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Parking Eye Wyvern Retail Park, Derby. County Court claim - advice sought on defence
picckko
Posts: 7 Forumite
Hi, hopefully I have read everything necessary in the newbies thread, so I now have some questions and would be grateful for some advice.
The brief circumstances are that my wife's car was parked in the Wyvern Retail Park in Derby for nearly 6 hours at the end of December, during the Christmas sales. This was due to an extended period of time shopping, as well as having a meal in a restaurant on/near to the site (Harvester). I am looking after this matter for her, and will act as a representative for her at any potential court hearing if necessary (I realise she has to attend as well if there is a hearing).
I intend to contest this matter fully, as she went into several shops on the site shopping, although we don't have receipts it may be possible to produce bank statements that show purchases in Sainsburys, Next and JJB. I have spoken to Sainsburys, who say that they 'don't use Parking Eye (PE).
My wife has received a county court claim form, as the registered keeper and this has been acknowledged within the 14 day requirement. Next step is to submit a defence. I plan to use an amended version of the wording submitted by IamEmanresu (I'm not allowed to share the link!).
At no point have we responded to letters from PE, no admission has been made in relation to who was driving.
Here is the amended version of the preliminary matters and defence. Have I got this right?
Any advice will be gratefully received.
Picckko
Preliminary matters.
1. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
2. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:
1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant
3. The Claimant has not complied with the pre-court protocol.
(1) No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
(2) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
On the basis of the above, we request the court strike out the claim for want of a cause of action.
Statement of Defence
I am XXXXX, defendant in this matter and deny liability for the entirety of the claim for the following
reasons:
(1).
It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.
(2).
The identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver
b) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
c) The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage. Further, the Notice to Keeper (postal 'PCN') failed to give the statutory warning to the registered keeper about the '28 day period' which is mandatory wording as prescribed in paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012. Consequently, the Claimant is unable to rely on the 'keeper liability' provisions of the POFA.
(4)
The Claimant has not complied with the pre-court protocol.
a) No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
b) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
The Defendant asks that the court orders Further and Better Particulars of Claim and asks
leave to amend the Defence.
(6).
ParkingEye are not 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 rights to bring this case.
a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. 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 right to bring action regarding this claim.
(8)
The signage was inadequate to form a contract with the motorist
a) The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.
b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and contrary to the Code of Practice.
c) In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent
letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
(9)
The driver did not enter into any 'agreement on the charge', no consideration flowed between the
parties and no contract was established.
(a) The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
(10)
(a) The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by referring to a Credit Reference Agency to confirm the correct address, referral to debt recovery (which suggested to the Defendant that bailiffs could visit the registered keeper’s address without notice or cause). No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
b) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
c) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
d) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) The Claimant described the charge of £50.00 as "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.
The defendant therefore asks that the court orders the case to be struck out for want of a detailed
course of action and/or for the claim as having no prospect of success.
I believe the facts stated in this defence are true.
(Name) (Signature) (Date)!
The brief circumstances are that my wife's car was parked in the Wyvern Retail Park in Derby for nearly 6 hours at the end of December, during the Christmas sales. This was due to an extended period of time shopping, as well as having a meal in a restaurant on/near to the site (Harvester). I am looking after this matter for her, and will act as a representative for her at any potential court hearing if necessary (I realise she has to attend as well if there is a hearing).
I intend to contest this matter fully, as she went into several shops on the site shopping, although we don't have receipts it may be possible to produce bank statements that show purchases in Sainsburys, Next and JJB. I have spoken to Sainsburys, who say that they 'don't use Parking Eye (PE).
My wife has received a county court claim form, as the registered keeper and this has been acknowledged within the 14 day requirement. Next step is to submit a defence. I plan to use an amended version of the wording submitted by IamEmanresu (I'm not allowed to share the link!).
At no point have we responded to letters from PE, no admission has been made in relation to who was driving.
Here is the amended version of the preliminary matters and defence. Have I got this right?
Any advice will be gratefully received.
Picckko
Preliminary matters.
1. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
2. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:
1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant
3. The Claimant has not complied with the pre-court protocol.
(1) No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
(2) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
On the basis of the above, we request the court strike out the claim for want of a cause of action.
Statement of Defence
I am XXXXX, defendant in this matter and deny liability for the entirety of the claim for the following
reasons:
(1).
It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.
(2).
The identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver
b) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
c) The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage. Further, the Notice to Keeper (postal 'PCN') failed to give the statutory warning to the registered keeper about the '28 day period' which is mandatory wording as prescribed in paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012. Consequently, the Claimant is unable to rely on the 'keeper liability' provisions of the POFA.
