ParkingEye County Court Claim - help with defence

rasputin_

Hi all,

Last July I parked my car at a shopping centre car park administered by Parkingeye. I was going somewhere I don’t often visit and researched where to park beforehand. The shopping centre’s own website had a jpeg flyer linked from their parking instructions page stating that the first two hours of parking are free and that:

“If you have stayed into a third hour or more, then go to a pay machine, enter your registration and enter the amount of money identified on the tariff board for the extra time you have stayed”

I arrived at 18:25 and left at 22:10, so was parked for 3 hours 45 minutes. The lowest tariff payable was for three hours at £3. When I returned to the car park I paid £3 at the machine, got my ticket and left – believing that the 3 hour tariff payment would cover the additional 1 hour 45 minutes I had stayed over the two hours of free parking.

In August I received a PCN from Parkingeye via my leasing company (I am a company car driver) – the usual £100 reduced to £60 if paid within 14 days. The PCN has all the POFA wording on the reverse, tailored for leasing companies, so no golden ticket

(At this point with hindsight I should have jumped on MSE, read the main thread, complained to the shopping centre etc, but alas I didn’t) :embarasse


I immediately appealed via the Parkingeye website, stating the flier from the website I had placed reliance upon etc. The appeal was denied (of course) and a PCN was sent to my home address direct to me, as I had foolishly identified myself as the driver of the vehicle. Again the POFA wording is on the reverse.

I took the appeal to POPLA, Parkingeye supplied 50 odd pages of signage etc & their standard defence (incidentally the covering letter in their PDF defence is addressed to me at home but I have never received this in the post) via upload to POPLA. I had been having issues with emails on my phone and so didn’t see all this until I had only a couple of days to make a further defence of my appeal with POPLA – unfortunately I was also distracted at the time by being on a family holiday and did not submit any further defence. POPLA found for Parkingeye and pointed me to make payment or contact CAB (both links broken on the POPLA site). This is the redacted text of the appeal decision:

The terms and conditions of the site state “Parking tariffs apply 24 hours a day, 7 days a week. Up to 2 hours (no ticket required) Up to 3 hous £3.00 (includes the first free 2hours) Up to 4 hours £4.00 (includes the first free 2 hours). Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. The operator has issued a £100 Parking Charge Notice (PCN) due to the appellant failing to make an appropriate payment for parking time. The site operates Automatic Number Plate Recognition cameras (ANPR), the operator has provided photographic images of the appellant’s vehicle, ______, entering the site at 18:25, exiting at 22:10; the period of stay was three hours and 45 minutes. The appellant states the signage on the site states two hours free parking, after this period ends motorists must make a payment for parking time. He says he was parked for three hours and 45 minutes therefore, paid £3 for additional parking time. I note the appellant’s comments however, the operator has provided a system print out which shows the appellant made a payment for three hours parking time. When looking at the signage it is clear that the appellant was entitled to two hours free parking and purchased an additional hour; this allowed the appellant to park on site for three hours. The ANPR images show that the appellant remained on site for three hours and 45 minutes, which is one hour and 45 minutes longer than what he paid for. Ultimately, it is the motorist’s responsibility to ensure that when they enter a site they have understood and complied with the terms and conditions. Based upon the evidence provided, I can see that the appellant remained on site therefore, agreeing to comply with the terms and conditions. I am satisfied that the signage clearly informs motorists that an appropriate payment for parking must be made. As the appellant remained on site without making a payment for the full duration of his parking time, he has failed to comply with the terms and conditions. As such, the PCN was issued correctly.

Nothing happened until December when I received the LETTER BEFORE COUNTY COURT CLAIM from Parkingeye.

