Parking Eye Court date set

hectivity

Hi All,
Sorry this is long winded but I haven’t found anyone with a similar experience anywhere online…

In October 2016 (around 20th) I received a County Court Claim Form from Northampton County Court briefly detailing that Parking Eye were claiming monies from an outstanding parking charge issued 5/8/16. It mentioned that I had parked at the Holiday Inn Rotherham Sheffield last July (29th), which is true.

However, this was the first notification I had received regarding any such claim regarding parking charges. I called the court for more details but they were unable to discuss the matter with me. There were no other contact details on this notice.

Not understanding the detail of the claim as it was so brief in the court form and as I was under a lot of stress with a friend suffering a nervous breakdown and being sectioned, I stupidly panicked and went online on 25th October to defend this in a very simple way saying:

“I did park in this hotel car park but completed the required for on the reception desk ipad/ tablet as instructed. Two of my colleagues were also present and completed their registrations in the same way. I also purchased items from the hotel restaurant/ caf! and have receipts to prove this in no way do I believe I breached any terms and conditions of parking art this hotel and shall contact the hotel to ask them to check their records for that day.”

Naive I now know.

The Hotel’s land is managed by Parking Eye. I was aware of signage and the receptionist had advised me to enter my number plate which I did (I now think this must have been entered incorrectly).

Next I received a letter from PE on 16.11.16 stating PE wished to proceed with the claim. With this they sent a copy of two letters apparently sent to me, one a PCN dated 5th August 2016 and one a letter before county court claim dated 23rd September 2016. Neither of these letters were received.

They go into great detail about how I SHOULD have appealed but these comments are all based on the premise that I had received any notification prior to the court letter. I contacted the hotel by email and phone and wrote to Parking Eye as from their letter I now had a contact address for them.

I explained the situation to the hotel but they asked me to deal with Parking Eye directly and a day later gave a phone number which was never answered. In the letter I sent to PE I sent copies of the receipts from the hotel. This letter was dated 16.11.16.

On 12.12.16 I received a notice form the Court saying I had been sent a Notice of Proposed Allocation to track which required me completing a Directions Questionnaire. I had received no such notification from the court.

On 9th January after a holiday I received a Without Prejudice Letter dated 30th January stating that they were now in receipt of further information and whilst it was appropriate evidence to support my position it was not provided at the earliest opportunity. However they offered to settle. I wrote back on January 16th saying that I had not had opportunity to send this evidence earlier as I had not received the letters they said I had. I also emailed a copy of this letter to the email at the bottom of their letters, enforcement@ … I received an acknowledgement to the email but as yet no response to this letter.

I have also received another letter from the Court to explain the case will be heard in my local court and another letter stating it will be heard on May 9th and then how to submit evidence etc and that we should still try to settle out of court.

I wrote again to Parking Eye to asking them once again to cancel this claim due to evidence presented prior to them paying the hearing fee. I emailed a copy of this on 7th April. Again acknowledgement of my email, but no reply.

So my questions:

Will the court consider a defence after the court form has been completed online? Can I submit detailed evidence to be considered?

I have obviously been trying to settle out of court but they are not responding, does this look bad on them?

The claimant is not attending but are sending an agent (LPC Law)…should I try the right of audience question.

Help

Redx

edit the above into paragraphs if you want people to read it

if a defence was already entered online (or by post) within the initial required 28 days, you cannot add to it later (not without paying an exorbitant court fee) - so no you cannot submit a defence later, your defence in court is based on what you wrote in the initial defence within that first 28 days, before a judge saw it and allocated your local court

evidence and witness statements etc are what come before the hearing

read post #2 of the NEWBIES sticky thread, and the BARGEPOLE links contained within it, this will help you understand the process

make sure anything going to the court is numbered and has readable paragraphs, or a judge wont bother to read your papers either

ie:- basic english grammar and spacings etc are required

hectivity

Thanks RedX! I've re-paragraphed, sorry it looked better in word.

Fruitcake

You need to be more forthright in your dealings with the hotel. Try to find the contact details of the manager and complain that you, a genuine hotel customer are being harrassed and taken to court but the hotel don't appear to be interested.

You should also leave negative feedback on the hotel website, Trapadvisor, and Fakebook, as well as contacting local press about this scam.

Unfortunately you cannot now add anything to your court defence if you have already submitted it. All you can do is expand on your existing defence points.

Coupon-mad

I have also received another letter from the Court to explain the case will be heard in my local court and another letter stating it will be heard on May 9th and then how to submit evidence etc.

Can you get URGENTLY from the Hotel, a screenshot of their submission record from that day from the Ipad - it must exist because they are data handlers and should have daily records, and this is your VRN so you are only asking for the entry screenshot showing the VRN or a very close match, dated and emailed to you as proof/evidence.

It's the least the stupid Hotel can do, regardless of fault. INSIST! And ask for it attached to an email from the Hotel Manager confirming you were a patron that day and clearly did input your VRN but the keys did not register one digit (or whatever). Get the Hotel to email that to you NOW.

The claimant is not attending but are sending an agent (LPC Law)!!!8230;should I try the right of audience question.

