Parking Eye County Court Claim

Hello,
I have completed the MCOL and AOS, and have been reading, reading reading until my head is spinning. I have done the draft below, all advice much appreciated, I dont know if this is at all along the right lines.. pasting in here has stripped out the formatting but I have it all paragraph numbered and 12pt font 1.5 line spacing. I know i need to make it consistently refer to either 'me/I' or 'the defendant'.

Questions for the forum:
I recall that the entrance/ exit (single file lane doubling as both) was blocked due to us being blocked in by other vehicles which meant we could not get round the corner to the exit. Can I use this as a defence, it would mean i can’t avoid acknowledging that i was there? But I genuinely can’t remember whether i was driving that day or my partner, (who is the keeper)


In the County Court
Case number
Claimant: (Parking Eye)
Defendant: Me

Defence

Notice to keeper not received:
Some good wording which i found, which i don't fully understand:
“If you can show on the balance of probabilities that the Notice to Keeper was not received within the 14 day time limit set by Protection of Freedoms Act 2012 Schedule 4 paragraphs 9(4) and (5), the notice is invalid and the parking company have no right to bring a claim against the Registered Keeper (see paragraph 4, especially 4(2)).

At that point, the statement of case discloses no reasonable grounds for bringing the claim, so you can invite the court to strike out the claim pursuant to CPR 3.4(2)(a).”

I never received a Notice to Keeper. If the Claimant maintain that a Notice to Keeper was sent, the Defendant has not seen a copy of it to ensure that it is compliant. The Claimant wrote to the Defendant on 4th January 2017 alleging that they had already written to the Defendant at my previous address. the Defendant has paid for a Royal Mail Redirection service from my old address to my new address since having moved in March 2016, and in that time, have received no forwarded mail from Parking Eye, so believe their claim to be spurious. Furthermore, their letter dated 4th January 2017 included copies of what they claim to have been their previous correspondence. This, however, comprises only the following: a parking charge notice dated 511/16 addressed to my previous address, and a Letter Before county court claim, dated 25th december 2016 addressed to my previous address. This suggests that these document are the extent of the correspondence which the claimant believes they had sent. It proves that the claimant had sent these to the wrong address.It suggests that the claim had not sent a notice to keeper.



Denied right of appeal under popla;
The covering letter with the initial correspondence i received on 4th January stated that details of how to appeal were contained in the accompanying copies of previous correspondence. The accompanying copy of the letter before county court claim, sets out that an appeal under popla is not possible because ‘you have not made representations to Parking Eye In the timescale required (ie 28 days from the date of our original correspondence)’. I suggest that, as Parkingeye acknowledge in their Jan 4th letter that they have previously corresponded to the wrong address, that in fact they should have re-issued the Parking Charge Notice/ Notice to keeper as of that date. This would then have permitted the Defendant 28 days from that date to have pursued an appeal under POPLA.

Vehicle may not have been parked during this duration:
Driver (third person) may have driven into the car park to find a space unsuccessfully on these two occasions. Can they supply evidence that the vehicle was parked there during the entire period?

Lack of compliant signage/ no clear contract:
No signage on entrance:


Approaching from minshull street turning onto bloom street, there is no car park signage visible from the street

Heavy tree cover, shady, exit time alleged was 15:34, approaching dusk, likely to have been fairly dark conditions within the car park area at that time, would any signage be clearly visible and illuminated? Can they evidence that the alleged contract was clear at that time on that specific date?

The signage was inadequate to form a contract with the motorist
a) The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.
b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and contrary to the Code of Practice.
c) The sign does not contain an obligation as to how to ‘validly display’ the ticket in the windscreen, therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
d) In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

The identity of the driver of the vehicle on the date in question has not been ascertained:
I do not keep records of which insured drivers use the vehicle, and so cannot reasonably be assumed to have been the driver at this time. Parking Eye has provided no proof that I was the driver.

