Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • Super Dad 68
    • By Super Dad 68 25th Oct 18, 2:40 PM
    • 8Posts
    • 0Thanks
    Super Dad 68
    Parking Charge Notice and County Court Business Centre
    • #1
    • 25th Oct 18, 2:40 PM
    Parking Charge Notice and County Court Business Centre 25th Oct 18 at 2:40 PM
    It's my turn to ask for help here. This is with regards to a Private Car Park in Cornwall where my wife out stayed her welcome. The original Parking Charge Notice asks for £100 (discounted to £60 for prompt payment) and states that she parked for 1hr 2 mins. Interestingly there is a slight variation in the times shown on the cctv images and the times stated in the letter, but only by a few seconds. Additionally, I have the original parking ticket which shows that she paid 50p, but only has a purchase time, not an end time. The only information that I can find about the car park tariff shows a charge of £1 for 90 minutes and £2 for all day, so a fine of £100 appears completely unreasonable.
    Since the original letter she has received three further letters, the latest being a "County Court Business Centre" claim form for £175!

    These have now been passed to me to try and sort out. What is my best course of action?

    Thanks
Page 2
    • Super Dad 68
    • By Super Dad 68 9th Nov 18, 3:06 PM
    • 8 Posts
    • 0 Thanks
    Super Dad 68
    Thank you for your continued assistance. Please give me your advice with regards to draft#2.

    In the County Court Business Centre
    Claim Number:

    Between:

    ParkingEye Ltd V

    DEFENCE
    It is admitted that the Defendent was the driver and registered keeper of the car stated in the particulars.

    It is common ground that the car was in the car park on the material date.

    It is denied that any debt is due, because the Defendant paid the correct tariff.
    The defendant, who is the registered keeper of the vehicle in question, denies that the Claimant is entitled to relief in the sum claimed, or at all.

    The Defendant denies liability for the entirety of the claim for each of the following reasons:


    1. The British Parking Association Code of Practice regarding grace periods was not followed. This was the first time the defendant had used the car park. It took considerable time to read all of the information. After attempting to read all the necessary information the defendant then stood in the queue to get a ticket. The defendant and her son even had to help an elderly couple put their number plate in the machine.

    a) ANPR evidence shows only entry and exit of the car park. Nowhere on any of the signs does it state that the timing they base their fees on is from entry to exit. It does not state a time limit on purchasing a ticket or exiting the premises. It does not tell you to purchase a ticket for the exact time from entrance to exit. Indeed, with a ticket that prints the purchase time on it, it is impossible to purchase a ticket that reflects the time that you entered the premises.

    b) The Claimant’s timing system does not take into account that the defendant spent time driving round the car park trying to find a parking place, time to sort through change, time to read the required information, time to queue and purchase a ticket, time to get out of the car, time to load the car, time to get back into the car and time to exit the car park.. The defendant had no reason to rush as she thought the allotted time was taken from when she entered the information into the ticket machine.

    c) The terms and conditions which are displayed at the car park state "Pay & Display” – you must purchase a parking ticket from the ticket machines at the Car Park either with cash or a credit/debit card, before leaving your vehicle and ensure that the parking ticket is clearly displayed in the windscreen of your vehicle.

    d) The British Parking Association(BPA) Code of Practice states the following regarding grace periods:
    “13.2 and 30.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
    “13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
    e) Kelvin Reynolds of the BPA says there is a difference between grace periods and observation periods in parking and that good practice allows for this: “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket … No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” britishparking.co.uk News good-car-parking-practice-includes-grace-periods

    3 .The BPA Code of Practice regarding predatory tactics was not followed by the Claimant.
    a) “Clause 9.5 You must not use predatory tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanctionable instance of non-compliance and may go to the Professional Conduct Panel.” The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after permitted time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site. The driver is led to believe that they are following the times given on ticket that they obtain from the ticket machine.