I disagreed with POPLA’s appeal decision on the basis of what I considered to be a material error in their appeal decision, and sent the following email to POPLA complaints and Parkingeye enforcements (the email address from their LBCCC letter):

Dear Sirs,

I have recently had cause to review your assessor's supporting rationale in connection with the above numbered case, which I consider to be a serious shortfall in your service. *Please also note that your website calls this supporting rationale a 'rational' [sic]. An error in your website design you may wish to fix.
I noticed that in your assessor's rationale (highlighted copy attached) it states "the appellant made a payment for three hours parking time....this allowed the appellant to park on site for three hours...the appellant remained on site for three hours and 45 minutes, which is one hour and 45 minutes longer than what he paid for."
Clearly, this mistake is material to the decision as it shows that the assessor was considering their decision based upon an erroneous belief that I overstayed the allowed time by a full one hour longer than the vehicle actually remained in the car park for.
I have recently received correspondence from ParkingEye Ltd threatening court action against me, I hardly think it fair that I am expected to defend this claim when there is a material error in the rationale of your assessor and as such I expect that in the interests of fairness and transparency either POPLA overturn the assessor's decision and grant my appeal based on their assessor's error bias; or alternatively a reassessment of the appeal by a different / more senior assessor should take place, taking into account the actual facts and circumstances of the incident and the reasoning for my appeal and giving me further chance to provide my evidence and grounds for appeal.
ParkingEye Ltd, on copy - Your ref: _____/_____
Please take this email as an indication of my decision to refer this matter back to POPLA as a form of Alternative Dispute Resolution and as such you should stay any further legal action / communications pending the result of this ADR. This email should therefore be taken as a response to your letter dated ____.
As advised above, I do not think it fair that I should be expected to defend this PCN legally when the assessment of my appeal by POPLA and therefore your reason for legal action is materially flawed.
Please address any future correspondence to me at my home address and also send a digital copy to this email address.

I received a response via email from complaints at POPLA three days later:


Dear _____,
Your complaint about POPLA
Thank you for your email dated ____ which was passed to me by the POPLA team, as I am responsible for responding to complaints.
I note from your correspondence that you are unhappy with the decision reached by the assessor in your appeal against Parking Eye Ltd.
POPLA is an impartial and independent appeals service and we do not act either for the parking operator or the appellant. It is important to explain that it is not our remit to source evidence and documents from either party in support of their submission and our decisions are based on the evidence received from both parties at the time of the appeal.
I have reviewed the assessor’s decision and I am satisfied that the outcome reached is correct.
I note you are unhappy regarding the assessor’s statement: “The ANPR images show that the appellant remained on site for three hours and 45 minutes, which is one hour and 45 minutes longer than what he paid for.” Having reviewed this it is evident that the assessor has made a typography error, as throughout the decision she refers to the fact that you paid for three hours parking time. The actual time unpaid for was 45 minutes. I would like to apologise for this, however the typography error does not warrant in a change of decision. I have passed this back to the assessor’s team leader for feedback purposes.
From the evidence provided I can see that you paid £3.00 to cover parking for up to three hours. This tariff included the two hours free period. The period of 45 minutes remained unpaid. By not paying for the total duration of parking time the terms and conditions of the car park were not met.
As POPLA is a one-stage process, there is no opportunity for you to appeal the decision.
As our involvement in your appeal has now concluded you may wish to pursue matters further. For independent legal advice, please contact Citizens Advice at: <link removed> or call 0345 404 05 06 (English) or 0345 404 0505 (Welsh).
In closing, I am sorry that your experience of using our service has not been positive. We have reached the end of our process and my response now concludes our complaints procedure. I trust you will appreciate that there will be no further review of your complaint and it will not be appropriate for us to respond to any further correspondence on this matter.
Yours sincerely
POPLA Complaints Team

Parkingeye were not copied in on the response (unless BCC’d of course).


I heard nothing more until last week, when I received the County Court Claim Form (on 21/02). The claim is now £175 (£100 claimed, £25 court fee, £50 legal rep costs) and the particulars of claim are on the claim form.



