Parking Eye Leisure World Southampton

Coupon-mad

Dealer wrote: »

OK, I was just going from Coupon Mad's suggestion above to email in the receipts without prejudice as it may stop it from going to court as I have proof of patronage.
I know roughly what I will include in my defence, the concern is posting it on here, someone from Parking Eye will read it.

It won't matter, they've seen these defences before.

I think you should enter into some serious email discussion with PE but over the weekend/Monday. They will often settle but make sure you deal with the court papers first. First of all, get a defence in. That's your priority due to the urgent timeline.

Dealer

Ok here's what I have so far - it has to be in by 4pm today, I'd appreciate any help with any bits I can edit out completely or alter, I am right up to the maximum number of lines allowed to be used. Cheers!


I am **** ****, defendant in this matter and deny liability
for the entirety of the claim.

I believe that the facts stated in this defence are true.

1. The registered keeper was a customer of **** based
at the Leisure World site during the time of the disputed breach
(a)Paypal and **** ticket receipts showing proof of
patronage have been emailed to ParkingEye.
(b)The majority of the time stated on the PCN (beween 2321 and
0400) is outside of when tariffs purportedly apply and so is
irrelevant in this case.
(c)The alleged breach would have occurred between 0400 and
0427 when ParkingEye claim tariffs apply. However,
their own terms and conditions, subsequently researched,
permit 4 hours free parking for customers of Leisure World between
0400 and 1800 but that customers must enter their car registration
on a terminal somewhere inside.

Even if this term had been seen, which it had not, it would still
have been impossible to enter the car registration details
onto a terminal within the Leisure World complex as it was closed
at 4:00am. This is therefore clearly an unfair contract term
under UTCCR 1999.

2.Moreover, this case can be distinguished from ParkingEye v
Beavis [2015]which was dependent upon an un-denied contract,
formed by unusually prominent signage forming a clear offer and
which turned on unique facts regarding the location and the
interests of the landowner. Strict compliance with the BPA Code of
Practice (CoP)was paramount and Mr Beavis was the driver who saw
the signs and entered into a contract to pay £85 after exceeding a
licence to park free. None of this applies in this material case.

3. Inadequate signs incapable of binding the driver - this
distinguishes this case from the Beavis case:

(a)Sporadic and illegible site/entrance signage - breach of the
POFA 2012 Schedule 4 and the BPA Code of Practice and no contract
formed to pay any clearly stated sum.
(b)It is believed the Parking Payment signage was not transparent
or legible at the times recorded - this is an unfair contract, not
agreed by the driver as it was pitch dark on arrival at 23:21 and
so terms and small print were unreadable and contrary to the
Unfair Terms in Consumer Contracts Regulations 1999.
(c)No promise was made by the driver that could constitute
consideration because there was no offer known nor accepted. No
consideration flowed from the Claimant.
(d)With the elements of a contract absent, there can be no
breach.

4. POFA 2012 breach and the Defendant was not the driver - this
distinguishes this case from the Beavis case:

No keeper liability can apply, due to this Claimant's PCN not
complying with Schedule 4. The driver has not been evidenced and a
registered keeper cannot otherwise be held liable. In cases where
a keeper is deemed liable, where compliant documentation was
served, the sum pursued cannot exceed the original parking charge,
only if adequately drawn to the attention of drivers on any
signage.

5. BPA CoP breaches - this distinguishes this case from the Beavis

(a) The signs were not compliant in terms of the font size,
lighting or positioning.
(b) There is/was no compliant landowner contract.
(c) The charge is not based upon a genuine pre-estimate of loss (a
condition at the time).

6. No standing - this distinguishes this case from Beavis:
ParkingEye have shown no evidence of holding a legitimate
contract at this car park. As an agent, the Claimant has no legal
right to bring such a claim in their name which should be in the
name of the landowner.

7. The charge is an unenforceable penalty, neither based upon a
genuine pre-estimate of loss nor any commercial justification.
The Beavis case involved a retail parking area in the middle of
the day. The landowners therefore had a legitimate
interest in charging motorists who overstayed the allowed free
time as this may have prevented other motorists from using the car
park to purchase goods or services.

I submit that in this case there was no such interest since it was
a non-retail area at 4:00am-4:27am when the landowners were not
using it themselves, had no interest in visitors or customers
using it and were not in any way disadvantaged by my vehicle being
there. This means that the £100 charge was a penalty and
should be considered unfair. I estimate that there were no more
than a dozen cars in the 800 space car park at the time of the
alleged breach and so no commercial loss would have been possible.

8. Whilst ParkingEye might argue that they had an interest in
enforcing a penalty charge in furtherance of their business, I
submit that this interest should not be interpreted to mean that
parking enforcement companies can, with the agreement of
landowners, put up notices anywhere that is not public land in
order to earn a profit. This would amount to a law to provide such
companies with profit through unfair penalties even when there was
no legitimate interest of the landowner to control parking.

