Pending court action - Indigo Scotland

Shamish

Background,

This is what i have received from Indigo within a "Simple procedure claim form" relating to parking charges received at Ninewells hospital in Dundee. It must be noted that I was not the driver but i am the registered keeper of the vehicle.


1. The claimant provides private land parking enforcement services on behalf of NHS Tayside in respect of premises at the ninewells hospital site, Dundee ("the site")

2. Signage at the entrance to, within, the site communicates terms and conditions applicable to drivers of vehicles entering the site. In particular, drivers are advised that non permit holders require to pay a fee on arrival and to display a valid ticket on their windshield throughout their visit. Permit holders may only park in the designated larking zones for which they are authorised. Non permit holders must comply with payment and parking instructions aredvertised within the parking zones.

3. The respondent is the registered owner of a motor vehicle with registration number xxx ("the vehicle"). The vehicle was.parked within the site, in breach of the terms of the respondents contract with the claimant on the date (s) and in the manner (s) set out below.

List of 8 tickets including dates and times. Nature of breach is "failing to display a valid permit".

4. The claimant wrote to the respondent on and referred to above breach (es) of contact. In terms of that letter, the claimant asked the respondent to notify the claimant within 7 days of that letter if the respondent was not the driver of the vehicle on the relevant occasion (s). The pursuer indicated that if it did not hear from the respondent within those 7 days then the claimant would assume that the respondent was the driver of the vehicle. No response to that letter was received. In the circumstances, it is believed and averred that the respondent was the driver on the occasion (s) above.

5. The respondent is liable to compensate the claimant for the losses suffered by the claimant by reason of the respondents foregoing breaches of contact. The losses suffered by the claimant includd parking fees which ought to have been paid by the claimant on each of the occasions hereinbefore condescended upon and management time incurred in issuing parking charge notices to the respondent (and thereafter pursuing the respondent in respect of payment of those charges). The claimant reasonably estimates that the loss suffered by it in respect of each breach of contact by the respondent is £136. £1,088.00 is a reasonable estimate of the total losses suffered by the claimant and is the sum sued form.

6. The claimant has made repeated application to the respondent for payment of the sum outstanding but the respondent refuses or delays to make payment accordingly, this action is necessary.

Here is some pictures taken from the car park

Here is google streetmaps of the entrance sign

https://www.google.co.uk/maps/@56.4658003,-...3312!8i6656

And another for the permit area

https://www.google.co.uk/maps/@56.4650648,-...3312!8i6656

and rough area of where the car has been getting parked i am informed

https://www.google.co.uk/maps/@56.4647743,-...3312!8i6656

This is a close up of the entrance sign



This is the image slightly further back



The permit area sign



Hopefully a clearer view of the text below



The text to the right of the above photo that i couldn't fit in



two signs from within the car park





Here is my defence so far

1. It is admitted that Defendant is the owner of *****

2. The Defendant denies he was the driver of this vehicle on the dates provided and cannot confirm nor deny this car was parked in Ninewells hospital car park the defendent can provide his whereabouts at the time of the alleged incident. It is understood that there is no keeper liability within Scotland and as such the defendant Is not liable for these. The claimant is put to proof to show otherwise.

3. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

4. Alternatively, even if there was a contract, the provision requiring payment of £136 per breach of contract is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; © the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and (d) the clause is specifically expressed to be a penalty on the Claimant's signs.

5. Further and alternatively, the provision requiring payment of 136 per breach of contract is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose.

6. As expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all,

Any advice would be greatly received. Thanks

Johno100

I note you already have a lengthy thread on Pepipoo about this matter.

http://www.pepipoo.com/forums/lofiversion/index.php/t111073.html

Many of the knowledgeable regulars on here also contribute to that forum so I wouldn't expect to receive much new or contrary advice.

DoaM

I presume you know who had the vehicle on each of the occasions claimed?

Does said person work at the hospital, or were these visits as a patient? (If as a patient then there could be a Data Protection and/or Privacy angle here ... the hospital and their agents have disclosed information about a patient to a 3rd party ... perhaps the patient didn't want the RK to know they'd been to hospital?)

Herzlos

Has anyone complained to the hospital about this?

Coupon-mad

I expect the BMPA have heard of others like this. A nasty move.

Shamish

Johno100 wrote: »

I note you already have a lengthy thread on Pepipoo about this matter.

http://www.pepipoo.com/forums/lofiversion/index.php/t111073.html

Many of the knowledgeable regulars on here also contribute to that forum so I wouldn't expect to receive much new or contrary advice.

Thanks for your reply, I do indeed have a post on pepipoo and having a lot of input, But I'm of the opinion the more eyes and input the better.

Shamish

DoaM wrote: »

I presume you know who had the vehicle on each of the occasions claimed?

Does said person work at the hospital, or were these visits as a patient? (If as a patient then there could be a Data Protection and/or Privacy angle here ... the hospital and their agents have disclosed information about a patient to a 3rd party ... perhaps the patient didn't want the RK to know they'd been to hospital?)

Thanks, Although the car in question is used by several family members I would believe it would have been for work as opposed to as a patient. I dont know exactly who was driving as I have more than one family member using the car to get to work there. Just know it wasn't me as i'm never there

Shamish

Coupon-mad wrote: »

I expect the BMPA have heard of others like this. A nasty move.

Thanks

I had been in contact with the BMPA who had advised of several local cases.

Apparently there is 101 pending cases for this car park. Somebody i was speaking to know somebody in a similar situation and went to a solicitor who apparently advised best action was to pay.

beamerguy

Shamish wrote: »

Thanks

I had been in contact with the BMPA who had advised of several local cases.

Apparently there is 101 pending cases for this car park. Somebody i was speaking to know somebody in a similar situation and went to a solicitor who apparently advised best action was to pay.

Sad to say that normal solicitors don't have a clue and they would never get involved. The only solicitors who get involved in the parking industry only do so for greed. Their lack of knowledge means they are now failing in court and being blasted by judges.

Do you know why there are 101 pending cases

Shamish

beamerguy wrote: »

Sad to say that normal solicitors don't have a clue and they would never get involved. The only solicitors who get involved in the parking industry only do so for greed. Their lack of knowledge means they are now failing in court and being blasted by judges.

Do you know why there are 101 pending cases

I'm assuming from various pending court cases either for similar to mine or various other offenses, just heard from somebody that seemed to know a fair bit about it. They were from upper management of the hospital so would assume they'd have a rough idea.

The only solicitor i've spoken to who has a good reputation for taking on these cases wanted £500 plus vat to take on the case and see it through to the end. When i asked to come discuss prior to deciding next decision i was advised that there is no free consultation and the consultation charges are £6 plus vat per unit (6 minutes per unit).

I couldn't believe the costs. For a £1088 court case i'd be may as well offering the £600 to settle early.

Coupon-mad

What about the local CAB, are they clueless? I thought the CAB 'got it' that in Scotland there is no keeper liability.

Not driving = not liable in Scotland.