I immediately came onto MSE and reviewed the advice here, went onto MCOL and did the AOS. So I have to give a defence by 21st March.


The particulars of claim also contain a factual error, complete (redacted) text as follows:


Claim for monies outstanding from the defendant, in relation to a Parking Charge issued __/__/____, for parking on private land in breach of the terms and conditions (the contract). ParkingEye’s automated number plate recognition system, monitoring _______ Shopping Park, _____, _____, _____, captured vehicle _______ entering and leaving the car park, parking without purchasing a valid paid parking ticket. The signage, which is clearly displayed at the entrance and throughout the site, states this is private land, is managed by ParkingEye, and parking tariffs apply after a free stay period, along with other T+C’s by which those who park on the site agree to be bound. In accordance with the T+C’s set out in the signage, the Parking Charge became payable. The defendant previously had their appeal rejected by POPLA, the independent appeals service for parking on private land. This claim is in reference to Parking Charges _____/_____.


Obviously the “parking without purchasing a valid paid parking ticket.” line is an attempt to strengthen their claim and make it appear as if I just parked up & left without paying at all.


Any ideas on where to start with a defence for this claim? Any help any of you can provide will of course be most appreciated.

Coupon-mad

I heard nothing more until last week, when I received the County Court Claim Form (on 21/02). The claim is now £175 (£100 claimed, £25 court fee, £50 legal rep costs) and the particulars of claim are on the claim form.

I immediately came onto MSE and reviewed the advice here, went onto MCOL and did the AOS. So I have to give a defence by 21st March.

Any ideas on where to start with a defence for this claim? Any help any of you can provide will of course be most appreciated.

1. Search for and read any other ParkingEye defences, as yours can be similar. Uphill struggle, due to ParkingEye v Beavis, so read it and weep (I mean read it and learn how your case differs!).

2. Was anyone in the car disabled or elderly/slower to go about their shopping?

3. Ambiguous signs is going to be your best defence, if the answer to #2, is ''no'':

'If you have stayed into a third hour or more, then go to a pay machine, enter your registration and enter the amount of money identified on the tariff board for the extra time you have stayed'

I arrived at 18:25 and left at 22:10, so was parked for 3 hours 45 minutes. The lowest tariff payable was for three hours at £3. When I returned to the car park I paid £3 at the machine, got my ticket and left, believing that the 3 hour tariff payment would cover the additional 1 hour 45 minutes I had stayed over the two hours of free parking.

Ambiguity in a sign works in favour of the consumer, if the Judge understands your argument here. I did!

As well as searching for ParkingEye defence and also search the forum for contra proferentem and change the advanced search default to SHOW POSTS (NEVER show threads, no no no, awful!!)

rasputin_

Thanks Coupon-mad. I was with my partner & three year old daughter, none of us are disabled/elderly.

I've browsed a few parkingeye defences on here now and am currently drafting mine, working with the ambiguous signage, noting especially that the 'includes the first free two hours' text is at least 50% smaller than the 3 hours = £3 text above it on the signs. This is coupled with fact that I placed reliance upon the shopping centre's own parking advice from their website which is worded misleadingly. I will work in contra proferentem as part of it.

Will update the thread with draft defence in the next day or so.

rasputin_

This is my draft defence, need to get it in the post tomorrow/tuesday:

In The County Court

Claim No. XXXXXX

Claimant ParkingEye Ltd

Defendant XXX

Defence

I am XXXX, the defendant in this matter of alleged parking infringement at XXXX Shopping Centre,XXXX on XX XXX 2017, and I assert that the claimant has no cause for action for the following reasons.

1. Prior to parking at XXXXX Shopping Centre the defendant researched town centre parking in XXXX online as they are not overly familiar with the area. Defendant located the XXXX Shopping Centre website at <link> which is the site owners own website. Following the Instructions For Parking link defendant was directed to the page <link> which located an image named XXX.jpg. This image stated the following:
Step 1. If you have been on the car park for less than 2 hours there is no need to input your registration or pay. You simply drive off.

