ParkingEye Ltd County Court Claim Form stage

JonnyRotten

bargepole, thanks again

I have just fully read the Beavis case and it is pretty compelling although there are some other minor issues that QC Moloney does not touch on, which he may have thought irrelevant or they were not raised by anyone.
It needs a few readings!

Must fully read up on all about Contract Law.

There are lots of 'In his judgment' statements within it, and I suppose that is why he is a Judge, but it makes my irrelevant point.

However, if there is any doubt - is there not - no doubt.

Why find in favour of a Company whose business model is one where they make those quoted sums as profit?

And - when they do not (or may not) pay the landowner for this privilege, why would any landowner miss out on making that profit for themselves?

Lots more thought!

Just JR
Never been to Court in own right
Once, a long time ago, as a Defendant's Character witness/Friend

Marktheshark

I have only submitted a defence to one, so my advice may be somewhat limited if any use at all.
I noticed in their evidence pack two "witness statements".
I passed this to my solicitor who works for me and she was most intrigued by these "statements" as both appeared to have the same signature for separate names , she issued a notice for both witnesses to attend court for questioning.
It ended the next day after the form was serviced with the case withdrawn.
Which is exactly what my solicitor stated would happen.
Make from this what you will.

So I never got there.

Something to hide perhaps ?

jkdd77

Firstly, were I in the OP's position, I would seek to drag the proceedings out as long as possible, by taking the maximum possible permitted time to file a defence (having, of course, acknowledged service within 14 days), and to complete the allocation questionnaire, before asking for mediation and so on.

The purpose behind these delaying tactics is to either delay the hearing until after the CoA has ruled in Beavis, or until the the CoA ruling is imminent, such that it is considered sensible to stay the case until the authoritative ruling is handed down, tentatively expected in early 2015.

Secondly, I would seek to tackle Beavis head on by drawing attention to actual case law in which the argument of "commercial justification" was considered and in many cases rejected, and seek to persuade the judge to follow the case law (and other county court decisions against PE on the penalty issue), rather than a deeply flawed county court decision that does not set a binding precedent. Examples of such case law include, but are not limited to Lordsdale Finance v Bank of Zambia [in which 'commercial justification' was only held to apply where the predominant intention was not to deter breach] CMC Group Plc & Ors v Zhang and Brookfield v Van Boekel.

Thirdly, as already mentioned, I would push hard, in the defence and subsequently, to try and obtain the unredacted version of the landholder contract. If PE refuse, I would invite the judge to consider drawing such inferences as he or she sees fit, having regard to the CoA ruling holding PE to have committed the "tort of deceit", to other county court judgments describing PE's business model as "strange", and to PE's clear financial incentive to tell untruths.

Coupon-mad

My post #16 here just the other day should help you add a simple rebuttal for this stage to cover your back re the Beavis case:

https://forums.moneysavingexpert.com/discussion/5038682

You can then expand on it later on when you have to prepare your full defence bundle. Unless you can complain loudly enough for the landowner to get it cancelled of course, which is reasonably common especially where it's a retail park with a genuine customer. Google the name of the retail park to easily find results telling you who runs or owns it. Get emailing a complaint as well as finalising a defence skelly.

Have you read all the links in post #5 of the newbies thread? Example defences there too.

jkdd77

If there are issues relating to signage (etc), then of course these should be included in addition to the usual arguments. There is case law from Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd in which it was held that particularly onerous or penal terms require especial notice in order to be enforceable, and the judge suggested, in obiter dicta, that he would have been prepared to strike the clause down as a disguised penalty clause regardless.

JonnyRotten

Thanks again Coupon-mad and jkdd77 for your help.
Thanks also to zzzLazyDaisy whose legal insight is very helpful - should have seen those posts before I decided to ignore the lot!

I have continued to develop the Skeleton Defence and added a bit more meat, however, is it too much at this stage, or should it include the Case Law cases to be relied upon now?

I need to post it (I will use RM because of the size) next week to make the deadline from the Court papers issue date 28 July.

Anyway, here it be!

