Parkingeye taking me to court

Amberbond

Hi All

I don't know if anyone can help or offer some advice.

Parking eye manage a car park at a hotel and pub. I went there for a meal on 8/10/15 with my 6 week old son. I did not see the signs and was unaware I was parking in a private car park until I received an invoice for £100. When I returned to the site I saw that you could park 4hrs free and after this pay £4 for up to 6hrs. I overstayed by 26 minutes without realising as did my friend who met me there. We both arrived separately and did not know we were in a private car park!

We both got an invoice, we both appealed, Parking eye want to pursue it and take me to court, I have entered a short defence. They have sent me their response to my defence (60 pages!) and wish to proceed. My friends appeal was not upheld however she has not been taken to court so far.

My defence was that the £100 was an unfair amount for overstaying 26 minutes, around £3.85 per minute. My other defence is that I didn't feel there was adequate signage as we both did not recognise we were in a private car park. I have paid previous parking tickets when I have knowingly parked without a ticket.

In their response to my defence, they have sent a birds eye view of the car park highlighting the many signs however looking at where I parked and walked to the pub there were no signs in my eye line. They have also added in their defence I cannot add anything else to my defence unless I pay to have it added i.e. I could take photos of where I parked and my walk to the pub.

Any advise on how to proceed? I am defending myself as I cannot afford to involve solicitors

The_Deep

Have you contacted the hotel or written bad stuff about the hotel on Trtp Advisor, Facebook, Twitter, etc.

Amberbond

I am going to write to the hotel, would you suggest I wait for a reply before I message them through social media?

Many thanks for your reply

Redx

unfortunately you have a very poor defence there , a holding defence should have been much more detailed with more defence points that you can argue later

you cannot add further defence points AFAIK so a lot of what you should have used is missing and may not be able to be used at a later date

BEAVIS lost his Supreme Court case last november on a free car park where he overstayed so I dont think your not a gpeol defence point would work there

he also lost on signage because the judges ruled there were sufficient signs and all Beavis needed was a watch !

you appear to have missed all the other points , like no locus standii , no contract , grace periods etc

this should have been appealed at the time and then taken to popla, PLUS it should have had a landowner complaint and been cancelled due to patronage, you have not appeared to have done any of that other than an initial appeal

perhaps somebody "in the know" could look at your initial holding defence and seek to rescue it but I think you are hamstrung at the moment

post #1 of the NEWBIES sticky thread, court section may help you

parking pranksters court guide booklet will definitely help you

DCodd

Redx wrote: »

unfortunately you have a very poor defence there , a holding defence should have been much more detailed with more defence points that you can argue later

you cannot add further defence points AFAIK so a lot of what you should have used is missing and may not be able to be used at a later date

BEAVIS lost his Supreme Court case last november on a free car park where he overstayed so I dont think your not a gpeol defence point would work there

Just a quick question. If Parkingeye are relying on Beavis to counter the OP's GPEOL defence, would the OP not then be able to hold Parkingeye to prove that they met with the provisos of that ruling i.e. Contract with the Landowner, Commercial Justification etc etc?

salmosalaris

DCodd wrote: »

Just a quick question. If Parkingeye are relying on Beavis to counter the OP's GPEOL defence, would the OP not then be able to hold Parkingeye to prove that they met with the provisos of that ruling i.e. Contract with the Landowner, Commercial Justification etc etc?

Not if it was not brought up in the original defence however all is far from lost from what you submitted as this case differs from Beavis on many levels .
1. The charge was justified in Beavis because it was necessary to free up space for genuine customers of the businesses. There was a requirement for anyone to leave after 3 hours and the "penalty"charge for overstaying was deemed the only way to achieve this . This is not the case here, you were a genuine patron and had you paid the £4 of which you were unaware you would have been welcome to stay . The penalty charge in your case is simply punishing non payment , it serves no other purpose . It is a penalty.
2. In Beavis it was decided that the signage was clear and ample . You need to provide evidence ( photos or perhaps a video) of how you parked without seeing signs .
3. In this case (unlike Beavis )this is an unfair term because the sum demanded is disproportionately large and is simply as a result of failure to pay a small amount .


50:50 at best a judge may agree with you
Enclose a copy of the Cargius judgment in your court bundle . It's only a county court hearing but does explain the position well and the difference to Beavis .

