Parking Eye "LETTER BEFORE COUNTY COURT CLAIM" with new reference to CPR 17.1

Paperbird

You could point out to them that the 28 day limit from the date you recieve the NTK for an appeal is PE's own limit they could allow an appeal at any time if they wanted. The POPLA 28 day limit they keep quoting is for sending an appeal to POPLA and starts from the day they give you a code and as they have not given you a code it has no relevance.

castle347

Hello
I've made a draft of a reply and now about to go away for a few days so would like to send this, if only as a holding reply. I've made reference to an impending complaint to the BPA and DVLA, which I'll investigate properly when I have more time.

Is this OK do you think for now - essentially restating everything:


Dear Rachel Ledson

Re: ParkingEye-v-***********

Thank you for your letter sent by email dated **********.

Regarding your continued insistence that a POPLA code cannot be issued unless “extraordinary circumstances” apply, please note that I do not accept this argument at all.

The 28 day time limit you continue to quote is a limit that you have imposed. You are able to rescind this if you so desire. Nothing prevents a POPLA code from being issued at any stage. Indeed, several small claims Judges have requested that POPLA be used as ADR as late as Court stage.

There is absolutely no legal impediment which prevents you from considering this rejection after 28 days.

Please clarify for me with examples what you would consider to be "extraordinary circumstances."

You further state that I have provided “no compelling reason why the charge should be cancelled.” I believe I have done this. I have stated in all my previous letters to you the compelling reasons as to why the ticket should be cancelled:

1. You cannot prove that you suffered a genuine pre-estimate of loss – there is no means of paying for the car-parking space.
2. You have no legal standing to make the claim – only the landowner can do this.

Despite repeated requests, you have failed to provide details of any contractual document which proves that you have the legal right to claim the loss. This therefore contravenes the Practice Direction, which states clearly that you must list to me the documents that you will use in Court.

Please also explain your cryptic reference to the enforcement team that you have included at the end of your previous letter to me, and others before that.

Quoting in full from your letter dated *******:

“Please be advised, once again, that any concerns you have raised in relation to the charge being a genuine pre-estimate of loss and ParkingEye's standing to make a claim will be dealt with by our enforcement team separately.”

At no point in these proceedings have I been contacted by the enforcement team, apart from the first Letter Before Claim, which was clearly a template.

Please can you explain to me why the enforcement team have not contacted me in all this time? My suspicion is that it is because you have no response at all to these two questions and therefore no case against me.

I advise you therefore to drop the charge.

Please be advised that I shall also complain to the BPA and DVLA about your continued use of subterfuge regarding the 28 day issue.

I look forward to hearing from you.

Yours sincerely

************

castle347

I've now sent this letter via email - will let you know what happens.

I think the idea from PE is to keep the ball rolling to see if you get fed up and do not respond, in which case they can issue something to the Courts.

Rachel Ledson keeps making great pains in her letters to point out that she has nothing to do with the enforcement department, suggesting that unless it is them contacting me, there will be no progress in the Courts.

Is there someone I can complain to about this? Because it feels like they're exploiting a loophole - they have no standing to claim from me because of no GPEOL and no contract, yet have the power to escalate to the next stage if I don't keep the ball rolling.

Getting a little tired of it really.

Coupon-mad

They do have enough 'standing' to try a small claim if they want - and they do so all the time (the small matters of no GPEOL and not owning the car park never stops them). Anyone can try a small claim for an alleged debt within six years.

"extraordinary circumstances" LOL! = they are pretending that an Airline EU Directive (EC261/2004 which I know well as I sued Monarch under that Directive) applies - and that's a misleading joke. Also the stuff they said about the ADR Directive is drivel too. It's all designed to wear you down, but at least you are emailing replies so not wasting a stamp on the scam.

You can complain to the BPA that PE are pretending that POPLA codes can only be issued under "extraordinary circumstances" which is not a term which is stated anywhere in the BPA CoP and simply misleads a motorist as that terms relates to an irrelevant Airline EU Directive about compensation for Flight Delay. Such rubbish and the distorted view about ADR (in a real EU Directive which IS applicable) doesn't help to drive up standards in the parking industry. Almost looks as if PE are trying to avoid POPLA and you will draw that to the attention of any Judge since a small claim must be a matter of last resort. Tell the BPA that your complaint is about the misleading replies you keep receiving and the lack of POPLA code (you never know, it may work!).

Email for BPA complaints in the Newbies thread.

castle347

Hello

THanks Coupon-Mad, I will email the BPA. Should I attach all the letters to and from so far? Or just provide a brief synopsis?

I've now received the latest reply from PE:

Dear XXXXXX

Re: ParkingEye-v-XXXXX

Thank you for your email dated XXXXXX

In respect of the “28 day period”, we attach a copy of the guidance provided via the POPLA website which outlines the requirements for the keeper to take one of the following steps within 28 days:

• Pay by parking charge; or
• Provide the driver’s details to the operator; or
• Make formal representations to the operator explaining why they think they should not have to pay the parking charge.

