PArking CCJ over 10 in a car park

Coupon-mad

Change this, no it's not a penalty:

I am aware that the claim is for an unpaid Penalty Charge Notice (PCN)

I am aware that the claim is for an unpaid private Parking Charge Notice (PCN) based on an alleged (denied) contract

I would add into point #1 somewhere, that:

It is in the public domain that ParkingEye's normal way of working as one of the largest companies in this industry, owned by Capita, is to use a tracing agent, which has been documented hundreds of times as a fact. Therefore it is wholly unreasonable that they have failed to take the simple steps needed in this case to locate the Defendant when their later letters (if any) must have shown that the Defendant - who was previously replying in good faith at appeal stage - was now silent and likely to have moved. Undeniably, the Defendant was 'there to be found'.

You haven't 'parked' for 12 minutes. You were there on site for twelve minutes, stopped for probably under ten! You need to get Grace periods in. So I would change this as I don't think it helps to quote PE's rejection letter:

[2.1.5. I subsequently received a Notice to Keeper from the Claimant, alleging that a charge of £100 was due to them. I did send an appeal to the Claimant and appealed the parking charge on the bases stated above. And received the rejection stating that the

(We are writing to advise you that your recent appeal has been unsuccessful and that you have now reached the end of our internal appeals procedure. Our records confirm that no parking was purchased on the date of the parking event, despite there being payment methods available on the day in question. Please be advised )

2.1.5. I was subsequently shocked to receive an unexpected Notice to Keeper from the Claimant, alleging that a charge of £100 was due. Whilst at my old address, I did send an appeal to the Claimant and appealed the parking charge in good faith, and expected it to be cancelled since the car was only actually stopped briefly to read the signs and decide whether to stay and accept the contract (I did not) or leave (which I did).

2.1.6 No contract had ever been agreed and this case can be fully distinguished from ParkingEye v Beavis [2015] UKSC 67, a complex and completely different case, where the Defendant stayed, having read and accepted the parking licence and conditions.

2.1.7 I rely upon the Grace Periods section within the British Parking Association Code of Practice, and the fact that this was agreed by the BPA to include at least eleven minutes merely for the action of leaving a car park ('the grace period') as stated in an official BPA published article, which is in addition to and separate from the 'observation period' on arrival, the extra minutes also to be added, to physically park the car then read the signs and decide whether to accept the contract.

Both the observation period and the grace period are stated to be fluid, depending upon the facts of the case, and can be more than ten minutes each:

http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability. [...] If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”


3. Conclusion
On the basis that the Beavis case can be fully distinguished, and that the BPA Code of Practice (considered akin to regulation, by the Supreme Court) renders this 12 minute 'charge' effectively unrecoverable, I contend that there are high prospects of this claim being successfully defended.

I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.



(that last bit, I have cut from your point 1.6 which I think should end at 'this claim').

P.S. do you mean 2017 here?

06th of March 2016.

deshulina

Cupon-mad I am actually in tears.. (of joy of course) . This has been a massive struggle and was putting on hold my entire life. Thank you for your reply. I am more than grateful for all of your help.


I will edit the claim and post it before I send it off.


Thank you so very much !

deshulina

Should I also include

2.2.1 I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
2.2.2. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.
2.2.3. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.
2.2.4. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.
2.2.5. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to [name of claimant].

2.2.6 On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

2.7. In order to make informed decisions and statements in my defence as keeper of the vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

Given the parking charge provided as they meet most of those statements or to leave this out as the statements becomes too far stretched ?

• As to follow I will take pictures over the weekend of everything at the car park relevet to this and will include a geographic picture of the car par.

• I tried calling Westminster council but they couldn't tell me who was the owner of the car park . ( does this matters ?)

Thank you in advance !

Coupon-mad

None of the above is worth including, it's good enough as it is and there is NO argument about ''they must demonstrate their actual, or genuine, pre-estimate of loss'' since the Beavis case.

deshulina

Good afternoon everyone,

Thank you all for the help so far especially to Cupon-mad ( your understanding and help have been very highly appreciated ). After a very eventful weekend here is the finished statement.






I am XXXX XXXX and I am the Defendant in this matter. This my supporting Statement in support of my application dated XX May 2017 to:
1. Set aside the Default Judgement dated 30th of May 2017 as it was not properly served at my current address and order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
2. Order for the original claim to be heard at a re-hearing.


1. Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in May 2017. I am aware that the Claimant is X, represented by X and that the claim is in respect of an unpaid Penalty Charge Notice from the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. I further contest this charge for the reasons outlined in Part 2 of this defence.


1.2. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 25th of August 2017. I understand that this Claim was served at X. However, I moved to a new address at, X on the 06th of March 2017. In support of this I can provide a scanned copy of the vehicle’s V5C log book which shows the details of the registered keeper, a confirmation from X Council showing my updated details for the purposes of paying Council tax and my updated driving licence. All of which attached at Annex X.


1.3. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim. They have used information that was at the time two months out of date.