IN THE NORTHAMPTON COUNTY COURT Case No: XXXXXXX

XXXXXXXXXXXX Claimant
-v-
XXXXXXXXXXXXXXXXXXXX Defendant

DEFENCE

1. On the material date xx/xx/2014, the Defendant was not the driver of vehicle XXXX XXX.

2. The Defendant was made aware of Parking Terms, by the Claimant’s Parking Charge Notice letter dated xx/xx/2014, that parking was free but limited to 3 hours.

It is asserted that the Defendant is not liable to the Claimant for the sum claimed, or any amount at all for the following reasons:

1. The Claimant’s notices do not create a contractual relationship between the Claimant and motorists using the car-park.

2. The Claimant is not the landholder, and therefore has no Locus Standi to offer or enforce parking contracts with the Defendant or any other person. Any consideration flows from the landowner. The Claimant therefore has no standing to bring claims in their own name.

3. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of the Defendant's vehicle not leaving the car-park within 3 hours, and the Claimant’s charge of £100 is, therefore, not recoverable.

4. Additionally, as there is no consideration given for parking in a "free" car-park, the Defendant avers that, even if the Claimant has standing and can show a genuine pre-estimate of loss, there can be no contract in place without consideration.

a. The Parking on Private Land Appeals (POPLA) appeals service decision of 18 November 2013 regarding SBV -v- KMJ, promulgated on their website, carefully considers genuine pre-estimate of loss and commercial consideration.

b. The Claimant’s charge of £100 for the Defendant’s vehicle leaving the car-park within 3 hours and overstaying the “free” parking period by XX minutes is an unreasonable, disproportionate and punitive charge, which appears to be a penalty fine.

c. Neither the landholder, nor the Claimant makes any provision to collect a parking fee other than when a vehicle overstays the period allowed and therefore £100 must be a penalty fine.

d. This business model in relation to this car-park appears to have no other income than that from fines and surely raises the question surrounding commercial consideration.

e. Therefore, detail from: any original car-park Planning Constraints placed upon the landholder; Terms of the Retail units rental fees to the landholder; Terms of the Claimant’s car-park management contract with the landholder and Terms for any other companies acting as or for the landholder, should help explain why the business model is this way and if there is any true loss to the landholder.

Further:

5. The Claimant’s mandatory correspondence to the registered keeper (RK) is non-compliant with: Schedule 4, Section 56, of the Protections of Freedoms Act 2012 (POFA); and the British Parking Association Approved Operator Scheme, Code of Practice 2012 (BPA COP) principles, in that:

a. POFA paragraph 6 (1) states that: The second condition is that the creditor …… (b) has given a notice to keeper in accordance with paragraph 9.

b. The first letter to the defendant was headed “Parking Charge Notice” (PCN) as stipulated in the BPA COP paragraph 20.4. However, it did not proclaim itself as a “notice to keeper” (NK) using the higher authority POFA paragraph 2 (1) terminology nor further advice given in the BPA COP paragraphs 20.10 to 20.16.

c. Further, POFA paragraph 9 (i) states: “specify the date on which the notice is sent (where it is sent by post) or given (in any other case)”. This PCN mentions 3 dates in the header box: Date of Event (both Arrival and Departure date-time-groups are also shown), Date Issued and Date; however a mandatory “Date Sent’ is conspicuous by its absence.

d. POFA Paragraph 9 (8) states: “In sub-paragraph (2) (g) the reference to arrangements for the resolution of disputes or complaints includes — (a) any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it”. In the PCN, there is no mention of an “informal” process, either within the body or within the ‘formal’ Appeals and Complaints procedure section. BPA COP paragraph 22.2 also states this requirement.

e. The Claimant is named as the “Creditor” on the PCN and PCN reminder; surely only the landholder can be the Creditor.

f. The Claimant’s Letter Before County Court Claim (LBCCC) was not compliant with Practice Directions:

1. It failed to provide the list of essential documents to be relied on by the Claimant, in order to allow the Defendant to submit a full response.

