Parking eye. County Court Claim

Gurty

2) No formal admissions are made as to the identity of the driver.
The claimant has no locus standi

3) The case is based on a purported, but denied contract between the driver and claimant, the contract being brought by way of the signage on site. Nowhere on this signage is Parking Eye Ltd held out as the contracting party and consequently there is no contract with the Claimant.

4) The signage contains the following wording: “Parking Eye Ltd (Company No 5134454 ) is authorised by the landowner to operate this car park for and on its behalf. We are not responsible for the car park surface, damage or loss to or from motor vehicles, or general site safety. Parking is at the absolute discretion of the landowner”.(my emphasis)

5) Clearly and unequivocally Parking Eye are acting as an agent of the landowner and consequently any purported contract would be between the landowner and driver. The landowner has been disclosed and identified as the Principal by Parking Eye, who themselves deny any liability. The Claimant therefore, as agent, has no right to enforce the contract and litigate in their own name. The claim should be brought by the landowner.

6) It is believed that the Claimant may seek to rely on the cases of Vehicle Control Services v HMRC (2013) and Parking Eye Ltd v Beavis and Wardley (Cambridge County Court, 2014) in a desperate attempt to justify their right to litigate in their own name. It is important to realise that these two cases differ significantly in that the parking companies concerned were either considered to be Principal or an agent of an undisclosed Principal in the parking contract, neither of which are the case here. In fact careful analysis of these two cases would clearly confirm the Claimant’s lack of locus standi in this case.

7) In the unlikely event that the Claimant somehow attempts to claim they are the Principal in this case I would refer the court to the fiduciary duty that Parking Eye is believed to have to the Landowner. It is believed that the consideration in any parking contract (the parking tariff) is collected by Parking Eye for the Landowner by whom it is retained and it is the Landowner who is consequently the Principal in the purported contract. Additionally, Parking Eye treat the charges they retain from drivers as consideration from the landowner for their services for the purposes of VAT. The landowner is then presented with an invoice for the VAT payable on these charges. The case of Vehicle Control Services v HMRC (2013 ) actually makes crystal clear that if Parking Eye were the Principal then no VAT would be payable on their retained charges and that Vehicle Control Services were considered Principal because they had no fiduciary duty to the landowner.

8) Additionally, in the oft-misquoted case of Parking Eye v Beavis and Wardley the Claimant was considered to be the Principal because they paid the landowner to operate the car park, were not paid by the landowner and did not account to the landowner for any money collected. This is in stark contrast to the present case. Additionally, this matter is now before the appeal court in any case, and should be considered to be no more than persuasive as a county court small claim judgment.

9) Parking Eye clearly state on the signage at this location that they are acting as an agent of a disclosed and identifiable Principal. They cannot now shift position and claim to be principal, despite their signage, and consequently cannot sue.

10) The case should be dismissed on this point alone.

No Loss Suffered by Claimant.
11) The claim is based on damages for alleged breach of contract.

12) It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss.

13) I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on my part or the part of the driver. Any losses are due to the landholder, not the Claimant. I further submit that as the Landowner offers free parking, the loss to the landholder is zero or negligible.

14) I therefore do not admit any loss by the Claimant and put it to strict proof of the loss it (and not its principal) have suffered.

No contract with the claimant.
15) Any contract must have offer, acceptance and consideration both ways. There is no consideration from ParkingEye to motorist; the gift of parking is the landowner’s, not ParkingEye’s. There is no consideration from motorist to ParkingEye; this is a Free car park, and there is no method or contemplation of payment of any parking charges whilst on site. As such, the essential parts of the contract that the claimant purports to exist are missing ab initio.

Failure to comply with Statute.
16) I note that the claimant is seeking payment of an £85 parking charge. This relates to a claim, by them, that my vehicle was parked in the Eastgate Centre, Bristol, for a period exceeding the free parking time.

17) The basis on which the claim is made is that, regardless of who was driving the vehicle at the time, I was the keeper, and as such the claimant is relying upon the Keeper Liability provisions of the Protection of Freedoms Act 2012.

18) I submit that the Claimant has not complied with the requirements of the Act, and as such is not entitled to rely on the statutory right to Keeper Liability as a matter of law.
19) In order to hold me, as registered keeper, liable for a parking charge the strict requirements of Schedule 4 The Protection of Freedoms Act (2012 (POFA))must be met.

20) Paragraph 9.2 (h) of the Act states that the Notice to Keeper must :“identify the creditor and specify how and to whom payment or notification to the creditor may be made “

21) In this situation the creditor is clearly the Landowner, and not Parking Eye as indicated on the Notice to Keeper sent to me. The Claimant consequently cannot seek to rely on the provisions of the Act.

22) Additionally, the Act clearly envisages, and only legislates for, the recovery of the original parking tariff, not the Claimant’s inflated amount. Given that parking at this site is free, this means that on the day before the Claimant’s penalty notice was issued there was no outstanding sum to issue against, as payment of £85 had not been requested by that stage.
23) Paragraph 9(1) states:“A notice which is to be relied on as a notice to keeper for the purposes of paragraph!6(1)(b)!is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(d) specify the total amount of those parking charges that are unpaid, as at a time which is—
(i) specified in the notice; and
(ii) no later than the end of the day before the day on which the notice is sent by post.”.

