Help - County claim form recieved, parking eye, event day

kkzs

Hello,

Please can you help me out!

I have received my county claim form via parking eye, and have acknowledged the claim online, and as of today i have a few days left to register my response/appeal, the amount claimed against me is 175 GBP

There is a similar case, however it was at a less advanced stage than mine, but am hoping it can be used as a template.

google search term: Parking Eye parking charge £100 on event day (date is 26 august, 2014, i cannot post the link, its from this forum)



"Case" against me


May2015, Wembley retail park I went shopping and stayed in total 1 hour 59 minutes, when there is a limit of one hour, according to the PCN, however please continue to read.



Further background

Staying 2 hours i thought was perfectly fine as the limit says 2.5 hours, and have used the car park before however it turns out there is probably (see further below) a clause
for "event days", doing a web search turns out there was an event, however i can assure you it was not on the scale of an FA cup final, i had no inkling of an event.

Happy to post details of said event, as long as it wont prejudice my case by being too specific (i.e. give date away of "offence", these forums might be monitored?), it is on the wembley stadium event day calendar, so i presume that qualifies it as an "event".

Now the signage on the car park does i believe currently make a reference to event day limit, however thats as of now.

At the time (may 2015) i had no inkling there was an event, and the signage at the time (may 2015) i dont think made reference to an event, this however i cannot prove now, but it certainly wasn't made obvious to me on the day.

The PCN makes no reference to an event day, it does say i overstayed the limit of one hour (which i presume is the event day limit, usual limit is 2.5 hours) so they are probably trying to catch me out a bit it seems.
My correspondence so far


I have made no correspondence with Parking eye regarding this PCN, i still do have at least some of the letters (cant be sure if all), however i was under the impression it was okay to ignore, i guess not so unfortunately i am where i am now, which is with a claim form!
So far i have recieved

-PCN
-A few follow up letters chasing that i owe them, that i have made no appeal/contact, and that i have not confirmed whether i am the owner/registered driver etc...



Questions

Please please do I have a chance of getting off? I have seen the case on this forum which is pretty much identical, however didn't get to the stage i am at, can i just more or less use the same defense at the stage i am at?
google search term: Parking Eye parking charge £100 on event day (date is 26 augyst, 2014, i cannot post the link, its from this forum)
Can i still contact the landowners and try to have them cancel it? i think so bust just wanted to confirm.

I have been studying recently and just had to prioritise my time, i have found this site > privateparkingappeals.co.uk/, who will charge 19GBP to provide a defence, can anyone recommend them, i dont mind paying the fee in the case that i cannot copy the above referenced thread, i really really need to value my time right now, however would be good to know if they are worthwhile?

Thanks in advance!

System

First stage is to Acknowledge the claim as this gives you a further 14 days for a defence

With regards to a defence, read some of the other threads on here - there are plenty about how to put the defence together.

Contact Wembley retail park in the next few days and explain you have a claim from their parking contractor as they failed to explain "Event day". Advise them you were a genuine customer on the day and can supply bank statements / receipts to show the same. Ask them to get ParkingEye to send a Notice of Discontinuance. The Retail park can cancel or at least get you the £60 ParkingEye "deal"

Umkomaas

Via the newbies FAQ sticky, post #1, read the link 'Small Claim?' authored by Bargepole, who has been regularly involved in defending private parking charge claims in court.

You might also find some help on the BMPA website.

http://www.bmpa.eu/#!company-check/cy0s

The_Slithy_Tove

If you think about the Beavis case, and I am sure PE will try using Beavis, it relied on clear and unambiguous signage. This would not only relate to the amount of the charge (£85 or whatever clearly stated), but it would have to be absolutely clear what an "Event Day" is. It's not up to you to guess, it's up to them to, for example, have accompanying signs, also prominent, giving the dates of Event Days.

kkzs

Thanks for your responses, i have acknowledged and i have said i will defend the claim.

I now need to write a defence.