    b) In the case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage. The judge also stated that in any case £100 was not likely to be a true estimate of loss. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

    c) The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

    4. This Claimant uses ANPR camera systems to process data but fails to comply with the Office of the Information Commissioner's 'Data Protection Code of Practice for ANPR and Surveillance Cameras and Personal Information' (the ICO Code) thus breaching the KADOE rules and the BPA Code of Practice.
    a) The constant ANPR data stream, collects irrelevant and distorted ‘time of arrival’ data on every vehicle, every day, basing the charges on the point of driving in, despite tariff payments being made at a time that is also within the data records. In terms of timing data the claimant has both the time of arrival and the time of payment at the machine in their data, the latter being the point when a contract is made (the authority for the fact is Thornton V Shoe Lane Parking [1971] 2WLR585 at the Court of Appeal, where it was held that in a pay and display car park, the contract is made when the coins enter the machine.)
    b) The ANPR photos show a moving vehicle in and out. A moving vehicle is not parked and the court notes that it can take time to locate and park in a parking space and also to exit the parking space and car park.
    c) The claimant has the defendant’s individual ‘contract formed’ time as recorded by the PDT machine and can have no reasonable justification under the DPA to instead use the ANPR entry time. The claimant merges two data systems and chooses to use time that the driver has no idea about and which acts most disadvantageously against the interests of consumers, rather than the tangible point of contract at the point of sale/ the machine. This practice fails to meet the tests of ‘fairness and transparency’ in the Consumer Rights Act 2015 and breaches the CPUTRs 2008 as an unfair commercial practice and a ‘Misleading Action’.
    d) The two types of data processing (the ANPR and the PDT machine) should under their duty as a data controller, be considered as separate data streams and it is their duty to ensure that irrelevant or excessive data is not obtained and held.
    e) Unlike in a free car park, as was the case in the completely different and fact-specific Beavis case, ANPRs use is not a proportionate response to collect data about genuine, paying motorists in a pay and display car park since it provides for, collects and processes charges based on irrelevant and inaccurate timings before a driver has even had a chance to read any terms and conditions, let alone find a space, park and use a machine.
    f) Arrival times will always differ significantly from the time prominently printed on the PDT ticket/on the PDT screen, which is the time any average circumspect driver will rely upon. The claimant’s use of ‘arrival time’ data is excessive, irrelevant and a serious breach of the DPA.

    5. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it in order to meet their legal obligations as a data processor.

    a) 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 Surveillance Camera privacy impact assessment, lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle.
    ii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR or to continue using it in its current location, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement or manning the car park with a warden in order to consider the needs of genuine patrons at busy times in queues.)
    iii) Failure to prominently inform a driver in visible & legible lettering on clear signage, of the purpose of the ANPR system and how the data stream captured would be used.
    iv) 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.

    6. 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 Legal Representative’s Costs of £50 plus a Court fee of £60, and an initial Amount Claimed of £100.

    a) The added 'legal' costs are in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules. The Claimant's handles millions of what are effectively cut and paste robo-claims, at any one time. The Defendant reasonably concludes that no supervising solicitor is likely to have provided legal advice for a fee or in any way supervised this claim.

    7. In ParkingEye v 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 sum set in advance which was already significantly over and above the very minimal costs of operating an automated ticketing regime. Damages could not be added; it was held that a claim from a parking firm agent could not have been pleaded as damages, and would have failed because ParkingEye suffered no loss.

    a) It was also held by the Judges in Beavis, at Court of Appeal stage, that a case regarding an ordinary transactional contractual fee (such as in a pay and display car park with a quantifiable tariff) was 'entirely different' from the complex situation in that case.

    b) In all other 'parking charge' cases which turn on different signs and different facts, the penalty rule was held by the Supreme Court Judges to remain engaged, and that such charges cannot be enforced merely as punishment. The £85 charge in Beavis was saved from being struck out as an unenforceable penalty due to a specific legitimate interest in a quick turnover of spaces in a free car park where no tariff owing could be quantified.

    c) In this case, the Claimant is put to strict proof of its legitimate interest in charging an unconscionable penalty for the time taken driving around the car park before/after the parking event, which is not conduct that falls within a reasonable person’s concept of ‘parking on private land’ at all.

