Claim Form from ParkingEye received 16/3/17

OK, I have now got the Court date and P.E. have served me with their documents. I have today visited the site and to my surprise discovered something quite interesting....

Firstly, Parking Eye have served on me the following (as you'd expect):
A. Letter of Written Authority dated 9/9/14 and signed by the Agents on behalf of a Ltd Co. the landowner. (I accept this)
B. A signage plan (which is inaccurate, see below)
C. Prints of the signs which are barely readable except the parts saying “3 hour max stay” and a comment referring to a black square with £100 in it saying “Failure to comply with the terms and conditions will result in a Parking Charge of:” The T&C’s are especially unreadable even on these A4 copies (see below).
D. The complete 20 page judgement of Parking Eye v Beavis – which I accept and seems largely irrelevant to my case.

N.B. I was the driver and accept their parking charge as reasonable, so much of Beavis is irrelevant - my case is whether I was even there, plus that the signs are not as stated legible nor positioned as they say, so the Contract is unfair.

They helpfully state in quoting Lord Bingham that “Openness requires that the Terms should be expressed fully, clearly and legibly, containing no hidden pitfalls or traps”. Since I can show by video and photos that it is possible to enter this car park, park and use the shop facilities and be totally unaware that a fine may be incurred for overstaying 3 hours, I believe this clause has been broken. Maybe you experts can quote other cases too. I shall at the time of the Court case in October go through the Judgment and notes they have sent point by point and see where I can use these against them. I assume I do not have to do that at this stage, or do I go through their Judgement clause by clause and send them my notes now, which will outline my case, or can I just state that I shall dispute elements at the Hearing?

E. They have allocated the case to a Court near me for 3rd October (good)

F. I must “deliver to the other party and to the Court office copies of all documents on which intend to rely at the hearing” by 24th July.

Which is why I need you guys help to say just how much I must fire back at them for now.

G. Their reply to my defence – quoting Beavis again. The weakness of their case is my photos showing it is possible to enter the site and not be aware of a penalty as there is only one partially obscured sign that a motorist might see which does NOT state a fine may be payable, so their signs are NOT “ large, prominent and legible”.
H. They also comment about my tardiness is paying due to my change of address, but I shall not argue this now (I shall mention to the judge in an opening statement that there was no mens rea here as they imply, if it gets to Court).


PART ONE: Site visit and Signage:
1. I took two videos and numerous pictures – do I need to send these to them, or just say I shall produce them in Court?
2. These above show – a. That their site plan is hopelessly wrong and their signs are NOT as shown in the plan, almost none of them are where shown in position, and the signs themselves are round the wrong way or facing in the wrong direction, so, for example, you only see the sign as you come OUT of the main stores on returning to one’s car.
3. The sign’s Terms and Conditions are unreadable from only five feet away – as a member of the public also confirmed in my video. The A4 sheets provided to me give the impression that these signs are "easily readable and everywhere", this is not so. Not only are the signs unreadable by any driver (one has to get out and stand practically face-to-face with any of the signs to read the small print) but also it is possible to enter the park without ever knowing there may be a fine for over-staying – there is ONE sign, low down and obscured by the barrier that says it is a 3 hr stay park and referring you to the T & C’s – IF a driver even sees this at the busy entrance to the park with 2 way traffic – he is unlikely to read the lower part of this sign, and he can park and enjoy the Costa Coffee or other facilities without once seeing a sign that says there is a fine. The signs are literally a blur in the distance, as my photos show. I have video to show this too. Even the signs that are there, are facing away from incoming motorists and the only sign that faces you as you drive around the car park is the one immediately as you exit – bit late there.
4. My contention is that their evidence is therefore unreliable, as they claim their signs are in different places to where they actually are, plus they claim a driver can and should read the T & C’s on these signs, but this is impossible, even if a driver actually sees and notices the signs, he must get out and approach on foot until a metre away to even read them fully.
5. They give the idea that the T & C’s could easily be read by anyone interested enough to do so, but this is far from the case. It is surely an unfair contract if the Terms to which they refer can only be read by standing on tip toe two foot from the sign they are on. They are also at well above head height on a pole, so shorter or people are even more disadvantaged, and disabled people would have no chance from a wheelchair. It is almost as if they do not wish anyone to actually read them.
6. It is the signage equivalent of burying something deep in the small print. Therefore I am claiming unfair Contract Terms.

