Parking Fine Court Summons

I live in the flats above and I'm pretty sure on those days our electric gates weren't working which is why I parked outside.

I'm fairly sure one was 2 hours but the other wasn't,

There will be ANPR cameras, or a hapless goon who takes random pics on a camera phone.

I'd go with defending this as the driver (not saying 'I am the registered keeper and the driver will not be named') because you have a defence here. You are a resident with an unfettered right to access the flats via the Tesco car park (it is even mentioned as a bit of an issue in that link, I seem to recall from when I skim-read it last night).

I'd be saying, early on in your defence (which you write in the third person and include all the usual stuff you see in Johnersh's own space/residential defence example in #2 of the NEWBIES thread) that:



1.1 At all times, the Defendant was a resident of xxxxxx xxxx (flats) and was not a customer parking at Tesco, or any other residential/commercial units, nor was the Defendant in any way abusing the retail park facility.

1.2 Flat residents at this location have an unfettered right to use a single entrance that takes them past any camera/through the retail car park. On more than one occasion, the electric gates have not been working and residents have been stranded whilst waiting for them to be fixed, in order to access the secure part of the site.

1.3 The Defendant avers that the undetailed events vaguely referred to in the Claimant's particulars must relate to two such occasions. As such, the Defendant cannot be liable to pay any parking charge which arose due to a failure of a gate on site leading to their space; a matter causing a delay in parking which was completely out of the driver's control.

1.4 The Defendant would have had no reason whatsoever to park by choice, outside of the allocated secure area for tenants, since the Defendant lives there and has a right to a space which is not restricted to any 2 hour time limit.

1.5 The Claimant is put to strict proof that the car was parked in the same space for more than 2 hours. Even if they are able to evidence this, there was no relevant obligation nor relevant contract that the Defendant could have agreed to, or could have been considered to have breached.

1.6 It is argued that it would be unconscionable for these charges to be pursued and upheld in the courts, under the circumstances described. Each parking charge case turns on its own facts, and this matter can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67 where the penalty rule was found to be undisputably engaged, yet that Claimant's charge in a 'unique' and complex case, escaped being held to be an unrecoverable penalty.

1.7 In all cases, it remains the Claimant's burden to demonstrate a 'legitimate interest' in recovering any sum higher than the landholder could claim for damages and the Claimant is put to strict proof of their alleged commercial justification/legitimate interest in pursuing residents disadvantaged and delayed by an electronic gate failure.

1.8 Any failure of the gates leading to the secure area is fully within the control of the site landowner, who must be the same party with whom this Claimant contracts. There can be no lawful reason to use the excuse of stranding residents outside of the secure area, to then impose charges upon them for this misfortune.

1.9 This is surely a matter of frustration of contract, and/or derogation from grant, neither of which can lead to a liability for the innocent party of a driver unable to move their car until the gates were opened. There is no question that Residents are entitled to use the car park in question to reach/leave the residents' secure parking area. This right is proven to be the case, as recorded in the Planning documents, where concerns were raised at Local authority discussions regarding the fact that residents would have to use the retail park to access and egress their spaces.

1.10 Under the Consumer Rights Act 2015, ''a term or notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract, to the consumer’s detriment''. Fairness must be considered by any court considering a consumer 'contract' matter and 'unfairness' is determined taking into account:

(a) the nature of the subject matter of the contract or notice
(b) all the circumstances existing when the term was agreed to, and
(c) all of the other terms of the contract or any other contract on which it depends

''Significant imbalance'' is concerned with the parties’ rights and obligations under the contract. The requirement is met if a term is so weighted in favour of a business that it tilts the rights and obligations under the contract significantly in its favour, for instance, granting the trader undue discretion or imposing a disadvantageous burden on the consumer. It is confidently argued that this must be the case here, where the Claimant's principal - the landowner - is the same party responsible for the upkeep of the site, gates, etc., and neither that party nor their agents can lawfully profit or gain from the delay caused to residents having to wait, on some occasions, for the gate mechanism to be released.