Step 2. If you have stayed into a third hour or more, then go to a pay machine, enter your registration and enter the amount of money identified on the tariff board for the extra time you have stayed

Step 5. As long as you exit the car park before the additional time you have purchased expires then simply drive off the car park without fear of penalty

2. Defendant was parked for roughly 3 hours and 45 minutes. Upon returning to the car park at just after 10pm defendant went to a pay machine located near to the entrance of the shopping centre on site, followed the instructions to enter the vehicle registration number and made a payment of £3 in cash which was advised on the visible signs as being the amount payable for 3 hours parking, which defendant understood to be in addition to the two hours of free parking at the site following their placing reliance on the site owners own instructions referenced in paragraph 1 . Therefore the defendant understood that they had paid for a total of 5 hours parking.

3. The claimant has provided in response to the defendants POPLA appeal a signage plan of the site which shows that the nearest 600mm x 800mm tariff board (referred to by the claimant as Sign Type 2 to the pay machine that defendant used is roughly 20 metres away. Defendant recalls seeing the sign in the evening light and that it showed 3 hours parking was the lowest payable tariff at £3 and this is the reason defendant paid that amount. Upon reviewing the content of Sign Type 2 defendant now notes that it states Up to 3 hours£3.00 and below this in text of at least a 50% smaller type (includes the first free 2 hours) Defendant does not recall seeing this smaller text in the evening light when making the cash payment at the pay machine.

4. Sign Type 2 also includes the black text on a white background Failure to comply with the terms & conditions will result in a Parking Charge of: and £100 in white text on a rounded square black background. Below this text is the terms and conditions of parking, which is made in text of a type so small that it is not at all legible even on the digital copies of the signage provided by the claimant.

5. The claimant 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 the contract. It is the claimants 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 as stated in paragraph 4, contrary to Lord Dennings 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.

6. I would assert that under the principle of Contra Proferentem and the Unfair Terms in Consumer Contracts Regulations 1999 any ambiguity in the term of a contract must be read in the manner most beneficial to the consumer.

7. The Claim Form issued on XX February 2018 states in the Particulars of Claim that the claim is for the defendant parking without purchasing a valid parking ticket. The defendant purchased a valid parking ticket for £3 and has provided this to the claimant and to POPLA at both initial and secondary appeals. There are therefore no grounds for the claim that the defendant parked without purchasing a valid parking ticket.

8. The amount demanded is excessive and unconscionable. The claimants representative has artificially inflated the value of the claim from £100 to £175. The Protection Of Freedoms Act paragraph 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated in the Notice to Keeper.

9. The claimants legal representative XXX XXXX is the claimants in-house solicitor. The charge of £50 for these solicitor fees is not supportable. In 2014 the claimant filed over 30,000 claims which would represent a total of £1,500,000 in solicitor filing costs. It is difficult to see how the claimant can justify this amount: XXX XXX would have to file one claim every 4 minutes every day for an 8 hour working day, without a break. I believe that the claimants filings are almost completely automated and there is no evidence of any wet or otherwise signature on the claim form just a typed name.

10. The defendant believes the terms for such conduct are Robo Claims which is against the public interest and demonstrates a disregard for the dignity of the court and is unfair towards 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 such as the claimant are using the small claims track as a form of aggressive, automated debt collection and the defendant believes that this is not something that the courts should be seen to support.

11. Non-disclosure of reasonable grounds or particulars for bringing a claim. The claimant is not the lawful owner-occupiers of the land or 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. The claimant suffers no loss whatsoever as a result of the vehicle in question being parked at the site. 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 after two hours, then only the landowner can pursue a case under the tort of trespass not the 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.

12. 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.

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

Coupon-mad

need to get it in the post tomorrow/tuesday

No, email it as a signed/dated attached document, to the ccbcaq email addy, easily findable on the CCBC contact page, like everyone does. Quicker and gives you proof it's sent!

