ParkingEye charge

polyplastic

it's proven tactic that works in a vast majority of cases

Stroma,

We are dealing here with one individual who has now been advised that doing nothing is ok in the "majority" of cases. Compare that to the original advice which was an unequivocal "Just do nothing" "They won't take you to court IMO". "They won't risk another hiding". This is now "the reality of this situation" - the OP has been taken to court. No one mentioned that the advice only applied to the majority of cases rather than all cases

Now the OPs position is regulated by the County Court Rules and the relevant Fees Order and which does provide for extra fees/costs to be claimed regardless of the unequivocal views expressed earlier that
"the costs won't go up if you lose". That is "the reality of this situation".

All of the earlier advice, given out there in the professional world, would benefit the OP because he would then have had a negligence claim against his advisor and be able to recover his losses. Now he faces a liability for costs and which is a "reality of this situation".

This is a "money saving" forum. In order for the OP to save money his advice should, IMO, have been more balanced and have included details of the risks so that he could have taken an informed view. Hindsight is wonderful and if he had been advised of the consequences he now faces, when he first posted, he could then have balanced doing nothing with doing something, and, had he paid, would have saved money.

Had he been given those potential consequences of doing nothing when he first started this thread, there would of course have been a hue and cry against anyone proffering such balanced advice (as indeed we have now). Perhaps, though he would not now be facing litigation.....money saving?

Under the County Court Rules the first port of call will be a review by the Judge of compliance with the Pre-Action protocol. The Court will be aware of the POPLA protocol and I would expect it to enquire as to whether that has been followed. It will then no doubt wish to know why not. I am afraid that "Moneysavingexpert.com posters advised me not to" will not be the correct answer. So, the OP could be on the back foot even before the court considers the facts of the case.

Once in court you can't "do nothing". If you are asked a question you have to provide an answer. In the informal surroundings of the small claims court it can turn into more of a chat than the formalities of a full court and just a tad more difficult to avoid answering questions. In full court you can avoid going into the "box" to be questioned by the other side but in the small claims the Judge asks both sides questions. So, if the Judge says "Did you park without paying?" it's a bit more difficult to avoid the issue. This is the reality. No mentioned before just how litigation unfolds.

Thus the advice to seek legal advice now that the OP is at this stage would seem to be appropriate.

Polyplastic

Stroma

Look the fact it's gone to court is not something we can foresee unless we are mind readers, I gave the statistics of what the reality of the situation is, that is 845 claims out of 1.8m tickets given, with just 49 before a court.

Now as you can't be bothered to read the vcs v hmrc vat hearing here is what it entails, parking companies cannot legally offer parking unless they have propriety rights to the car park, parking eye doesn't have that we know because of previous refusal to give the contracts over with popla.

The same defence can be given to a court, when they are asked to provide this contract which they must give on request, the case will normally fall down. Also they can only claim for losses to the landowner, they are not them, they cannot act for a landowner in court.

As for appealing before court, there is no requirement to do this, there is no need to use popla at all.

Guys_Dad

Stroma wrote: »

As for appealing before court, there is no requirement to do this, there is no need to use popla at all.

Is it not catch-22 here. If a motorist loses a court case, then it is possible that the costs awarded could be higher because they had not gone through POPLA - polyplastic's point, as I understand it.

On the other hand, if the motorist went down the POPLA route, it wouldn't get to court if PPC had lost the POPLA appeal and the court could take the view that motorist should have taken POPLA decision instead of "wasting court's time" and allow the same costs anyway.

Heads you win................