24) The Department for Transport guidance on the Act also reinforces this point:

(5.3 ) “ It does not create any new form of liability for parking charges or provide a route to claim parking charges which were not lawfully due in the first place”

and

(16.1) “Charges for breaking a parking contract must be reasonable and a genuine pre estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

25) As the £85 charge demand made by the Claimant was only made on the day of the NtK being issued, and the NtK only states that this £85 is due, the NtK is defective, because the Claimant has not stated the amount actually owing for parking according to the tariff published on the site or given the keeper any opportunity to pay this nominal sum to rectify the alleged breach of parking conditions.
26) The only sum that is actually due to either the Landowner or the Claimant is the actual parking charge. As the parking is free, there can be no charge made, and consequently there can be no case to pursue for repayment.

27) Additionally, as the NtK fails also to specify the time at which the Free parking was not paid for, it also fails in this respect. The Notice fails in every respect to comply with the legislation, and as such Keeper Liability cannot engage.

Inflated court costs

28) Finally, the claim includes a sum of £50, described as ‘Solicitor’s costs’. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred.
As a result of the above, I deny the claim in full and intend to fully defend it, and submit that it ought to be struck out as having no reasonable prospect of success due to the Claimant’s failure to comply with the statutory requirements for Keeper Liability.
I am willing to enter into Alternative Dispute Resolution, or Small Claims Mediation to resolve this matter without using valuable court time and resources. I would suggest that the appropriate form of ADR would be a referral to the Parking on Private Land Appeals body (POPLA), as this is the specialist ADR provider for the Parking Industry.
As a result, I invite the court to direct that the Claimant supply a POPLA Verification Code to me to appeal this matter to POPLA, and that the claim be stayed for 3 months to allow POPLA to rule on the matter, and as court ordered ADR, I agree to be bound by the decision of POPLA. There is a 100% chance of this matter being settled by POPLA, and thus such an order would save expense to both parties and valuable court time.

Gurty

the defence was written up for me, i was struggling to get one done

Gurty

do i need to send N9B with the defence?

gertysingh

Yes - send in an N9B with the defence and on the rest of every page you attach, add at the top:
Claim number: xxxxxx
Claimant: PxxxExx
Defendant: xxx

(I put Claimant-Defendant details on each page in case...)
If you wanted to, you could put in a counter claim for loss of time!!!

Remember as Ampersand has said - get a free certificate of posting.

Good luck and update us

Umkomaas

ampersand wrote: »

Umkomaas - that sort of post's not like you.

Let's just stick to helping op as best we can. He knows he's been silly - not the first, not the last, but fully aware now.

Only just spotted this & - and felt the need for a belated response - whilst generally it might 'not be like me', (but there are other cases where I've made similar inputs) unless his 'pub expert' is put firmly on the spot, then what's to prevent this guy/gal giving similar inconsidered (ignorant) advice to the next 'victim' who is going to require my (and your, and any number of other regulars') time and effort to dig them out of a hole?

He (via us - or me) needs to make sure his 'pub expert' is also 'fully aware now'!

gertysingh

In addition to the certificate of posting, get a receipt for everything that you've made an outlay so that you can claim all your costs back.

FYI: If you want to check your defence see here: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5

Will you counter sue to claim the time you have lost to defending yourself? Give them a taste of their own medicine.

Gurty

Counter claim would be nice, would i need to document anything in the defence or just have receipts ready as evidence?

gertysingh

I have not done a counter claim before, however on reading the Practice Directions (URL given in previous post), you will need to follow on your counterclaim after the defence. You might also need to pay a fee for the counterclaim (probably depends on amount) which is all claimable.

However make sure your defence gets in on time regardless.

Okay so I know I am asking you to strike whilst the iron is hot with a counter claim as I believe that as PE are litigant and if others will pitch in to help you, we can as a group make a legal precedence if PE will play ball with us For those who dislike PE's harassment policies and causing greater damage with their CCJs, here is a chance.

However before going down that route can you look into your crystal ball and see if you will have the time for this as there could be about 5 months of too-ing and fro-ing, ensuring various documents are submitted within time to the court and to the PPC. If you fail to submit your various documents at the right time, then game over and it is you who will have lost the funds.

The second thing is going to be attitude. This is a proactive live lesson that will help you raise your game in life!!! As well as help that we can give you, you will need to read up on lots of different laws and angles. I estimate that about 98% of the people I talked to on different forums said I would lose (a couple of folks here said I had a chance). So I spent a lot of time reading up different law cases, regulations, etc to help me raise my game. At the same time I said it would be okay to lose funds in order to learn the lesson.

So really the questions to you are:
1. Do you have the time and will be on the ball?
2. Do you like chess?

If you decide not to do a counter claim and the judge strikes out the case, you still have an opportunity to stake out a new claim

p.s. Keep all receipts and document the time you have spent on sorting out your claim (even if your friend was giving you free time). If PE go to court then you can provide a schedule of costs incurred.

Gurty

thank you very much for your help and advice, i am dropping it in the post now. If it goes to court i hope for Deputy District Judge Melville-Shreeve.
As i found ParkingEye vs Mrs Natasha Collins-Daniel a very entertaining case to read.

I have to admit i am not completely sure how i would get on going through this for months on end, but i do admire the cause and would love to help in any way i could. But i would definitely need to raise my game. I have found what i have learned already very enlightening, and empowering to some degree, and that is not all that much i have to say.

I am willing to give it a go. Chess is fun :rotfl:

gertysingh

Gurty - there's no going back now that you've taken the red pill. You will see the world in a different light!

So do we let the Knight move towards the Pawn or should the Pawn move towards the Queen?