Court Claim Received PE Birchanger Welcome Break

rory1206

Ok so I'm getting there. I have begun my defence and have a number of points, mostly copied from other posts and adapted.

Trying to work out whether Welcome Break are still able to get the court claim cancelled or is it too late for that? I didn't get any luck with the CEO of welcome break, he fobed me off to someone who said they can't do anything.
Ive spent the last 5 hours trawling and feel like I'm running round in circles with all the tabs I've opened up and threads I've read.

Additionally Im assuming its too late to appeal to POPLA? Since its now going via small claims and the original 'charge' is from February.

What I have so far ( I won't post full paragraphs to save reading)
1)The signage was non-compliant with Motorway Service Station!
Requirements. The defendant did not knowingly park under the restrictions in force.
2) No genuine pre-estimate of loss or breach of contract.
3)Unlawful Penalty Charge.The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract.
4)No standing or authority to pursue charges nor form contracts!
with drivers.
5)It is denied that the Claimant entered into a contract with the!Defendant. Under civil law, any contract must be formed by offer,!consideration both ways and acceptance. The Claimant is a third!party agent of a private parking company (Parking Eye ltd)!who was simply contracted by the landowner to provide car-park!management services.
6) Rosanna Breaks is already employed by Parking Eye and therefore!paid for her time - the Solicitor’s fee of £50 is redundant.

Parking Eye have commented saying ‘We understand genuine!
mistakes are sometimes made and encourage people to appeal if they!feel there are mitigating circumstances.’ It is under these circumstances!that the defendant wishes to appeal given that the defendant did not knowingly overstay. Is this relevant to add?

The defendant requests that the claim be stayed until the claimant!provides the following information, which should have been part of!the initial particulars of the claim and would have been requested had!the claimant obeyed practice directions and sent a letter before!claim.

or/
I request that the court considers an Order for the claim to be stayed pending the allowance of both parties to undertake ADR in the form of a ‘Parking on Private Land appeal’ (POPLA).


I have more in-depth paragraphs on each point, I will check its within the 122 lines or whatever it is for the online submission.

Again TIA!! :beer::beer:

Redx

you can ask the court for ADR by popla, in which case if he directs it so then PE will have to issue a popla code so you can appeal to popla

this would be at the courts discretion , otherwise no you cannot use popla as you wont have a popla code

you should also read bargepole`s initial defence and parking pranksters initial defence in his book (details in that post #5 , including links etc)

rory1206

Ok thats what I thought, just wanted to clear that up. Thanks.

And yes i've read it, but got a little conflicted with reading something else saying ideally you should submit one holding defence rather than doing two. I'll keep it short!

rory1206

Another question, I know many posts say not to declare who was driving but if our main defence is that I didn't see the signage can we still argue that if it goes to court? Im not sure how to argue that I didn't see the signs without admitting I was actually driving, or is talking in third person etc and explaining the signage doesn't meet requirements enough?

Herzlos

This parking violation happened at night, correct?

So you can always go back and take photos of the car park without flash at approximately the same time / light level and use that to show that the signage was insufficient without admitting who was driving. It'd be perfectly valid to say "I went back to the services at night, looking for the signs and had difficulty, here are photos of the signage".

rory1206

Indeed. I intend to do that soon.
I had a conversation with my father and it was difficult to explain to him that part, he doesn't understand why I can't just say It was late and I pulled over to sleep, didn't see the signs and slept longer than intended etc without saying I was driving.

rory1206

Claim Number:
BETWEEN:
ParkingEye Ltd (Claimant)
vs
(Defendant)

I request that the court considers an Order for the claim to be stayed pending the allowance of both parties to undertake ADR in the form of a ‘Parking on Private Land appeal’ (POPLA). I submit that to proceed to a hearing without attempting the ADR of POPLA first would be a waste of the court’s time and should be avoided.
I am the registered keeper of the vehicle related to the parking charge notice. I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered, if a single point is successful, the claim must fail:
1) The signage was non-compliant with Motorway Service Station
Requirements. The defendant did not knowingly park under the restrictions in force.
2) No genuine pre-estimate of loss or breach of contract. The car park is a free car park and as such there can be no loss suffered by either the claimant or the landowner as a result of any alleged overstay. The charge of £100 (plus other fees) is therefore not a genuine pre-estimate of loss. The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements; somewhere they have pay and display, and others, which are free car parks. Given that Parking Eye charge the same lump sum for a 49 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.
3) Unlawful Penalty Charge. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. I would also question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with. The fee being charged contravenes the Unfair Contract Terms Act 1997.
4) No standing or authority to pursue neither charges nor form contracts with drivers. There was neither consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied. In Parking Eye v Somerfield [2012] EWCA Civ 1338, the court ruled that the contract between landowner and operator established that any debt was due to Somerfield, not Parking Eye and that Parking Eye did not have the authority to issue legal proceedings in their own name.
A POPLA decision will almost certainly resolve the case without the need for court, within 90 days of the claimant issuing a POPLA verification code, if the court orders this form of ADR. In the interests of saving the court’s time and resolving the matter fairly, I hereby agree to accept the findings of POPLA, even though in the normal course of events their decisions are not binding on a motorist.
Furthermore the claimant has not provided enough information to enable the defendant to fight this claim. The claimant requires seeing what alleged contract was broken (i.e. the signage), also the Notice to Keeper sent, as it is the claimant’s submission that any contract was unfair and unsupported by consumer law.
The defendant requests that the claim be stayed until the claimant provides the following information, which should have been part of the initial particulars of the claim and would have been requested had the claimant obeyed practice directions and sent a letter before claim;
a) A copy of the alleged contract (signage) at the time of the parking event
b) A copy of the notice to keeper
Without these, the defendant cannot fully defend the claim.
I believe that the facts stated above are true and any opinion expressed in it is honestly held.
I deny that I am liable to the Claimant for the sums claimed, or any amount at all.

Ok so this is what have so far, is there anything else I should add or take away that isn't perhaps relevant?

Marktheshark

Have you searched the land to see who owns it.
If it is not the people they have the contract with the claim is dead in the water in the first 30 seconds.

rory1206

It says on wikipedia that welcome break own it, I haven't been able to find out anywhere else whether thats the case or not. Do you mean the claim is dead in the water or my defence to it is?

The_Slithy_Tove

rory1206 wrote: »

It says on wikipedia that welcome break own it

Unlikely. Welcome Break probably lease it. The owners of MSAs is normally the Highways Agency (in England), who own the motorway to which it's attached.