2. The Claimant states in the LBCCC further information section that they are unable to use the Alternative Dispute Resolution (ADR) process.

g. The syntax error on line 5 of the Particulars of Claim section in the Court N1CPC Claim Form (04.14) that gives a different name for the Claimant, must render this form inadmissible.

6. The Claimant’s notices are non-compliant with the fourth condition of POFA paragraph 12 and with the BPA COP principles.

a. BPA COP paragraph 18.3 states that “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm”.

b. The signs do not comply with these conditions because of their poor positioning, the extreme height (approximately 9 feet) that they are mounted above the ground and the tiny almost unreadable small print detailed terms and conditions. The detailed terms and conditions do not meet the above requirements.

7. The Claimant relies on photographic evidence from an Automated Number Plate Recognition (ANPR) system. Photographs produced as evidence, can be digitally altered. I believe that the ANPR cameras are not identified upon entry to the car-park.

a. There is well recorded evidence that an ANPR system may be prone to error and may be unreliable.

b. These photographs presented do not prove conclusively:

1. That the vehicle was unquestionably entering or leaving that car-park;

2. That the vehicle was unquestionably parked within that car-park’s boundaries;

3. That the vehicle unquestionably remained within that car-park for the full stated 3 hours and XX minutes and did not: spend time searching for a parking space; nor, at some point, did the vehicle leave the car-park and then return.

4. The identity of the driver;

The strict requirements of Section 4 of the Protection of Freedoms’ Act 2012 required for registered keeper liability have not been satisfied and therefore there is no case for the registered keeper to answer.

Unlike a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1998, a registered keeper sent a Schedule 4 notice has no legal obligation to name the driver.

I exercise this right not to name the driver.

Car-parking cases explore complex areas of law and I estimate that a hearing will require approximately one half to one full day to hear all of the issues.

1. The Claimant is not known to attend court personally but to use an advocate from LPC Law, who charge a fixed fee service of approximately £250 for a 3-hour hearing, or more should the hearing take longer. The Claimant can confirm the detail.

2. Legal costs are not normally reclaimable in a small claims court, thus it is clear that the Claimant has no sensible financial basis for pursuing this claim as they will make a loss, whatever the outcome may be. Moreover, this case will take up a great deal of the court’s time.

3. The Claimant may rely on the recent ParkingEye Ltd -v- Barry Beavis & Martin Wardley case heard at the County Court at Cambridge on 22 April 2014 by HHJ Moloney QC, and the judgment handed down in the County Court at Southend on 19 May 2014. The facts of that case, which is proceeding to the Court of Appeal, differ significantly and can be distinguished from the present case on a number of factual and legal points. This charge is not commercially justified.

Interestingly, in his Judgment, HHJ Moloney QC states:

a. Paragraph 1.2 on page 1 - that the decision has only persuasive force; based on one particular set of the Claimant’s standard notices and terms, which may be varied from time to time; and that the Defendants did not have the benefit of professional assistance that might in another case perhaps produce a different result. A telling remark.

b. Paragraph 2.7 on page 3, in parenthesis - that “It is relevant to mention that Parking Eye has attracted the attention of an online group, and the possible legal objections to its business model have been publicised online, which is one reason why these “test cases” have been thought useful on both sides. Why did the QC think it relevant to mention this? One might be justified to question the veracity of this assertion? These are not ‘test cases’, but they are legitimate cases fought by private individuals against car-parking extortion by unscrupulous car-park management companies with questionable legal standing. The use of online help groups is inevitable considering the expense of employing professional assistance.

c. Paragraph 3 on pages 4 and 5 - the 2011 contract headed “Supply Agreement for Car Park Management - Basic”. Can this document be admissible with some pertinent details redacted, thus obfuscating the true terms and therefore not allowing a full understanding of any contract?

d. The QC did not appear to investigate if there were any income streams between the Claimant and the landholder from the car-parking penalty charges, nor if there was any payment between the Retail units and the landholder to cover having a car-parking facility available to them.

I invite the Court, in the first instance, to strike out the claim as being without merit and with no realistic prospect of success.

