barnet hospital - parkingeye court action

fil_cad

shal4 wrote: »

you experts are so amazing and do a very selfless work of helping innocent victims... thanks a lot!

PE should really be taken to court by citizens as illegal rogue traders. they should offer parking space inside barriered area and allow a car in only if there is a parking space. by the way, hillingdon council is very nice and operates likes this.
I will also write to local MP.
I will share my defence here soon.

Yes they should be taken to court, they will never use barriers as it would drain their filthy gravy train.

shal4

Deanet123 please can you start a new thread so the experts can help you. i need help myself so have raised this thread. i would say please do not pay and defend your case. like me. best of luck...

shal4

Hi Experts, i have gone through samples defence samples and the initial responses to my thread and written up this defence:

Please can you have a look and let me know if it is appropriate? I have many questions which i have started with asterisks.

Also, some statements seem powerful and generic to me so i have added in my defence but not sure if it will have negative impact or if irrelevant. many thanks for your help folks!

---

Defence:

IN THE COUNTY COURT BUSINESS CENTRE

Claim No: XXXX

BETWEEN:

ParkingEye (Claimant)
and
XXXX (defendant)

---

Background:

Defendant took his 13 year old son to Barnet Hospital for Phototherapy appointment with the nurse. Defendant entered car park and saw that many other cars were waiting to get a vacant parking bay to park car. Defendant too waited in the car park hoping to eventually find a vacant parking bay to park car and visit the hospital dermatology nurse. Defendant desperately waited inside the car along with his son but when in 46 minutes no parking bay became available, then rushed out of the car park to avoid losing the hospital appointment slot. Defendant then found a parking bay in a street and ran with his son to visit hospital nurse. Defendant did not leave car or get any parking bay to park so there was no contract formed to pay to land ownder of car park or claimant.

---

DEFENCE STATEMENT

1. It is admitted that the Defendant is the registered keeper of the vehicle in question.

**question?? -should i defend as driver or keeper? driver was my husband who is also keeper of vehicle?? to confirm. owner is not same as keeper? how do i know who is keeper?


2. 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;
!!!8220;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 !!!8216;Creditor!!!8217; 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!!!8217;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.!!!8221;

3. 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 !!!8216;roboclaims!!!8217; and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

!!!8220; 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 !!!8216;Money owed £5000!!!8217;,
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 !!!8221;




**question?? - how i know if they r claiming against driver or keeper? they found my husband's address from DVLA.

4. can i refer to the signage and terms and conditions - which i have not read or obtained from PE??

5. It is denied that any "parking charges or other costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in it's entirety. The date of the alleged incident is 08/02/2017 as per the particulars of claim which is over 1.25 years ago.
I am perpelexed as to why the Claimant waited until now to bring proceedings.

5. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant!
5a. The evidence supplied by PE only show the time during which the car was inside the car park. They fail to show that the car was parked.
5b. The evidence supplied by PE does not show whether or not the driver and passengers of the car left car or not.

7. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the claimant's solicitors on xx/xx/xxxx.

questions??? how to apply for information?? i did not ask them for any information...

8. In the pre court stage the Claimant refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
They did not send me:
8a. evidence that the occupants of car left the car.
8b. the car was parked in the Private Eye Car Park
8c. there was any vacant parking bay during the time of alleged use of car park.

9. The defendant only entered the car park in hope of finding a vacant parking bay to park car - but - along with many other hapless drivers (who must have also been tricked/conned and harassed by Claimant - failed to find any vacant parking bay and when defendant ran out of time for the hospital appointment, they rushed out of the car park in desperation to try to look for parking space on a road and then rushed to hospital for appointment. Parking Eye had planned to take advantage of the desparate need and innocence of drivers and hence trying to extort money when no contract could be enforced because car was not parked in the parking area.

10. no service was provided by claimant and no service was used by defendant so no contract applies in this case.

11. the claimant is alleging that defendant parked the car in car park and hence must pay the penalty as defendant failed to purchase parking ticket to comply with terms and conditions of the private land. But even if any contract exists for parking on the land, this contract was frustrated throughout the time the defendant stayed on the claimant's land because there was no parking space available during the period of defendant's presence in the car park.


12. The claimant has not provided enough details in the particulars of claim to file a full defence;
12.1. The Claimant has disclosed no cause of action to give rise to any debt.
12.2. The Claimant has stated that a !!!8216;parking charge!!!8217; was incurred.
12.3. 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.
12.4. 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 !!!8220;parking charges!!!8221; 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.

13. the claimant is not trading responsibly and has clearly failed to secure its parking area by allowing every car to enter its premises - irrespective of whether any parking bay is vacant or not. Claimant should be forced to put barriers in its parking are and allow a car inside only if there is a vacant parking bay. the parking contract is frustrated as soon as claimant allows a car inside when no parking bay is available.

14. Claimant has failed to provide following details in the claim:
a) Full particulars of the parking charges
b) Who the party was that contracted with Claimant
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that Claimant had their authority.
e) If the charges were based on damages for breach of contract and if so to provide justification of this sum.