Please see below, its taken from the thread i mentioned before, is this more or less ok to submit as my defence?
i will tidy it up and review it more thoroughly before submitting, but please can i i have some opinions?

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I contest the charge and request it is dismissed on the following grounds:
1. No genuine pre-estimate of loss
2. Lack of standing/authority from landowner to issue tickets or pursue charges in their own name at court
3. Signage non-compliant with the BPA Code of Practice and no contract formed with driver
4. Unfair terms


1) NO GENUINE PRE-ESTIMATE OF LOSS
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator. ParkingEye must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so ParkingEye have no cause of action to pursue this charge. I specified in my original appeal that I would like to see a breakdown of the costs incurred by ParkingEye as a result of the alleged breach. ParkingEye have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”. I put it to ParkingEye to prove that a loss has occurred at the time that this charge was levied and ParkingEye submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach, such that the charge is a genuine pre-estimate of loss.

If ParkingEye claim that the charge is 'commercially justified' and cite 'ParkingEye v Beavis & Wardley', I put forth that such a claim is irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

My case is the same and Parking Eye’s contract with Wembley retail park, Waltham Abbey are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, ParkingEye are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

2) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGES IN THEIR OWN NAME AT COURT
ParkingEye have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is wset out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that ParkingEye do not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect ParkingEye are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable ParkingEye to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” or site agreements instead of the relevant contract, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent.. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.

3) SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO CONTRACT FORMED WITH DRIVER
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :

3.1) I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Furthermore, because ParkingEye are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) ParkingEye have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The signs on entry are up on poles with the spy cameras attached and these cannot be read by a driver in their vehicle entering the car park. Stopping the vehicle before entering the car park to get out and read these is not unfeasible as this would cause an obstruction on a public highway and block the entrance to the car park.

3.2)Event day parking. There was no sign in the retail parking area showing it was an event day when this parking event took place. There was no definition of ‘Event day'‘ provided within the retail parking area, and therefore a customer using the parking would not be able to determine whether any event day clause could possible apply. The PCN states that my parking duration was 1 hour 59 minutes, therefore this would be within the time limit for a non-event day in any case.

3.3) A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
ParkingEye needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.


4) UNFAIR TERMS
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.”
5(1) ''A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.

Redx

that looks more like an old popla appeal (pre-Beavis) and NOT a skeleton holding defence for an MCOL

check recent 2016 holding defences (initial defences) for your MCOL initial defence, which you must submit within say 28 days of the claim going "live"

do not look at anything from 2014 , only post-Beavis SO FROM NOV 2015 ONWARDS and preferably 2016 only !!

and not popla appeals , but court defences

kkzs

Thanks a lot, and apologies, I am trying to cram in revision as well as getting a crash course on appealing these "tickets ", so sorry for not knowing

I'll have a look and try to find a suitable skeleton defence, if anyone knows of a good one please do let me know!

System

I'll have a look and try to find a suitable skeleton defence, if anyone knows of a good one please do let me know!

Try Wembley Retail Park today and see if they can get it cancelled. Will save you searching for the above.

kkzs

Went to wembley retail park - NO LUCK!

The retail park has now been demolished basically, it was only ever a halfords and a few furniture outlets however its all been closed down.
There was one other furniture shop left and i went in, spoke to a lady at the desk who simply was unwilling to even entertain the idea of helping me because i had no receipt, which was a somewhat unhelpful approach or attitude.

i now have little or no prospect of having this ticket cancelled as theres no shops left in the retail park, only a few days left to respond (as well as study for my other exams)!!

Coupon-mad

Right, so search the forum for 'defence'.

Read some from March, we had loads then. Not saying you can copy them exactly but you can adapt one.

kkzs

Please advise further

Remove underscores,then paste into browser.
Sign at entrance

___i.imgur.com/Q42XA7A.jpg

Sign in car park

___i.imgur.com/kk0Pvp1.jpg