Parking Eye - New Response - Letter Before County Court Claim

stuart153

Good evening all, I was hoping you would be able to help me and anybody else who is the same situation as myself.

In February this year, I overstayed by 33mins in Booths supermarket in Windermere. I mistakenly ignored the letters that PE sent me and at the time, wasn't aware of the 'new' POPLA response that we should all be using to challenge these companies.

Anyway, I received a Letter Before Action a couple of weeks back, and after looking at some advice on the forum, I sent a letter back to them. I have now had a response to this, which seems to be a generic response that a few others have also received.

I'm wondering what my next step should be now?

Please see below for my initial response to the LBA:


Dear Parking Eye
Re PCN: XXXXXXXXXX

I have just received your Letter Before Action dated XXXXX I deny any liability for what is an unlawful penalty.
As you are aware it is necessary for both parties in any dispute to exhaust allpossibilities of resolution prior to the commencement of court proceedings. Isuggest that you issue me with a POPLA verification code for me to refer thematter for independent adjudication.

In addition I require:
1. The name and address of the party who contracted with Parking Eye for theprovision of their services
2. The name and address of the landowner if different from 1.
3. A copy of the contract authorising Parking Eye to offer and enter intocontracts for parking, and pursue unpaid parking charges including throughlitigation.
4. An itemised breakdown of your losses as a result of this parking incident
5. An itemised breakdown of the landowner's losses as a result of this incident
6. An explanation of how the requirements of schedule 4 of POFA making thekeeper liable have been satisfied. The creditor has not been identified as isrequired under para 9(2) h under POFA and hence the conditions to pursue thekeeper under PoFa for the alleged debt have not been met.

Your letter before action fails to providethe above information which it should do as indicated in the PracticeDirection. Your letter of action shouldalso direct the defendant to the Practice Direction for reference prior to anylegal proceedings, which it also fails to do.

I require a response to the above within asuitable time.

Alternatively you could simply cancel the charge.

Kind regards
stuart153
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I have now received a letter back from them, which is below:


ParkingEye strongly believes that the Letter Before Action was sufficient in bringing to your attention impending court action and, as indicated by your correspondence you are already well versed in what is required under the Practice Direction on Pre-action Conduct.

To clarify, the Parking on Private Land Appeals (POPLA) Service, will only accept an appeal after the motorist has made their appeal (‘representations’) to the operator who issued the Parking Charge Notice and that operator has rejected these and issued a POPLA appeal form. In this instance, no appeal has been made to ParkingEye in the timescale required (i.e. 28 days from the date of our initial correspondence), instead correspondence has only been sent after court proceedings have been issued. All our correspondence has stated,

“All appeals and complaints must be put in writing and should be forwarded to one of the addresses below. All appeals must be received within 28 days from the date of our initial correspondence. Please include all information to assist with the appeal. This may include: a store receipt from the day in question; proof of purchases via a bank statement etc. If the appeal is unsuccessful, you will be advised in writing and you will also be provided with details of the Independent Appeals Service (POPLA), their contact details and a unique appeal reference. Please note: The POPLA service is only available for parking events dated from 1st October 2012 and POPLA will not accept an appeal, if you have not appealed to ParkingEye in the first instance.”

ParkingEye runs a dedicated appeals team that considers all appeals on a case by case basis. If an appeal is rejected, the appellant is then given the opportunity to apply to POPLA. At no stage of proceedings have we received an appeal, as has been requested on our correspondence. This procedure has been set down by the British Parking Association (BPA) and POPLA. The BPA website states:

“If you wish to appeal the ticket you should find out who has issued it and what that company’s appeals process is. The operator's name and contact details should be printed on the ticket and on the car park signs. It may also be worth writing to the company/individuals that own the piece of land who may have contracted out the operation of enforcing the parking. If you decide to appeal and this is subsequently rejected by the operator you may take your appeal to POPLA, the independent appeals service which launched on October 1st 2012.”

The Land Holder/Land Owner:
1. In this case, we are contracted by landholder. We are not at liberty to divulge the address of this party.

