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  • FIRST POST
    • grayselegy
    • By grayselegy 16th Mar 17, 7:47 PM
    • 38Posts
    • 11Thanks
    grayselegy
    Claim Form from ParkingEye received 16/3/17
    • #1
    • 16th Mar 17, 7:47 PM
    Claim Form from ParkingEye received 16/3/17 16th Mar 17 at 7:47 PM
    Hi All,

    I intend to respond promptly to a Claim I have received from Parking Eye through Northampton County Court, dated 13th March.
    It seems they have snapped the number plate of a car I used to own but which I sold about the time of the alleged incident last Oct 13/10/17. It may be that I own up to being the driver, maybe not, I'm confused about that part, but that's not the issue here.

    My query revolves around that I moved out of my marital home at this time and in all the upset of the separation my wife did not bother to forward to me any letters (if they sent any) until she saw this claim from a Court and thought she'd better as it looked serious. So this is the first I am hearing about the parking charge. It may be PE has sent all the letters and in effect I have ignored them, but I don't know as I never saw any.

    I would have noticed a PCN on my windscreen but as they used ANPR this didn't happen.

    I thought I would send the Court the following letter and would appreciate any advice as to whether it seems OK as an opening salvoe....

    "I refute the Claim under the reference above for the following reasons:
    1. I do not own this car [strictly true as it was sold around that date]
    2. I do not live at the address stated on the Claim Form [I shall head the letter with my present address and I did not live at the address on the Claim Form from 17th Oct onwards]
    3. Perhaps because of 1 and 2 above, I have not received a Parking Charge Notice nor any previous communication regarding this Claim, therefore I have been denied my right to dispute this claim at a previous occasion
    4. Due process has not been followed, in denial of natural justice and the rules pertaining to such pre-Court action
    5. I have not received any evidence that I accepted the Contract stated
    6. I do not and did not agree to be bound by any Terms and Conditions stated in any signage erected by Parking Eye as a matter of course and have not seen any evidence of those signs
    7. I have not had a chance to see any alleged photographic or other evidence that a car I own was ever at the location stated.

    It is only by pure chance that I have become aware of this Claim and I believe that Parking Eye have got their information incorrect and are pursuing the wrong person. Accordingly, I reserve the right to sue the Claimant for a sum not less than £250 should it be shown that there has been a Data Protection Act breach.

    I respectfully request that the Court stay these proceeding to enable the Claimant to comply with the Practice Direction on Pre-Action Conduct (Annex A, Para 2) and that you request the Claimant to contact me with evidence of their Claim before they force me to attend Court.

    In addition, as you can see from my address, I do not live locally. I am unemployed and in severe financial straits. This makes it difficult for me to afford to attend the Court to defend my case, which I most certainly wish to do if I can find the funds to attend. I therefore also beg the Court (should this action proceed) in the name of good justice to transfer the case to Swindon County Court or any such court local to me as it deems fit, so I can afford to attend Court to defend myself.
    Yours etc..."

    This last bit I include to show Parking Eye that even if they win this case, I'll end up paying them £1 a month forever, a pyrrhic victory.

    Suggestions?

    Just to double check, do I send this letter to the Court, or to Parking Eye?

    Should I make this a separate letter, or include it in the "Defence" portion and fill out the rest of that page, and return that page to the Court?

    Many thanks people.

    Mike
Page 2
    • Lamilad
    • By Lamilad 8th Apr 17, 8:58 PM
    • 700 Posts
    • 1,533 Thanks
    Lamilad
    Great, thanks for all the above help. I shall now send the Defence by post and see what happens!
    Originally posted by grayselegy
    Why waste money on a stamp. Email it to
    ccbcaq@hmcts.gsi.gov.uk

    Copy yourself in to ensure its sent ok. Ring the court to confirm receipt. Put your claim no in the subjext line
    • grayselegy
    • By grayselegy 21st May 17, 2:53 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    Hi All,
    I've now had the "Notice of Proposed Allocation to the Small Claims Track" and a form to complete and get back to them by 30th May. It seems straightforward but if anyone has any pointers or comments on things to avoid before I complete it and send it back, I'd appreciate your guidance....

    In the Directions questionnaire:
    I have read the advice elsewhere but I think I shall "agree to this case being referred to the Small Claims Mediation Service" as I would make a small payment if they accept my offer. Say £20.
    However, in the copy the Court sent me of their submission on this same form, Parking Eye had ticked the "No" box, so I assume they won't allow mediation anyway, so my allowing it just shows willingness.

    Obviously, I shall ask for a Court near me.
    I don't intend to call any witnesses, expert or otherwise, but maybe you guys may have a different view?
    The rest seems straightforward enough, so comments please.

