*URGENT HELP* Appealing Parking Charge taken to court

GiaPetite

Hi there, just wondering if its worth adding this which I found on a template on the Parking Prankster:

i The Unfair Terms in Consumer Contract Regulations 1999 applies
1. It is asserted that the Claimant!!!8217;s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties!!!8217; bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.

2. The European Court of Justice case of Aziz v Caixa d!!!8217;Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);

Article 3(1) of Directive 93/13 must be interpreted as meaning that:

!!!8211; the concept of !!!8216;significant imbalance!!!8217; to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out!!!894;

!!!8211; in order to assess whether the imbalance arises !!!8216;contrary to the requirement of good faith!!!8217;, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

3. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over free time, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.

4. It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine pre-estimate of loss, being the normal legal situation provided for by the national law in force. ParkingEye!!!8217;s charges in the original hearing were asserted to be an average of around £18 per ticket issued.

5. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38)

The judge [!!!8230;] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.

6. It is submitted that the European Court of Justice definition of imbalance must take precedence.

7. However, in any case the instant case is not saved from being unfair by Beavis. In this particular location council charges for overstay are £50 discounted to £25, not £100 discounted to £85. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.

8. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies

12. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

13. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

14. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

15. The regulations define an on-premises contract as:
!!!8220;on-premises contract!!!8221; means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

16. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
!!!8220;distance contract!!!8221; means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

17. This is clearly an organised service-provision scheme (for parking)
The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

18. This is therefore a distance contract.

19. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

20. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.

Umkomaas

Unfair Terms in Consumer Contract Regulations 1999 was revoked and replaced by the Consumer Rights Act 2015, two and a half years ago. The copy and paste you've lifted is ancient, and as it stands should not be used.

Also, please switch of the Smart Punctuation function of your iPhone/iPad to avoid littering your posts with !!!8251; (and similar) gobbledegook. Every punctuation you use comes out as rubbish now - a forum glitch.

Go to 'General' > 'Keyboard' > 'Smart Punctuation' and flick the switch off.

Switching off seems to have no detrimental affect on any other use of the keyboard.

GiaPetite

Ahh I see i'll leave that out then. And what about information and examples of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013? Sorry for bombarding this with posts which are probably stupid questions, i've never dealt with this kind of thing before so i'm probably over stressing and complicating it.

Thanks for the keyboard tip, switched it off now. Couldn't understand why it did that.

Coupon-mad

Nope, none of that is needed. Just the same sort of defence as all the other CEL ones recently.

See the two CEL cases just discontinued on the forum today, that I just replied on tonight!

GiaPetite

Hi guys,

I'm back and need some advice. I have received a 'Notice of Allocation to the Small Claims Track (Hearing)' and the hearing date is 28th September. What do I do now? What kind of evidence do I need?

I have photographs of inadequate signage and a letter from the driver's friend who owned the property at the time the driver was visiting them and parking in a visitor space. I emailed the company who own the flats asking for their Terms and Parking conditions of parking in the residents car park and asked what the Lease/Tenancy Agreement says about residents and their visitors. I asked if residents and their visitors have a right to park without limitation as to type of vehicle, ownership of vehicle and the user of the vehicle however I haven't received a reply. I emailed them in April. Can I use this as evidence?

Also can I use the original defence and re send that?

Any help would be much appreciated. Are CEL likely to fold before a court hearing?

Kind Regards,

Gia

KeithP

Are you not reading about other CEL cases, as suggested in post #55 from April?

No, you do not just resend your Defence.

You need to go back to post #2 of the NEWBIES FAQ sticky thread and read about creating a Witness Statement.

Yes, CEL are likely to fold before a court hearing, but only if by putting up a sound case you convince them it isn't worth their while continuing.

Computersaysno

Is this still URGENT!!!!!!!!!!!!!!!!!!!!!!???????????????????

GiaPetite

Hi,

So I don't need to send pictures of the inadequate signage just the original defence letter? Only thing is, if they do take me to court, I can't use any other evidence than what I have submitted.

Thanks

GiaPetite

I can't find post 55?

Le_Kirk

Here is a link to post # 55 but it has taken me longer to type all that than it did to scroll back 5 posts!