2. We are contracted by the landholder onsite, or the landholder’s agent. We are fully authorised to operate onsite.

Pre-Estimate Of Loss
3. Please see below points.

4. Please see below points.

ParkingEye have instructed Barrister Jonathan Kirk QC to give his opinion on the matter of pre-estimate of loss. He has stated that, “the burden of proving that the fixed charge amounted to a penalty would be upon the motorist,” that ParkingEye should, “document clearly an attempt to pre-estimate the loss occasioned,” and that, “The courts have recognised that this can be ‘rough and ready’ and will not be defeated because it is not absolutely accurate. It may also be possible to achieve a global figure across the business.” This then is what we provide here.

This was supported In Mayhook v National Car Parks and Fuller (2012). Here the Judge stated, “I do not find that this is a penalty. I think it is NCP doing its best in a very difficult field genuinely to pre-estimate loss.”

It must therefore be noted that this is a very difficult industry in which to determine a completely accurate pre-estimate of loss. This will depend both on the losses to ParkingEye, and on the potential losses to the landholder, which will vary depending on the time of day, the day of the week and even upon the weather.

We have calculated the outstanding Parking Charge amount as a genuine pre-estimate of loss as we incur significant costs in managing this car park to ensure motorists comply with the stated terms and conditions and to follow up any breaches of these. These costs include (but are not restricted to);

Erection and maintenance of the site signage, installation, monitoring and maintenance of the Automatic Number Plate Recognition systems, employment of office-based administrative staff, membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO, general costs including stationery, postage etc. This sum, and the calculations which have been made in setting it, has been approved and agreed by the landholder. This sum was also clearly laid out on the signage at the site and, by remaining on site, we contend that the motorist has accepted all of the prevailing terms and conditions of that contract, including the charges for breach of contract. Furthermore, there is commercial justification for the charges, and the charges were approved and prescribed by the British Parking Association and the Department for Transport in 2012.

Here, ParkingEye has focused on its losses, although, as noted above, there are also significant losses incurred by the landholder.
The average payment by motorists who have been issued with a Parking Charge by ParkingEye is circa £63. Circa 84% of this payment (circa £53) covers ParkingEye’s costs. This information has been taken from ParkingEye’s company accounts and these can be provided to the court if requested.

ParkingEye is required to offer a 40% reduction to motorists for early payment within 14 days. Therefore, this reduced amount needs to be greater than or equal to £53 in order for ParkingEye to operate as a business. Therefore, the upper amount of the charge needed to be at the level outlined below. Furthermore, the amount of £100 was approved and prescribed by the British Parking Association in consultation with the Department for Transport in 2012. Therefore, the full amount of the Parking Charge, which is an enforceable charge levied for breach of contract, is £100. The reduced amount for early payment is £60.

ParkingEye accepts payment of the reduced amount at many stages of its appeal process, including when a motorist who has appealed to ParkingEye is given the opportunity of appealing to the Parking On Private Land Appeals (POPLA) service. It is only if a defendant ignores all ParkingEye correspondence, or loses an appeal at POPLA, that the charge will be increased to the higher amount. At this stage, ParkingEye will have incurred further costs, and this increase is in line with BPA regulations and the terms and conditions set out on the signage. If legal proceedings are entered into, this amount will rise accordingly.
In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd adhered to the finding of Lord Justice Colman in Lordsvale Finance v Bank of Zambia [1996] QB 752, which states,

"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach...deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred".

This follows the traditional definition of Lord Dunedin in the case of Dunlop in 1915. However, at 763g and following it continues,

"the jurisdiction in relation to penalty clauses is concerned not primarily with the enforcement of inoffensive liquidated damages clauses but rather with protection against the effect of penalty clauses. There would therefore seem to be no reason in principle why a contractual provision the effect of which was to increase the consideration payable under an executory contract upon the happening of a default should be struck down as a penalty if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach.”

