Service Station Parking: County Court Letter (Parkingeye) - AOS stage. Talk to MSA?

leepox

I received a county court letter from parkingeye as I overstayed in a service station (Leicester East). I have acknowledged receipt online which should give me a little more time to sort out defence. However I have also been advised to contact MSA as they are able to apparently contravene at this late stage? Is this possible?

Coupon-mad

The most they could do is talk to PE and negotiate you to settle for about £60 - £75.

If you were resting/asleep, and saw no signs telling you that there was a tariff after 2 hours, I would continue to defend and see it through. You might lose but it is worth fighting, no CCJ, no huge costs for you, only about £175 in total, at stake.

Look at this one:

https://www.theguardian.com/money/2017/aug/26/parking-eye-takes-on-top-barrister-85-fine

If the driver was sleeping, especially for just a few hours in darkness, you can argue that this is unconscionable, etc.

leepox

If that's the case then its worth the fight and hassling them. It's a PITA but these parking firms are thieves

Coupon-mad

Yes, we feel the same and it's why we regulars come back here for free, in our own time every day.

Please complain to your MP, now is the time, to support the Bill going through Parliament:

https://forums.moneysavingexpert.com/discussion/comment/73050249#Comment_73050249

http://parking-prankster.blogspot.co.uk/2017/03/parliament-discuss-unfair-parking.html

https://forums.moneysavingexpert.com/discussion/comment/72971855#Comment_72971855

leepox

Will do. Will write a nicely worded letter to my local MP. Something to do over the weekend. Thanks for the boost, given me renewed tenacity to tell these parking firms to stick their own fingers up their own...

leepox

Hi All, I have now written a CEL as It's due in 3 days. I have added point (3) which explains that they can't prove I was parked at all during that time (theres a gas station, a separate starbucks cafe, the truckers parking, and the main parking - big service station). And secondly, there are two exits from the service station. One is back to M1 northbound and the other goes to a service road (although marked restricted, it is not blocked) connecting to the other side of the service station serving M1 southbound. (Is this a strong case to say that their ANPR could have double dipped me as I exited from the other side and came back again to this side?)

Lastly, should I reference the Bowen case here? He was sleeping but mentioned consumer rights act as one of his main defense.

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I am “Insert”, the defendant in this matter and registered keeper of vehicle “Insert”. I currently reside at “Insert”

I deny I am liable for the entirety of the claim for each of the following reasons:

1. The Claim Form issued on the 12 June 2017 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Insert Name” (Claimant’s Legal Representative)”.

2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

c) The Schedule of information is sparse of detailed information.

d) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.

e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

f) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. If Interest charges are being claimed, the basis on which this is being claimed

g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

3. The claimant appears to be contending that the car was parked at Welcome Break Leicester Forest East for over two hours on two occasions, (1) From 25/05/2017 17:33:43 to 20:43:28 and (2) From 02/06/2017 15:19:22 to 17:51:49 There has been no evidence presented that the car was parked and the premise of the parking charge was dependent on ANPR systems, which is flawed as recognised by the British Parking Association. Furthermore, the location of the entry and exit ANPR cameras have not been detailed. This is crucial as there are two exits on site – allowing the possibility of “double-dipping” – resulting in a false exit timestamp log. Thus the premise of this charge is insubstantial. No breach of any contract has occurred and no charge can arise.

4. POFA 2012 breach and the Defence states more than one family member could have been the driver - this distinguishes this case from the Beavis case:

The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

No keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4. The driver has not been evidenced and a registered keeper cannot otherwise be held liable.

There can be no 'presumption' by the claimant that the keeper was the driver.

Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £322.89 for outstanding debt and damages.

5. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

6. 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. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

7. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
(ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
(iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
(v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d) BPA CoP breaches - this distinguishes this case from the Beavis case:
(i) the signs were not compliant in terms of the font size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.



7. No standing - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

8. No legitimate interest - this distinguishes this case from the Beavis case:
This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on “Insert date here”

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Coupon-mad

Lastly, should I reference the Bowen case here? He was sleeping but mentioned consumer rights act as one of his main defense.

I would, because Judges will have heard of him and/or the case, and it adds weight to yours. It's a little random, in that other county court decisions do not set a precedent, but it's so similar and was high profile, so it's a shame not to introduce it.

Is the site set out so that your car could have been getting petrol, oil or water for the time alleged 'overstayed' parking?