(4)
The Claimant has not complied with the pre-court protocol.
a) No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
b) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
The Defendant asks that the court orders Further and Better Particulars of Claim and asks
leave to amend the Defence.
(6).
ParkingEye are not 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 rights to bring this case.
a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. 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 right to bring action regarding this claim.
(8)
The signage was inadequate to form a contract with the motorist
a) The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.
b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and contrary to the Code of Practice.
c) In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent
letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
(9)
The driver did not enter into any 'agreement on the charge', no consideration flowed between the
parties and no contract was established.
(a) The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
(10)
(a) The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by referring to a Credit Reference Agency to confirm the correct address, referral to debt recovery (which suggested to the Defendant that bailiffs could visit the registered keeper’s address without notice or cause). No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
b) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
c) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
d) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) The Claimant described the charge of £50.00 as "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.
The defendant therefore asks that the court orders the case to be struck out for want of a detailed
course of action and/or for the claim as having no prospect of success.
I believe the facts stated in this defence are true.
(Name) (Signature) (Date)!
0
Comments
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Have you contacted the land owner? I think this place is Harvey Spack Field.
also had/has a garage autocentre/halfords car mechanics on site so an extended stay child easily be acheived here.From the Plain Language Commission:
"The BPA has surely become one of the most socially dangerous organisations in the UK"0 -
Thanks - I haven't contacted the landowner as court claim has already issued. Is it still worth doing so?, if so I will. Do you have contact details or shall I just look them up :-)0
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With ParkingEye, don't hide behind 'no evidence of driver' if the original PCN was a POFA one with the 29 days to keeper liability wording and was received within 14 days. She cannot show 'no compliance with the POFA/no keeper liability' unless the PCN was a non-POFA one with a blank space, like the one shown in post #3 of the NEWBIES thread.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks Coupon-mad, I will remove that section. What do you think of the remaining wording?0
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It is very generic and is missing anything specific about the circumstances, the facts of the case, a bit like this one:
https://forums.moneysavingexpert.com/discussion/comment/72317148#Comment_72317148
What exactly is she defending it about? It's not clear that she has a case. How long should she have parked for, what was the overstay, was it pay and display or free (for how long)?
If there is no real 'defence' she will struggle - would she not be better contacting & complaining in the strongest terms to the landowner (not retailers) and asking for support in cancelling the charge or settling. Many PE claims are settled at £60 when a landowner wants one cancelled, could offer £30 in an email to PE's Enforcement team and see how it runs.
Worth considering? Or does she have a defence (e.g. small overstay of mere minutes/grace period?).PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks Coupon-mad. I think it may be best to approach the landowner (which I believe is david@harveyspackfield.co.uk). Is there a good template on which to base a strong complaint letter? She overstayed by nearly 3 hours so the 'slightly over time' point won't apply here.0
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Thanks Coupon-mad. I think it may be best to approach the landowner (which I believe is david@harveyspackfield.co.uk). Is there a good template on which to base a strong complaint letter? She overstayed by nearly 3 hours so the 'slightly over time' point won't apply here.
No template, this needs to be phrased in your own words.
But here is a thread that lists dozens of successful complaints and includes some example letters.
https://forums.moneysavingexpert.com/discussion/4766249Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Hi Coupon-mad, thaks for your advice. I amtrying to get this resolved up against the time limits so I hope you can help.
I noticed in a previously successful appeal for this specific location that the landowner was unable to provide proof that PE had standing or authority to operate (as per Sec 7 BPA CoP). I've pasted the relevant part of your reply below.
Is this a reliable ground upon which I could form my defence? I have requested a copy of the contract from the landowner, Workman LLP, but this has not been forthcoming. Your advice will be gratefully received.
Best wishes
Nick
"I acknowledge the reason the operator has issued the Parking Charge Notice (PCN). The burden of proof lies with the operator to demonstrate that it has issued the PCN correctly. While the appellant has raised a number of grounds for appeal, my report will focus on whether the operator has authority to operate on the land. The appellant says that he does not believe the operator has the standing or authority to pursue charges or form contracts with drivers. Section 7 of the British Parking Association (BPA) code of practice requires operators to own the land or to have written authority from the landowner to operate on the land. As the operator has failed to provide any evidence in response to this ground of appeal, it has failed to prove that it has the required authority to operate on the land in question. Accordingly, I must allow the appeal."
So it looks like ParkingEye don't have a legal contract with the landowners at this site,- Wyvern Retail Park, Derby. This could be an appeal winning point for anyone else who happens to get a PCN from there.0 -
Yes it is always worth including a point about no landowner authority in any defence.
But we still haven't seen an updated version including some basic facts of the defence (i.e. what is she saying happened and why - dodgy signs not seen, or what?).PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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