Savills agreeing to cancel but ParkingEye refusing!

hank_scorpio

Appreciate the feedback guys. Its like being back at school again and getting my homework marked


Below is my 2nd draft. Deadline is Tomorrow so hopefully almost there with it now. Feel like its maybe too long now but don't know what to take out.


DEFENCE

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.I dispute the entirety of the claim

2.The Principal to the Claimant (Savills) have contacted the Claimant (Parking Eye Limited) in order to cancel outright the Parking Charge/Claim action. Savills informed me that this is standard practice for previous customers who are genuine customers and a grace period should be applied, as in this case. The Principal to the Claimant do not wish for the Parking Charge/Claim to be pursued, and therefore the Claimant does not have any cause of action or realistic prospect of success. I invite the Court, in the first instance, to strike out the claim on this basis.

3. No justification by Claimant: The Claimant’s signage notices are inadequate,inconspicuous,poorly positioned and are non-compliant with the British Parking Association Approved Operator Scheme, Code of Practice 2012 (BPA COP) principles. 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. The vehicle was not, in any case, parked for the 3 hours and 14 minutes alleged by the Claimant that has failed to follow the BPA COP and allow a grace period to find a space, read any signs and leave at the end of parking. Any overstay would have been in single figures. The Principal has confirmed to the Defendant that the 14 minutes overstay is within the allowed grace period.

4. No Contract With Claimant : The Claimant’s signage notices do not create a contractual relationship between the Claimant and motorists using the car-park. Any contract must have offer, acceptance and consideration both ways. I did not see the signs and there was therefore no offer. There is no consideration from ParkingEye to motorist; the gift of parking is the landowner’s, not ParkingEye’s. The car park is free. Therefore there is no consideration from motorist to ParkingEye

5. Lack of Standing by Claimant: 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 and only they can sue for damages or trespass. The Claimant therefore has no standing to bring claims in its own name. The Principal has confirmed that it is common practice that they request the Claimant to cancel parking notices for genuine customers.

6. No Loss Suffered by Claimant : 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. 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. As I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on my part, any losses are due to the landholder, not the Claimant. I further submit that the loss to the landholder is zero.

7. Even if a contract had existed, it would be void as in breach of the Unfair Terms in Consumer Contracts Regulations as contrary to good faith. The test stated by the European Court of Justice is whether the Claimant, dealing fairly with motorist could reasonably assume that the consumer would agree the contract if individually negotiated. The notion that I would agree to pay the Claimant £100 to stay a few minutes longer to complete my purchases is nonsense.

8.Furthermore, the Claimant is in a further breach of the Unfair Terms in Consumer Contract Regulations. The signs and Parking Notices have concealed a secret term in its contracts by failing to disclose that genuine customers are entitled to stay longer. If I had known that I could have easily cancelled the Parking Notice, I would have done so. By continuing to demand payments from customers that fail to discover this secret term and never return, the Claimant is damaging the Principal's business. I therefore require that the Claimant provides a full unredacted contract for the location so that the allowance for periods of grace and conditions under which parking notices are cancelled can be inspected.

9. 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. My local council charge significantly less than £100 for an overstay in a free car park making the Claimants amount extravagant and unconscionable.

10. 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.

11. The Claimant may rely on the ParkingEye Ltd -v- Barry Beavis case heard at the County Court at Cambridge on 22 April 2014 by HHJ Moloney QC before going to the Appeal Court stage in February 2015.However, ParkingEye have failed to mention that it has been appealed to the Supreme Court in July 2015. The facts of that case, which is proceeding to the Supreme Court ruling, differ significantly and can be distinguished from the present case on a number of factual and legal points. This charge is not commercially justified.


12.The Claimant has not incurred a £50 solicitor charge. The solicitor is a full-time employee and the company can therefore only charge for the actual time spent by a legally qualified person (Ladak v DLC Locums Ltd). According to an FOI request, the company issues more than 80 000 claims every month using a bulk-processing system that would allow the solicitor to spend no more than seven seconds to prepare the claim. The assertion that her services cost £50 is nonsense.

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.

I invite the Court, in the first instance, to strike out the claim as being without merit and with no realistic prospect of success. If one or more points of my defence prove true then it is fatal to the Claimants case.

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 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. This is in accordance with the orders made by District Judge Mayor at Croydon County Court on 13/09/2013 (case no. 3JD00719, ParkingEye v Mr O), and also Deputy District Judge Bridger at Southampton County Court on 21/01/2014 (case no.3JD05448, ParkingEye v Gilmartin).

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 Supreme Court judgement 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.

hank_scorpio

I went to the retail car park in question to take a picture of the parking sign. The parking sign actually says 3 hours free parking and £5 for an additional 1 hour which you have to pay by phone or by downloading an app. This should change things in my favour and separates my case from Beavis.What is the best way to word this in my defence?

bargepole

hank_scorpio wrote: »

I went to the retail car park in question to take a picture of the parking sign. The parking sign actually says 3 hours free parking and £5 for an additional 1 hour which you have to pay by phone or by downloading an app. This should change things in my favour and separates my case from Beavis.What is the best way to word this in my defence?