And the defence needs work, for example you said:

I received a county court letter from parkingeye

but your draft defence (version 1 !) says:

1. The Claim Form issued on the 12 June 2017 by Civil Enforcement Limited

12th JUNE?? Civil Enforcement?? You appear to have copied an inappropriate example, why a CEL one? Yours is ParkingEye so this isn't true:

it was not signed by a legal person but signed by “Insert Name” (Claimant’s Legal Representative)”.

and this? I doubt it:

There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

Point #3 is good except for “double-dipping” which is a phrase that only means something here and in Parking Prankster Blogs but not outside of our bubble!

Point #4 is only worth it if ParkingEye sent a non-POFA PCN with no wording about keeper liability on the back, or if the PCN was not served within 14 days of the event.

What's this in here for? What 'permit' (and why £322.89, or is that the sum claimed?)

nor the permit information mentioned a possible £322.89 for outstanding debt and damages.

And this:

7. No standing - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement do not hold a legitimate contract

...I doubt that CEL do, seeing as it's ParkingEye who infest the site, you said!

I would bin that and read ParkingEye MSA defences from this year, if you can find one with a forum search 'ParkingEye MSA defence claim' might be worth trying as your keywords, then change the default to 'show posts' (NEVER the default 'show threads').

leepox

Hello, I have made a new draft from scratch based on a ParkingEye defence as well (taking note all of your comments - thank you!). Hope this one is much better.

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1. The Notice to Keeper/PCN was not compliant with the Protection of Freedoms Act 2012 (POFA) due to the wording used.

Right to Claim Unpaid Parking Charges from the Keeper of Vehicle – Schedule 4 Paragraph 4 (sub-paragraph 9 (2) (f)) of the Protection of Freedoms Act 2012 (POFA)

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met. The Notice to Keeper does not warn the keeper that, if after a period of 28 days, ParkingEye Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012 (POFA). The paperwork sent in this case does not comply with this requirement.

2. The PCN also fails to identify the facts that caused a charge to arise and fails to describe the alleged unpaid parking charges.

Right to Claim Unpaid Parking Charges from the Keeper of Vehicle – Schedule 4 Paragraph 7 (2) of the Protection of Freedoms Act 2012 (POFA)

Paragraph 7(2) of schedule 4 of POFA 2012 states:

’’The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…’’

This NTK stated that -

“...The signage also contains further terms and conditions associated with this car park by which those who park in the car park agree to be bound”

The NTK further states -
“By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd”.

These statements are presumptive as on both occasions no evidence has been provided showing that the vehicle was parked up or at all, for the entirety of the time by which the alleged incident took place. This also assumes that the defendant left the car and read the terms and conditions on the parking signage, by which upon further investigation, were found to be poorly placed and illegible. It is ParkingEye’s responsibility to ensure that the terms and conditions are prominently displayed around the site. By contrast these terms and conditions are in very small print, contrary to Lord Denning’s ‘Red hand rule’ and contrary to the requirements of the Consumer Rights Act 2015, and in agreement to the parking charge there was no agreement to pay additional sums, which in any case are unsupported by the Beavis case and unsupported for cases on the small claims track.
The only evidence presented from the PCN letters were two time stamped ANPR images showing the “Arrival Time” and “Departure Time” of the vehicle involved. This evidence is extremely inadequate in relation to the allegations being made against the defendant.

3. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.


a) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

b) The Schedule of information is sparse of detailed information.

c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.

d) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

e) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. If Interest charges are being claimed, the basis on which this is being claimed

f) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.



4. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.

A similar case, Nicholas Bowen vs ParkingEye in particular was awarded to Mr Bowen after defending ParkingEye’s misconceived claim on a public interest basis by breaching consumer protection law and having an unenforceable contract. This resulted in ParkingEye paying £1,550 in legal costs to Mr Bowen.

5. The claimant appears to be contending that the car was parked at Welcome Break Leicester Forest East for over two hours on two occasions, (1) From 25/05/2017 17:33:43 to 20:43:28 and (2) From 02/06/2017 15:19:22 to 17:51:49. There has been no evidence presented that the car was parked and the premise of the parking charge was dependent on ANPR systems, which is flawed as recognised by the British Parking Association. Furthermore, the location of the entry and exit ANPR cameras have not been detailed - this is crucial information as it defines the geographical scope and will clearly ascertain the limitations of their ANPR set-up. This is crucial as there are two entries and exits to the site – allowing the possibility of “double-dipping” – resulting in a false exit timestamp log as the second entry of the vehicle into the car park is not captured by the ANPR system. Thus the premise of this charge is insubstantial. No breach of any contract has occurred and no charge can arise.

6. POFA 2012 breach and the Defence states more than one family member could have been the driver - this distinguishes this case from the Beavis case:

The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

No keeper liability can apply, due to this Claimant's PCN not complying with Schedule 4. The driver has not been evidenced and a registered keeper cannot otherwise be held liable.