PART TWO: Was my car even there?

1. I have a copy of the office diary from my employer which shows I attended three appointments in the area, at least one of which was in the middle of the time alleged I was parked in the car park.
2. I shall have a letter from my Employer in the next few days confirming I attended an appointment at noon (in the middle of the time alleged). Do I need to get this signed “that the facts stated in this witness statement are true”?
3. I hope to also have a letter from the client I saw at noon, though this may not be the case as they have promised but I haven’t had it back yet and I doubt they will state that they saw me in such legal terms as the Court asks for. I am hoping that the Judge will still accept this though.

With this evidence, do I have to send a copy of the diary/letter/letter to Parking Eye, or can I just list what they are? Eg. “1. Letter from Employer confirming I was elsewhere”? - as I have stated I shall do in my initial Defence?

My contention is that I believe I spent two sessions in the car park but it was recorded as one and their ANPR machine or the operator has made a mistake.

To back this up I shall also gather anecdotal evidence of similar occurances of “double dipping” from the internet and news articles – again, do I have to send these pages to Parking Eye as disclosure of evidence, or can I just list them as such?

I hope to persuade the Judge to drop the case at the very start on the basis of the above, ie. that I could not have been parked for the entire duration of the time alleged, on the evidence of AT LEAST the diary and the employer letter. If he does not accept this however, how do I tackle the signage issues and prepare the strongest case for unfair contract?

If I must serve on them my video/pictures, can I email this, or how do I send this? A USB stick?

Is there anything else I’ve missed?

I have until Friday to get the evidence I shall rely on in Court into the post to be served Monday.

Thanks everyone!

Thanks for the guidance. I shall put the pics and video on a USB and file it with the other papers such as articles about double dipping, and print off a map of Weston Super Mare to show my appointment was miles away and not walkable from the car park. Their own photo shows me at the wheel, so I doubt they can claim it was someone else and to be fair they have not put this in their evidence (and presumably the Judge would disallow them suddenly alleging this in court). This will suffice in my serving of evidence.

I then have two months to prepare for the day in court and may yet challenge the Right of Audience. Thanks.

Any last minute comments before I post this Friday?

Below is the final draft of my Witness Statement, and my Evidence List. I shall send a lot by pdf on a USB stick to save paper, and annoy PE as they'll have to look at it then. The Court will get a print out of everything so it's easy to see.
What do you think guys? Gotta give em reason to pause, right?


I, ……………………., am the defendant in this case.

1.The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

2.I am not liable to the Claimant for the sum claimed, or any amount at all, and this is my Witness Statement in support of my Defence as already filed.

3. I was the registered keeper of the vehicle in question in this case and admit to being the driver on the day in question.
4. Due to a house move I did not receive and therefore could not respond to the Claimant’s initial letters until I received the Claim when I wrote promptly to the Claimant, as they admit, on 22nd March 2017 and have asked for Mediation which has been many times refused.
I am offended by their questioning in their reply to defence papers eg. para.12 page 18 as to my motives and must point out to the Court that despite my pleas to be reasonable they have NOT considered Mediation and have consistently advised me that they have rejected it, and so have incurred their own costs in pursuing this case. This is despite what they claim to the Court in their papers on page 20.
I wish to read a statement to the Court at the start of my Defence to clear my name since they have impugned it and this is Evidence Item 1.
I wish the Court to consider that the Claimant is being intransigent and is abusing the Court process to in effect use it as an oppressive system for debt collection.

5. The Claimant subsequently sent me a pack of documents that it says it will rely on as evidence. One of the documents is a picture of the sign that they say forms the Contract. The sign is mostly a wall of small font text, which a driver in a vehicle cannot read let alone understand and therefore cannot accept the terms of any Contract. They also claim that the relevant information CAN be read by a motorist with normal sight for driving, but this is disputed by me, and if self-evidently untrue, as is dealt with elsewhere. This sign is Item 2.


