County Court Business Centre Letter

leonrothwell

I'm hoping for some help! I've have searched on this forum for examples of defending yourself against a parking ticket from ParkingEye which has been rejected by popla and has now gone to CCBC. Our defence is that the ANPR system took a picture of our car going in but not coming out then 4 hours later on a second visit to the store took no picture going in but took one going out therefore giving the impression of an over 4 hour stay in the same car park!
I've got to be honest most of the examples I have found dont cover my issue and may as well be written in Japanese! I haven't got a clue where to start.
Can somebody please give me some advice.
Thanks

Redx

have a search for "double dipping" which is the "term" used for your predicament

it features on here and over on pepipoo forums and on parking pranksters blogs

then find recent 2017 examples of court case defences and draft your own defence

then add any paragraphs you can find where 2 short visits (double dipping) were made (where it missed the first exit and the second entry, a very common problem)

and post the draft on here for critique etc

also see post #2 of the NEWBIES sticky thread as well

nosferatu1001

First thigns first
What is the ISSUE DATE of your claim form?
Have you ACNOWLEDGED, ONLINE, the claim form? If not you do that TODAY. You do NOT contest jurisdiction unless you live outside England and Wales, and you DO NOT write anything at all i nteh defence section. This extends your deadline whereby the court must RECEIVE your defence from 14 days to 28 (plus 5 days for service) from issue date.

You are indeed looking for double dip. Can you prove at all your whereabouts, other than by witness statement(s)? For example, if you have a smartphone Google can store location history.

leonrothwell

The issue date is 31 July and I have acknowledged the service and informed that I wish to defend the claim. My wife got a letter off her employer stating that she had only been out of work for half an hour during her dinner but this was declined by both parkingeye and popla.
I will have a look for double dipping today and come up with a defence.
Thank you for your help.

System

You can download this BPA report on "double dipping here"

http://forums.pepipoo.com/index.php?act=attach&type=post&id=44279

The BPA proudly boast If there is a case to answer then a full investigation and appropriate action will be taken which may – in extreme cases result in suspension or termination of BPA Membership.

.. since the new CEO of the BPA is ex-ParkingEye then they should have been onto it.

Why not consider a counterclaim quoting the BPA's own advice on the matter.

PS Don't get lost in the process which is explained in the Newbies thread

leonrothwell

I have had a go at my Statement of defence, to be honest I am not really sure if this is any good, I have read dozens of statements and have taken bits from different ones but as I have said before I am totally out of my depth!

Can somebody please look this over for me.

Thank you


Statement of Defence

Date 14/08/2017 Claim number xxxxx

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. 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.

3. 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 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.

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 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.

7. 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.

8. 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.

9. 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).

10. 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, 14/08/2017 are true.

Signed

Coupon-mad

IamEmanresu wrote: »

You can download this BPA report on "double dipping here"

http://forums.pepipoo.com/index.php?act=attach&type=post&id=44279

The BPA proudly boast If there is a case to answer then a full investigation and appropriate action will be taken which may – in extreme cases result in suspension or termination of BPA Membership.

.. since the new CEO of the BPA is ex-ParkingEye then they should have been onto it.

Why not consider a counterclaim quoting the BPA's own advice on the matter.

PS Don't get lost in the process which is explained in the Newbies thread

Reminding you about IamEmanresu's advice, above.

I agree, you should counter claim as well, if you are up to the idea of claiming compensation for their negligent and unwarranted charge and abuse of your DVLA data, which caused significant distress.

I think your defence needs to be MUCH clearer at the start and set out the facts about the double visit (no need for legalese, say it like it was).

Remove all of this, it is ancient:

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.

leonrothwell

Thank you for your help. I will have another go and repost. As for a counter claim I would just like to get this over and done with asap and complicating things further doesn't seem prudent to a novice like me.

leonrothwell

Second draft of defence.
I have set out the facts at the beginning of the defence and deleted the highlighted paragraphs as advised by coupon mad, I'm just not sure it is right. Again, any help would be gratefully received.


Statement of Defence

Date 14/08/2017 Claim number xxxxx

On the 14th November 2016 I visited DW Sports in Warrington, I arrived at 11.59am during my lunch, which is 30 minutes, I made a purchase and left within the 30 minutes and returned to my place of work as it is only a 5 minute drive. During that afternoon I realised I had to return to DW Sports as I had forgotten to look for my sons christmas present, a pair of football boots. After finishing work at 3pm I went to the store had a look for the specific boots, asked a member of staff if they sold them, which they didn’t and promptly left the store, leaving the car park at 3.26pm.
ParkingEye then sent me a parking notice charge claiming that I had been on the car park for 3 hours and 27 minutes. This is total nonsense as I was at work and have a written statement from my team leader stating that I was in work at the time.

This is quite obviously a fault with the ANPR system used by ParkingEye and is a well known problem, the British Parking Associations own report on ANPR system states that “Repeat users of a car park in a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are aware of this and are now checking all ANPR transactions to ensure that this does not occur."

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. 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.

3. 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 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.

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.


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 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.

7. 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.

8. 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.

9. 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).

10. 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, 14/08/2017 are true.

Signed

Coupon-mad

Put some headings in, e.g. that first bit could be called the 'facts of the case' or similar. See Johnersh's example defence.

And change it to be written in the third person, not 'I'. Should be 'the Defendant denies that...' etc.

leonrothwell

Third attempt, for critique! Thank you

Statement of Defence

Date 14/08/2017 Claim number xxxxx

Facts of the Case

On the 14th November 2016 the defendant visited DW Sports in Warrington, the defendant arrived at 11.59am during her lunch, which is 30 minutes, the defendant made a purchase and left within the 30 minutes and returned to her place of work as it is only a 5 minute drive. During that afternoon the defendant realised she had to return to DW Sports as she had forgotten to look for her sons christmas present, a pair of football boots. After finishing work at 3pm the defendant returned to the store had a look for the specific boots, asked a member of staff if they sold them, which they didn’t and promptly left the store, leaving the car park at 3.26pm.
ParkingEye then sent the defendant a parking notice charge claiming that she had been on the car park for 3 hours and 27 minutes. This is total nonsense as the defendant was at work and she has a written statement from her team leader stating that the defendant was in work at the time.

This is quite obviously a fault with the ANPR system used by ParkingEye and is a well known problem, the British Parking Associations own report on ANPR system states that “Repeat users of a car park in a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are aware of this and are now checking all ANPR transactions to ensure that this does not occur.”

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. 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.

3. 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 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.

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.


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 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.

7. 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.

8. 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.

9. 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).

10. 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, 14/08/2017 are true.

Signed