    Many thanks and regards all.
    • Umkomaas
    • By Umkomaas 21st May 17, 3:08 PM
    • 13,626 Posts
    • 21,373 Thanks
    Umkomaas
    I have read the advice elsewhere but I think I shall "agree to this case being referred to the Small Claims Mediation Service" as I would make a small payment if they accept my offer. Say £20.
    The advice here has generally been to decline the offer of mediation. The mediator is not on your side, their main brief is to try to ensure the case does not reach court. They will put pressure on you to pay almost everything the PPC is demanding (many report-backs confirm this).

    For what it's worth, I can't see PE being remotely interested in a £20 settlement.

    There are better placed experienced advisers to comment on your other proposals, but to me they look okay.

    HTH
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • grayselegy
    • By grayselegy 24th May 17, 12:32 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    Going to Court vs Parking Eye
    I agree. In the photocopy of their reply to the Court, Parking Eye ticked the "no mediation" box so I've no doubt they will refuse this, but I'm going to say I am open to it simply so I can show willing. They then look aggressive to the Court. So no other answers being received, I'll send the form to the Courts today and ask for advice again when I get the date.

    Thanks everyone.
    • grayselegy
    • By grayselegy 15th Jul 17, 7:19 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    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 [I] 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!
    • Coupon-mad
    • By Coupon-mad 15th Jul 17, 9:12 PM
    • 48,322 Posts
    • 61,785 Thanks
    Coupon-mad
    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?
    Yes you need to file this evidence in advance, certainly the photos and articles about double dips and your evidence of being elsewhere in between. I think the video, yes send a USB stick with it on (to PE in a bundle of your clearly-marked paperwork, sent with a certificate of posting from the PO counter) and bring your iPad or laptop to court to play that video on the day.

    Can you evidence that you didn't just leave the car there and walk to that appointment, was it miles away?

    Can you evidence that someone else didn't drop you at your appointment and drove the car in there and that person actually stayed for hours? You are still liable as keeper for another driver's use of the car on private land.

    Those are points the PE rep will suggest explain that the car was there, just without you...


    Is there anything else I’ve missed?
    Challenging their hired rep's Rights of Audience, on the spot, with held from the BMPA on the end of your phone by text, as soon as you are in the waiting room and know the name of the rep. PE often use Elms Legal and a hired legal rep or barrister who is not 'an exempt person' and cannot in fact speak without PE being there:

    http://parking-prankster.blogspot.co.uk/2017/01/parkingeye-win-and-are-awarded.html

    It is a MUST that you plan for this possible way to win! Search the forum for 'Gazette' to find reports of what to take and what to do, and the BMPA's text service to check RoA on the day.
    Last edited by Coupon-mad; 15-07-2017 at 9:14 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • grayselegy
    • By grayselegy 16th Jul 17, 7:17 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    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.
    • grayselegy
    • By grayselegy 16th Jul 17, 7:20 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    Just to add, I shall also send their own map back, with the actual positions of the signs on it, to show they are NOT where stated by them.
    • grayselegy
    • By grayselegy 18th Jul 17, 10:29 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    Witness Statement Final Draft
    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.
    • Coupon-mad
    • By Coupon-mad 18th Jul 17, 10:41 PM
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    Coupon-mad
    I am considering whether to make such a complaint and send this evidence to the BPA.
    I would make that stronger:

    I am preparing a formal complaint and to send my evidence to the BPA, not just in regards to the false evidence about signs but also because ParkingEye have failed to carry out their much-vaunted '19 checks' before issuing a PCN in a case where the car in fact visited twice (two separate events, neither in contravention of any terms).
    I would also remove the part about disability - don't plead it, this isn't relevant to you and might make the Judge take issue with the rest. Stick to the truth about your case.

    I would also make the proof about the double visit, come as a point much higher (near the start).
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • grayselegy
    • By grayselegy 19th Jul 17, 4:11 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    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...
    • miladm1067
    • By miladm1067 19th Jul 17, 10:47 PM
    • 45 Posts
    • 1 Thanks
    miladm1067
    I had a read through the forum and plucked out any relevant arguments. I just wanted to know if this is roughly what I can send them.


    the County Court Business Centre
    Claim Number: ___

    Between:

    Civil Enforcement Limited v ___

    Defence!Statement

    I am ___, the defendant in this matter and registered keeper of vehicle ___. I currently reside at ____.

    I deny I am liable for the entirety of the claim for each of the following reasons:


    The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

    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 Claimant has not identified the driver.
    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.”

    a) 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 (POFA) in order to hold the defendant responsible for the driver’s alleged breach.
    b) b) 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 as required by POFA, Schedule 4 9.2(e)
    c) 4. The claimant has no locus standi to bring this case. Absent a contract or chain of contracts from the landowner to the claimant I have the reasonable belief that they do not have the authority to issue charges on this land in their own name.
    d) 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.
    e) 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.
    f)
    g) 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
    h)
    i)
    j) 6. The signage was inadequate to form a contract with the motorist.
    k)
    l) 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 British Parking Association (BPA) of which Parking Eye 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.”
    m)
    n) b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach.
    o)
    p) 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.

    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 extensive research that the claimant’s solicitors are serial abusers of the court process in this manner.

