Tower Road Newquay ParkingEye Ltd

liseylou

This is really great stuff and I have been reading many threads in regards to PE at Tower Road Newquay, but I feel that my scenario is rather too late to appeal as I have received a claim form from Northampton CCBC.

I have completed the Acknowledgement of Service with the intention of defending the case in full, as like 'OrdinaryJoe' and many other motorists, we overstayed at Tower Rd by 22 minutes although I was not driving the vehicle, albeit too late to appeal now. Unfortunately, I followed old advice which has since changed, as I received all the paperwork before October 2013 when it would appear the advice on these forums had changed.

However, I did write to PE once I received the Claim Form, to appeal with the blurb 'pre-estimate of loss', 'no contract', 'duty to reduce loss under common law', but they have replied with what looks to be centrally generated letters to decline POPLA (as outside of 28 days after initial correspondence), and rejection of invalid invoice, stating that as 'no legally binding contract exists between myself and PE, under which any right to invoice for payment for goods or services may arise, threfore my invalid invoice has been rejected and they have forwarded my correspondence on to the landowner'.

I have therefore sent an email to Newquay Golf Club, who are apparently the landowners, to request a breakdown of their losses incurred. And also to Mr Clark in the hope that he may be able to influence a request to drop the case due to poor signage.

Your suggestions would be most appreciated, as I only have 3 days in which to complete my defence. I have been searching on many forums for suggested text on what I can use, so if anyone with some legal knowledge is able to review what I plan to use in my defence before I submit the paperwork, it would be most appreciated:
Also, do I specify the amount of the original charge, or the amount requested now??

1. It is admitted that Defendant is theowner of motor vehicle XXX XXX.
2. It is admitted that the Defendants vehicle parked in Tower Road, Newquay,TR7 1LX car park at the times mentioned in the Particulars.
3. It is denied that the Claimant entered into a contract with the Defendant,as confirmed by the Claimant in their letter to the Defendant dated 17 March2014 (copy attached). As held by theUpper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012]UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant wassimply contracted by the landowner to provide car-park management services andis not capable of entering into a contract with the Defendant on its ownaccount, as the car park is owned by and the terms of entry set by thelandowner. Accordingly, it is denied that the Claimant has authority to bringthis claim. The proper Claimant is the landowner.
4. Alternatively, even if there was a contract, the provision requiring paymentof £100 is an unenforceable penalty clause. Following Dunlop Pneumatic TyreCo Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish aparty for breach of contract may only be upheld if they represent a genuinepre-estimate of loss. The provision is a penalty and not a genuine pre-estimateof loss for the following reasons: (a) as the Claimant is not the landowner andsuffers no loss whatsoever as a result of a parking overstay; (b) the amountclaimed is evidently disproportionate to any loss suffered by the Claimant; (c)the penalty bears no relation to the circumstances because it remains the sameno matter whether a motorist overstays by ten seconds or ten years; and (d) theclause is specifically expressed to be a penalty on the Claimant's signs.
5. Further and alternatively, the provision requiring payment of £100 isunenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms inConsumer Contracts Regulations 1999. This is a term which falls within Schedule1, paragraph (e) of the Regulations being a term "requiring any consumerwho fails to fulfil his obligation to pay a disproportionately high sum incompensation". The term was not individually negotiated and causes asignificant imbalance in the parties' respective rights and obligations,because the charge is heavily disproportionate in respect of a short overstayand is imposed even where consumers are legitimately using the car park for itsdesignated purpose.
6. Save as expressly mentioned above, the Particulars of Claim is denied in itsentirety. It is denied that the Claimant is entitled to the relief claimed orany relief at all.