This description was approved by Lord Justice Manse in the case of Cine Bes Filmcilik Ve Yapimcilik & Anor. v United International Pictures & Ors [2003] EWCA Civ 1669 in which he stated,
"I have also have found valuable Colman J's further observation in Lordsvale at pp.763g-764a, which indicate that a dichotomy between a genuine pre-estimate of damages and a penalty does not necessarily cover all the possibilities. There are clauses which may operate on breach, but which fall into neither category, and they may be commercially perfectly justifiable.”

Circuit Judge Dodd found that the key issue was not whether or not the charge was a pre-estimate of loss; but whether the purpose of the Parking Charge is to deter breach, or if the dominant purpose is commercially justified. We strongly argue that there is commercial justification for the charges. The Judge found that, on a balance of probabilities, it was more likely that the dominant purpose was to provide for regulation of the car park area. He also stated that it was not common for the courts to find a penalty within a contract. He stated that a breakdown of loss was not required, as the contract was formed on its own terms.
In Cavendish Square Holdings v El Makdessi (2012) it was stated:

“I am not persuaded that Clause 5.6 is a penalty clause, the onus being upon the Defendant:
i) It serves a commercial purpose.
ii) I am not satisfied that its purpose is to deter.
However, the reality is that, in the modern approach to the concept of penalty discussed above, there is no longer the need for the dichotomy between liquidated damages and genuine pre-estimate of loss, and so the relevant questions seem to me to be simply:-
i) Was there a commercial justification?”

ParkingEye firmly believes that its charges are fair and reasonable. There is commercial justification for the charges, which means that the charges cannot be considered penalties (see E-Nik v Dept for Communities (2012) and Cadogan Petroleum Holdings Ltd v Global Process Systems LLC (2013)). Private management of car parks is commercially necessary for landholders. They have a right to manage their private land as they see fit and allow motorists to use this land for parking under certain terms and conditions. The contracts, and its clauses, are necessary to prevent abuse of private land. This is commercially necessary as the landholder needs to manage their land in order to ensure that their business can run successfully. The terms and conditions of parking on private land are set out in consultation and conjunction with the landholder, and it is the obligation of the motorist to comply with these when they park in the car park. ParkingEye does not believe that the terms, set out by the landholder, are unfair. However, if the defendant believed them to be, he should not have parked in the car park.

The Protection Of Freedoms Act 2012 and ParkingEye’s Notices:

5. ParkingEye firmly believes that the creditor has been identified on the Parking Charge Notices. They are headed and footed with the ParkingEye name and logo, and it is made clear that all appeals or payment should be made to ParkingEye. We consider this sufficient to inform the recipient that the creditor is ParkingEye Ltd. In ParkingEye Ltd v Kevin Shelley (2013), it was found that the claimant was identified, and that the Notice to Keeper letter was fully compliant with the Protection of Freedoms Act 2012.

6. As court proceedings have not yet been begun, and as no defence has yet been filed, it is impossible for ParkingEye to state exactly the documents that will be relied upon in court. These could include, but are not limited to; the Protection of Freedoms Act 2012, the British Parking Association Code of Practice, any defence submitted by you, any reply to defence submitted by us, any document proving ParkingEye’s authorisation to operate on site, any signage plan or images of signage from the site in question.

7. Any person who makes a contract in his own name without disclosing the existence of a principal or who, through disclosing the fact that he is acting as an agent on behalf of the principle, renders himself personally liable on the contract, is entitled to enforce it against the contracting party. (Fairlie v Fenton (1870). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract. ParkingEye is fully authorised by the landholder to act on their behalf. If evidence of this is requested in a court-authorised defence, ParkingEye will provide this. Our contracts are very commercially sensitive and contain much information not relevant to the case, and we are therefore reluctant to divulge these unless specifically requested by the court. Usually, a witness statement and/or letter of authority signed by the landholder are deemed to be sufficient proof.

Further Information:
ParkingEye has requested that an appeal be made within 28 days since the first Parking Charge Notice was sent. This has not been forthcoming. Had an appeal been made, it is likely that much of this information could have been provided. However, as no correspondence has been received, we have had no choice but to prepare to enter into legal action. Should such action be taken, this will incur further costs, which will be sought from you in court.