1.4. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.


1.5. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.
1.6. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.


2. Order for the original claim to be heard at a re-hearing


I am aware that the claim is for an unpaid Penalty Charge Notice (PCN). I contend that I am not liable for the parking charge and the grounds for this are laid out below in in further detail, and in summary are:


• Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage


• No contractual agreement with the driver


(2.1.)
I was, at the relevant date, the registered keeper of the vehicle in question registration number XXXXXXX. Below is a summary of my version of the events:


(2.1.1)
I entered the carpark and waited for another motorist to reverse so I was able to park my vehicle.


(2.1.2)
The car park had a sign at the entrance which was hard to read from the high of a vehicle so I had to park my vehicle and then walk back to the entrance to read the information at the entrance.


(2.1.3)
Once I realised that the car park doesn't take notes but only coin and card payment I realised that I have to go back to my vehicle parked at the bottom of the car park ( 7 meters ) from the entrance I've google it to fetch my debit card in order to make a payment.


(2.1.4)
Upon returning to the car I realised that my debit card was absent so I had to try and find change in order to be able to pay for the amount of time I was planning to leave my vehicle in the carpark for. Realising that I wasn't able to pay for the parking and unwilling to abuse the car park I got back into my vehicle and drove off as I was unable to pay for the time I was initially planning to stay at the car park for.
(2.1.5)
I was subsequently shocked to receive an unexpected Notice to Keeper from the Claimant, alleging that a charge of £100 was due. Whilst at my old address, I did send an appeal to the Claimant and appealed the parking charge in good faith, and expected it to be cancelled since the car was only actually stopped briefly to read the signs and decide whether to stay and accept the contract (I did not) or leave (which I did).

(2.1.6)
No contract had ever been agreed and this case can be fully distinguished from ParkingEye v Beavis [2015] UKSC 67, a complex and completely different case, where the Defendant stayed, having read and accepted the parking licence and conditions.
(2.1.7) The signage was inadequate to form a contract with the motorist.


2.1.7.1 the signage on this site is inadequate to form a contract. It is barely legible, making it
difficult to read.
2.1.7.2 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.
2.1.7.3 The sign does not contain an obligation as to ‘appropriate parking time’ nor the ‘permitted time’, therefore there was no breach of any ‘relevant obligation’ or ‘relevant
contract’ as required under Schedule 4 of POFA.
2.1.7.4 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.


(2.1.8)
I did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
I deny that 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.


(2.1.9)
I rely upon the Grace Periods section within the British Parking Association Code of Practice, and the fact that this was agreed by the BPA to include at least eleven minutes merely for the action of leaving a car park ('the grace period') as stated in an official BPA published article, which is in addition to and separate from the 'observation period' on arrival, the extra minutes also to be added, to physically park the car then read the signs and decide whether to accept the contract.

Both the observation period and the grace period are stated to be fluid, depending upon the facts of the case, and can be more than ten minutes each:

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA) says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability. [...] If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”




(3)
I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
3.1 Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.
3.2 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). The Claimant are known to be a serial issuer of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.
3.3. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to [name of claimant].

e) On the 20th September 2016 another relevant poorly pleaded private parking charge claim by
Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing
due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and
‘providing no facts that could give rise to any apparent claim in law’
f) On the 19th Audust 2016 DJ Anson sitting at Preston County Court ruled that the very similar
parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16
paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed
to do, and the court confirmed the claim will now be struck out.
3.7 The Claimant has at no time provided an explanation how the sum has been
calculated, the conduct that gave rise to it or how the amount has climbed from £100
to £197. This appears to be an added cost with apparently no qualification and an
attempt at double recovery, which the POFA Schedule 4 specifically disallows.
3.7.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be
recovered from the keeper is the charge stated on the Notice to Keeper.

4. Conclusion
On the basis that the Beavis case can be fully distinguished, and that the BPA Code of Practice (considered akin to regulation, by the Supreme Court) renders this 12 minute 'charge' effectively unrecoverable, I contend that there are high prospects of this claim being successfully defended.

I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

Coupon-mad

Remove this from 1.6 as it was moved for more impact, to the end instead:

I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

And remove these words, because you cannot argue 'no loss' against a parking charge because the Supreme Court said it doesn't matter:

given it is not based on any loss suffered due to the alleged breach,

deshulina

Thank you Cupon-mad, all changes are reflected !


If there is any chance I can pay you back for this, maybe a donation page or a cause.


The help of each and everyone is greatly appreciated !

deshulina

I've called them today !
All is good !
I will b submitting it online tonight and will keep everyone informed !

Wish me luck !

deshulina

Good morning all,
I have been given a court hearing date on the 30th of January, however I am not sure i this is a good or a bad thing, could someone advice if possible please.

The_Deep

Parking companies taking one to court is usually a good thing imo.

They often ask for inflated legal charges, employ incompetent low rent lawyers and generally FUBAR.

More and more judges are becoming aware that the whole industry is a scam.