Yes - that's for on the day, first thing to raise using the Law Gazette and case law as explained by the Parking Prankster here:

http://parking-prankster.blogspot.co.uk/2017/01/parkingeye-win-and-are-awarded.html

But like I say, that's for the hearing day.

Your first priority is to provide evidence - not just of receipts, but how about the Hotel providing you with the uploaded data from their IPad that day that shows a very close match to your VRN?

And how about to extra witness statements from your colleagues (along with your own WS) confirming that you and they did all do what was required and at no point was any 'penalty' risk for a mere typo drawn to any of their/your attention, neither inside at the desk, nor outside in the car park.

BTW if their letter dated January was 'without prejudice' (WP) you CANNOT produce that in court, not even to show PE knew that your evidence was sound. So do not include any WP letter.

But:

I would use case law in your WS, set out something like this (or ideally, although I've just spilt it all below in one go, split the WS and the 'skeleton argument' into two, so that the facts you know that happened are in the WS, and separately, the case law arguments are in a 'skeleton argument' which luckily your brief defence does support):

*****************************

IN THE COUNTY COURT AT (name of your local court)

Claim No.: COLOR="red"]INSERT claim number[/COLOR

Between

ParkingEye Ltd (Claimant)

-and-


[YOUR NAME] (Defendant)


_____________________

WITNESS STATEMENT
_____________________

I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1.1 The Claim relates to an alleged debt arising from the vehicle having been parked at [INSERT HOTEL NAME, PLACE] on [INSERT date shown on the claim particulars].
ParkingEye are arguing I was bound by unknown terms creating a contractual charge, yet this £100 was not a term known or agreed at the point of making the contract (neither when parking, nor when inside the Hotel using their Ipad).

1.2 I did not receive any 'Parking Charge Notice' either on the windscreen nor in the post, nor any warning or Letter before Claim. The Court Claim was the first I knew about this allegation, hence I had no fair opportunity to appeal or show my evidence prior to proceedings. I put the Claimant to strict proof of any letters they contend were served and the address used.

2.1 I did park in this Hotel car park but completed the required information on the reception desk ipad/tablet as instructed. I made reasonable endeavours and believe I entered my VRN in full. Two of my colleagues were also present and completed their registrations in the same way. I also purchased items from the hotel restaurant/cafe and have receipts to prove patronage so at no point was I not entitled to park.

2.2 As evidence I attach witness statement from both colleagues, confirming that we all parked and complied as instructed by the Hotel desk clerk and at no time were any of us informed of a parking charge risk when filling in the VRN data. This was an unexpected and non-agreed charge; no contract was formed whatsoever.

2.3 As further evidence, the Hotel Manager has supplied me with a screenshot of the submission of my VRN that day which shows that (a single digit error was made, or whatever it shows!).

2.4 ParkingEye are required to make stringent checks before issuing a PCN - indeed they boast of their '19-point check' process, which should certainly avoid a PCN being issued for such a close match VRN.

2.5 It is asserted that my witness statement and those of my colleagues are the only ones from parties with personal knowledge of the events of that day and that any statement made by this Claimant or their legal representative are not facts within their personal knowledge, given the fact that only myself, my colleagues and the Hotel staff member were there to bear witness.

2.6 As further evidence that I signed in at the Hotel desk and was a genuine patron (as this Claimant is aware) I attach copies of receipts from that day.

3. It is trite law that a contractual term cannot be relied upon that is only communicated after conclusion of a contract, as that is too late to be incorporated into the prior agreed terms.

4.1 Denning LJ in Thornton v Shoe Lane Parking [1971] held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way'' and that the contract takes place when the payment is made.

4.2 In this case, when using the Ipad the Hotel staff member should have input the VRNs to reasonably remove an onerous and potentially punitive burden from the consumer. Or the Hotel should have warned the consumer at/before the point of inputting the VRN details, that there was an obligation with a penalty risk hanging over me and my colleagues to ensure the VRN was fully correct before submitting.

4.3 No such warning was drawn to our attention and both colleagues have signed witness statements to confirm this was the case.

5.1 None of us agreed to any charge so this is surely just the sort of 'unconscionable' charge exposed as offending against the penalty rule, in the wholly different and 'complex' case of ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) which can be fully distinguished from my case. In Beavis, ParkingEye and did not rely upon any unproven keypad error as the excuse for a parking charge.

5.2 At the Supreme Court at 107 it was stated: !!!8216;!!!8217;In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute.!!!8217;!!!8217; But in my case the 'parking charge' is not only unfair, disproportionate and unconscionable given the facts of the case (known by this Claimant to be true) but the fact is the charge was never agreed at the time the parking agreement with the Hotel was made.

6.1 Olley v Marlborough Court Hotel [1949] 1 KB 532 is on all fours with my case and is binding case law supporting the contention that any other terms come 'too late' if they are only known about afterwards. The case stands for the proposition that a representation made by one party cannot become a term of a contract if only known after the agreement was made.

