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

Umkomaas

I think it would be better to reveal your situation and query first. Most regulars won't make personal contact until such time as they know roughly what they're dealing with.

Unfortunately (as she was a fantastic contributor) Daisy doesn't post on this forum as much these days. There may be others who can help though.

But please start a thread of your own (forum rules, one issue, one thread) as this one belongs to another poster.

HTH

castle347

Hello

Update on my case:

1. I've now emailed POPLA directly following Daisy's advice - I'll let you know what happens.

2. PE's enforcement team finally got in touch with me. This is 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



I'm getting a little fed up with the constant to'ing and fro'ing going on and cannot really see any end in sight.

I've had some advice off the forum as well, but posting here just to see if anyone else has had this letter - it looks like a template.

thanks
castle

castle347

I'm about to email the DVLA and BPA, to complain about PE not issuing a POPLA code.
Please can someone let me know whether it is a good idea to say in my emails to them that I did not respond to PEs first two letters (I did not respond until they sent the LBA).
Thanks
Castle

Coupon-mad

Yep seen that letter before - it is indeed a template. If you choose the most unusual word in it (not the Judge's name or the well known court case surnames!) then you should be able to find it on other threads, by using 'search this forum' next to 'Forum tools' on page one.

And no there is no point saying you didn't respond to previous letters IMHO. Sadly the BPA and DVLA complaints will get nowhere though.

The keeper would be better off resetting the clock by naming the driver, who can then get their own PCN to appeal.

Redx

best advice coming up , please read it carefully

PLEASE START YOUR OWN NEW THREAD FOR TAILORED BESPOKE ADVICE

new thread , in red , top left of this main forum

and edit your new post in there to include paragraphs, not a great wall of unreadable text (like this reply shows you how)

thank you

Kind_Of_Irritated

Thank you. It's probably me but I can't see a "new thread" button at top left of page.

Redx

top left of the main parking sub-forum , in red

also bottom left too

or click the bar (forum tools) and choose POST NEW THREAD

Coupon-mad

Kind_Of_Irritated wrote: »

Thank you. It's probably me but I can't see a "new thread" button at top left of page.

Well you can't start a new thread on THIS thread...you need to be on the parking board, page one. Get out of 2014 and read stuff from today:

http://forums.moneysavingexpert.com/forumdisplay.php?f=163

HTH