    d) Further, given that the Claimant is merely an agent/contractor company not in possession of the land and with no locus, they are put to strict proof of the terms of their contract with the landowner, and that it authorizes this Claimant to sue in their own name, and that the landowner contract does not conflict with the Claimant’s own interpretation on signage and/or in any PCN issued for ‘driving in/out time’.

    e) It is reasonable to expect that the ‘parking enforcement’ regime that was in the contemplation of the landowner at the time, was one which intended for penalties only for actual parking contraventions, such as exceeding a parking period by staying in a bay well beyond paid-for time and a period of grace, or not purchasing a PDT at all, leaving the tariff unpaid. It is averred that such details are kept to the claim, and may well allow more time than the 10 minutes in the BPA CoP and/or may state clearly that the expectation within the contract is not to time ‘total stay’ at all.
    f) The Defendant avers that there was no such relevant contract or relevant obligation or burden that could fairly and squarely fall at the feet of the Defendant that day. Springing a completely different timing than the data/expiry time shown on the PDT ticket that the driver relied upon, in an unsolicited demand sent by way of ambush some two weeks after the event, causes an imbalance in consumer rights and interests. It is averred that this falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

    g) The Defendant avers the assertion that this charge is unconscionable, given the fact that the conduct of the Defendant caused no issues to other drivers, took up no valuable parking space that the driver was not entitled to use, and the sum for parking was in fact, paid in full.

    h) There was no disincentive or deterrent value in penalising paying patrons, no compelling legitimate interest to save this charge from the penalty rule, which the Supreme Judges stated, starts as 'engaged' in all parking charge cases. To quote from the decisions during the course of the court process in Beavis:

    - At the Court of Appeal (these findings were not overturned):
    Para 46: ''The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed...''

    Para 47: ''...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

    - At the Supreme Court:
    At para #22, 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.''

    Para 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.''

    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.''

    Authorities other than Beavis, better apply to the instant case. It is the Defendant's case that the correct authorities in a PDT machine car parking case are not Beavis at all, but instead, due to the above quoted precedent findings, Kemble v Farren is the correct authority regarding this sort of unrecoverable penalty, as well as:

    (i) Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient'', and

    (ii) Jolley v Carmel Ltd [2000] 2 –EGLR -154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach, and

    (iii) Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place; therefore another unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.


    8. In the Hansard Report Bill, debated in the House of Commons at 12:43pm on February 2nd 2018, a number of the tactics used by Parking Eye were raised in the report. I quote the following directly from the report. “Poor signage, unreasonable terms, exorbitant fines, aggressive demands for payment and an opaque appeals process.
    “My Honourable Friend is absolutely right. In some cases it appears that confusion is designed to ensure that a parking ticket is issued against the unsuspecting motorist.”
    “Self-Regulation has obviously failed dramatically. The British Parking Association is as much use as a multi-story car park in the middle of the Gobi dessert. The parking cowboys hide behind the BPA membership to give a veneer of Legitimacy.”
    “As we have heard, there is currently no standardized, central and independent regulation of private parking operators. Today there are two different trade associations, each with its own code of practice.”
    These quotes demonstrate parliaments clear intentions to enact legislation to prevent these practices and remedy the short comings of the current system of self-regulation.

    9. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the afore mentioned 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.

    a) In the alternative, given that the issue will turn on the fact that the Defendant made reasonable endeavours to comply but any alleged contract the defendant entered into was when she purchased a ticket from the ticket machine not when she entered the car park. The Defendant requests a preliminary hearing to examine the same, to save burdening the court with a claim that has no merit.

    I believe that the facts stated in this defence are true.
    • Umkomaas
    • By Umkomaas 9th Nov 18, 6:46 PM
    • 20,238 Posts
    • 31,930 Thanks
    Umkomaas
    Have you seen the model defence provided by legally qualified and highly experienced in fighting private parking charges - bargepole? You might want to weigh your current draft against expert advice.

    https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    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.
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

178Posts Today

1,281Users online

Martin's Twitter