6. Documents in their reply to defence submitted were flat and nicely printed copies of the signs which do not reflect the actual signs extant – the Contractual Terms on the actual signs are in very small text and therefore illegible to all but a person standing a couple of feet away. See Photos on USB stick evidence Item 3. It cannot be expected that a driver can be able to read and accept any terms on the signage.
The date of the event alleged is 06/10/2016 and in that time it is averred that the signs may have changed, been replaced or updated (to reflect changes in the BPA Code of Practice) and indeed some may have been removed or damaged or simply been worn away by weather. There is no evidence that these signs existed at the time of the incident. Indeed, there is good evidence that the operator themselves do not know the positions or state of the signs since this event and have had plans to modify, amend of increase the number of signs for some time, see evidence Item 5.
It is argued that this operator did not comply with the 'signage' and 'entrance signs' sections of the BPA Code of Practice.

7. The only sign at the entrance does not explicitly explain that a driver would be entering into a contract by the specific act of parking and neither does it clearly state who that contract would be with. This is contrary to BPA guidance. Nor does it refer to any charge. It merely states “3 hour max stay”. There is no evidence of any contract creating a charge of £100, although the sign does refer a driver to unknown “Terms and Conditions” which are not specified on this sign.
This is evidence Item 4 as aforementioned.
8. The only visable sign that states such a fine that can be seen by all drivers is on exit. See Item 3.
It is entirely possible to drive into this car park, park, have a coffee or shop, and exit without having seen a sign – until you see the one as you exit.
This is a breach of the BPA code:
“18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.
18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”
My bold italics.
9. Regardless, this sign is anyway obscured and cannot be seen by any responsible driver entering the car park having due consideration to other cars, as the entrance is tight and on a bend, with cars entering and leaving within close proximity. It would be hoped that any driver would be looking at the other traffic, not for a sign low down to the left. This is evidenced in their own ANPR photo which shows the steep curve of cars entering the car park, Item 2 (arrowed). Additional video evidence and photos also support this, Item 3.

10. The entry / exit photos are of questionable accuracy, I do not believe these photos can be relied upon for accuracy.
See Items – Articles on the known faults of ANPR and how so-called “double dipping” may occur.
The Court will note that in Parking Eye’s own photos the position of the car viz-a-viz the camera shows a number plate could easily be obscured by a following vehicle. See Item 6. Indeed, this is a statistical certainty amounting to ten times a day (see evidence stated in Items listed below). It is not beyond doubt that this did not happen here, and indeed, with the other evidence it becomes doubtful it did not.
Item 7
Item 8
Item 9
Item 10
Item 10
Item 11
And Item 12 refer.

These articles and other evidence are in pdf form on the USB stick and will be shown to the Court.

