County Court Business Centre Letter

Coupon-mad

I would remove #9 because it's easily shot down by the ParkingEye v Beavis case. I would replace #9 with the part in blue here, because your #7 covers two issues which are better separated:

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.

Strictly speaking, if you are defending as admitted driver, the POFA doesn't have any application at all, but it was discussed at some length in the Beavis case too (where he too was an admitted driver). So what was good in the Supreme Court can be good in county court too, if it helps you to make a point in defence.

IMHO it can't hurt to point out to the Judge that it is the will of Parliament in the POFA, that the recoverable sum is just the sum on the Notice to Keeper alone (plus court fee, but not in-house solicitor's salary) and that in the Beavis case they were only able to recover the £85, no additional charges.

You could also add (while mentioning the POFA in point #7) that this was in fact two 'periods of parking' not just one and Sch4 makes it clear that a separate NTK should have been issue for each parking period, if terms had been breached, which is denied.

Also state that the signs have no terms which prevents a driver from returning 3 hours later, as you did. Therefore no contractual term was breached at all.

Oh yes, and I would add that it is in the public domain that two visit errors (colloquially called a ''double dip'') are so common that there is a public list of these cases, with ParkingEye being the main offender:

http://notomob.co.uk/discussions/index.php?topic=5768,0

and that now amounts to over 100 examples of this well-known ANPR failure, disproving any attempt by this Claimant to suggest that their system is 'NASA standard' and infallible. Far from it.

leonrothwell

Once again Coupon Mad thank you for your patient help, no. 4!

Statement of Defence

Date 14/08/2017 Claim number D2FC7K6T

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.”
It is in the public domain that two visit errors (colloquially called a ''double dip'') are so common that there is a public list of these cases, with ParkingEye being the main offender,
and that now amounts to over 100 examples of this well-known ANPR failure, disproving any attempt by this Claimant to suggest that their system is 'NASA standard' and infallible. Far from it.

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. It is the will of Parliament in the POFA, that the recoverable sum is just the sum on the Notice to Keeper alone (plus court fee, but not in-house solicitor's salary) and that in the Beavis case they were only able to recover the £85, no additional charges.

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 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

The only things I would change now would be the date and I would re-number, so that your paragraphs under 'facts of the case' are number 1 onwards. All things you say should be numbered.

leonrothwell

Yesterday I received a "Directions Questionnaire", I am presuming it is from ParkingEye but it isn't clear. It looks like a very poor photocopy that someone has filled in. Has anyone got any ideas what this is?

Thanks again!

nosferatu1001

N180 form?
Parking eye sned you a copy of their completed one, you send them a copy of yours. Both send the original to the court

What does MCOL state? If it says one has been sent, and that was a while ago, just download one and fill it out. Easy.

Also all covered by the newbies thread....

Coupon-mad

Same as here, it's PE's copy, not your copy which you need to file:

https://forums.moneysavingexpert.com/discussion/comment/73190117#Comment_73190117

Exactly as expected, as explained in the NEWBIES thread, all parties have to copy in the other.

You already know about DQ N180 stage, because it's explained by bargepole there in the sticky.

Coupon-mad

leonrothwell wrote: »

Yesterday I received a "Directions Questionnaire...

Have you had it allocated to your local court yet?

Stick around, you need to be ready to do your WS and evidence, as explained in the NEWBIES thread. Come back for advice & to show us your WS and evidence.

leonrothwell

I received my Notice of Allocation on thursday but on saturday I received a letter from ParkingEye informing me that they consider the matter closed and have informed the court, so we've won!

I would like to thank everyone who has helped me over the last few months with this matter, the whole process has been extremely stressful and difficult, I realise that I have asked some pretty basic questions but the amount of information on the forum is over-whelming and very confusing to someone who hasn't got the first clue what they are doing.

Once again, thanks.

KeithP

That's good to hear.

You would be wise to check with the court that they actually have thrown in the towel.

Lamilad

on saturday I received a letter from ParkingEye informing me that they consider the matter closed and have informed the court, so we've won!

Great news, well done!

Just to be on the safe side call the court tomorrow morning to confirm they have received the notice of discontinuance.

I received my Notice of Allocation on thursday

They will have intended to discontinue for a while - probably since they read your defence - but they had to wait until it was allocated to track otherwise they would have had to pay your costs up to discontinuance.

Another abuse of court process favoured by these scumbag companies