ParkingEye Claim Form (Ticket: June 2018)

ParkingNay

Good Evening,

The defendant received the following from ParkingEye in the last few days:

imgur.com/a/gbhvTXM (sorry - can't post an image)

The site of the alleged contravention was a fairly new ParkingEye car park - probably no more than a few months under their management - and bisects two businesses.

Unfortunately the defendant missed the opportunity to appeal through POPLA. The defendant has today triggered the AOS and has approximately 3 weeks to lodge a defence.

All help is extremely welcome, as the defendant understands ParkingEye to be somewhat trickier than other parking companies.

KeithP

https://imgur.com/a/gbhvTXM

What is the Date of Issue on your Claim Form?


The best advice for you at this stage can be found in post #2 of the NEWBIES FAQ sticky thread.

ParkingNay

17th September 2018

twhitehousescat

thats VERY quick and fast for PE , 15/06/2018?

did PE sent a letter before court , approx a month ago ?

due to postal delays (and the fact you say you have 3 weeks to reply) , it looks like it was issued exactly 3 mths after the event,

I wonder if PEs new owners need a quick injection of cash ? or if this is there new strategy

twhitehousescat

seems parking eye now have a lot of new directors , they all seem to be ex car parking partnership , which has changed its name to glyde ltd https://beta.companieshouse.gov.uk/company/06931699

pe and glyde owned by more bloody foreigners INTERTRUST CORPORATE SERVICES (CAYMAN) LIMITED, 190 Elgin Avenue, George Town, Grand Cayman, Ky1-9005, Cayman Islands

KeithP

With a Claim Issue Date of 17th September, and having done the AoS in a timely manner, you have until 4pm on Monday 22nd October 2018 to file your Defence.

That's over three weeks away. Plenty of time to produce a top quality Defence.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out exactly what to do with it.

ParkingNay

Hi all,

Ive spent a few hours drafting a defence tonight, borrowing bits from others found and adding in a few points of my own. Pretty tired now!

Would appreciate any pointers/feedback on the below:

In the County Court
Between:
ParkingEye Ltd
V
XXXXXXXXXXX




Claim Number: XXXXXXXX




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

Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at ******** ******* car park on 15/06/2018.

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

2. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, is not evidence of the registered keeper 'not purchasing the appropriate parking time' or of the driver not being a patron of the ******** *******. Additionally, the picture timestamped 22:44:02 is too dark to determine anything of the area surrounding the vehicle, and so could not realistically be proven to be entering or exiting said site.


Data Protection concerns

3. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.

4. The claimants terms are not the 'brief, simple and prominently proclaimed' terms that convinced the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 to bend the penalty rule in that unique, fact-specific case only.

4.1. 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. 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.
iii. 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.


Premature claim - no Letter before Claim, and sparse Particulars

5. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and arrived weeks later) and the equally lacking and embarrassing Particulars of Claim (POC) and the complete lack of any Letter before Claim, this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.

6. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

7. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable.

Denial of contract and denial of any breach, or liability

8. It is denied that the Defendant breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

9. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

9.1. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance does not state clearly that it is affiliated with ParkingEye, and text advising of private property is set in a font considerably smaller and less visible than that above it. Additionally, the main visible text does not set its stall out clearly as a 'pay and display' car park. All of these combine to make this initial sign easily missed.

9.2. The ParkingEye signs within the parking area are equally as small, inadequately situated, and partially obscured in the main part and are therefore misleading. Furthermore there are several routes upon entry to the car park that would avoid an obvious encounter with any more detailed signage.

No standing or authority to form contracts and/or litigate

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of ****** ******.

No 'legitimate interest' or commercial justification - Beavis is distinguished

11. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. 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. The driver has not been identified, the signs/terms are not prominent, and the PCN was sent late with a 'parking charge' that bears no resemblance to the £5 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

11.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''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.''

Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

12. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £5. Had the Defendant been clearly alerted to the sum on the day there would be no unfair penalty, and the landowner would gain in income and avoid any parking issues at all, including all the complaints mounting up online about ParkingEye at sites such as this.

12.1. Instead, this Claimant is operating a punitive-unjustified system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £5 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

12.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £5 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

12.3. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

12.3.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

12.4. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

13. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £5 and no more.

13.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

13.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £5 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

14. Further, and in support of the view of the despicable nature of this charge, given this set of facts, the Defendant avers that the lack of clear signage, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

15. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which have not actually been incurred by the Claimant.

15.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

16. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK); in this case £100. In the Beavis case, ParkingEye were only able to seek the stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

16.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £100 can be claimed instead of £5 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.

17. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.

I believe the facts contained in this Defence are true.

I would just like to clarify whether challenging keeper liability at this stage is a "dead duck" considering that it was not challenged at first opportunity?

I do think I may have a couple of cards left to play, but better to save these for the next stage perhaps.

Thanks in advance.

ParkingNay

twhitehousescat wrote: »

thats VERY quick and fast for PE , 15/06/2018?

did PE sent a letter before court , approx a month ago ?

Yeah, just 4 days later.

They did not send an LBCCC. From what I've read this doesn't seem to be bothered with as often these days?

ParkingNay

Hi guys,

Can someone be so kind to have a look at my defence draft two posts up please?

Many thanks.

ParkingNay

Bumping for a response.

Would really appreciate your feedback on my defence.

Thanks in advance.

ParkingNay

Just a quick update that might be of help to others in my position:

Had a court date set for 1st April 2019, but ParkingEye dropped out on 20th March 2019. They tried the old typical tactic of offering a final settlement figure but I stayed firm and ignored it.

Just goes to show you that 75% of the battle is having the confidence to hold firm on your principles.