Claim Form from ParkingEye received 16/3/17

Hi All,

Pursuent to the above thread, I've filed the Acknowledgement of Service in good time. I now have until the 12th April to file my Defence. I have tried to incorporate all your advice, for which much thanks, so please critique the below before I send it by registered post as Bargepole recommends (I shall also format it correctly). I also wrote to and got the letters from PE. There are a few areas I may exploit. eg. They state that "this charge is therefore levied for breach of contract" so it's not a parking charge but a charge for breach of contract - hope I've tackled this properly in my Defence.

Sorry it's so long, and I am unsure if Clause 6 "unconscionable" is still relevant, I could delete it if you feel its past its use now.

FYI In the Particulars of Claim they write:
"Claim for monies outstanding from the defendant, as registered keeper, in relation to a Parking Charge, issued 13/10/2016, for parking on private land in breach of the terms and conditions (the contract), ParkingEye's ANPR system, monitoring Flowerdown Retail Park, Weston Super Mare.....etc...captured vehicle XXXXX entering and leaving the car park, overstaying the max stay time. The signage, clearly displayed at the entrance to and throughout the car park states that this is private land, is managed by ParkingEye Ltd and is a max stay site, along with other T&C's by which those who park on site agree to be bound. In accordance with the T&C's set out in the signage, the Parking Charge becomes payable. Notice under the Protection of Freedoms Act 2012 has been given under Sch 4, making the keeper liable. This claim is in reference to PC No. xxxxx"

If anyone can see any more holes in this statement, do let me know.

Here's my Defence as it stands so far:

Re: Claim No. D4FC577X
I am XXXXXXX defendant in this matter. As I am an unrepresented litigant-in-person due to the cost of a solicitor I ask for some leeway in the legal niceties, and respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

I deny liability for the entirety of the claim for the following reasons:

1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. The Defendant cannot ascertain if he was the driver of the vehicle on the date in question and a)The Claimant has not identified the driver.

b) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.

c) The Claimant also failed to state that they do not know both the name of the driver and a current address for service for the driver.


3. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.

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

4. In the absence of documentation I am reliant solely on their own ascertain that Parking Eye “manage” this land, but by their own assertion they are not the lawful occupier of the land. I have 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. In the absence of proof, I have 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.

a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

b) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.

ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name.

ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive.

The Defendant also refers the Court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.

5. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says:

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

Parking Eye have supplied no contract showing they have the right to pursue cases on behalf of Flowerdown Retail Park. It is requested that this right is confirmed with a signed unredacted contract, as required under
PD 16 paras 7.3 – 7.5
7.3 Where a claim is based upon a written agreement:
(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).


6. The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable

The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and Excel v Hetherington-Jakeman (2008) that involved similar facts to the present case.

The Defendant asserts that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:
“Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”
The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question, indeed in this particular case by parking here and using the retail park facilities the motorist benefits the landowner, and cannot cause a loss.
The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss.

In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.


7. The signage was inadequate to form a contract with the motorist [I shall detail more in my witness statement when I have visited the site to see if it is wrong]

a) The signage on this site is inadequate to form a contract. It is barely legible. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which ES is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.” As can be seen from the attached photographic evidence this is not the case.]

b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach.

8. 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.

9.The motorist is allowed a reasonable time to find a space. Ref. Parking Eye vs.Ms X. (Altrincham 17/3/14 Fistral Beach). The driver spent some 20 minutes looking for a space near a coffee shop at the stated arrival time and not finding one left the park. I believe that the entry of this vehicle but not this exit was recorded by the company and is reflected in the paperwork I have received.

10. The actual stay (the parking at this site) was not three hours duration, and although I accept that the driver may well have left at 14.47.03 as stated on their paperwork, the time of the re-entry of this vehicle after its first visit has not been recorded nor is it shown in the paperwork.

11. I shall provide evidence from my employer that between the times stated on the PCN I was engaged in an appointment with a client elsewhere in Weston Super Mare and that this vehicle would have been with me at that appointment as it was a fair drive away. Therefore neither I nor this vehicle were in the car park for the entire duration of the stated time, and therefore not in breach of the Contract alleged.

12. I have not had a chance to state who was the driver on the date stated as I did not see or receive any previous documentation due to having left the address on the Claim Form before any letters were received, the car shown having been sold around this date and therefore I did not deem it appropriate to update DVLA immediately I vacated my old address as the new owner would do so. I am now resident at XXXXX. I became aware of their PCN purely by chance. Popla appeals Officer Henry Greenslade (Barrister, parking law expert and POPLA Lead Adjudicator in 2015) is quoted on the internet as saying “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver….Operators should never suggest anything of the sort….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.”