However, should the Court decide to proceed with the claim, I invite the Court, in the second instance, to stay the case in order to refer it to the industry standard Alternative Dispute Resolution (ADR) process.

1. This would be the Claimant’s appeal service, followed by the POPLA appeals service, the Independent resolution for non-statutory parking charges. The Claimant is known to refuse most, if not all, appeals. It is suggested that the POPLA route would cost the Claimant approximately £27 + VAT but Page 9 of the POPLA Annual Report 2014 makes comments that would refute any such charge to operators for this process. Whatever the POPLA outcome, a valuable saving of Court time and also reduced costs for the Claimant would be the result.

2. POPLA is not normally binding on the motorist. However, I will agree to be bound by the POPLA ruling.

3. The Claimant will argue that this route is no longer available to us. The Claimant has a duty to mitigate its losses and not to incur additional losses unnecessarily, it also has a duty to avoid burdening the court with unnecessary matters. The Claimant is also known never to agree to use POPLA unless the court orders this. However, was the Court to order so it would be following many similar Court Orders in a number of this Claimant's cases now successfully resolved, such as: in the order made by District Judge Mayor, Croydon Court, 13/09/13 (Case no. 3JD00719, ParkingEye v Mr O), by Deputy District Judge Bridger, Southampton Court, 21/01/2014 (Case no. 3JD05448, ParkingEye v Gilmartin) and by Deputy District Judge Buckley, Blackburn County Court, 11/02/2014 (Case number 3JD10502, ParkingEye v Mrs P).

4. Therefore, a similar order in this instance would save time and costs for the court and all parties.

If the court should decide that the ADR route is no longer available or not suitable, then I invite the Court to stay the case until the outcome of the ParkingEye Ltd -v- Barry Beavis and Martin Wardley case appeal is known and in order for both parties to complete pre-court actions.

The above points will be covered fully in the full Defence bundle, which will also include pertinent Case Law cases to be relied upon, and will be served not later than the period stipulated by the Court before the date of any hearing.

I believe the contents of this Defence to be true.

Signature

Date

Coupon-mad

Can't argue with that as a very detailed initial defence - you've clearly done a lot of reading about these cases and so I would submit it asap unless anyone else adds anything.

Remember that your Judge/your court won't read that yet, it's only to show Northampton Court that you have good prospects of successfully defending the case.

So after completing your N180 DQ, and the case gets allocated locally, I say 'strike while the iron is hot' and write to ask the local court for a stay for both parties to undertake POPLA and/or a stay until the ParkingEye v Beavis case at the Court of Appeal judgment is handed down (CoA are hearing the case on Monday 23rd/Tuesday 24th February 2015, Case number = 20142010).

Look at bartos1976's threads here on MSE, in one recently updated successful thread, he has just won at POPLA in a case that was due to go to a hearing, same as yours. POPLA is winnable - not all courts will entertain it of course but if not, then a 'stay' for the Beavis case is another option the local court 'should' reasonably consider:

http://forums.pepipoo.com/index.php?showtopic=88568&st=200&start=200

Bargepole's post #206 there:

The date for the hearing of this case at the Court of Appeal is now in the public domain, and has been set for Monday 23rd/Tuesday 24th February 2015. It is extremely unlikely that Judgment will be given at the conclusion of the hearing, but will be handed down a few days later.

Anyone who has a PE court case before that date, should, if the Judge is minded to follow the original ruling, try to get their case stayed until the result of the appeal is known.

JonnyRotten

Cheers Coupon-mad

When I submit this Skeleton to Northampton I assume that it will eventually get to the Local Judge when I ask for the Local CC? Is it or the Full Defence or both used at the hearing?

I also see a bit on various posts about the Full Defence and I suppose that when I write to PE and ask for their documents to be used in their submission they will most probably be like all other shysters (such as Insurance Companies fighting Endowment policy underpayments) and do their level best to avoid presenting them. Although, I know that they are obliged to by the PD and Act.

I also notice that PE state that any change to Defence needs to be made on Form N244 and a fee paid prior to the filing and serving of witness statements.