Please note that this matter will soon be being conducted in the County Court. Therefore, from this point all submissions should comply with County Court procedure. Standard procedure dictates that the defendant will defend their case, the claimant will reply, and both sides will submit a witness statement and all supporting documents to an allocated County Court. You will be required to submit a defence to the court.

Alternatively, you may want to bring this matter to a close by paying the outstanding Parking Charge.

ParkingEye’s Request For Further Information:
As ParkingEye have given you the courtesy of providing all the relevant information to fully understand the case - despite the fact you chose to ignore several items of correspondence from us requesting to enter into dialogue prior to the need to take court action – ParkingEye would request the following information from yourself. We must inform you that should you fail to provide this necessary information then you may be considered to have not complied with the aforementioned Practice Direction. Should you fail to provide the below information, and in the absence of any prior evidence indicating that you didn’t break the terms and conditions on the signage, ParkingEye will consider this an admission that you wish this to be dealt with in Court. Please therefore provide:

1. The full name and address of the party who authorised you to break the terms and conditions of parking on the private land in question, which were set down by the landholder in conjunction with ParkingEye, and which were clearly displayed via the signage on site.

2. A list of all documents you are going to rely on in court.

3. Please provide an explanation for why you broke the terms and conditions of parking onsite. This should include an explanation of why you believe that these terms and conditions did not apply to you, and why you believe that you had the authority to break them, once the contract had been entered into.

4. Please provide your reasons for having ignored the 4 of letters sent to you in relation to this charge. Please explain why you made no appeal to ParkingEye within the 28 days provided for you to do so. Please explain why you think it is reasonable to have failed to enter into pre-court action dialogue with ParkingEye, and only to have corresponded in relation to this charge now that court action is imminent.

5. Should you consider that you didn’t enter into any contract with ParkingEye, please demonstrate how it is possible that you were on site for xxx hours and xxx minutes, and yet were not made aware of any terms and conditions of parking, despite the signage on site being clear, ample and in line with British Parking Association regulations. This should include evidence of where in the car park you parked, the route you took to this parking space and the route you took upon exiting, as well as information about your movements on site, to show that at no point did you come close to a sign.

6. Please provide your reasons for stating that our Parking Charges are not a pre-estimate of loss.

7. Please provide your reasons for believing that ParkingEye, a BPA and Approved Operator Scheme approved operator, does not have authority to monitor and enforce on the site in question.

8. Please state why we have received over 20 identical documents to your previous correspondence to date - documents we believe originate from online fora (these can be provided to the court if necessary). Please therefore state whether this document was written by you, or whether it was taken from an online forum, or other third party. Please state to what extent you understand the document you have sent to us.

We require the above information within 14 days of you receiving this letter.
If you wish to make payment regarding this matter this can be done by telephoning our offices on 0844 247 2981, by visiting www_parkingeye_co_uk or by posting a cheque or postal order to the address detailed below.


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So my question is, what do I do now? I am unsure as to what my response should be.
Do I reply stating something like you have not answered my questions that I asked in my original letter and you have not provided me with a POPLA verification code. I understand that you normally have to appeal to POPLA within 28 days, but believe that you can still apply for a code that they must provide you with (which will cost PE money).


Thank you all in advance for any help and guidance that you have to offer

Stuart153

Kite2010

Looks like the classic template letter they send out.

And the scammers accuse the forum of using templates

The_Slithy_Tove

Unfortunately for PE, their template response which can be seen in many threads here and on Pepipoo, won't make them look very good when presented to a judge. Especially the ill tempered and unprofessional way it is composed.

stuart153

I agree, point 8 of their letter did make me chuckle!!
Any thoughts on what my response should be?

Thanks

spacey2012

My very conservative estimates are that parking Eye have at the very least 11 cases a day due before courts and at top side 23.
You dont have to be a genius to work out that as all these hearings will be at peoples local courts, they are either not going to turn up, or suffer considerable loss in paying a qualified solicitor (right of audience requirement) to attend each case when they can only add £50 fee.
They stand to lose thousands of pounds a day.
They have certainly bitten off far more than they can chew here.