13. I requested on the 23rd March the information that Parking Eye has on file relating to this incident, including the following: Any letters sent to me at my old address, photographic proof of the incident in question, any evidence that Parking Eye will rely on in Court to show I was the driver and liable for this charge, evidence that led them to believe I had overstayed the maximum stay time, evidence that the ANPR system was working correctly and information showing the in and out of cars that day. I have so far only received the following copies:
A PCN
A PCN reminder
A Letter to the Keeper
A Letter before County Court Claim
And a letter dated 28th March confirming that any offers made by Parking Eye in the above letters cannot now be actioned by me (for example, should I wish to take them up on their initial offer of a reduced payment) but we must proceed to Court. I must stress again that simply due to lack of correspondence I have been denied the opportunity to make prior arrangement with Parking Eye as they have wished me to do so previously. This is not the fault of either party, but as Parking Eye are now aware of the reason why previous correspondence was not received, it is punitive of them to insist on proceeding to Court. I was not ignoring their letters, I never saw them.
14. Their letter dated 2nd December advises under Practice Direction on Pre-Court Action that: “Parking Eye will remain open to Alternate Dispute Resolution” and yet refuses to countenance same at this stage (as I did not reply to this letter then, not having received it) insisting that we proceed to Court. They furthermore state on many occasions in their letters that they “will consider appeals at this stage if there are mitigating circumstances”. In the light of my letter to them on 23rd March making them aware of such circumstances I believe that they are being intransigent in insisting on recourse to Law.
15. Due to not receiving any previous letters I have also been denied the chance to appeal this ticket to Parking Eye, POPLA, or even to pay it at an earlier stage and at a reduced rate.
16.The car park in question may not have had compliant signs. I shall provide photographic evidence in due course. Of course, present day photographs do not prove the signs were compliant at the time the claim arose so I furthermore request photographic evidence from Parking Eye that their signs were compliant on the date stated, however I believe that the Claimant’s signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. – being unremarkable and obscure signs which are unlikely to be seen by the driver, are in very small print and the Terms are not readable to drivers.

17. The Claim Form is not signed with a signature but a printed name, which could have been affixed by anyone. Thus the particulars of claim fail to comply with Practice Direction 22, paragraphs 3.1 – 3.10
PD 22 para 3.1 – 3.10
3.1 In a statement of case, a response or an application notice, the statement of truth must be signed by:
(1) the party or his litigation friend, or
(2) the legal representative of the party or litigation friend.
3.4 Where a document is to be verified on behalf of a company or other corporation, subject to paragraph 3.7 below, the statement of truth must be signed by a person holding a senior position in the company or corporation. That person must state the office or position held.

…and…
3.8 Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:
(1) that the client on whose behalf he has signed had authorised him to do so,
(2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and
(3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).
3.9 The individual who signs a statement of truth must print his full name clearly beneath his signature.
3.10 A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.

My italics – it is clear that the legal process expects a signature with a name printed underneath, not a pro forma printed name.
As an example as to why this prevents me filing a full defence at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has not been provided to the Defendant.
I understand from asking around that the claimant’s solicitors are serial abusers of the court process in this manner.

18. The Particulars of Claim fail to disclose the head or heads of action in which these proceedings are based.

19. The Defendant asks that the claimant is required to file particulars which comply with practice directions and include at least the following information:

a. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge. Viz. It is stated that it is a claim for “monies outstanding…for breach of the terms and conditions (the contract)” yet it is also claimed that “In accordance with the T+C’s set out in the signage, the Parking Charge became payable” so which is it being claimed; breach of Contract or enforcement of a Parking Charge?

b. A copy of any contract it is alleged was in place (eg copies of signage)
c. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
d. Whether the Claimant is acting as agent or principal, together with a list of documents they will rely on in this matter

If it is so pleaded before seeking to rely on the keeper liability provisions of Schedule 4 Protection of Freedoms Act (the “Act”) the Claimant must demonstrate that there was a “relevant obligation” either by way of a breach of contract, trespass or other tort.
15. The resident of my old address who returned all letters marked “No Longer At This Address, return to sender” will testify that they did so. The Claimant must demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper. Not having had a reply at all from the Keeper, and in the light of the above directive, a simple check of DVLA would have revealed that 1. The keeper of the car had changed, and 2. The previous keeper now lived at a different address as shown on my driving licence, which I promptly updated when I moved. Furthermore, a letter requesting information to the “present householder” might have also been sent. The Claimant made no such attempts to ascertain this information and furthermore now being aware of the exceptional circumstances that are behind the reason why the Keeper did not respond to their letters is being inflexible and denying the Defendant an opportunity to rectify this without a Court hearing.
The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper. In the absence of strict proof as to the existence or otherwise of a “relevant obligation” and as to properly transferring liability to the Registered Keeper the court is invited to strike the matter out.

I will seek to argue a more detailed rebuttal should the Claimant plead the case cited but in any event submit that the case cited be disregarded.

I believe the facts stated in this Defence Statement are true.
Etc etc..."

Many thanks for your input everyone, I'm looking forward to the next stage.

Regards.