Parking Eye Claim Form

jimmyt05

Hi,

This is my first post here and I would like some advice on what to do.
This is the particulars of claim from Parking Eye.
Claim for monies outstanding from defendant, as registered keeper in relation to a Parking Charge issued xxxxxx for parking on private land breach of terms and conditions (the contract).
Parkingeye automated number plate system monitoring xxx captured vehicle xxx entering and leaving the car park without a valid paid parking ticket. The signage clearly displayed at the entrance to and throughout the car park states that this is private land, is managed by Parking Eye Ltd and is a paid site, along with the T+C's set out in the signage, the Parking Charge became payable. Notice under the protection of Freedom Act 2012 has been given under Sch4 making the keeper liable.

Signed by Claimnt's Legal Representative.

I never received letter before claim also. Which I emailed and requested.
I am writing my defense now but seeing a few examples. This POC does not relate to others defenses. Or is this also a generic POC? As mine clearly says I breached the contract.

Thanks for any help received.

soolin

Start by having a read of the newbies thread here;

https://forums.moneysavingexpert.com/discussion/4816822

jimmyt05

I found out that POC is generic.

Below is my defence, if you could take your time to read it and give feedback, it would be greatly appreciated thanks.

I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

1. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). 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. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’
e) The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and 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.

2. 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.

3. 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. 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.
iii. 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.
iv. 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.

4. No standing - this distinguishes this case from the Beavis case:
It is believed Parking Eye 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.

5. 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.

6. 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.

7. 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.

8. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 5 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

9. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
“If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”

10. 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 Claimants are known to be serial issuers 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. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;
“ 1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant ”

11. The claimant has not provided enough details in the particulars of claim to file a full defence;
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a ‘parking charge’ was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.
i. 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.’
ii. On the 27thJuly 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 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

12. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
a) The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
b) Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
i. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
ii. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
c) To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

13. Parking Eye Ltd are not 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 rights to bring action regarding this claim.
a) 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.
b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge

14. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated to £175. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
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 on the Notice to Keeper.
b) The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
i. The Defendant denies that the driver 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.

15. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
a) The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
i. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
ii. The signage did not comply with the requirements of the Code of Practice of the British Parking Association ("BPA") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
iii. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

16. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
b) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
c) Not withstanding the Defendant's belief, the costs are in any case not recoverable.
d) The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

17. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

18. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

19. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

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

Name - Signed - 30/10/2017


This is what I got so far, not sure if more is needed. And I got information from this forum and pepipoo forum.
Thanks.

jimmyt05

So after I save it as a a PDF, print it, sign it, scan it, save it again. Would I need to post it to them or can I send as a email attachment ?

KeithP

jimmyt05 wrote: »

So after I save it as a a PDF, print it, sign it, scan it, save it again. Would I need to post it to them or can I send as a email attachment ?

Have a read of Bargepole's walkthrough linked from post #2 of the NEWBIES thread.

Post #7 of that gives an email address.

jimmyt05

Okay I won't need to post but send a email.
My Defence is 11 pages on the PDF is this normal ?

Coupon-mad

Yes but that defence draft does look too wordy. And you've copied a CEL one, because this is not quite relate to PE:

The badly mail-merged documents contain very little information.

and you've copied this bit which is about Gladstones claims, N/A here:

i. 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.’
ii. On the 27thJuly 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 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

And you've said the claim can be fully distinguished from Beavis - BUT CAN IT?

If this is an overstay in a retail park, you have no hope of arguing Beavis does not apply.

jimmyt05

Thanks for the reply, I have removed those quoted from my defence.

This charge was because no ticket was purchased at all.

Coupon-mad

Right, and was that because the car was only there for a few minutes, then left? Within a reasonable grace period?

Or the P&D machine wasn't seen/lit and the signs were unclear?

You should state such facts in the defence, but without saying who was driving.

jimmyt05

Signs were unclear. The car park is free for bingo members, but no ticket was purchased based on assumption that the car park was shared as and driver went next door to the gym. The car park is between these two buildings. If it was free for one side why not the other. Still should of read the signs more properly. What can I do based on my defence ?

Coupon-mad

Make sure ambiguous signs are mentioned, and weed out the dross/repetition!

Show us a new, more concise draft, and you will get more replies, I expect.