DSBS4

In December my husband was working in a shopping centre for 6 days, and thought he got free parking. He has since received 8 parking charge notices from Parking Eye.:mad: He has spoken to the shopping centre but they have just said we should have paid. Following the advice on all these forums, we have ignored the letters. We have had our 2nd letter from Parking Eye, and now 2 letters from Debt Recovery Plus. They are now saying if we do not pay they will recommend to the landholder to commence County Court proceedings. Please advice us what to do, as we're getting worried we will get a VERY large bill which we can't afford to pay.:(

andybrock

DSBS4 wrote: »

In December my husband was working in a shopping centre for 6 days, and thought he got free parking. He has since received 8 parking charge notices from Parking Eye.:mad: He has spoken to the shopping centre but they have just said we should have paid. Following the advice on all these forums, we have ignored the letters. We have had our 2nd letter from Parking Eye, and now 2 letters from Debt Recovery Plus. They are now saying if we do not pay they will recommend to the landholder to commence County Court proceedings. Please advice us what to do, as we're getting worried we will get a VERY large bill which we can't afford to pay.:(

Please delete and start a new thread.
Especially in this case were furthur advice may be required by the OP.
Thanks

Stroma

Costs awarded ? Normally the maximum that can be claimed is what is in the claim itself, which was on the PDF on the pepipoo thread. And that is assuming they win. Which after a vcs v hmrc defence given by the guys on pepipoo I have never seen one fail.

But there is no statuary requirement to use popla at all, and parking eye has form for not giving the code to do this already. The small claims is the way to settle contract law issues, it's not wasting court time to go that route. What is wasting court time is if they have no legal right to go down that route in the first place, which vcs v hmrc is all about

Stroma

DSBS4 wrote: »

In December my husband was working in a shopping centre for 6 days, and thought he got free parking. He has since received 8 parking charge notices from Parking Eye.:mad: He has spoken to the shopping centre but they have just said we should have paid. Following the advice on all these forums, we have ignored the letters. We have had our 2nd letter from Parking Eye, and now 2 letters from Debt Recovery Plus. They are now saying if we do not pay they will recommend to the landholder to commence County Court proceedings. Please advice us what to do, as we're getting worried we will get a VERY large bill which we can't afford to pay.:(

Please don't hijack threads, post your situation into a new thread below. Many thanks
http://forums.moneysavingexpert.com/forumdisplay.php?f=163

polyplastic

I think that it may be of assistance, Stroma, if the actual words of the relevantparagraphs of the judgement are recited.

“VCS was not in a position, by virtue of its limited licence, to make any offer of a right to park. The ability to offer such a right was not conferred by the contract with the client, either expressly or by virtue of the nature of the interest in the car park conferred on VCS. That interest did not amount to a licence to occupy, or give VCS any right to possession. It merely conferred a right of entry to perform VCS’s obligations under the contract.

We have found, firstly, that VCS had no right to claim damages in trespass against motorists who parked in breach of the relevant restrictions, and accordingly that the penalty charges did not constitute, in VCS’s hands, such damages. Secondly,we have found that there was no contract between VCS and the motorist, and that accordingly the penalty charges could not constitute damages for breach of such a contract.

“VCS collects the various parking charges as agent for the client, which represents damages for trespass, or for breach of a contract between the landowner and the motorist.”

The judgement has been interpreted as meaning that no parking company can recoverparking charges or damages. That is an incorrect view. The decision makes it clear that, in the circumstances of that particular case, the contractual arrangement between VCS and the landowner did not give any legal capacity to VCS to enterinto a contract with a driver, nor to be trespassed against. Thus it could neither claim damages for a breach of contract or for trespass. The case also made it clear that, in that case, the party entitled to any damages was the landowner. Note the words “represents damages for trespass, or for breach of a contract between the landowner and the motorist”

The words “propriety rights” used by Stroma were not actually mentioned in the judgment.

The case is the subject of an appeal and so it has not been finally settled.

The case at first hearing was on the 6th March 2012. It would perhaps be overly optimistic to assume that no parking company had taken notice of the decision and had not put its house in order so as to avoid that case being usedby motorists to avoid a potential liability.