Guys_Dad

I tend to agree. They are hoping for sufficient defendants to pay up when they get the court papers. If 20% do, they are quids in even if they drop the rest.

Orrin

spacey2012 wrote: »

My very conservative estimates are that parking Eye have at the very least 11 cases a day due before courts and at top side 23.
You dont have to be a genius to work out that as all these hearings will be at peoples local courts, they are either not going to turn up, or suffer considerable loss in paying a qualified solicitor (right of audience requirement) to attend each case when they can only add £50 fee.
They stand to lose thousands of pounds a day.
They have certainly bitten off far more than they can chew here.

Apparently PE are using LPC Law to provide bums on seats at court. LPC's "advocates" are mostly BVC/LPC graduates that haven't been able to get pupillage/training contracts. They are self employed and probably poorly paid, although I imagine still very bright and capable.

Cheaper than a local solicitor or practising barrister, but as you say I doubt they'll be getting any change out of their £50 legal costs.

spacey2012

Then if this is the case they will be acting outside the right of audience.
This must be brought to question at the start of the proceedings.
Once asked to state in what capacity they are acting most district judges will sling them out on their ears.
allowing an actual employed company solicitor is often the absolute minimum rights any district or circuit judge will allow.
However it is your job to request the rights are implemented at the start of proceedings.
Once you "agree to continue" you accept it.
Most judges will gladly accept your challenge.
An agency legal representative abusing the bar system ?
They will be out on their ears in 30 seconds.

Parking eye have not thought this out at all.

Orrin

I expect LPC are relying on paragraph 1(7) of schedule 3 to the Legal Services Act 2007 and would say that their advocates are assisting in the conduct of litigation under the instruction and supervision of a solicitor.

Those provisions were designed to allow rights of audience for solicitor's clerks and it could be considered a stretch to apply them to the advocate model that LPC use.

LPC must have come across this question before and you would expect their people to have a prepared answer, but it's definitely worth raising as the Judge on the day may refuse to hear them.

Custard_Pie

spacey2012 wrote: »

My very conservative estimates are that parking Eye have at the very least 11 cases a day due before courts and at top side 23.
You dont have to be a genius to work out that as all these hearings will be at peoples local courts, they are either not going to turn up, or suffer considerable loss in paying a qualified solicitor (right of audience requirement) to attend each case when they can only add £50 fee.
They stand to lose thousands of pounds a day.
They have certainly bitten off far more than they can chew here.

Numbers game. Some will pay up with the impending threat of Court action. Their template has been written by someone with a legal background. Further intimidation meant to cull the non-payers further to just a handful.

I suspect that they would only take multiple offenders to Court, those who default or miss the submission deadline for a defense, or provide a weak defense.

Then they can plaster it all over their web site using selective success stories. It can also then be used to other prospective clients to say how good they are.

Would be interesting to see under a FOI request how many claims they have filed with the Courts in 2013, how many then go onto a Small Claims hearing and how many they win and what is awarded.

zzzLazyDaisy

Hi Stuart,

I have just clocked your post.

I am not well at the moment and not spending a lot of time on the forums. If your could tell me the date on their letter please, and I will get back to you before your 14 days runs out.

Also WITHOUT GIVING ANY IDENTIFYING DETAILS AND WITHOUT SAYING IF THE REGISTERED KEEPER WAS DRIVING:

It would also help if you could provide the following information:

Does the registered owner live in Scotland?
Date of parking 'breach'
If it was a PCN through the post with photo's - date of PCN
If it was a windscreen ticket - date of follow up letter to registered keeper

Also could you provide some information about the circumstances of the parking charge - was it a motorway? Retail park Supermarket - and if so - morrisons? Aldi?

Also a bit of information about the reason for the charge - eg overstay? if so how long?

Finally, is there any Equality Act element? By this I mean was the driver or passenger suffering from any long term health problem that means they need to take longer? Pregnant? Elderly/disabled? Was the vehicle registered to a disabled person? Displaying a blue badge?

I haven't had time yet to read your version of their template letter, so can you tell me if they have identified the landowner in your case?

I will check back later this evening.

Daisy