6. I would assert that under the principle of Contra Proferentem and the Consumer Rights Act 2015 [STRIKE]Unfair Terms in Consumer Contracts Regulations 1999[/STRIKE]

Remove this from #11, do not talk about no loss, it has no legs:

The claimant suffers no loss whatsoever as a result of the vehicle in question being parked at the site.

You could add something like this as #12, moving your final para (currently #12) down one number:

12.1. This case can be fully distinguished from the Beavis case, where it was confirmed that the penalty rule is undoubtedly 'engaged' in parking charge cases, and the relevant facts must be considered in every case. The parking charge of £85 in Beavis was found to be 'neither extravagant nor unconscionable, taking into account use of this particular car park and clear wording of the notices'.

12.2. Contrary to the way ParkingEye would no doubt like to paint it, the Beavis case was not a decision that causes every parking charge in every car park to be recoverable. The Defendant urges the Court to consider the matter of the lack of transparency and fairness of the terms, on the facts of this case alone. The driver in this case neither knowingly overstayed nor underpaid, and did not agree - as Mr Beavis was held to have agreed - to pay a penalty.

12.3. Whilst this claim also relates to a retail park, the ambiguous and non-prominent 'pitfall or trap' of the advertised 'free 2 hours' actually not being free and in fact removed for drivers who stay longer (hidden in the small print on unlit scarce tariff signs) falls foul of the requirement of good faith in consumer contracts.

12.4. Appropriate prominence was not given to the hidden/ambiguous terms which operated most disadvantageously to the consumer, and indeed the landowner's own advertised terms were the agreement upon which the driver was fairly entitled to rely for their visit, having seen nothing to the contrary and having paid the correct tariff (as advertised) in good faith.

12.5. This issue breaches the Consumer Rights Act 2015 and was dealt with in Beavis; this case law about 'concealed pitfalls and traps' is taken directly from the Court of Appeal stage in April 2015, at 35: ''The nature of the duty to act in good faith as described in the Regulations was discussed by Lord Bingham in paragraph 17 of his speech in Director General of Fair Trading v First National Bank Plc [2002] 1 A.C. 481...'':

''The requirement of good faith in this context is one of fair and
open dealing. Openness requires that the terms should be
expressed fully, clearly and legibly, containing no concealed
pitfalls or traps. Appropriate prominence should be given to
terms which might operate disadvantageously to the customer.
Fair dealing requires that a supplier should not, whether
deliberately or unconsciously, take advantage of the consumer's
necessity, indigence, lack of experience, unfamiliarity with the
subject matter of the contract, weak bargaining position or any
other factor listed in or analogous to those listed in Schedule 2
to the Regulations. Good faith in this context is not an artificial
or technical concept; nor, since Lord Mansfield was its
champion, is it a concept wholly unfamiliar to British lawyers.
It looks to good standards of commercial morality and practice.''

12.6. Further, at 44 and 45, the Court of Appeal in Beavis found that the particular free car park in question was is 'entirely different' than situations such as in this car park, where there is an economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours:

''All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other. Sometimes such measurement is difficult because of inherent uncertainties, and in those an agreed liquidated damages provision may be upheld for those reasons[...]''

''The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours...''

rasputin_

Thanks for the late night response!

Have updated with your amendments and will email as a signed pdf tomorrow.

I was looking at posting it recorded / RMSD as per bargepole's court claim procedure thread linked from the newbie thread but realise that in the comments people were advising to email the ccbaq email address for claim responses.

Thanks again!

Coupon-mad

Good, I know #12 is long but as yours is ParkingEye at a retail Park, I think you needed to hit home in the defence, that your case is distinguished from Beavis, and why.

Otherwise a Judge might have taken one look at it and thought you have no case, due to Beavis being (on the face of it) similar.