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

    17. The Defendant asks that the claimant is ordered 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.
    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






    due to local knowledge and having inspected the signs at the, I am aware that whilst your client's signage is displayed at the material location, the terms are illegible from a driving seat. Moreover, the unremarkable boards placed sporadically by TPS is unclear as to which set of signs relate to which section of the car parking area. The signage is, therefore, incapable of creating any contractual liability on the part of any driver, as any purported contractual terms are void for uncertainty.





    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued .

    (b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    Further, your client has adduced no evidence whatsoever as to the identities of the drivers at the material times. There was, of course, no requirement in law for me to respond to the NTKs in question, so any suggestion of failure on my part will be robustly defended. Indeed I view the continued - increasingly threatening - demands as harassment. Had TPS evidenced the driver(s) in their NTKs, I would have passed the purported 'PCNs' to those drivers, since these are not matters for which a registered keeper can be held liable in law. This position is entirely due to the choice of your client when drawing up a Notice to Keeper (NTK) document which does not in any way attempt to use nor rely upon the rights they might otherwise have been able to claim, under the Protection of Freedoms Act (the POFA) Schedule 4.

    The listed separate 'parking charge notices' in which the facts seem to be fairly identical but all of the NTKs are matters for an identified driver only. I am not liable and cannot be lawfully assumed to have been the driver on each or any occasion. Should you attempt to rely upon the cases of Elliott v Loake (irrelevant criminal case) and or Combined Parking Solutions v AJH Films (irrelevant employee/employer commercial liability issue), you should be aware and fairly warned now, to advise your client that these have never been reported as persuasive or even applicable to any robustly-defended private parking case.

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    Signed
    • Umkomaas
    • By Umkomaas 19th Jul 17, 10:51 PM
    • 13,626 Posts
    • 21,373 Thanks
    Umkomaas
    @miladm1067. Whose thread is this? Why are you here?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • grayselegy
    • By grayselegy 20th Jul 17, 11:59 AM
    • 38 Posts
    • 11 Thanks
    grayselegy
    HI. @miladm1067 I think I've put all those relevant points in my Defence and I'm beyond that point now anyway. My witness statement is ready to go.

    Anyway: I have today just received their Witness Pack, no surprises, except that they again enclose a map showing the positions of their signs - and photos of the signs which show those signs are NOT in the positions on the map. They've shot themselves in the foot ! My argument will include that they have been so slap dash they haven't even noticed that their own map contradicts their own photos - so what chance they have made a mistake with the ANPR evidence too?

    QUESTION - Parking Eye covering letter states: "The Claimant will not be in attendance at the Hearing , in order to minimise costs that would then have to be sought from the other side. Attendance...will be through its agent from LPC Law. We request that the matter be decided in the presence of our advocate from LPC Law, and confirm our agreement that the matter can be decided in the absence of the claimant."
    QUICK COMMENTS PLEASE? Can I reject the LPC Law advocate? Can I insist P.E. attend?

    Thanks people. My Witness Statement must be in post tomorrow!!!
    • Coupon-mad
    • By Coupon-mad 20th Jul 17, 12:08 PM
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    • 61,785 Thanks
    Coupon-mad
    QUICK COMMENTS PLEASE? Can I reject the LPC Law advocate? Can I insist P.E. attend?
    Nope and you don't want them to...search the forum for 'Rights of Audience BMPA text'. You will not regret it! It's a form of attack that can kill off their case on the day, if you are lucky.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • grayselegy
    • By grayselegy 20th Jul 17, 7:18 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    Thanks for the above, I thought I'd read that somewhere, so I'll keep my powder dry on that one and see if the ambush works on the day !
    OOOOO KKKK then....ready to go....posting the Witness Statement and documents now.
    Many thanks everyone. I'll update thread after Court Date 4th Oct. (or earlier if they cave in !!).
    • grayselegy
    • By grayselegy 20th Jul 17, 8:46 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    One last thing, I read on a thread from here somewhere that a Justice admitted an appeal saying that although the Defendant's excuse was "unlikely" that was enough - unlikely did not mean impossible. Does anyone remember where that quote is, or can state the Case? Thanks...
    • Coupon-mad
    • By Coupon-mad 20th Jul 17, 9:46 PM
    • 48,322 Posts
    • 61,785 Thanks
    Coupon-mad
    I wouldn't defend, saying that your case is 'unlikely' to be true. I don't recall that case; it doesn't help.

    You can simply say that the Claimant has not proved their case. The burden remains that of the Claimant to show, on the balance of probabilities, who was driving/what happened/that there was a contract that was readable that was agreed, that can give rise to £100 charge. They have failed.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • grayselegy
    • By grayselegy 21st Jul 17, 2:26 PM
    • 38 Posts
    • 11 Thanks
    grayselegy
    Thanks, good point. OK, posting it now. Thanks so much everyone, I really feel like I have shot back a broadside they cannot have expected. Let's see....
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