There can be no 'presumption' by the claimant that the keeper was the driver.

Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £322.89 for outstanding debt and damages.

7. The amount demanded is excessive and unconscionable. The claimant’s representative has artificially inflated the value of the claim from £200 (£100 each for the two parking charges) to £275. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

a) The Protection Of Freedom Act para 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated in the Notice to Keeper.

The claimant’s legal representative ‘Rosanna Breaks’ is ParkingEye’s in house solicitor. The charge of £50 for these solicitor fees is not supportable. In 2014 ParkingEye filed over 30,000 claims. A total of £1,500,000 in solicitor filing costs. It is difficult to see how ParkingEye can justify this amount: Rosanna Breaks would have to file one claim every 4 minutes every day for an 8 hour working day, without a break. I believe that ParkingEye’s filings are almost completely automated. No signature is evident just a typed name.

The defendant believes the terms for such conduct are ‘Robo Claims’ which is against the public interest demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The defendant believes that this is a claim that will proceed without any facts or evidence until the last possible minutes to their significant detriment as an unrepresented defendant. The defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.
8. 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. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

a) The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

9. Non-disclosure of reasonable grounds or particulars for bringing a claim.

a) ParkingEye LTD are not the lawful owners occupiers of the land.

b) 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.

c) The claimant is not the landowner and suffers no loss whatsoever as a result of the vehicle in question.

d) The particulars of claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this claimant. As the Supreme Court in the Beavis V Parking Eye (2015) UK SC 67 case confirmed such a matter would be limited to the landowner themselves for a nominal sum.

10. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the claimant is wholly unreasonable and vexatious.

11. The vague Particulars of Claim disclose no clear cause of action. The defendant invites the court to dismiss this claim as it is in breach of pre court protocols in relation to the particulars of claim under practice direction 16, set out by the ministry of justice and also civil procedure rules under 16.4 and to allow such defendants costs as are permissible under civil procedure rule 27.14.

I believe that the facts stated in this defence are true.

Coupon-mad

The badly mail-merged documents contain very little information.

I would remove the above which is about CEL mail-merged trash, not PE.

You have said a lot about the NTK being nopn-complaint but if it's the usual PE version with the paragraph about 29 days/the POFA/keeper being liable on the back of the letter, then it IS compliant and no Court will kick it out! If so, you would be better to start the defence admitting to being the driver (if you were, on both occasions) but saying the truth, either:


- that you were resting/sleeping, and saw no contractual sign whatsoever (if true) and relied upon the advice 'Tiredness kills - take a break' which was proclaimed on the Motorway before the Services sign, which offered free parking (by way of the large 'P' sign) but no time limit nor 'parking charge' given on the Motorway sign nor on any entrance signage - not that parking time limits can possibly relate to a period of activity filling the car with petrol and adjusting the load/refilling with oil, water and air in the tyres for the journey.

or if you weren't asleep/resting but used the services for more than just parking:

- that the car was in the petrol station/getting air and water for a significant part of the time and was only actually 'parked' in the car park for two hours or less, which is the minimum time that is legally required to be offered free, under the MSA rules from the Department for Transport.

This looks a bit back to front, I think the part about Mr Bowen goes after 'can arise.'

A similar case, Nicholas Bowen vs ParkingEye in particular was awarded to Mr Bowen after defending ParkingEye’s misconceived claim on a public interest basis by breaching consumer protection law and having an unenforceable contract. This resulted in ParkingEye paying £1,550 in legal costs to Mr Bowen.

5. The claimant appears to be contending that the car was parked at Welcome Break Leicester Forest East for over two hours on two occasions, (1) From 25/05/2017 17:33:43 to 20:43:28 and (2) From 02/06/2017 15:19:22 to 17:51:49. There has been no evidence presented that the car was parked and the premise of the parking charge was dependent on ANPR systems, which is flawed as recognised by the British Parking Association. Furthermore, the location of the entry and exit ANPR cameras have not been detailed - this is crucial information as it defines the geographical scope and will clearly ascertain the limitations of their ANPR set-up. This is crucial as there are two entries and exits to the site – allowing the possibility of “double-dipping” – resulting in a false exit timestamp log as the second entry of the vehicle into the car park is not captured by the ANPR system. Thus the premise of this charge is insubstantial. No breach of any contract has occurred and no charge can arise.

Between #6 and #7 you have two different £ figures?

...They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £322.89 for outstanding debt and damages.

7. The amount demanded is excessive and unconscionable. The claimant’s representative has artificially inflated the value of the claim from £200 (£100 each for the two parking charges) to £275.