For example, (paraphrasing the wording of the judgement) the contractual arrangement between a PPC and the landowner could give a legal capacity to the PPC to enter into a contract with a driver, or to be trespassed against. In the alternativethe PPC could take a leasehold interest in the car park in which case it wouldhave the “propriety right” that Stroma mentions. In the alternative,proceedings could be commenced in the County Court, by a PPC, in the name of the landowner if the contract to park is actually between the driver and thelandowner. (See my next post below) The POFA requires PPCs to identify the party with whom the driver actually contracts

Inthe case in this thread we do not know the capacity under which Parking Eye is taking the case. There needs to be (probably) a directions application for discovery of the “contract/lease” between the landowner and Parking Eye. Only the OP, or his Solicitor can make such an application for discovery. The OP may wish to litigate in person or perhaps use a “McKenzie Friend” to sit alongside him e.g any person off this board who prepares his defence. However, unless that person is legally qualified he may not be entitled to address the court. You shouldn’t go into ahearing without knowledge of the facts about the other person’s case, so the ability of Parking Eye to contract with the driver and have the necessary “locus” to bring the proceedings needs to be checked before any hearing. If that contract/lease shows that the problems VCS had have indeed been overcome then that is one avenue of defence lost. So, will the person writing the defence deal with a directions application and then sit alongside the OP at any hearing?

A direction hearing is usually a preliminary hearing before the main hearing of the case. Raise the issue of the contract between the landowner and Parking Eye for the first time before the judge at the actual hearing of the case and he will probably adjourn the hearing sine die until the documentation has been produced. The Judge may then make an order for costs against the defendant because he failed to deal with discovery at the correct time. See Rule 27.6 of the The Civil ProcedureRules. As I said earlier we are now operating under the rules, so the procedure cannot be made up as you go along.

So, it may be all well and good to use someone off here to file your defence, but there are other aspects to consider.Each time you fail to follow the correct protocol there is the risk of costs.

As for the view that "As for appealing before court, there is no requirement to do this" this is incorrect. If you file a defence the case goes to hearing. The court may determine that it can be dealt with by written representations or it may decide that there should be a formal hearing at which you will be required to attend. If there is a need for a directions hearing, e.g to apply for discovery of documents that again may require attendance. The Court protocols are not made up by this or any other message board but by the Court and you have to do as it bids. Now that the OP is into litigation he has to consider just how that may unfold and how best to protect his position. I suggest that you read the Civil Procedure Rule relating to small claims proceedings. Better still try appearing for both a Plaintiff or a defendant as some of us have done (more times than I care to remember) to understand just how it operates.

There is no need to use POPLA, as Stroma says, but it can, as I have said, be held against you in proceedings because of the requirements of the Court's pre action protocol. So, if you wish to do nothing when a PPC sends its demands, just think about the long game and what if?

The choice is the OPs - play according to the Court Rules or some other rules. The court rules will always win.

Interesting thread as this now gives drivers an insight into what may happen if the PPC does go to court, and of the issues that need to be considered in order to take that fully informed view as to the way forward.

Polyplastic

polyplastic

Interesting point mentioned above that Parking Eye " will recommend to the landholder to commence County Court proceedings."

So, in that case they are recommending that the Landowner takes the court action. This picks up perfectly what I posted in my last post about PPCs getting their act together since the VCS case.

Perhaps the times they are a changing. New rules apply to the game

Polyplastic

Stroma

polyplastic wrote: »

Interesting point mentioned above that Parking Eye " will recommend to the landholder to commence County Court proceedings."

So, in that case they are recommending that the Landowner takes the court action. This picks up perfectly what I posted in my last post about PPCs getting their act together since the VCS case.

Perhaps the times they are a changing. New rules apply to the game

Polyplastic

Of course retailers are going to take their customers to court ! Can I ask what planet are you on ? These retailers are in a fight for survival right now, they are not likely to take anyone to court for a third party company. And no matter what contract says they cannot act for the landowner in court as they don't have the right to do so. As outlined by the judge in vcs v ibbotson.

Can I ask what is your agenda here ? And specifically with parking eye as you have only posted in threads by them on here?