Redx

so as I said earlier, it worries me that a lot of omissions seem to have been made

no mention of a popla appeal

no mention of no contract (no locus standii)

no mention of grace periods

no mention of the fact that the landowner should have brought it to the attention of the patrons that parking rules were in force

no mention of an initial landowner complaint once the pcn was received

no mention of any NTK failures or POFA2012 failures

no mention of asking for the judge to direct it to popla for ADR

there are probably a lot of other omissions too, I am merely pointing out the obvious ones

its good that salmosalaris has identified some points that can be expanded upon, and why , but the OP has done themselves no favours so far

PE will try to persuade the judge that the Beavis judgment applies so its a slam dunk, one reason for the 60 pages , so this OP needs to bone up on the counter arguments that will be allowed

catfunt

Amberbond wrote: »

I am going to write to the hotel, would you suggest I wait for a reply before I message them through social media?

Many thanks for your reply

I would do both, in parallel.

Coupon-mad

No-one should use a solicitor to defend this sort of claim anyway unless they are made of money or covered by a house insurance policy offering free legal cover/representation. You can't reclaim such costs so you are in the same boat as all the thousands of others who have received a court claim.

Good on you for trying to defend it and not just folding/settling like the majority would.

Do go for the Hotel/restaurant Manager/regional or national management and mention you are incensed as a Mum of a small baby to be sued for a few minutes in a badly-signed car park. Say you are minded to add a very strong TripAdvisor warning online to tell people to stay away, and you are thinking of going to the papers, unless the Hotel steps in and cancels it - and your friend's one too as she is 'petrified' of getting the same court papers any day. Include the PCN number in your complaint and do it SOON. This week.

In their response to my defence, they have sent a birds eye view of the car park highlighting the many signs however looking at where I parked and walked to the pub there were no signs in my eye line. They have also added in their defence I cannot add anything else to my defence unless I pay to have it added i.e. I could take photos of where I parked and my walk to the pub.

You can't add anything NEW, except to expand on what you already said at first. It's a shame you didn't have more defence points but I think you will have to concentrate on proving your second defence point, that you believe there was inadequate signage as neither you nor your friend recognised for a minute that you were in a private car park.


Witness statements

Your friend can sign a witness statement to that effect (make sure it has all details on it - date, time, the car reg, your name and what her view was in not seeing any prominent signs at all on site and that she's not an unobservant sort of person). You also supply your own witness statement at that stage, with your defence. You can submit witness statements (from you and your friend) along with your full defence once you get the court directions giving you the hearing date and the date by which you must send your full defence to all parties and your local court.



Unclear signs to show it was private land with a tariff suddenly payable after 4 hours on site

Ready for your full defence, as well as photos, how about taking a short video (on your phone, held by a passenger) or dashcam footage of how the car park looks from the front seats of a car as you drive in and park. Then a sweeping shot showing a lack of signs 'prominently' drawing the terms to your clear attention in a very transparent way?

The important thing is not your walk from the car to the pub, necessarily. It's what is seen at the entrance and before the act of parking that counts because the contract must be clear before parking. But then you can show more to the Judge to hammer home your point, by continuing your video to show the walk from the car and the fact there are also no warnings in the pub/restaurant so neither of you were fairly warned of the 4 hour free parking limit nor about the risk of paying a huge 'fine'.

Also when going back to take a video, take the aerial view, printed out. Check EVERY sign that is shown on it is actually there and if it's not, take photos to prove it (e.g. if the aerial view suggests a sign is in clear view of a run of bays but in fact it's set back in heavy tree foliage). Or if it suggests there is a full sign at the entrance but it's only a small one with a P suggesting free parking...and no terms/charge on it.

Also get proof if there are no signs at the entrance telling a driver how ANPR data is being used to enforce parking charges and that the car is timed from the entrance (not from the moment of parking). Signs with JUST an unexplained logo of a camera are misleading because most people just think it's CCTV for your security, yet the BPA Code of Practice and the ICO regulations for data use and storage by data controllers, requires that consumers are informed how their data will be used and what for/what purpose.

Have the sections from the CoP about ANPR signs entrance/other signage printed out within your full defence.

Also show whether the P&D machine(s) are hidden in an unremarkable corner and if there are no 'have you paid the tariff if your stay is more than 4 hours' warnings, as you walk towards the pub or on exiting the site by car...were there no clear signs as a reminder to pay before you leave? You can't have seen a P&D machine, so show the Judge why, because it's in a far corner and you had to go searching for it when preparing your evidence for your defence.

You can build on that defence point and in fact argue that where signs are not seen, the Beavis case simply does not apply; it was vital in that case that the Judges felt the signs 'could not have been clearer' and that Mr Beavis had been given 'every opportunity' to discover the terms which were prominently displayed at the entrance and throughout the car park, with the charge in very large lettering.

You need to show the opposite was true here.

