Aldi Facebook Page Kicking Off after Parking Eye LBAs

MothballsWallet

trisontana wrote: »

Aldi's groupie tried to justify PE's claim of £70 by saying that the reason they charge that amount is that by overstaying you are preventing a potential customer from shopping in the store and they "might have spent £70". Of course that mythical customer might only have spent a couple of quid!

Or maybe just a 35p chocolate bar

bazster

Bouncy bouncy.

trisontana

Glad to see that various people digging into the planning permission question.

bazster

Temperature's rising over there again!

nigelbb

An Ian Williamson has posted some very good advice for PE victims on the ALDI FB page.

Given the number of claims issued by Parking Eye, I thought it would be useful to add practical information on how you actually go about defending and provide a template Defence.

Q1) Are these claims valid?

Most of these claims are very similar. They allege that a parking charge is due under a contract between the driver and PE, and then seek to use the Protections of Freedom Act 2012 to pursue the registered keeper of the vehicle. Below I set out a short explanation of the main legal grounds for defending these claims.

- Penalty clauses – Under English law, penalty clauses designed to punish a breach of contract are not enforceable. These clauses may only be upheld if they are a genuine pre-estimate of loss/damage suffered by the other party. In my view, this is by far the strongest argument available in these cases and should be enough to ensure a victory by itself. The fact that the charge is designed to be a disproportionate penalty is quite clear from the face of PE's signs.

- Lack of contract – A recent tax case suggested that a parking company was not capable of entering into a contract with motorists because it did not have authority from the landlord to give the motorists the right to park. The company had authority to manage the car-park generally but this was not enough. Accordingly, PE should be put to proof that the landowner has given them proper authority to enter into a contract with the motorist.

- Penalty charge not incorporated into the contract - This will be applicable where the signage was not clear or was not visible to the motorist until after he parked his car. This argument is based on the case Thornton v Shoe Lane Parking, where it was held that a carpark could not enforce a disclaimer on the back of a parking ticket, since a contract had already been formed before the ticket was provided.

- Unfair Contract Terms in Consumer Contracts Regulations – This provides that "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" … and if it meets that test it is not enforceable.

- Failure to comply with POFA - PE typically rely on the Protection of Freedoms Act 2012, which basically allows them to pursue the registered owner of the vehicle for parking charges. Previously they could only chase the person who was driving at the time. The Act sets out a number of requirements before the registered owner may be pursued, contained in paragraphs 4, 5, 6, 11 and 12
Proof of facts – If PE allege that you entered and exited a given carpark at given times, it is their responsibility to prove this. In most cases PE tend to provide time stamped photographs, which makes this line of defence redundant.

Q2) How should I defend?

Here is a template for a decent Defence. You need to fill in the square-brackets and make any amendments needed to suit your particular case. Please make sure you check the deadlines for filing this, which are explained on the claim form.

1. It is admitted that Defendant is the owner of [motor vehicle].
2. It is admitted that the Defendant parked in [carpark] at the times mentioned in the Particulars OR the Defendant is unable to admit or deny the precise times he was parked in [carpark] as he has no recollection of this. The Claimant is put to proof of the same.
3. It is denied that the Claimant has complied with Schedule 4, Protection of Freedoms Act 2012 [set out the specific ways in which the requirements of the paragraphs mentioned above have not been met].
Only include this paragraph if you have checked to POFA and can refer to the specific paragraphs which have not been complied with. Otherwise delete.
4. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.
5. If there was a contract, it is denied that the penalty charge is incorporated into the contract. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, the relevant term must be made known before a contract was formed. Here, the charge was not incorporated into the contract because [explain].
Only include if you have a good reason for saying that the signage was unclear, or that the signage could only be viewed after parking your car. If the signage was clear then delete this paragraph.
6. Alternatively, even if there was a contract, the provision requiring payment of [amount] is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; (c) the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and (d) the clause is specifically expressed to be a penalty on the Claimant's signs.
7. Further and alternatively, the provision requiring payment of [amount] is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose.
8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Q3) Will I have to go to court?

After you have filed a Defence, PE will need to file a Directions Questionnaire and pay a hearing fee to the court. In several cases PE have failed to pay the hearing fee resulting in the claim being struck out before it gets anywhere near a court room.

If PE decide to proceed with the case and pay the hearing fee, then the case will proceed to a hearing in the small claims track. This should be held in your local county court. Small claims is designed to be used by people who do not have legal training so you should not feel scared or intimidated.

Q4) If it goes to court will I win?

In my view, these claims are extremely shaky. If you defend on the basis set out above I think PE are very unlikely to win. PE will be hoping that most people do not know what to do or get scared, and simply roll-over without defending the claim. As with all litigation there are no guarantees because it ultimately comes down to the decision of the judge on the day.

Q5) What is the risk if I lose?

If you lose, you will be liable for the parking charge plus £50 fixed costs, plus the £15 issue fee plus the hearing fee, in accordance with Parts 27 and 45 of the Civil Procedure Rules. Further legal costs are only awarded for small claims in exceptional circumstances. Once a claim has been issued they will be trying to claim the fixed cost and the issue fee back from you anyway, so I would always advise defending these claims.

Q6) What else can I do?

Complain to the landowner. Let them know the damage PE's tactics are causing to their business.

Coupon-mad

''and (d) the clause is specifically expressed to be a penalty on the Claimant's signs.''

Strange sentence and the only part I would take issue with!

Very useful summary for all newbies who need a bit of reassurance before a defence.

:T

nigelbb

Coupon-mad wrote: »

''and (d) the clause is specifically expressed to be a penalty on the Claimant's signs.''

Strange sentence and the only part I would take issue with!

Very useful summary for all newbies who need a bit of reassurance before a defence.

:T

I had missed that. PE always claim breach of contract although the wording on some of their signs at least is "Failure to comply will result in a Parking Charge of £90" which certainly sounds threateningly like a penalty.

Orrin

In the Somerfield case the PE signs describe the charge as a penalty so perhaps that's where that particular reference comes from. It's going back quite a few years though.

He's also a bit behind the times quoting VCS vs HMRC from the Upper Tribunal as the Court of Appeal later found that VCS did have the power to enter into a contract with the motorist.

Stroma

You are a bit out of date as that applies where a permit scheme operates, he was quite specific on that. Aldi will obviously have no permit scheme in place

Orrin

Stroma wrote: »

You are a bit out of date as that applies where a permit scheme operates, he was quite specific on that. Aldi will obviously have no permit scheme in place

Were you replying to me or referring to the quote posted by nigelbb from the Aldi facebook page?