Hearing date set for Parking eye fine - please help, overstayed due to Breastfeeding baby

Gemma179

Hi, as per my thread title, I have received a letter with my court date and I have to submit my statement by Monday at 4pm, so I am stressing quite a lot.

I have written the following statement and will be submitting evidence that I actually shopped in the retail units whilst there.

Appreciate any urgent help.

----

DEFENCE STATEMENT
the Claimant has no cause of action against the Defendant on the following grounds: -

1. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to ParkingEye Ltd.

a) ParkingEye Ltd is not the lawful occupier of the land
b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimants do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.
c) ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive.
d) The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.


2. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

3. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representatives’ costs". These cannot be recovered in the Small Claims Court.

4. The Defendant has the reasonable belief that the Claimant’s intention was not to offer a genuine contract to park and that the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188: Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr. Recorder Gibson QC in almost identical words (21 February 2014).

5. The Defendant was using the car park to shop in the retail units at Parc Llandudno, which is the purpose of the car park; for the shoppers to spend money in the retail units. These retail units pay rent to be on this land and as such the car park is there to bring shoppers into the stores and spend money. On the day in question, the defendant spent over £80 in one retail unit, so it is proven that the defendant was using the car park for its purpose. Enclosed are evidence of money spent in each retail unit from Defendant’s bank.

6. At the time of visiting the retail park, the Defendant was a breastfeeding mother and is a person with protected characteristics under the Equality Act 2010 and is legally entitled to use when needed, a 'reasonable adjustment' such as, in this case, additional time to feed their baby, which resulted in a delay and overstaying in the car park. Upon returning to the car, the baby was distressed, and as such, the defendant had to feed the baby before leaving the car park in addition to multiple times whilst visiting the retail units hence the delay.

As the burden of proof lies on the Claimants, if even one of the above points is agreed with that the Claimants cannot justify or prove beyond doubt, then on the balance of probability the case should be stricken off.

I believe the facts contained in this Defense Statement are true.

Umkomaas

I don't comment on defences (I'm not legally qualified). But have you dragged in the MA of the retail park? They are responsible for the actions of their agent (PE).

You need to hook them on the basis of the breastfeeding overstay - they are required to make reasonable adjustments.

As long as you are clear that you are covered by the EA, tell them that you intend to counterclaim against PE and you will be joining the MA in as co-defendant (or maybe second defendant - not sure). That should concentrate their minds.

KeithP will confirm specific dates for your paperwork to be completed, please give us the 'Date of Issue' shown on the county court claim form.

Gemma179

Thank you, I will look into that, the date of issue was 16th November and I have to serve my papers into the court by 4pm on Dec 17th :-(

Umkomaas

Gemma179 wrote: »

Thank you, I will look into that, the date of issue was 16th November and I have to serve my papers into the court by 4pm on Dec 17th :-(

I think there may be a couple of days extra slack there, but Keith will confirm, I'm sure.

KeithP

Gemma179 wrote: »

I have received a letter with my court date...

If you have a hearing date then you must have already filed a Defence.

Now you should be writing a Witness Statement and gathering your evidence.
It is that which you need to file at your local court.

Can you please confirm that you have already completed a Directions Questionnaire, probably some time ago, and you have also received a 'Notice of Allocation'.

If not, then please tell us exactly what the latest communication from the court is.

Gemma179

Hi Keith,

thanks so much for replying, yes, I already filed a defence but assumed I had to submit it again as per the letter.

I had my mother with me, should she be a witness and write a statement?

I haven't completed a Directions Questionnaire, I did say I would mediate but they rejected it so it's gone straight to a hearing. And, sorry, what's a 'Notice of Allocation'?

I wanted to post a URL or an image of the letter from the court, but it won't allow me to do either as a new user?

Thanks so much,
Gemma

Umkomaas

I wanted to post a URL or an image of the letter from the court, but it won't allow me to do either as a new user?

NEWBIES - HOW TO UPLOAD LINKS TO PHOTOS/SCANS TO MSE

To upload a photo/scan link, you first need to host it on a free photo hosting site (like Dropbox, Imurg or Tinypic), copy the URL, paste it here, but change the http to hxxp and we'll do the conversion. Newbies can't directly upload links to photos/scans until they've a few posts under their belt.

beamerguy

Gemma179 wrote: »

Hi Keith,

thanks so much for replying, yes, I already filed a defence but assumed I had to submit it again as per the letter.

I had my mother with me, should she be a witness and write a statement?

I haven't completed a Directions Questionnaire, I did say I would mediate but they rejected it so it's gone straight to a hearing. And, sorry, what's a 'Notice of Allocation'?

I wanted to post a URL or an image of the letter from the court, but it won't allow me to do either as a new user?

Thanks so much,
Gemma

Stay on track with KeithP

Mediation is probably the easiest way a parking scammer can win as the mediators are useless. SO WHY have they rejected this ?

In my view they are out to prove something

By rejecting mediation opens questions up to the judge as to their agenda and probably wasting the courts time.

Notice of Allocation is transferring to your local court

Gemma179

Ah yes, it has been transferred to my local court, thank you for the clarification.

Ah that's so strange about mediation, very weird!!!

:-(

KeithP

Here is a sanitised version of the image you sent me via PM:

http://i64.tinypic.com/2wfq0wp.jpg

You appear to be losing control of your Claims.

You have two days to file and serve a Witness Statement and evidence.

Gemma179

Thanks Keith, what does 'losing control of your Claims'?
Sorry, I have never dealt with anything like this, so it's all new to me :-(