The guidance goes on to provide outline the process which must be undertaken by the operator upon receipt of an appeal within the 28 day period. This includes the requirement to provide a motorist with a POPLA code in the event that their appeal is rejected.

As POPLA is an independent body, it sets out its own policies which the industry are asked to abide by. This includes the requirements outlined above. Unfortunately, as the purpose of POPLA is to act as an independent body to review the decisions made by operators, the operators themselves are unable to determine what may be classed as “extraordinary circumstances” and decide which cases would not need to comply with the processes outlined above.

As a result, we are unable to provide you with examples of what POPLA would consider to be an “extraordinary circumstance”. However, we have had experience of a small number of court claims which have been stayed by the order of the Court pending a POPLA appeal and consider that these circumstances would be classed as “extraordinary”.

We note the points you have raised in respect of the lack of correspondence from our enforcement department. Please be advised that separate correspondence will be sent to you shortly by our enforcement team, from the email address enforcement@parkingeye.co.uk regarding:

1) Genuine Pre-Estimate of Loss
2) ParkingEye’s standing to make a claim

I would ask that should you have any questions relating to the points raised by our enforcement team, that you respond to them via post or email directly.

Yours sincerely

Rachel Ledson
ParkingEye Limited

I'll reply to explain that I don't accept what they are saying about "extraordinary circumstances" and will also email BPA, but I do also have a question for everyone reading:

As regards the 28 day issue, the document they've attached, from the POPLA website, contains the following line:

"If the parking charge is not paid or an appeal is not made within the 28 days allowed, the operator may take steps to recover any amount outstanding through the county court."

Please can someone tell me what I should put in response to this?

1) Explain why I did not reply, full disclosure? i.e. because I had received one of their PCNs before, sought advice from MSE and Watchdog, who at the time I checked, advised IGNORING the PCN.

2) Continue to tell them that it does not matter and they have the power to issue a POPLA code regardless (even though what they are saying is supported in black and white from POPLA, in this statement!!!)

3) Something else???

Any help on this particular point would be very much appreciated.

thanks
Castle

castle347

Hello

I replied to PE and have now received the following reply from their enforcement team, via email, which I am posting up in full.

It seems to be a template?

As ever, would very much appreciate any feedback / advice for next steps.

Is it now just a case of re-iterating to them that I want to see GPEOL and contract with landowner? i.e. essentially do the same thing with the "enforcement team" as I've been doing with the "legal department"?

Thanks in advance.

This will be my 7th or 8th reply to them ....

Their email in full:


Good Afternoon,



We are writing in relation to the above mentioned charge and correspondence between yourself and the Legal Department at ParkingEye (please see a copy of the most recent correspondence sent to you attached).



We are writing to clarify the further points raised within the most recent correspondence sent to your address today. It is noted that you question the legal enforceability of the charge. To this end, ParkingEye would initially like to set out, as briefly as possible, the legal basis for these charges.



Please note that due to the high levels of claims of this nature passing through the County Court, HHJ Moloney QC listed a test case to decide upon many of the legal points often raised by defendants in these matters. HHJ Moloney QC stated, “I have taken the unusual course of hearing these two cases at first instance in the hope that this decision will assist the parties and District Judges hearing similar cases in future.”



HHJ Moloney QC heard the case over the course of a day, and then reserved Judgement for a number of weeks to consider all the relevant law. He has now given Judgement, and ruled in ParkingEye’s favour on all points.



Please note that ParkingEye has also cited from the High Court case ParkingEye v Somerfield Stores (2011). Please note that the case concerned a contractual dispute between ParkingEye Ltd and Somerfield Stores, that the full transcript is very lengthy and that it is largely not relevant or applicable to the current case except insofar as ParkingEye has cited it. This is because the case was heard prior to the introduction of the Protection of Freedoms Act 2012, and concerns signage, letters, contracts and business practises no longer relevant or applicable to ParkingEye Ltd. In any case, Judgement was given in ParkingEye’s favour in this matter. We have enclosed the relevant pages of this Judgement. This Judgement was considered by HHJ Moloney when ruling in the 2014 Test Case.



ParkingEye will first discuss how a contract is formed with the motorist. We will discuss whether the contract is unfair and whether the Parking Charge amount is fair and reasonable. We will then discuss ParkingEye’s ability to bring the claim.



ParkingEye’s Parking Charges are issued on the basis of a contract with the motorist, set out via the signage at the site. The signage sets out the terms and conditions under which a motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by parking within a limited stay period or similar, and that a Parking Charge will be payable if the conditions are not met. We ensure signage is ample, clear and visible in line with the British Parking Association (BPA) code of practice to ensure that the motorist is bound by them when they enter and remain at a site, so that all users of the site are obliged to comply with these. A grace period operates that allows a motorist to park, familiarise themselves with the terms and conditions and act accordingly.



ParkingEye considers that it is trite law that a contract can be formed in this way, that a contract can be formed by conduct and that signage of this nature set out in a reasonable manner will be found to have created a binding contract. Please note that it is made clear on this signage that ParkingEye is the contracting party, and ParkingEye’s name and contact details are provided on the signage.



