Parking Eye - Appeal Process

The_Deep

It really depends on how much you want this out of your hair. I would probably go to court and appeal to the judge's common sense, and throw in grace periods, signs, etc., but it is time consuming, and certainly not painting by numbers.


If you are the sort of person who spends £60 million on an engagement ring, pay them and move on.

gill33uk

I would like to go in low and then maybe come up, I have been reading Parking Pranksters book and he said they rarely go below £50. I really want my day in court as it is all so unfair but will no doubt end up paying more LOL

gill33uk

My engagement ring was £86...

gill33uk

Morning, I filed my Acknowledgement of Service, I now have 28 days to get in my initial defence or do I wait until I hear back from PE or the court?
Thank you (Been reading so many examples I am a bit fuzzeled!)

Redx

read post #2 of the newbies sticky thread

you must put your defence in within 33 days , preferably within 28 days

the BARGEPOLE posts explain all this in reasonably simple terms

Umkomaas

gill33uk wrote: »

Morning, I filed my Acknowledgement of Service, I now have 28 days to get in my initial defence or do I wait until I hear back from PE or the court?
Thank you (Been reading so many examples I am a bit fuzzeled!)

Provided you acknowledged service within the first 14 days you have a further 14 days to submit your defence. You do not (necessarily) have 28 days from the date of acknowledgement.

The safest way to calculate your deadline is to take the 'date of issue' shown on your court papers and add 33 days to that - as long as you acknowledged service within the first 14 days.

You won't get any further communication from the court until after you have submitted your defence.

gill33uk

Would someone have a read through my defence statement please?

Coupon-mad

Yes, when you show it to us like all the other newbies do on threads you will have seen!

gill33uk

[FONT=&quot]__[/FONT][FONT=&quot] [FONT=&quot]The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.[/FONT]
[FONT=&quot] [/FONT]
i. [FONT=&quot]No contract entered into as ‘Grace’ periods were in play.[/FONT]
ii. [FONT=&quot]Signage poor.[/FONT]
iii. [FONT=&quot]The Claimant has no standing to bring a case [/FONT]
iv. [FONT=&quot]Additional costs not permitted.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred from stock photographs from the previous year and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided. I would argue that the 10 minutes I was in the car park was in fact the ‘Grace Period’.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]i Grace periods unclear and not properly applied[/FONT]

• [FONT=&quot]The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken.[/FONT]
• [FONT=&quot]The CoP states:[/FONT]
• [FONT=&quot]“13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”[/FONT]
• [FONT=&quot]“13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”[/FONT]
• [FONT=&quot]“13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.”[/FONT]
• [FONT=&quot]“13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.”[/FONT]

[FONT=&quot]ii. Signage poor[/FONT]
[FONT=&quot] [/FONT]

• [FONT=&quot]The Terms and conditions of the signage are so small they are impossible to read from a moving vehicle so you have to enter the car park and leave your car in order to read them and still it is very difficult due to the tiny font size used.[/FONT]
• [FONT=&quot]The Stock Photographs used in the submission are from 24th March 2015 so details may have been amended as the alleged offence took place on the 7th August 2016.[/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot]iii. The Claimant has no standing to bring a case[/FONT]
[FONT=&quot] [/FONT]

• [FONT=&quot]The claim form states that the land is ‘managed by ParkingEye’. They are therefore acting as agents of the landowner.[/FONT]
• [FONT=&quot]The Claimant’s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ‘ParkingEye is authorised by the landowner to operate this private car park for an on its behalf’ and ‘Parking is at the absolute discretion of the Landowner’.[/FONT]
• [FONT=&quot]Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have a clause identical to or similar to, ‘Parking is at the absolute discretion of the Landowner’. There is no consideration from the motorist as parking is free.[/FONT]
• [FONT=&quot]Although each case turns on its own facts, in all cases where ParkingEye’s contract with the landowner has been fully disclosed, the charge for breach of contract is collected by ParkingEye on behalf of the landowner. This is usually disclosed in paragraph 3.11. This further confirms ParkingEye act as agent for the landowner. [/FONT]
• [FONT=&quot]ParkingEye provide the landowner with a web interface where they can check parking charges issued and paid. This is usually disclosed in paragraph 8 of their contract with the landowner. It is further disclosed on their web site. Thus, ParkingEye is acting as an agent of the landowner.[/FONT]

[FONT=&quot] [/FONT]

• [FONT=&quot]If ParkingEye deny acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact (usually clauses 3.11 and 8) with the landowner.[/FONT]
• [FONT=&quot]Fairlie v Fenton establishes the situation regarding agency. [/FONT]
• [FONT=&quot]If the agent is acting on behalf of an undisclosed principal, they can sue and be sued[/FONT]
• [FONT=&quot]If the agent is acting on behalf of a named principal, they cannot sue[/FONT]
• [FONT=&quot]If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.[/FONT]
• [FONT=&quot]This case is clearly (c). The signage states ParkingEye are acting on behalf of the landowner, but does not state who the landowner is. The small print in the signage has a clause similar to ‘ParkingEye do not assume the risk if problems occur; in these cases it is the landowner who would be liable. We are not responsible for the car park surface, other motor vehicles, damage or loss to or from motor vehicles or general site safely.’[/FONT]
• [FONT=&quot]ParkingEye therefore have no standing to bring this case. Only the landowner has the right to do this.[/FONT]
• [FONT=&quot]In ParkingEye v Beavis, clauses 3.11 and 8 were redacted from the contract given to the judges. Therefore any judgment would not have been able to take these clauses into account.[/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot]iv. Additional costs not permitted.[/FONT]
[FONT=&quot] [/FONT]

• [FONT=&quot] The claim includes a sum of £50, described as ‘Legal Representative costs’. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service, generating up to £50,000 of income. [/FONT]
• [FONT=&quot]Given a standard working week, the claimant’s legal representative can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. [/FONT]
• [FONT=&quot]The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the claimant, generating over £1.5 million a year in profit. [/FONT]

[FONT=&quot] [/FONT]

• I also refer to PoFA 4.5 and. 4.6 which prohibits double recovery. Please can ParkingEye provide strict proof of the costs that have been incurred? [FONT=&quot][/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot]The above points will be explained fully in the Witness Statement, and Skeleton Argument, which I shall serve not later than 14 days before the date of any hearing.[/FONT][FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.[/FONT]
_________________________________________________________________________[/FONT]

Coupon-mad

A few suggestions:

Near the start I would explain the facts of the case:


Facts of the case and preliminary matters:

The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided and it is a fact that terms were not seen nor accepted on the day in question. As the claimant has not provided this information (there are no photographs of signs near the car on the day), signage details have been inferred from stock photographs from the previous year and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided.

This Claimant is already aware that my position and the facts are as follows. After pulling into the car park I realised I didn't have my purse, so I texted my husband who confirmed I had left it at home. So, I left the car park immediately to return home, given there would be no point going shopping without money! I stated in my appeal that I had not left the car and explained what happened and it is a fact that I did not accept any parking contract, nor did I exceed a reasonable grace period in those minutes. This claimant has unreasonably refused my appeal, in total disregard of the British Parking Association (BPA)'s Code of Practice.


i Grace periods unclear and not properly applied

I would argue that the alleged 10 minutes I was purported to have taken to have driven in and then out of [STRIKE]in[/STRIKE] the car park was in fact well within a reasonable [STRIKE]the [/STRIKE]‘Grace Period’.

The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken. The CoP states:

“13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”
“13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”
“13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.”
“13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.”

Further, During a BPA Professional Development and Standards Board meeting in July 2015 it was formally agreed that relevant changes to the Code of Practice would be made to ensure compliance with the DfT guidelines regarding grace periods.

“Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”



I would add a point 'v' :


v. No contract was formed, no parking event occurred and the facts of this case can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67

There was no meeting of minds, no contract accepted by performance and no agreement to pay any parking charge, because there was no parking event.

Parking was defined by His Honour Charles Harris QC in an Appeal decision at Oxford County Court in June 2016 in Jopson -v- Homeguard [2016] B9GF0A9E. This Senior Circuit Judge spent some time over the definition of parking, finding against the original County Court decision. The Judge held that stopping temporarily or for any minor vicissitude, as Miss Jopson did in a different car park but for mere minutes (as here) is not parking. No parking contract can apply to such a situation and without contractual agreement, no parking charge is recoverable.

Absent any contractual offer capable of being accepted in mere minutes trying to locate my purse, the only possible Cause of Action would be a tort of trespass to land. However, such an action could only be brought by the landowner, or a party with a proprietary or beneficial interest in the land, which ParkingEye does not possess. In any event, trespass is not pleaded by this Claimant and they will be aware from the Supreme Court decision in Beavis that it was held:

''97. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.''

''By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.'' [...] ''But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupational value of the parking space.’’

The Claimant typically likes to rely upon the Beavis case as a binding precedent on the lower court, wrongly misleading consumers that it has universal application in all parking charge cases. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, the time in the car park exceeded the free hours allowed and it was common ground between the parties that the terms of a contract were known and had been breached, whereas it is my position that no such breach occurred and no parking terms were known nor accepted.