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ParkingEye Court Claim defence: please check
draf_2
Posts: 10 Forumite
Hi - I am a newbie, but have read what I hope are all the relevant posts and have put together my suggested defence to respond to a county court claim from ParkingEye (yes, I should have done a better job at the POPLA stage - I was naive). You guys do an amazing job on here and I'd be hugely grateful if you could check my defence (I have already done the acknowledgement so have a little more time to respond, but would like to get this safely off asap).
All the facts in this are - as far as I can tell - correct (e.g. the PCN did not include the POFA clauses). I have redacted a few details (shown by ***) to make it more difficult for anyone to recognise my case.
Thank you all so much.
I am ***, the defendant in this matter, or alleged parking infringement at the *** Hotel on ****, and I assert that the claimant has no cause for action for the following reasons.
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 -
“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” (neither of which is a ‘fact’).
A parking ticket had been purchased online for the period of parking, of which no evidence was given in the PCN, and thus the receiver of the PCN did not understand the reason for the notice and was not able to defend the claim that was later made by ParkingEye to POPLA, by which time it was not possible for further defence to be made.
The defendant invites the court to strike out or dismiss the claim under the rule 3.4 (2) (a) of Practice direction 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing the claim. District Judge Cross of St. Albans County Court on 20.09.06 struck out a claim due to their ‘Robo claim’ particulars being incoherent, failing to comply with CPR 16.4 and ‘providing no facts’.
3. 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.
ParkingEye submitted photographs to the POPLA appeal system showing the signage at the site. It is their 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.
4. The defendant made all reasonable efforts to make payment for!parking!using an approved payment channel and by following the signage in the car park.
A. On arrival to the car park the!defendant, not having enough cash for the stay (and the automated machine taking cash only), attempted to use either the phone or online PayByPhone options advertised. However, being an underground car park there was no mobile reception.
B. The defendant left the car park to gain mobile reception but then discovered that both systems required a site number (the online payment site had a ‘search’ function but the name of the car park: ‘***’ did not appear as an option). The defendant therefore had to return to the underground car park to note down the number before again returning to an area with mobile reception to re-attempt payment.
D. £18.20 was paid in total, more than the £17 that the signage states is the amount payable for a 4hr stay (the time claimed by ParkingEye that the defendant paid for). The online payment system allows purchase of a ticket up until a set finish time and displays a visible screen count down on the payer’s phone to the time at which that payment expires. As ParkingEye’s computer print-out shows (submitted to POLPA, though not available to the defendant before), the expiry of the payment made in this case was ***. ParkingEye’s photographs show the defendant’s car leaving the car park at ***, less than 9 minutes later than the finish time of the parking session purchased online and within any reasonable grace period. Thus it is clear that the defendant made every attempt to make appropriate payment using the means advertised by ParkingEye, and returned to the car at the time specified by ParkingEye’s online parking system.
E. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment. In Jolley V Carmel LTD (2000) 2-EGLR-154; it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to comply with the terms.
5. The Claim Form issued on *** states that the claim is for defendant “parking without purchasing a valid parking ticket”. The defendant purchased a valid parking ticket, provided proof of the online payment of this to POPLA during the appeals process, and this was not disputed at the time by ParkingEye who submitted a computerised print-out indicating the purchase of an online parking ticket. There are therefore no grounds for the claim that the defendant parked without purchasing a valid parking ticket.
6. The amount demanded is excessive and unconscionable. The claimant’s representative has artificially inflated the value of the claim from £100 to £175.
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.
7. 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.
8. 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.
9. 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.
All the facts in this are - as far as I can tell - correct (e.g. the PCN did not include the POFA clauses). I have redacted a few details (shown by ***) to make it more difficult for anyone to recognise my case.
Thank you all so much.
I am ***, the defendant in this matter, or alleged parking infringement at the *** Hotel on ****, and I assert that the claimant has no cause for action for the following reasons.
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 -
“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” (neither of which is a ‘fact’).
A parking ticket had been purchased online for the period of parking, of which no evidence was given in the PCN, and thus the receiver of the PCN did not understand the reason for the notice and was not able to defend the claim that was later made by ParkingEye to POPLA, by which time it was not possible for further defence to be made.
The defendant invites the court to strike out or dismiss the claim under the rule 3.4 (2) (a) of Practice direction 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing the claim. District Judge Cross of St. Albans County Court on 20.09.06 struck out a claim due to their ‘Robo claim’ particulars being incoherent, failing to comply with CPR 16.4 and ‘providing no facts’.
3. 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.
ParkingEye submitted photographs to the POPLA appeal system showing the signage at the site. It is their 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.
4. The defendant made all reasonable efforts to make payment for!parking!using an approved payment channel and by following the signage in the car park.
A. On arrival to the car park the!defendant, not having enough cash for the stay (and the automated machine taking cash only), attempted to use either the phone or online PayByPhone options advertised. However, being an underground car park there was no mobile reception.
B. The defendant left the car park to gain mobile reception but then discovered that both systems required a site number (the online payment site had a ‘search’ function but the name of the car park: ‘***’ did not appear as an option). The defendant therefore had to return to the underground car park to note down the number before again returning to an area with mobile reception to re-attempt payment.
D. £18.20 was paid in total, more than the £17 that the signage states is the amount payable for a 4hr stay (the time claimed by ParkingEye that the defendant paid for). The online payment system allows purchase of a ticket up until a set finish time and displays a visible screen count down on the payer’s phone to the time at which that payment expires. As ParkingEye’s computer print-out shows (submitted to POLPA, though not available to the defendant before), the expiry of the payment made in this case was ***. ParkingEye’s photographs show the defendant’s car leaving the car park at ***, less than 9 minutes later than the finish time of the parking session purchased online and within any reasonable grace period. Thus it is clear that the defendant made every attempt to make appropriate payment using the means advertised by ParkingEye, and returned to the car at the time specified by ParkingEye’s online parking system.
E. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment. In Jolley V Carmel LTD (2000) 2-EGLR-154; it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to comply with the terms.
5. The Claim Form issued on *** states that the claim is for defendant “parking without purchasing a valid parking ticket”. The defendant purchased a valid parking ticket, provided proof of the online payment of this to POPLA during the appeals process, and this was not disputed at the time by ParkingEye who submitted a computerised print-out indicating the purchase of an online parking ticket. There are therefore no grounds for the claim that the defendant parked without purchasing a valid parking ticket.
6. The amount demanded is excessive and unconscionable. The claimant’s representative has artificially inflated the value of the claim from £100 to £175.
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.
7. 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.
8. 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.
9. 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.
0
Comments
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Grace periods are key to this one.
You could also quote the BPA CoP para 13 (all of it) about allowing an observation period before payment, and a separate grace period after, on top. You could also state that you will use in evidence, should this proceed to trial, the published Article 'Good car parking practice includes grace periods'* by Kelvin Reynolds, Director of Policy and Public Affairs at the British Parking Association.
And you could add that in the Beavis case, the Judges decided that full compliance with the Code of Practice (CoP) was a pre-requisite for private parking firms obtaining DVLA data, and that the CoP was considered by the Judges to be akin to 'regulation' for ParkingEye.
I would remove this as it's really about Gladstones:The defendant invites the court to strike out or dismiss the claim under the rule 3.4 (2) (a) of Practice direction 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing the claim. District Judge Cross of St. Albans County Court on 20.09.06 struck out a claim due to their ‘Robo claim’ particulars being incoherent, failing to comply with CPR 16.4 and ‘providing no facts’.
*
http://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periodsPRIVATE '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 -
Thank you so very much. I shall make those suggested tweaks and then submit on paper as recommended.
Thank you, and I shall let you know how I get on.0 -
Well, ParkingEye have defended the claim, so it looks as if I'll get my day in court. Any advice very welcome!0
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What is the last letter you've had from the court. Is it a Directions Questionnaire or Notice of Allocation?This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0
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Last letter from court was a Notice of Allocation. Now from PE I have a 'defence' (mostly irrelevant, but containing some specifics), and at the same time but in a different letter an offer for 'without prejudice' (obviously not one I intend to accept). I'm about to go away for a couple of weeks (had notified the court on my original form that I was unavailable for these weeks). Wondering if I should respond at all to PE (for the sake of the judge later on), or just wait for the next letter from the court (presumably I will be notified when I need to submit witness statement etc - hope that it's not whilst I'm away).0
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What was the offer? Drop hands?
It isnt "for" without prejudice, that just means you cannot show that letter in court.
Do you REALLY mean you have a defence from PE? They are the claimant, so it will of course not be a defence. If you have a counterclaim in play, then the defence to counterclaim MUST have been served no later than 14 days after they were told of the counterclaim, which woul dhave been weeks or months ago.
Please, make sur eyou are using the correct terminology, otherwise this gets very confusing!
So you have notice of allocation to your local court? But you do not have a hearing date yet?
If so, then as you will know from reading the newbies thread, you will get a letter form your local court setting a date, and within that will tell you when you need to exchange documents by - usually about 14 days before, but check
If you do have a claimants bundle from PE , you dont have to respond to either the bundle OR the WP letter (as you cant show it in court anyway) but obviously, the bundle SHOULD contain their entire case - meaning you have lots of time to work out all the many, many holes.0 -
>What was the offer? Drop hands?
The offer was just 40 quid off the current total.
>Do you REALLY mean you have a defence from PE?
I'm so sorry - I will be more careful with the terminology. No, I have a 'reply to defence' from them. I have no counter-claim in play.
>So you have notice of allocation to your local court? But you do not have a hearing date yet?
Yes, exactly. And yes, I have the reply to defence bundle from PE.
Good to know that I don't have to reply to their 'without prejudice' offer - thank you. I just wanted to check it wouldn't look bad in court not to respond at all.
I am going away tomorrow for 2 weeks so I just hope that I don't get a date for submission of the witness statement and paperwork too tightly after that, or even within that time. I shall take their paperwork with me in case I get a chance to look at it at some point as of course I want to prepare carefully. I think my case will be all about when a contract comes into place - because I would argue that whilst registering for their online payment I have still not yet entered into a contract - it is the equivalent of standing in a queue in a shop waiting to pay for something. Just as if I were in a shop, I could have given up and gone somewhere else (and would not have expected to pay until I had parked properly). I could not go to the conference I was there for until I had completed payment, and they should have records of my registration process on their online system so they will be able to see that it took that long. I know there is case law about when parking becomes a contract, so I will look into that, but I think the online payment process might make it a different prospect.0 -
Often when they make that sort of offer they know they are on thin ice and are desperately trying to squeeze something out of you.Good to know that I don't have to reply to their 'without prejudice' offer - thank you. I just wanted to check it wouldn't look bad in court not to respond at all.
No guarantees, but this could be heading to a discontinuation by them. Don’t rely on it, but it’s a possibility. Keep us updated.Please 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 -
I slightly hoped that too...
I will post an update as soon as I'm back.
Thanks all for your support.0 -
Last letter from court was a Notice of Allocation. Now from PE I have a 'defence' (mostly irrelevant, but containing some specifics)
If you have a NoA, you now have a court date and when you have to send PE and the court a Witness Statement - what you call a "defence".
On the Notice will be a date by for you to "exchange documents". When is that and has that date passed?This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0
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