Help with County Court Claim Form from Parking Eye

kungfumaster70

Hi, any advice would be appreciated to fight a county court claim form. The original PCN was issued 11th Feb 2016, for overstaying at Etrop Court Car Park in Wythenshawe. On 1st March I appealed by sending a letter as the registered keeper, based on the template given by 'coupon-mad' on their newbies page (the first appeal to the PPC). This was rejected by Parking Eye. I then received a letter before county court claim, which I ignored and finally I have now received a county court claim form. I have sent an acknowledgement last Friday (9th Sept), so have 9 days left in which to submit my defence. I am struggling with what to say/how to say it. Any advice much appreciated!

Umkomaas

What happened to your POPLA appeal?

You need to do a search on 'ParkingEye Defence' using the 'Search this Forum' button. Check 'Show Posts' instead of the default 'Show Threads' for most comprehensive results.

How have you calculated you have only 9 days left?

Did you write anything in the 'Defence' box?

Coupon-mad

kungfumaster70 wrote: »

Hi, any advice would be appreciated to fight a county court claim form. The original PCN was issued 11th Feb 2016, for overstaying at Etrop Court Car Park in Wythenshawe. On 1st March I appealed by sending a letter as the registered keeper, based on the template given by 'coupon-mad' on their newbies page (the first appeal to the PPC). This was rejected by Parking Eye.

I then received a letter before county court claim, which I ignored and finally I have now received a county court claim form. I have sent an acknowledgement last Friday (9th Sept), so have 9 days left in which to submit my defence. I am struggling with what to say/how to say it. Any advice much appreciated!

You didn't bother with POPLA then, contrary to the advice here? The first appeal was a stepping stone to POPLA stage!

What happened when you complained to the retailers used when shopping that day, as the NEWBIES thread says to do first?

To find example defences to crib from, search the forum for 'defence claim ParkingEye' or just 'defence statement of truth' to find recent ones written here.

Oh, and send a copy of that claim form front page and the PCN to Theresa May and Sir Oliver Heald by SNAIL MAIL, with a covering letter telling the Government and Courts Minister what you think of a system that allows parking firms to 'play it like a fiddle', tell them how this is affecting you and your family and how this is clearly a penalty that right-minded consumers think that the Supreme Court should never have supported (in the Beavis case).

As per this thread:

https://forums.moneysavingexpert.com/discussion/5524754

and this one:

https://forums.moneysavingexpert.com/discussion/5524075

Get your complaint in to Government Ministers (and your MP too, why not?) once you've worked on your defence and shown us. To know what paperwork to expect and how to complete it during the court process, read the NEWBIES thread under 'Small Claim?' (especially bargepole's post linked there).

DO NOT REPLY TO ANY PRIVATE MESSAGE OFFERING TO 'HELP' IN ANY WAY.

We help on threads but the regulars here will not pm you secretly, so delete any private message if you get one from a poster with less than 1000 posts.

kungfumaster70

Apologies as I misread the original advice and did not submit a POPLA appeal or complain to the retailer, although I appreciate now that I should have done.

Will look into the advice offered and post my defence when I've worded it.

I assume I've got nine days left as it said I would have 14 days from when I acknowledged it?

kungfumaster70

No, I didn't write anything in the defence box.

Coupon-mad

kungfumaster70 wrote: »

Apologies as I misread the original advice and did not submit a POPLA appeal or complain to the retailer, although I appreciate now that I should have done.

Will look into the advice offered and post my defence when I've worded it.

I assume I've got nine days left as it said I would have 14 days from when I acknowledged it?

By doing the AoS you have extended the time to 28 days from service of the court papers. So what date is on those?

kungfumaster70

Oh - The date on the papers is 22 Aug, so I have until Monday (19th).

Coupon-mad

In fact you have till the end of next week because you add 5 days for service.

kungfumaster70

Thanks for the advice, I am working on my multiple lines of defence, including signage, locus standi/contract etc, lack of information on who is the landowner or their contact details, etc. etc and will post as soon as I can. In the meantime, can anyone suggest how to word an ANPR issues/double dipping defence without stating that I was the driver (which I was not, obviously).