It's not the White Horse at Rottingdean is it? A notorious cash cow for ParkingEye and I know they sue people re that site. I'm local enough but would NEVER go there because of the nasty PE infestation. I stay away. If it's there, you could use some of the bad TripAdvisor reviews as part of your more detailed evidence that the public are caught here far too often for the signage to be considered clear:

https://www.tripadvisor.co.uk/Restaurant_Review-g1096438-d4554079-Reviews-The_white_horse_hotel-Rottingdean_East_Sussex_England.html#review_356382236

If it's not there, try looking up your Hotel/restaurant with the words 'parking fine' on Google and you might find a wealth of other helpful (to your case) bad reviews from people stung over the months, yet ParkingEye have done nothing to improve the signs to mitigate loss for consumers caught there.

IMHO, a pile of TripAdvisor reviews printed out in your detailed evidence would assist you & can come within your 'signs' defence point.

You really need to do everything you can to build a wealth of evidence to support your defence that the signs are not clear, not prominent and easily missed. As you did miss the signs and it is not clear it is private land (and restricted/chargeable after 4 hours stay starting with the very moment you drive in) there can have been no contract. You can argue this, citing the authority as Vine v Waltham Forest CA [2000] (which PE themselves might use to argue you were 'bound' to have seen signs) where the finding was that the defendant DID NOT see the signs so was not in any contract.

You need to convince the Judge that you did not see the signs and were not 'bound to have seen them' either.

Coupon-mad

You also said the charge was 'unfair' for 26 minutes.

Although it's a fine line you cannot cross because you cannot add in new defence points, you can expand in your full defence, the reasons why you consider the charge unfair in law. Were you breastfeeding and delayed for that reason (NOT bottlefeeding)? Breastfeeding mothers are protected by the Equality Act 2010 and you could work that into your argument about 'unfairness' of a term which is indirect discrimination against those protected members of the female public 'at large'...especially if you mentioned it when you appealed?

If you can't use this point above, don't.

Either way, you must also expand on that idea of 'unfairness' which under the Consumer Rights Act 2015, must be considered in any court case where the facts turn on an alleged consumer 'contract'. CRA 2015 says this about 'unfair terms' which are not enforceable in law:

6 ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

10 ''A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.''

That's from Schedule 2 of the CRA 2015 here, so have this printed out in your evidence as well:

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

You need to anticipate that the PE Solicitor will say that the charge was found 'not unfair' in the Beavis case. You need to be ready to say 'that's as maybe, but THIS charge was unfair in this car park under these circumstances and with these particularly unclear signs'.

Your defence point on unfairness needs to cite the Beavis case where it helps you. Your position is reinforced in the earlier findings in the Beavis case from the Court of Appeal stage, where the judgment states:

"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

47. ...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker...should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”


So (you can say, in your fuller defence submitted prior to the hearing) the Court of Appeal Judges in PE v Beavis would have found a disproportinate charge in a car park with a small unpaid tariff, as unfair (a penalty).

Then you can say, this from the final Supreme Court judgment supports that view:

32. ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.

In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''



Lord Dunedin’s 4 tests summarised:

a. A sum is a penalty if “extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach”.

b. If the breach consists only in not paying a sum of money, a sum stipulated as payable on the breach greater than any that ought to have been paid will be a penalty.

c. There is a presumption (but no more) that it is penalty when “a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

d. On the other hand, it is “no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimated damage was the true bargain between the parties.


Your defence is trying to counter any argument that the £85 charge in the Beavis case was not 'unfair' by pointing out that the contract in that free car park was a uniquely 'complex' case (the Judges described it that way). As there was no money owing by way of a tariff in Beavis, the £85 in that car park alone - turning on those facts and interests alone - was saved from falling foul of Lord Dunedin's tests. But in this case, there was allegedly a small tariff due (unbeknown to many drivers), which means it falls squarely within the Supreme Court's description of a 'straightforward damages' situation. It therefore falls foul of Lord Dunedin's tests and the CRA 2015 (consumer legislation which was not in force when the Supreme Court hearing took place in PE v Beavis) and therefore the 'penalty rule' applies and THIS charge in THIS car park is unfair and unenforceable.

However, your main point should be really good solid and compelling evidence that the signs are not as prominent as PE will say they are. I believe if you win this, it will be on signage - I'd say you are less likely to win on unfairness.

Worst case scenario, you lose and the Judge tells you to pay about £190/£200 tops. No CCJ, no black mark on credit, as long as you then paid.

Ralph-y

Amberbond .... you are now getting advice that you IMHO will not get any where .... even by paying:eek:

please take on board what has been said ...

good luck

Ralph:cool: