In the absence of any information re. the possibility that the Driver input a wrong VRN into a machine or other such system, 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. Parking Eye should have access to said information (close, timestamped VRN matches) in their database - but have clearly not investigated the possibility after the Defendant sent an SAR requesting help in identifying the driver.

5.8. Parking is ample between the hours of 4 and 6am in this part of Central Milton Keynes, and the driver could have easily left the vehicle in the adjoining council car park (free at the time of use). That the driver did not use the adjacent car park should, in these circumstances be taken as evidence that no contract was formed, rather than all signage seen, fully understood, yet ignored - which would have been an utterly irrational oversight for a mere ~25m gain in walking distance. If the driver were using the hotel, staff on site would have had further opportunities to alert him or her to the charge due, none of which - it appears were taken up.


No standing or authority to form contracts and/or litigate, no planning permission

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, and to pursue payment by means of litigation against patrons of the Hotel, visitors, or expedient individuals who they deem to be in breach of contract. The Defendant has not been given evidence of an adequate chain of contracts from the owner of the site (If not Holiday Inn), thru Holiday Inn, thru Parking Eye.

6.1. No evidence of legal signage/advertising or planning permission has been offered by Parking Eye, despite the Defendant's requesting evidence.


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

7. With no 'legitimate interest' excuse for charging this unconscionable sum given the context of the Driver's use of the car park, this Claimant must be 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, any PDT machine(s) and signs/terms are not adequate, the VRN data is harvested (or within this temporal context, harvested and used) excessively and the PCN was sent with a 'parking charge' that bears no resemblance to the £2 '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.

7.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the absence or outright inadequacy 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.''

7.2. Legitimate interest or commercial justification, in the case of Parking Eye on behalf of Holiday Inn, would conceivably be to eliminate or fairly monetize any long-standing use of the car park that might infringe upon Patrons' ability to park their vehicles during high-traffic check-in hours. The Defendant's vehicle, however, was left for under an hour and removed by 05.07am, posing no conceivable threat of encumbering a check-in by a hotel Patron. Automated VRN collection and "after the fact" assessment of supposed infringements gives Parking Eye a unique opportunity to determine if a breach has actually occured, as the time and duration of the stay are known fully at the point of handing out the penalty. Parking Eye, in pursuing this claim have thus outright ignored (or irresponsibly devolved to arbitrament of a robot) this opportunity to practise common sense and legal integrity.


Incredibility of 'parking charge' - again, Beavis is distinguished

8. 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 £2 according to the small, unlit and inadequate signs within the car park. Had the Driver been clearly alerted to the sum on the day - there would be no unfair penalty, and the Hotel (or landowner) would gain in income.

8.1. The signage in the car park (Sep 2018) states that the charge for an hour's stay is £2, and yet the £100 penalty is described as a parking charge in the PCN. The £100 penalty bears no relation to the initial parking charge, and does not reflect a just or proportionate recovery of expenses, even if the Defendant is deemed to be culpable. It is thus distinguished from Beavis, where a penalty was levied after a free parking period was ignored (no value was ascribed to Beavis' use of the land, as in the current case - where reasonable recovery of expenses after a contract made, must only be £2 plus admin, postage and any abnormal payment processing costs).

8.2. It can only stand to reason that Parking Eye's operation is a money-making scheme that profits from intimidation by unwarranted data collection, and repeated, pseudo-officious communications using the threat of court and its long, drawn-out process as the de facto debt collection mechanism. This is further evidenced by the wasteful destruction of perfectly adequate barrier entry and exit furniture on-site, whose dis-assembly can be tracked thru Google (2016), Google (2018) and September 2018, where an exit ticket machine is removed and barriers are taken down. The change to this system is therefore not through greater feasibility, but rather greater profitability, when compared to a previous system that could never be "gamed" due to barriers and ticket validation - a common and feasible measure in similar UK hotel chains and on-site parking situations.

8.3. 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 £2 plus reasonable expenses, and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

8.4. 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.''

8.4.1. 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.''

8.5. 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''.

9. 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 £2 and no more. Reasonable expenses to add, might involve basic administration, including postage, not £98 or £58 if paid in good time.

9.1. 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.

9.2. 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 £2 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.

9.3. £100 would appear to be an unusually arbitrary figure for the calculated cost of a parking charge plus damages - reinforcing the argument that it is an unenforceable penalty, set at an intimidating "scare number", with no grounding in law. Parking Eye would be well advised to set their PCN amounts to £102 in their similar operations throughout the UK that charge £4 for an hours stay, if this claim holds in the law.

10. 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 and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.


Incredibility of legal fees

11. In addition to the original parking charge, for which liability is denied, the Claimant has 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.

11.1. The £50 legal fees added for preparation of a claim are unjustifiable for a firm which processes multiple similar claims every day, with templates and little human intervention. In any case, such a sum has not been expended at this point, as this would require the employment of a legal professional for unique and distinguishing features of the claim - rather than the standardised and sparse templated PoC, which must apply equally to thousands of similar claims every year. The claimant is put to strict proof of this one-off expenditure.


Summary

12. 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.


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