The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

15. Claimant 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.
8.1. 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.
8.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
8.3 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

16. The Claimant has at no time provided an explanation how the !!!8216;parking charge!!!8217; has been calculated, the conduct that gave rise to it or how the amount has escalated from £60 to £100. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
16.1. 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.
16.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
16.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking Eye and no proof has been provided.

**?? how to get their sign copy? then i can see if these points are relevant to my case or not?


17. I suggest 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.

18. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

**?? i do not understand above so do not know if applicable to my case or not?



19. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

**?? i do not understand above so do not know if applicable to my case or not?


20. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

**?? i do not understand above so do not know if applicable to my case or not?


21. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.


22. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) 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.
e) Absent the elements of a contract, there can be no breach of contract.

**?? i do not understand above so do not know if applicable to my case or not?

23. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

24. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
Signature and Date


**?? the claim form that i received in paper has not enough details of claim except amount and a paragraph written about claim by claimant. no evidence etc. is there any benefit i can derive out of it?

---

Coupon-mad

Bump for comments please!

claxtome

Deal with the questions:

Should i defend as driver or keeper? driver was my husband who is also keeper of vehicle?? to confirm. owner is not same as keeper? how do i know who is keeper?

It is confusing.
Background
The registered keeper is whose details they get from DVLA.
The driver was the person driving the vehicle on the day.
The keeper of the vehicle on the day doesn't necessarily have to be the registered keeper.
You have the right to defend as the keeper and the parking company can only pursue the keeper if they have conformed to POFA 2012.

To answer question "Usually you defend as keeper unless you have already it slip who the driver is. It gives you an opportunity to get the case thrown out as they haven't conformed to POFA 2012"

how i know if they r claiming against driver or keeper? they found my husband's address from DVLA.

See above, they will continue to pursue the registered keeper unless you provide the driver's details.

can i refer to the signage and terms and conditions - which i have not read or obtained from PE??

Yes but if possible can you go back to the car park in question and take photos OR use Google earth to see signage.

7. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the claimant's solicitors on xx/xx/xxxx.

questions??? how to apply for information?? i did not ask them for any information...

Look up CPR 31.14 using Google and if you want to send out a formal request to solicitors compose a letter to them
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31

16. The Claimant has at no time provided an explanation how the !!!8216;parking charge!!!8217; has been calculated, the conduct that gave rise to it or how the amount has escalated from £60 to £100. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
16.1. 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.
16.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
16.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking Eye and no proof has been provided.
**?? how to get their sign copy? then i can see if these points are relevant to my case or not?

I suspect you won't get this until Witness Statement stage.
Would just leave this paragraph in as it is up to them to prove they have the authority to manage parking at the site in question.

18. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

19. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

**?? i do not understand above so do not know if applicable to my case or not?

Parking Eye Ltd v Beavis was a landmark case where a person overstayed in a 2 hour free parking in a free car park. My personal opinion is you can leave them in or take them out it is up to you. I would say they are relevant in your case.

20. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

**?? i do not understand above so do not know if applicable to my case or not?

In small claim cases you can only claim certain fees, Think it is relevant.

22. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) 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.
e) Absent the elements of a contract, there can be no breach of contract.

**?? i do not understand above so do not know if applicable to my case or not?

If at all possible you need to go back to the car park and take loads of photos of signage which you could then see the relevance of this.

**?? the claim form that i received in paper has not enough details of claim except amount and a paragraph written about claim by claimant. no evidence etc. is there any benefit i can derive out of it?

Paragraph 12 mentions this.

shal4

thanks for advice folks.

i will re-draft the defence document and also get photo of signage this weekend.

I want to know - i have not got acknowledgement email from court to confirm my online AOS has been acknowledged by me. any thoughts? thanks all...

shal4

claxtome wrote: »

Deal with the questions:

It is confusing.
Background
The registered keeper is whose details they get from DVLA.
The driver was the person driving the vehicle on the day.
The keeper of the vehicle on the day doesn't necessarily have to be the registered keeper.
You have the right to defend as the keeper and the parking company can only pursue the keeper if they have conformed to POFA 2012.

To answer question "Usually you defend as keeper unless you have already it slip who the driver is. It gives you an opportunity to get the case thrown out as they haven't conformed to POFA 2012"

Dear Claxtome, i am grateful for all the time and advice you have given me.

since my husband is registered keeper whose details PE got from DVLA and he was also the keeper of the car on the day of alleged parking, i think in our case it does not matter if we fight as keeper or registered keeper. am i right?

shal4

i think we leaked out who the keeper was that day - as in our appeals we signed all communications as my husband who is also registered keeper.

KeithP

shal4 wrote: »

I want to know - i have not got acknowledgement email from court to confirm my online AOS has been acknowledged by me. any thoughts? thanks all...

You don't get an acknowledgement of your acknowledgement.
Acknowledging acknowledgements could go on forever.

However, you can check on MCOL which should confirm the AoS has been done.

nosferatu1001

It almost never matters fighting as RK or Keeper.
All that usually matters is ensuring they dont know whot he DRIVER is.