£3K in parking fines - help!

Coupon-mad

https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou

The important acronyms, including WS, are in post #5 of the NEWBIES thread.

ShedHeadgirl

Hello all
I've reviewed the cases that Coupon-mad suggests and picked up some relevant wording.
I'm just exploring the idea that although the signs say that only vehicles displaying a permit may park, in practice a number of businesses use the car park without. Am I on a hiding to nothing here? Are there any cases that might help make a case?
Thanks!

Coupon-mad

Sounds relevant, if you can evidence that as a fact.

Look at Pace v Lengyel, a transcript hosted in the Parking Prankster's case law pages.

ShedHeadgirl

With the deadline looming now (Monday), I am starting to work on final wording:

The claimant relies on a relevant contract being in place. As in Pace v Lengyel 2017 there was no contract as alleged because

1) The signs at the entrance to the car park are forbidding; as a non-resident, the defendant could not purchase a resident’s permit and therefore no terms can be offered

2) Even if the above is incorrect, a number of businesses locally use the car park without providing Resident’s Permits (actual situation needs to be finally confirmed)

3) Even if the above is incorrect, as per Pace v Lengyel 2017 paragraph 10, the contract must be fair, complying with the requirements of the British Parking Association’s Code. The Code indicates that Schedule 4 of the Protection of Freedoms Act 2012 Recovery of Unpaid Parking Charges must be followed. The Notice to Keeper does not mention that liability transfers from the driver to the keeper as in 9 2 (f) of Schedule 4 of the Protection of Freedoms Act 2012 Recovery of Unpaid Parking Charges. This is as per Excel v Lamoureux 2016, which equally held that the Creditor had not met the requirements of 9 2 (f)

4) Even if it can be found that liability transfers, the Notice to Keeper does not clearly state the full and discounted rates that apply as per 9 (2) (d) of Schedule 4 of the Protection of Freedoms Act 2012 Recovery of Unpaid Parking Charges

5) Even if it can be found that the rates that apply are stated, no evidence of any offence has been provided

All thoughts and input hugely appreciated as always!
ShedHeadgirl

[Deleted User]

These points all depend upon the EXACT wording of the sign, but:

If the signs are forbidding the point is that the fundamentals of a contract cannot be established. There was no offer for you to accept.

The point with the permit which non residents cannot purchase or display is that the signage which purports to be a contract has terms that cannot possibly be complied with. It is void under the doctrine of impossibility. That is a term which is well understood in law.

It's important the points are made clearly as previous cases will not necessarily be followed, except where from a superior court.

Your point (2) seems to be more of an enforcement point rather than a legal one. You might want to think about it.

(3) isn't that clear.

On costs, if you've lost by this point, the signage rarely sets out a breakdown of charges. Since the bolt on charges (as distinct from court fees) are notional fixed costs those could and should have been properly specified. Failure to do so ought to make them irrecoverable. They are thus notional liquidated damages, not actual costs, which can only be provided for in a contract. This point should usually peg the fee back to the original £100 max.

ShedHeadgirl

Hello Johnersh, thank you! Had been thinking about this all evening and also come to the conclusion that it was muddled and muddied in places so it's helpful to see your thoughts.
I have most of tomorrow working on it again, and am seeing a lawyer so hopefully I will have a clearer defence to post up tomorrow night, including based on your thoughts.

ShedHeadgirl

Good morning
@johnersh, the exact wording from the sign can be found on page 3, 2nd post down, dated 22nd February. Anything else that you can see that I can use?

ShedHeadgirl

Just been looking at Distance Contracts, and wondering if this comes in to play:

if the contract is one where there has been no physical meeting between the parties at the point of contract conclusion, it should be treated as a ‘distance contract’ and you should go the extra mile, in spite of the additional administrative burden that this will undeniably create.
As with contracts entered into away from a business’ premises, the consequences of not complying with the Regulations is that the 14 day cancellation period is automatically extended to 14 days after the business eventually provides the customer with details of this right, or if the information is never provided, to 12 months and 14 days. This means that the customer could give notice to cancel the contract a year after works started. Even if substantial works have been completed, the customer could demand and would be entitled to have any payments returned to them.

ShedHeadgirl

Ok, I am further on my writing, the substance of which is:

Part 1
For there to be a contract with the driver there must be an offer, consideration and acceptance. In this situation there is no offer; the signage is forbidding in that a vehicle without a Resident’s Permit is refused permission to park as according to the signs placed at the entrance to the car park, parking is for “Authorised Permit Holders Only” . In both UK PC v Mr M (2016) and Horizon Parking v Guildford it was ruled that the offer of parking was only made to permit holders and only permit holders could therefore be bound by any contract.

If there was a genuine offer of parking to non-permit holders the charge indicated in the Notice to Keeper, which is therefore in effect an invoice, would be subject to VAT, but there is no mention of VAT on the Notice to Keeper.

The signs form part of a contract alongside the terms shown on the website https://www.green-parking.com. However, no relevant terms are offered on the stated website.

According to the signs parking is “..at the absolute discretion of the store”, but it is not identified which store; a number of stores back onto the car park and apparently have rights to park in the car park, so the driver has no opportunity to clarify terms with the store and consider or accept an offer.

The purported contract is therefore void under the doctrine of impossibility.

Part 2
The British Parking Code of Practice sets out the expectation that members will make use of the Keeper Liability provisions. If the Claimant wishes to apply keeper liability then as per Pace v Lengyel 2017 paragraph 10 the Notice to Keeper must follow absolutely Schedule 4 of the Protection of Freedoms Act 2012 Recovery of Unpaid Parking Charges

The Notice to Keeper does not follow 9 (2), which relates to circumstances where no ticket is left on the car, in a number of ways including:

- the Notice to Keeper does not indicate that liability transfers from the driver to the keeper as in 9 (2) (f). Since it is not expressly stated that liability transfers, it cannot transfer, as was found in Excel v Lamoureux (2016).
- the Notice to Keeper does not clearly state the full and discounted rates that apply as per 9 (2) (d).
- no evidence of any breach has been provided by the Claimant.
The Claimant has failed to meet the conditions of the Act, and has never acquired any right to pursue the Defendant in the capacity of keeper.

Part 3
The Defendant puts the Claimant strictly to proof, by way of timesheets or otherwise, that work was done by the litigant’s expert staff to the value of £127 for "contractual and administration charges". Without such proof, the Defendant holds that the charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty.

This is followed with some questions around whether they are trying to avoid using the Statute, and pointing out that they cannot make the assumption that the keeper is the driver, and some points about jurisdiction as the car park is used by a number of businesses and it appears that a record of where a car is parked is not made, just the entry and exit.

Ok, deadline is looming, would really appreciate some final thoughts. Thank you!!!

ShedHeadgirl

Hello everyone
No final responses to my defence, but I put together a reasonably robust document hopefully, and am just reporting in that we've had a letter confirming that the defence is filed. So now we wait...does anyone know how long Green Parking have to decide whether to proceed with the case?
Oh, and huge thanks to everyone, couldnt have got anything together without you!