Coupon-mad

If there was DEFINITELY a situation of 'double dip' then use both these paragrpahs below as two separate points of defence; one numbered under the other.

If it's something you just want to allege about ANPR being unreliable, use ONLY the second one:



The occupants of the car on that occasion have informed me that the car in fact visited the site twice, therefore no contravention of the time limit occurred. In fact, the POFA 2012 dictates that a parking charge MUST only relate to a 'single period of parking'. This was not a single period of parking and there was no contravention so the charge was not properly given and I cannot be held liable as registered keeper.

ANPR used in private car parks is known to have an inherent flaw that it will default to the 'first arrival' and 'last exit' in a day. Even the British Parking Association - the Trade Body of this Claimant - has publicised an article regarding this issue with this technology and a requirement for operators to make sufficient checks to ensure that PCNs are not issued in error. I contend that ParkingEye has failed to make adequate checks and that the ANPR system is unreliable as evidence of any contravention. The system merely assumes a contravention based upon two images on the roadway and establishes no evidence of 'parking period(s)' which could even be two visits by two different drivers.

kungfumaster70

I have now drafted my defence, as below. Any advice gratefully received.

Statement of Defence

Date Claim number xxxxxx

It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

1. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied 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.

2. The Defendant denies that signage on and around the site was clear and visible and it did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The claimant is a member of the BPA, whose requirements they did not follow. Therefore no contract has been formed with driver to pay the £70 charge. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by a driver entering the car park.

3. ANPR used in private car parks is known to have an inherent flaw that it will default to the 'first arrival' and 'last exit' in a day. Even the British Parking Association - the Trade Body of this Claimant - has publicised an article regarding this issue with this technology and a requirement for operators to make sufficient checks to ensure that PCNs are not issued in error. I contend that ParkingEye has failed to make adequate checks and that the ANPR system is unreliable as evidence of any contravention. The system merely assumes a contravention based upon two images on the roadway and establishes no evidence of 'parking period(s)' which could even be two visits by two different drivers.

4. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to ParkingEye Ltd.

a) ParkingEye Ltd is not the lawful occupier of the land and has provided no evidence as to who is the lawful occupier, including no contact address for complaints to the lawful occupier.

b) No contract with the lawful occupier of the land has been produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

c) ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive.

d) The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.

e) I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner, as per POFA 2012 Schedule 4, section 9.

5. No sum payable to this Claimant was accepted nor even known about by the driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

6. The claimant has yet to respond to points raised by the defendant and sent to the claimant on 01/03/2016.

a) A request for the contact details of the party that contracted with the claimant for the provision of their services.
b) A request for the full legal identity of the landowner.
c) A contemporaneous and unredacted copy of the claimant’s contract with the landowner that demonstrates their authority to both issue parking tickets and to litigate in their own name.
d) A request for the claimant to state if the charge was based on either a breach of contract or a contractually agreed sum.
e) A request for the claimant to provide either a justification for this sum (if breach of contract) or a valid VAT invoice (if contractually agreed sum).
f) A request for a copy of the signs that purportedly were on site on this occasion. I would furthermore request evidence that any such signs were on site on the specified date of 05/02/16 and to provide the date the signs were installed. Also to confirm that the signs meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the IndependentParking Committee’s Schedule 1.

7. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

8. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative’s costs". These cannot be recovered in the Small Claims Court.

9. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

10. The Defendant has the reasonable belief that the Claimant’s intention was not to offer a genuine contract to park and that the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr. Recorder Gibson QC in almost identical words (21 February 2014).

11. The car park serves a number of businesses, including Argos, Asda, B&M, Boots, Costa, Iceland, Select and Wilko. It is my contention that limiting parking to two hours does not serve the needs of the businesses aforementioned. A genuine customer of all businesses would need more than two hours to visit each business to browse and buy products. Therefore the penalty is negatively affecting genuine custom to each business.

12. The Claimant has brought a claim that discloses no cause of action. The Defendant has the reasonable belief that the Claimant is abusing the court process by using the threat of action to alarm the Defendant into making a payment that is not owed.

Therefore I ask the court to respectfully strike out this claim with immediate effect.

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

Signed

[my name]