"The instant case can be distinguished from the Beavis case, because the location in question offers the facility to pay £5 for an additional hour's parking, which was not available in Beavis. In that case, it was held that there was no quantifiable loss to the Claimant, but the penalty was upheld on the grounds of social necessity. Here, such considerations do not apply, because the Claimant's loss can be readily quantified by reference to the hourly charge."

Further advice:

Don't use the online form for this, print out the document and sign it, and post it to Northampton.

Put a header at the top:

In the County Court Claim No: BXXXXXXX

between

ParkingEye Ltd (Claimant)

and

Your Name (Defendant)

... and a footer at the bottom:

I believe the facts stated in this Defence are true.

.............................. ..................
(Defendant) (Date)

Also, number all paragraphs and pages, and set it in Times Roman 12 point, with 1.5 line spacing, that's what Judges are used to.


Also this is rubbish:

"The Claimant has not incurred a £50 solicitor charge. The solicitor is a full-time employee and the company can therefore only charge for the actual time spent by a legally qualified person (Ladak v DLC Locums Ltd). According to an FOI request, the company issues more than 80 000 claims every month using a bulk-processing system that would allow the solicitor to spend no more than seven seconds to prepare the claim. The assertion that her services cost £50 is nonsense."

It's 30,000 claims a year, at an average of 4 minutes per claim.

ManxRed

bargepole wrote: »

Also this is rubbish:

"The Claimant has not incurred a £50 solicitor charge. The solicitor is a full-time employee and the company can therefore only charge for the actual time spent by a legally qualified person (Ladak v DLC Locums Ltd). According to an FOI request, the company issues more than 80 000 claims every month using a bulk-processing system that would allow the solicitor to spend no more than seven seconds to prepare the claim. The assertion that her services cost £50 is nonsense."

It's 30,000 claims a year, at an average of 4 minutes per claim.

There is also a county court case reference which, while not binding, might be considered 'persuasive' on this issue:

Here.

http://parking-prankster.blogspot.co.uk/2015/08/parkingeye-bogus-50-solicitor-costs.html

hank_scorpio

Quick update...

Submitted my defence. PE continued to ignore my letters and emails which related to a handful of simple questions about BPA CoP but they only responded (eventually) to say that my questions would be answered in their defence which would be sent to me at a later date. Received defence and you guessed it, they ignored my questions again.

Their pack is a pile of horsesh*t referencing obscure cases and the part in which they reference their defence points against mine, they have told lies. E.g. PE at one point state they has not received any evidence that I was a genuine customer on the day and despite asking for this in previous correspondence they have yet to receive any to date....BALDERSASH. Firstly, I have never received any correspondence from PE asking for proof that I was a genuine customer and secondly, Savills requested them to cancel on the grounds that they believed I was a genuine customer on the day...even have proof of this from the land agent on email. So the actual principal believes I was a genuine customer but the agent don't...news to me and it sounds absurd. Savills advised me PE were not going to cancel because PE wanted their costs met and this is when I was sent a £60 offer to settle. Subsequently, I replied with a counter offer which they rejected.

The case has now been allocated to my local court and a date has been set for January next year. I emailed and wrote to the court requesting popla before the date was set but the court completely ignored it. I have written to them again requesting popla but still no reply so might have to try and phone them.

Currently in the process of writing to PE rebutting their defence points but there are so many pages! I am also requesting an unredacted copy of the contract amongst other things that I need for my defence. I will copy in the court as well. Its turning into quite a lengthy letter.

I guess I just feel after the beavis result that this could go in PE's favour if it ends up in court. Feel this thing is grinding me down but I refuse to give in. Any help/suggestions would be appreciated.

Half_way

As mentioned above Savils can call off the court action at any time, If they refuse to admit this thenm try and get a letter from them stating that they do not wish this to proceed.

The message saying they (think) they loose the ability to cancel hints that they do not wish this to proceed, if you can get them to state that they do not want/wish this to proceed to court, but their agents parking eye are continuing regardless, that would be incredibly useful

Marktheshark

I would counterclaim the loss against Saviles.
Let their solicitors argue it out in court and cost both PE and saviles a few hundred quid each.

Also it will expose to the judge just what is actually going on .
Principle instructs agent not to pursue legally and agent refuses.

yotmon

Illegitimi non carborundum.

hank_scorpio

I exchanged quite a few emails with the regional facilities manager from Savills and he was a slippery eel. I asked him if he was happy for this to proceed to court and his initial response was something along the lines of "its not a case of what I want" etc. So I pressed him further for an answer and he basically said he would have been happy to cancel this if I had brought this to him earlier before court action had begun as he was satisfied I was a genuine customer but didn't go as far as to say 'no I don't want this to proceed to court but PE are going to do this anyway'. He kept mentioning PE wont cancel without their costs being met after I advised him the principal could cancel at any point and referred to 'we' (guessing he meant Savills) would have to cover the costs if it was cancelled at this stage. Like I said, he was slippery.

If anyone would like a gander at the chain of emails between myself and Savills then PM me and I will send you a copy. Would be good to get a more experienced poster's view on his responses.

How would I counterclaim the loss against Savills? That might just be the ticket to scare them into action....

Umkomaas

Write to the slippery eel to tell him to keep the date of your court case clear in his diary as you will be calling him as a witness. If he rails at that ask for his boss' details as you will need to call him/her in his place. Share the love......