Savills agreeing to cancel but ParkingEye refusing!

hank_scorpio

Hello everyone

I have received the county court claim papers from ParkingEye due to me ignoring the intial letters regarding the fact my car had overstayed the free time limit in a retail car park by 14 minutes. I have done my AOS and my defense deadline is this Thurdsay. I contacted the regional facilities manager (who looks after that retail park) at Savills last week and they agreed to cancel it and they emailed me to confirm they had sent the request to PE to get it cancelled. Result....or so i thought! Received an email from Savills today as shown below::

******

I have contacted Parking Eye and they have informed me that they have contacted you in relation to the matter on several occasions and also that you have been informed that the matter will now be going to court.

As explained on the phone I lose the ability to cancel when it gets to this stage

They have said that they will be in touch with you to make a final offer of a reduced settlement but at this stage I am afraid it is out of my hands due to the correspondence they have sent and the time that has elapsed

Regards

******

I cannot say im surprised with parking eye refusing to cancel but i am a little miffed with Savills saying they do not have the ability to cancel at this stage. Yes PE have put in a claim but they are talking like its gone to court already when that is not the case. I have read other people who were in the same position as myself who got theirs cancelled by the land agent/CEO of the company who employed them, so are Savills not being totally honest here? I am putting my defense together at the moment but not sure how or if i can go back to Savills with anything?

Half_way

Ideally you need to get confirmation from Savils that they do not wish this to go to court, and want it cancelled, if you have that then you have taken all the wind out of Miss Ledson and Co's sails and they are effectively !!!!ing in the wind

Dear Savils robot, Thank you for your recent correspondence regarding your agents Parking Eye, From the contents of the letter/email ( attached) I can only assume that you, as principal do not wish this matter to proceed to court, however your agents Parking eye have stated that they ( Parking eye ) will now proceed to Court.
Can you confirm with a simple Yes that you would not wish this to proceed to court , or a No that you are happy to allow the courts to decide upon this matter
thanks

( additional extra ) please note that as principal you are also jointly liable for your agents actions, and if this case does proceed to court it will be vigorously defended.
Should the Courts rule in my favour I will be claiming my full costs and expenses, (which you as principal are jointly liable for ) as a result of your agents unreasonable actions, please supply me with the full name and address of either yourself or the company secretary so that I may have them joined to the case, thanks

Guys_Dad

Half_way wrote: »

Ideally you need to get confirmation from Savils that they do not wish this to go to court, and want it cancelled, if you have that then you have taken all the wind out of Miss Ledson and Co's sails and they are effectively !!!!ing in the wind

Dear Savils robot, Thank you for your recent correspondence regarding your agents Parking Eye, From the contents of the letter/email ( attached) I can only assume that you, as principal do not wish this matter to proceed to court, however your agents Parking eye have stated that they ( Parking eye ) will now proceed to Court.
Can you confirm with a simple Yes that you would not wish this to proceed to court , or a No that you are happy to allow the courts to decide upon this matter
thanks

( additional extra ) please note that as principal you are also jointly liable for your agents actions, and if this case does proceed to court it will be vigorously defended.
Should the Courts rule in my favour I will be claiming my full costs and expenses, (which you as principal are jointly liable for ) as a result of your agents unreasonable actions, please supply me with the full name and address of either yourself or the company secretary so that I may have them joined to the case, thanks

I have never worked on the principle that attacking or threatening the one person who can help you is a good strategy. By all means ask the question, but do so politely if you want a written statement for court. If you simply want a rant and to upset everyone then follow the advice above.

Herzlos

If you get something in writing you're sorted. It pretty much voids any claim they can make. They can drop it at any point up until court, but they'll claim they can't without you paying the £50 filing fee, so let it go to court and make them pay your expenses.

Half_way

THe logic behind the aditional extra was that in the event of non co-operation then it may be usable, however getting a reply along the lines of "We don't want this to go to court " would be the main key objective

hank_scorpio

Thank you for your thoughts guys. Interesting savills can actually cancel at this stage but are saying otherwise. Damn shame what i have is not good enough it seems. I will email them back tomorrow with something along the lines of what was mentioned above but ideally I want to keep them on side as guys dad mentioned.

Is there a link anywhere which I could include in the email which shows these things have been cancelled at this point before and is it worth me mentioning this has not gone to court yet and is merely claim which will be defended?

Herzlos

I don't believe so, you can just state that "PE are still able to cancel this at any time", but likely told Savilles that they can't.

You can always respond to PE/court that you have written evidence that the land owner does not want this to go to court, and hopefully that'll put them off.

ManxRed

I believe Sadler v Leigh is the case reference to a principal indicating that they would like a claim ceased after proceedings have begun.

hank_scorpio

Email sent off to savills today so waiting for their reply.

My draft defense so far. Any help/feedback on this would be much appreciated:

DEFENCE

1. The Claimants Principal (Savills) have contacted the Claimant on behalf of the Defendant to cancel the invoice.

2. The Defendant was made aware of Parking Terms, by the Claimant’s Parking Charge Notice letter dated xx/xx/2015, 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 Claimants Principal (Savills) have contacted the Claimant on behalf of the Defendant to cancel the invoice.

2. The Claimant’s signage notices are inadequate and are non-compliant with the British Parking Association Approved Operator Scheme, Code of Practice 2012 (BPA COP) principles.

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

4. 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.

5. 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.

6. 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.

7. 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.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.

8. 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.

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.

9. 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.

10. The Claimants failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013.
It is the will of Parliament, following the recent EU Directives on Consumer Contracts, that almost all UK consumer contracts are now unified in terms of what is required by way of information before the contract is concluded. Also contracts must be 'expressly agreed' so a contract based merely on implied consent from a sign, fails the new statutory regulations.

These Regulations apply to all UK consumer contracts from June 2014. This is a service contract offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).

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.

bod1467

Point 9 ... the Beavis case (Wardley dropped out after the initial hearing) has already been heard at the Supreme Court and the judgment is expected before the end of this year, so it's well past Appeal Court stage.

Redx

agreed, that case went to appeal in feb 2015 and then to further appeal in july 2015 with a judgement expected in oct 2015 , so pointless not pointing this out by expanding that point correctly, its ancient history seeing as it went to 2 further courts since then and its the Supreme Court judgment we are all waiting for in 2 or 3 months time (so a possible stay pending that decision)