In ParkingEye v Somerfield Stores (2011), heard in the High Court in front of HHJ Hegarty QC, it was found that, “404. As a matter of principle, there can be no difficulty in applying the ordinary rules of contract to the use of automated car parking facilities. The proprietor or operator of the car park can lay down the terms and conditions upon which a motorist may make use of the facilities.”



The case of Vine v London Borough of Waltham Forest (2000) proves particularly useful in respect to the creation of a contract with the driver. It was found by Lord Justice Waller that;

"Normally the presence of notices which are posted where they are bound to be seen, for example the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning."

Further, in VCS v HMRC (2013) Court of Appeal decision it was found, “The acceptance is acceptance by conduct. As every law student knows Mrs Carlill accepted the offer from the Carbolic Smoke Ball Company by using the smoke ball as instructed, without the need for communication of the acceptance (Carlill v Carbolic Smoke Vall Company [1893] 1 QB 256). The consideration moving from VCS to the motorist is (at least) the provision of the permit (to park) itself. Accordingly in my judgement all the necessary elements of a contract are in place when the motorist first parks his car.”



Section 7.1 of the Department of Transport’s guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012 states that a;

“car park on private land will normally have signs setting out the terms and conditions upon which parking is offered.” Section 7.1 further states that: “Drivers can then decide whether or not to accept those terms and conditions. In most cases a driver who parks in a car park with clear signage setting out the terms and conditions will be deemed to have accepted the terms and conditions and therefore entered into a contract to park...”



HHJ Moloney QC found that, “the 2012 Act reinforces rather than weakens ParkingEye’s claim.” HHJ Moloney QC found that the Act’s wording, “envisages that the contract may either be between the owner or occupier, or between the driver and a person authorised by the owner occupier to enter into such contracts.” ParkingEye agrees, and contends that primary legislation has been enacted specifically to enhance the enforceability of these charges, whilst removing the adverse effects of clamping.



HHJ Hegarty QC in ParkingEye v Somerfield Stores similarly stated at 404, “Provided he does what is reasonably sufficient to bring those terms and conditions to the attention of any motorist before he enters and makes use of the car park, he will be regarded as having accepted the offer with the result that a contract will come into being…” Note that whilst HHJ Hegarty found that signage at the entrance to a car park could form a legally binding contract, ParkingEye offers a grace period that allows a motorist to park and familiarise themselves with signage before deciding whether or not they wish to be bound.



HHJ Hegarty QC further stated at 410, “It was standard practice for signs to be provided at the entrance of the car park and every 10 or 15 bays. […] Even if it might have been suggested (which it was not) that the motorist would have already been committed to entering the car park by the time he was in a position to read the signs, the initial free parking period would simply have allowed him to drive through and out again without incurring any charge.”

HHJ Hegarty QC further stated at 422, “The contract in question is formed when a motorist enters and uses the car park after having notice of the terms and conditions on which he is entitled to use it. Those terms and conditions are set out on the signs to which I have already referred and are to be construed as they would reasonably have been understood by any such motorist in light of the surrounding circumstances.”



ParkingEye is compliant with British Parking Association regulations on signage, and contend that there is adequate signage that is visible, appropriately located, clear and legible at sites, and so the Parking Charge is fully enforceable.



ParkingEye strongly believes that the terms and conditions of parking were sufficiently and reasonably brought to your attention. ParkingEye contends that when a motorist enters a car park they should be at the same level of observances as when driving on the public road. As on the public road, the motorist is expected to pay attention to signage within the car park. Furthermore, unlike on the public road, the motorist is able to exit the vehicle and familiarise themselves with signage within the reasonable grace period provided. Furthermore, these terms and conditions of parking are commonly found, and anyone able to drive should be aware that terms and conditions of parking may apply when parking on public or private land. When driving on the public road, motorists are expected to be aware of signs when travelling at speeds of up to 70mph. In a car park, the typical driving speed is between 5mph and 10mph. We therefore contend that it is not unreasonable to expect a motorist to note the signs within the car park and to familiarise themselves with these. This is supported by the aforementioned cases.



Kind Regards,

ParkingEye Enforcement Team

trisontana

Except this was never a "test case". Such things don't happen in the Small Claims Court.

As for driving past a sign at 70 MPH. Those signs are designed to be read at that speed (large typeface and the minimum of information). PE's typically have lines of very small print which have to be viewed from just a few inches away.

zzzLazyDaisy

Hi, apologies if you have already done this but I suggest that you write directly to POPLA about the 28 day time limit.

It is most certainly not a POPLA imposed time limit - in fact I have just successfully got a POPLA code from another PPC for someone who was on their third begging letter, and well outside the 28 day limit.

When writing to POPLA you need to be very short and to the point as POPLA is (intentionally?) vague in their replies, but if you keep it simple and precise you should get confirmation that POPLA will hear appeals at any time, provided the PPC provides a code.

Try something like

Please can you confirm that POPLA does not impose any time limit on a parking company issuing a POPLA code?

Daisy

castle347

hello
thanks a lot for that advice - I'll try writing to POPLA direct.

tomkat2006

hi daisy i was wondering if you can contact me for some advice please