Parking Eye may be bringing this to court under the assumption that I was the driver using Elliott v Loake [1982]. In this instance, the court decided that there was irrefutable forensic evidence of the driver's identity and made no such presumption. It is for the claimant to prove their case, not the defendant. I make no admission that i was the driver. If this is the case and the protection of freedoms does not apply in this case then they can only pursue the driver not the registered keeper. From the internet I found this extract in relation to lead Popla appeals Officer. Henry Greenslade (barrister, parking law expert and POPLA Lead Adjudicator in 2015 “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver, advises Mr Henry Greenslade QC. “Operators should never suggest anything of the sort,” he says. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.” In my case I am unable to name the driver due to not keeping records of which persons drive the vehicle at any time
The Defendant has not at any stage been supplied with any means of appealing this ticket as only the driver can appeal as I make no admission to having been the driver therefore I cannot appeal.

Costs spurious:
Despite my not having received a Notice to Keeper, and despite the Claimant not having issued the Defendant a copy of such notice in their correspondence dated 4th jan 2017, the Particulars of claim suggest that this is being pursued under the protection of freedoms act rather than for civil trespass. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges.

The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt. Even if they have been incurred, the Claimant has described them as "legal representatives costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.

The copy of the original Parking Charge Notice states that ‘By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted ... the Parking Charge is now payable’. This leaves the Defendant uncertain as to what the claimant actually contests the breach of its alleged terms and conditions to be. Do they hold that the driver parked the vehicle for longer than is permitted? Or do they allege that the driver left the vehicle at the car park for ‘longer than permitted’? If they cannot be clear about the alleged breach, how can they make a meaningful determination as to the supposed losses? In which case, I hold that the charges they have ascribed to the Defendant are arbitrary and do not represent a genuine loss. 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.

Legal rights over land in question
The Defendant has never been supplied with any confirmation from Parking Eye or their agents that they actually own or occupy the land in question which would allow them issue penalty tickets. So the Defendant has no idea if this is just a speculative invoice. They should supply a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.

Can they provide evidence that the ANPR was working that day?

Information not received:
The defendant wrote to the claimant on 9th april 2017 asking for the following;
i) Full particulars of the parking charges
ii) Who the party was that contracted with Parking Eye.
Iii) The full legal identity of the landowner
iv) A full copy of the contract with the landholder that demonstrated that Parkingeye had their authority.
v) If the charges were based on damages for breach of contract and if so to provide justification of this sum
vi) If the charge was based on a contractually agreed sum for the provision of parking and If so to provide a valid VAT invoice for this 'service'.
vii) To provide a copy of the signs that Parking Eye can evidence were on site and which contended formed a contract with the driver on that occasion, as well as all photographs taken of the vehicle in question.

The claimant has not responded. Withholding any relevant photos of the car, particularly the windscreen and dashboard, and the signage terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as contrary to the ‘overriding objective’ in the pre action protocol.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

DEFENDANT DECLARATION

I believe the facts stated in this defence are true.

Signed:
Dated

Hello,
I have emailed parking eye as suggested above.

I looked on the parking eye website where they have some more details. This information states that there was a payment made for 4 hours. But they have a photo of the car exiting after 4hr 48 mins.

Craig

Hi,
Presumably, they will be able to trace the time the payment was made- either by number plate entry at ticket machine or via mobile phone payment system (can't remember which). Does that affect the argument of having spent 30 mins driving round waiting for a space, ie if the record shows a ticket was bought earlier than this?

In actual fact, we may have moved the car, then tried to park elsewhere, as we were in manchester till late evening anyway, but returned- ie parked for the time we had paid for, then come back and tried to find another space unsuccessfully. Thoughts?
Craig

I think i have now got my defence sorted, but have hit a snag- when i try to enter this into the money claim online form, it restricts my response to 122 lines. Am i doing it right? My defence is much much longer, 6 pages.
Help!