So, when I finalise the Full Defence with evidence for the RK not being the driver, Case Law cases, photographs, maps and any other relevant evidence, if I find anything that I have not mentioned in the Skeleton am I able to add it?

What do you think about getting my Legal Costs Insurance to take on the case and represent the RK?

Still JR

bargepole

JonnyRotten wrote: »

Cheers Coupon-mad

When I submit this Skeleton to Northampton I assume that it will eventually get to the Local QC when I ask for the Local CC? Is it or the Full Defence or both used at the hearing?

I also see a bit on various posts about the Full Defence and I suppose that when I write to PE and ask for their documents to be used in their submission they will most probably be like all other shysters (such as Insurance Companies fighting Endowment policy underpayments) and do their level best to avoid presenting them. Although, I know that they are obliged to by the PD and Act.

I also notice that PE state that any change to Defence needs to be made on Form N244 and a fee paid prior to the filing and serving of witness statements.

So, when I finalise the Full Defence with evidence for the RK not being the driver, Case Law cases, photographs, maps and any other relevant evidence, if I find anything that I have not mentioned in the Skeleton am I able to add it?

What do you think about getting my Legal Costs Insurance to take on the case and represent the RK?

Still JR

I think you're getting a bit confused here.


There is no "Local QC", I presume you mean the District Judge, who certainly won't be a QC.


What you have written is far more detailed than it needs to be, the general advice is not to fire all your bullets in one shot. And I certainly wouldn't waste your time writing to PE.


And that is not a skeleton, it is a statement of defence. Your initial defence should just be a brief statement of facts and legal points you intend to rely on.


Your Skeleton Argument (the points of law) and Witness Statement (what actually happened) should be served not later than 14 days before hearing to your local court, and shouldn't contain any pleadings that weren't referred to in the initial defence statement. But you can cite cases which have recently been decided, which is why I always advise doing these as late as possible.

JonnyRotten

Thanks again bargepole

Right what about this then?

IN THE NORTHAMPTON COUNTY COURT Case No: XXXXXXX

XXXXXXXXXXXX Claimant
-v-
XXXXXXXXXXXXXXXXXXXX Defendant

DEFENCE

1. On the material date xx/xx/2014, the Defendant was not the driver of vehicle XXXX XXX.

2. The Defendant was made aware of Parking Terms, by the Claimant’s Parking Charge Notice letter dated xx/xx/2014, that parking was free but limited to 3 hours.

It is asserted that the Defendant is not liable to the Claimant for the sum claimed, or any amount at all for the following reasons:

1. The Claimant’s signage notices are inadequate and are non-compliant with Schedule 4, Section 56, of the Protections of Freedoms Act 2012 (POFA), and the British Parking Association Approved Operator Scheme, Code of Practice 2012 (BPA COP) principles.

2. The Claimant’s signage notices do not create a contractual relationship between the Claimant and motorists using the car-park.

3. The Claimant is not the landholder, and therefore has no Locus Standi to offer or enforce parking contracts with the Defendant or any other person. Any consideration flows from the landowner, who is the creditor. The Claimant therefore has no standing to bring claims in its own name.

4. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of the Defendant's vehicle not leaving the car-park within 3 hours, and the Claimant’s charge of £100 is, therefore, not recoverable. Additionally, as there is no consideration given by the vehicle driver for parking in a "free" car-park, the Defendant avers that, even if the Claimant has standing and can show a genuine pre-estimate of loss, there can be no contract in place without consideration.

5. The Claimant’s charge of £100 for the Defendant’s vehicle overstaying the “free” parking period by XX minutes and not leaving the car-park within 3 hours is an unreasonable, disproportionate and punitive charge. It is a penalty fine. The Claimant’s business model used at this car-park solely relies on income generated by motorists overstaying the parking time limit as there is no mechanism for either the landholder or the Claimant to collect a parking fee at the time of parking.