9. ANPR Accuracy and breach of the BPA Code of Practice 21.3
This Operator is obliged to ensure their ANPR equipment is
maintained as described in paragraph 21.3 of the British Parking
Association's Approved Operator Scheme Code of Practice.
ParkingEye have failed to clearly inform drivers about the cameras
and what the data will be used for and that they work correctly.

10. Southampton Leisure World car park has no keeper liability -
this is not relevant land.
a)The Operator has issued a defective Notice citing an Act which
does not apply at this particular site, to attempt to claim an
unenforceable charge from the keeper. No keeper liability
is likely to apply at all, due to the Associated British Ports'
Southampton Harbour Byelaws 2003.
b) By virtue of paragraph 3(1)(c) of Schedule 4 of POFA, the
Operator has no right to recover under POFA.

The Particulars of Claim disclose no clear cause of action. The
court is invited to strike out the claim of its own volition as
having no merit and no reasonable prospects of success.

Regards

Fruitcake

I think UTCCR 1999 has been replaced by the Consumer Regulations Act.

I don't know about the rest as I have no court experience, but it looks like you have covered the important stuff.

The more expert amongst the MSE community will hopefully comment soonly.

The_Deep

If this car park has no keeper liability, then surely PE must know this.

If therefore they try this on in court, are they not wasting the court's time? Is this not an abuse of process?

If so, why does the court not sanction them?

Coupon-mad

This is therefore clearly an unfair contract term
under UTCCR 1999.

Change to CRA 2015.

Looks OK on a skim read! See what others say.

Edna_Basher

Hi Dealer.

For information:

• The relevant new legislation is the Consumer Rights Act 2015.
• Regarding your Point 10; Leisureworld is situated just outside of the Port of Southampton’s boundary and is relevant land. According to ParkingEye’s POPLA evidence packs, the landholder is Rank Group Gaming Division Ltd.

You could still ask the principal, Rank Group Gaming Division Ltd to intervene by instructing its agent, ParkingEye to withdraw this claim. Why not write a letter of complaint to Henry Birch, CEO, Rank Group Plc, Statesman House, Stafferton Way, Maidenhead, SL6 1AY?

Dealer

Thanks all. So does the Consumer Rights Act 2015 supersede the UTCCR 1999 or is it an additional act that reinforces the points of the previous one? Basically should I delete all the UTCCR references or add the CRA 2015 to the previous points?

Regarding the "relevant land" point, I was going by a previous poster who included it in their Popla appeal text and quoted this decision:

It is my understanding that ParkingEye are aware of this issue following POPLA Reference 6060755093.

The full text of this determination is set out below.

Reasons for the Assessor’s Determination

It is the Operator’s case that their Terms and Conditions of parking (“the Terms”) are clearly displayed throughout the above named site. They submit the Appellant breached the Terms by failing to purchase the appropriate parking time and therefore is liable to pay the parking charge.

The Appellant has made several very strong submissions however it is only necessary to consider determine one area of dispute for the purposes of this appeal. This is the submission that the Operator has no authority from the Landowner to issue parking charges on the land.

The Operator has not provided a copy of a contract between themselves and the Landowner which authorises them to operate at the site and to issue parking charges on the Landowner’s behalf; nor have they provided a signed witness statement confirming the existence of such a contract. Therefore, I cannot find the parking charge to be enforceable by the Operator in this case.

I think it is important to add that I also accept the Appellant’s submission that the land is not ‘relevant land’ for the purposes of the Protection of Freedoms Act 2012 (“POFA”) because this was their main submission. I find that the land is subject to statutory control for the reasons given by the Appellant and therefore, by virtue of paragraph 3(1)(c) of Schedule 4 of POFA, the Operator has no right to recover under POFA.

Accordingly, I allow the appeal.

Ricky Powell
Assessor

Edna_Basher

POPLA Reference 6060755093 was one of our wins against ParkingEye.

However, that case related to Southampton Town Quay. Leisure World is on a different site further along West Quay Road.

Dealer

Ok thanks. The map is not very clear as to where the harbour/port boundary actually lies. It certainly runs right past the Leisure World site and I thought it might introduce a further level of doubt by mentioning it.

Edna_Basher

Although there's no harm leaving the point about byelaws in your defence, you'll just need to bear in mind that it may not bear up to scrutiny when / if challenged.

I agree with you that the actual map contained in the byelaws is not particularly clear. However, there is a more detailed ABP map available at:

http://www.southamptonvts.co.uk/admin/content/files/PDF_Downloads/Up%20to%20date%20port%20plan.pdf

This gives a much clearer picture of where the Port's actual boundary lies.