11. The pictures sent by Parking Eye do not accurately reflect the actual signs. the sign is in very small text and is therefore illegible. See photos taken 15th July 2017 and included on enclosed USB stick Item 3
12. The signs themselves are not compliant with the BPA Code:
“18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand…” and
“18.5 If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you…”
13. Parking Eye have provided inaccurate location markers for the signs they allege are at the car park in their map. Some signs are in different places, others do not even exist. It is quite obvious from my own photos and video that the signs they claim are on “new poles” do not exist. Whether they have plans to install these in due course, who can know? However, one must question why they see fit to lie to the Courts that such signs exist when they patently do not (yet). Moreover, according to their map, some stores a motorist might wish to visit do not even exist, see my evidence Item 5
One could conclude that in an attempt to brow-beat the defendant by purporting there be a plethora of signs one cannot possibly miss, they have stated new signs exist when they do not - yet they have used an old map that does not show shops that do exist – since crucially this might mean people go the wrong way and do not see the signs. One wonders how many people have been bamboozled by this blatant attempt to mis-lead claimants into thinking their case is weak, when it is not.
In addition, although a map cannot show this, some signs are unreadable (eg. obscured by foliage) or pointing in the wrong direction. An accurate map is included. Item 5
14. My contention is that this lack of attention to detail over their own signs (if they don’t know where they actually are, who should?) reflects on the ANPR issue and it can be adduced that they have a similar lack of attention to detail in their administration of the ANPR system. Anecdotal evidence also supports my view and will be produced in Court, evidenced by Items 7 to 12.
In addition, such carelessness at best, or negligence at worst, is in breach of the
BPA Code of Practice 2012 - Version 6, October 2015
“Keeping and disclosing information 8.1 So that we can carry out our duties to operate the Code effectively, and to make sure that you keep to the Code, you must keep accurate records of all your operational sites. If our appointed manager asks, you must show them details of any particular site. We would normally ask to see the information only if there was a complaint…”
I am considering whether to make such a complaint and send this evidence to the BPA.
15. Similarly, they mislead in their evidence and do not show that there are other stores a visitor to the car park might visit, ones that are capable of being visited without seeing any signs. These are correctly shown in the contemporaneous Google Map, Item 13
16. In support of my contention that I visited one of these shops once in the morning and again in the afternoon over one hour apart, Item 14 is my bank statement of the time, suitably redacted for privacy, showing two debits to Costa Coffee, one in the morning, the other in the afternoon.
17. I shall use Item 15. map of Weston Super Mare and surrounds, showing distance to Axbridge from the car park, to show I travelled some 45 minutes to my appointment and then the same back, meaning I did not return to the car park for at least and hour and a half.
18. I shall refer to my employer’s Office diary entry for the 6th October showing my appointments in and around Weston Super Mare that day, Item 16.
19. I shall refer to Item 17, a letter from my Employer confirming my appointment in Axbridge at around noon on the 6th Oct. as shown in the Diary above.
20. I shall refer to Item 18, a letter from the customer seen at around noon on Oct 6th in Axbridge proving my attendance there. Paras 16 to 20 above frame my additional argument that my car was not in the car park for the entire duration of the claimed 4 hours 2 minutes and that therefore their systems and personnel whether in error or by malice have made a mistake.
21. It is possible to enter car park without being aware Terms and Conditions may apply. There is a lack of entrance signs and the one that may apply does not contain Terms and Conditions nor any mention of a fine for overstaying, plus it is obscured anyway. See video on USB stick Item 3 and pictures also Item 3
22. It is possible to enter, drive round and park in the car park and use the facilities on the further side without seeing a sign stating a fine may be payable. See photos and video Item 3.
23. The “Sign Type – 1c” the claimant has provided me with in their paperwork breaks Disability Laws by being posted high on a pole so being unreadable by anyone in a wheelchair. It is also in breach of the BPA rules,
“16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people. 16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines…”
The Court can see that it is apparently posted on a “pole type 1b” according to their papers, which judging by the photos and video under Item 3 means it is up a pole about 8 foot high. This is another breach of the BPA Code:
“18.10 So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists…”

It is non compliant with the Law and whereas I do not intend to prove or pursue this issue in Court as I am not disabled I highlight it as further evidence that Parking Eye approach their responsibilities to the motorist in a slap-dash manner.
24. It is therefore my belief that the reference Parking Eye make to a Contract being entered into is moot, as the driver has no way of knowing what the Contract may be until exit. In addition, the Terms of the Contract are not stated in a way that could be read by a driver, even if they sought out and stood near the signs. These are therefore unfair terms, as stated by:
“

25. Moreover, the ANPR system stated on the signs (and as evidenced on their paper copies of the signs provided to me and the Court) simply says “car park monitored by ANPR systems” – this could mean anything to the general public – for the prevention of crime perhaps? It does not state on the entry sign (see their “Sign Type – 1a) that such systems may be used to gain your personal data from the DVLA, which is a breach of the BPA code, and on the other signs where Terms and Conditions are extant, these are written in such small font/type that no reasonable person could be expected to read them when they have other things on their mind such as the shopping they have entered the car park to undertake.
26. The claimant states (para.9 on page 16) that their signage contains “the universally recognised symbol for the use of these cameras”. Leaving aside that many people do not know what this symbol means, it is not stated in the Highway Code so no driver needs to know what it signifies, it is nevertheless a small and insignificant part of their own signage, and therefore breaches BPA Code of Practice para.21.1
Notwithstanding the above, I maintain that they also breached para.21.2 and their duty of care to ensure a motorist is not unduly penalised nor that his data be misused, since I could clearly not be in two places at once.
27. Despite previous requests, Parking Eye have not provided any sequence of photos apart from the two in the original PCN to prove or disprove that my car was a victim of “double dipping” as stated elsewhere. It would be the work of a moment to provide the evidence stream of the cameras for the whole period since the car first entered the car park, but of course this might also show that my car did exit the park at some point, and re-entered at a later time, thus throwing their case into confusion. I am therefore sceptical that at this stage that they would now honestly provide an unedited version of the data stream.
28. I shall refer to elements of the Beavis case as provided to me by the Plaintiff in their documents, I call this Item 20 but have not copied it here as the Plaintiff has already copied it to me and to the Court. However, I shall discuss some of the Judgement as stated in their papers:
The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty.
I would question why Parking Eye have changed their signage from what was clearly apparent, to one that refers the motorist to the tiny type of Terms and Conditions.
Here are a few of the references to signage from the judgment:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”
As I have stated above, this has not been done.

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”
See evidence Item 21: The Parking Eye sign which was clear, and stated clear consequences for overstayers.
Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) 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.”

Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable

Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

Maybe Parking Eye do not, in the light of this Judgment, feel that the signage was indeed “ample” at this car park, and intended to install more, and that is why their map shows so many more signs than actually existed or exist now. However, be that as it may, they did not install the signs as shown and there is inadequate signage then and now to establish a contract with the motorist as they contend.

29. The Court may note that should it be found proved Parking Eye have not correctly processed the ANPR data for whatever reason and that the defendant did actually and legitimately make two visits, that it follows that their application to the DVLA for the keeper’s details breached the Data Protection Act 1998 Schedule 2 as the data subject did not give consent (as not having overstayed) nor was there a breach of the head Contract which could lead to consent under their own Terms. The claimant reserves the right to write to the DVLA to see how his data may have been misused and to the Information Commissioner and may return to the Court to seek damages up to £750.

I believe that the facts stated in this Witness Statement are true. etc etc.

List of Evidence:

Item
1. “Statement to be read to Court at start of proceedings”
2. Sign on A4 paper p.37 of Reply to defence papers
3. USB stick with photos and videos of the car park, taken 15/07/2017
4. Sign on A4 paperstyle type 1.a. p.34 of Reply to defence papers
5. “Site Overview” map of car park as provided in Reply to defence papers, and as amended for accuracy by defendant.
6. The original PCN (with additional arrow by defendent) p.22 of Reply to defence papers
7 to 12 are anecdotal evidence of “double dipping” and are in pdf form on the USB stick Item 3.
13. Google map of the car park showing ALL buildings around it as on 17/7/2017
14. Bank statement (redacted) of Defendant showing two visits to Costa shop on site
15. Map of Weston Super Mare and surrounds, showing distance to Axbridge from the car park.
16. Office diary entry for the 6th October showing my appointments in and around Weston Super Mare that day.
17. Letter from my employer confirming my appointment
18. Letter from my client confirming my appointment
19. pdf of the BPA Code of Conduct, on the USB stick Item 3.
20. The Beavis Judgement as filed by the Reply to the defence.
21. An original version of a Parking Eye sign, as used in Beavis, as a pdf on the USB stick Item 3.

Great, thanks, only a couple of minor edits then, anything to make it shorter! Looks like I'm good to go, so I'll revamp the Statement and post it tomorrow in plenty of time.

Pity I have to wait so long now until the case, but rather expecting they'll look at the whole thing now, realise they will lose, and drop the case! I honestly can't see them winning this as I was pleasantly surprised when I visited the site again to find their signs were not positioned as they stated, so it does make them look disorganised at best, and adds credence to my case.

Anyway, very many thanks to all who have suggested ideas. So here goes...