6. The Claimant’s mandatory correspondence to the registered keeper (RK) is non-compliant with: Schedule 4, Section 56, of the Protections of Freedoms Act 2012 (POFA); the British Parking Association Approved Operator Scheme, Code of Practice 2012 (BPA COP) principles and the Ministry of Justice Practice Direction. A syntax error in the N1CPC Claim Form (04.14) should render that form inadmissible to the Court.

7. The Claimant relies on photographic evidence from an Automated Number Plate Recognition (ANPR) system. The ANPR cameras are not identified upon entry to the car-park. Although these systems have a reported high accuracy rate, there is well recorded evidence of them being prone to error and inaccuracy. Photographs produced as evidence by them, can be easily digitally altered. They do not prove the identity of the driver. Simple entry and exit photographs purported to be from the stated car-park do not prove unquestionably that the vehicle actually; entered and left it; parked within its boundaries, and remained parked within it for the alleged time.

The strict requirements of Section 4 of the Protection of Freedoms Act 2012 required for registered keeper liability have not been satisfied and therefore there is no case for the registered keeper to answer.

Car-parking cases explore complex areas of law and I estimate that a hearing will require approximately one half to one full day to hear all of the issues.

The Claimant is not known to attend court personally but uses an advocate from LPC Law, who charge a fixed fee service of approximately £250 for a 3-hour hearing; or more should the hearing take longer. The Claimant can confirm the detail. With Legal costs not normally reclaimable in a small claims court, it is clear that the Claimant has no sensible financial basis for pursuing this claim to make a loss, whatever the outcome may be. This case will take up a great deal of the court’s time. The Claimant has a duty to mitigate its losses and not to incur additional losses unnecessarily, it also has a duty to avoid burdening the court with unnecessary matters.

The Claimant may rely on the recent ParkingEye Ltd -v- Barry Beavis & Martin Wardley case heard at the County Court at Cambridge on 22 April 2014 by HHJ Moloney QC, and the judgment handed down in the County Court at Southend on 19 May 2014. The facts of that case, which is proceeding to the Court of Appeal, differ significantly and can be distinguished from the present case on a number of factual and legal points. This charge is not commercially justified.

I invite the Court, in the first instance, to strike out the claim as being without merit and with no realistic prospect of success.

However, should the Court decide to proceed with the claim, I invite the Court, in the second instance, to stay the case in order to refer it to the industry standard Alternative Dispute Resolution (ADR) process.

This would be the Claimant’s appeal service, followed by the the Independent resolution for non-statutory parking charges Parking on Private Land Appeals (POPLA) service. The Claimant is known to refuse most, if not all, appeals. The POPLA route is said to cost a Claimant approximately £27 + VAT. Page 9 of the POPLA Annual Report 2014 refutes any such charge to operators for this process. Whatever the POPLA outcome, a valuable saving of Court time and also reduced costs for the Claimant would be the result.

POPLA is not normally binding on the motorist. However, I will agree to be bound by the POPLA ruling.

The Claimant will argue that this route is no longer available to us. The Claimant is also known never to agree to use POPLA unless the court orders this. However, was the Court to order so it would be following many similar Court Orders in a number of this Claimant's cases now successfully resolved.

Therefore, a similar order, in this instance, would save time and costs for the court and all parties.

If the court should decide that the ADR route is no longer available or not suitable, then I invite the Court, in the third instance, to stay the case until the outcome of the ParkingEye Ltd -v- Barry Beavis and Martin Wardley case appeal is known and in order for both parties to complete pre-court actions.

The above points will be covered fully in the full Defence bundle, which will also include pertinent Case Law cases to be relied upon, and will be served not later than the period stipulated by the Court before the date of any hearing.

I believe the contents of this Defence to be true.

Signature
Date

Phew, it feels like being back again at school having your homework marked, or your Boss proof reading your admin submissions!http://static.moneysavingexpert.com/images/forum_smilies/smile.gif

But enough banter - have I said enough, have I included enough, have I missed any pertinent arguments?

Need to post tomorrow morning to make the deadline.

Carried out a recce of the Shopping Centre car-park to see the signage, ANPR cameras, entrance and exits yesterday.