6.2 The representation - in this case a 'parking charge' (penalty for a mere error, which could be the fault of the driver or could just as easily be the fault of the Hotel keypad) can only be binding where that charge was agreed/the bargain made, at the time the contract was formed. Denning LJ held that a clause a consumer can only learn about after the contract was allegedly formed was too late to be incorporated into the contract: ''The first question is whether that notice formed part of the contract. ... The hotel company no doubt hope that the guest will be held bound by them, but...the ticket comes too late...''

6.3 Given that free patron parking was supplied without reference to any such risk or obligation when the keypad was passed between myself and my colleagues, there is no cause of action for ParkingEye. Indeed the Hotel have confirmed they support the cancellation of this charge and that we were patrons who they do not wish to see penalised.

7. Had I received a 'PCN' or even a Letter before Claim (neither of which were received) I understand that this unwarranted charge would have been cancelled on appeal. Further, despite knowing that I was a genuine patron - as their own VRN records confirm in sufficient detail - ParkingEye have tried to apportion blame to myself at all stages, blaming me for:

(a) what appears to be a close match VRN (which they are required to check for as part of their own standard '19 checks' prior to issuing a PCN and I put them to strict proof regarding their checks).

(b) what was very probably a keypad error on the Ipad/tablet not proved to be my fault and I certainly made reasonable endeavours to comply with what was asked by the Hotel.

(c) the non-receipt of a PCN they have failed to prove was even posted.

(d) not appealing a PCN I never received.

(e) providing evidence 'not at the earliest opportunity' when in fact court papers were the first I knew of this unwelcome dispute.

8. The fact I made reasonable endeavours and cannot be penalised under UK contract law is also a circumstance supported by trite law. Authority for this is the case of Jolley v Carmel Ltd [2000] 2 EGLR 154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

9.1 Even if the Court believes a contract potentially existed, the Law Reform (Frustrated Contracts) Act 1943 applies. It states at 1.(1) ''money due but not paid before frustration ceases to be payable'' and !!!8221;a contract may be discharged on the ground of frustration. The unforeseeable frustration brings a contract to an end forthwith and automatically!!!8221;.

9.2 Due to frustration of contract, where matters were outside my control due to a possible keypad error (the Claimant has adduced no evidence of fault on my part) the contract was never properly or fairly made.

10.1 In addition to the original !!!8216;parking charge!!!8217;, believed to be £100, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported !!!8216;Solicitor!!!8217;s Costs!!!8217; of [£xx INSERT SUM FOR 'LEGAL COSTS' ADDED ON THE RIGHT OF THE CLAIM FORM] which I submit have not actually been incurred by the Claimant.

10.2 Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye have not expended such a sum on my case. They employ salaried in-house Solicitors and file hundreds of similar robo-claims per week, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because Ms Breaks cannot possibly be believed to be paid in the millions for her services.

10.3 The added 'legal' cost is an artificially invented figure (carefully avoided in the Beavis case where only £85 was pursued, presumably to avoid just such scrutiny). This is a cynical attempt to circumvent the Small Claims costs rules using double recovery.

11. The Court is invited to dismiss the Claim, and to allow such Defendant!!!8217;s costs as are permissible under Civil Procedure Rule 27.14.


I believe the facts stated in this Witness Statement are true.



Signature of Defendant:

Date:



***********************************



Case law (Thornton v Shoe Lane and Jolley v Carmel) can be downloaded here, supplied free by the BMPA:

https://bmpa.zendesk.com/hc/en-us/sections/202486769-Case-Law

HTH

System

Try the hotel again - and again. Sales Department seems to be the one. They have had these cancelled but as you are far down the line, the best you can hope for is a "deal"

Holiday Inn Rotherham-Sheffield M1, Jct 33
West Bawtry Road, Rotherham, S60 4NA
Tel: 01709 786000, Fax: 0844 7744386
http://www.hirotherhamsheffield.co.uk

Half_way

Or a statement from the hotel stating they do not support their agents pursuing this through court

hectivity

Thanks all so much for your advice & help it is invaluable.
I contacted the hotel again and insisted on my email being sent to the manager who this time did respond. He agreed with me, apologised and contacted parking eye to get the claim cancelled but as you have all mentioned it is too late for that. He told me PE had sent me another without prejudice letter to dettke for £60 on 12th April but it had not been paid. Yet again have not received any letters from them!!
I have emailed him again today to ask for a copy of the data entries for that day as suggested.
Thanks!

hectivity

Hi All,
The hotel are saying they not able to supply a screenshot so I won't be able to add this as evidence Coupon-mad. Do you think the court will be supplied with a full number plates list even though they only supplied me with partially visible ones? I am right in thinking we both have to have the same evidence, correct?
They have now sent me the without prejudice letter by email which I am tempted to go for but after all your help (you guys are seriously amazing!!!) and the appalling way PE treat people i am tempted to go ahead, Any thoughts?

[Deleted User]

Get them to do a full print out out what information they have on their system and redact (manually with a black marker if needed) the registrations/personal information of other clientele. That should leave your unadulterated entry somewhere in the middle with (we presume) a transposed digit.

[Deleted User]

+1 to Halfway's suggestion too. A letter in writing withdrawing permission for the agent to pursue you their customer would conclude this matter pretty sharpish.