ParkingEye County Court Defence - Help

The_Deep

klaus303 wrote: »

Just to add to the above, their WS arrive with me on a saturday, so likely only got to the court yesterday, 8 days before the hearing.

If this is late complain like Friar Tuck to the Judge.

Have you seen this thread?

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading

and enlist the support of your MP as they are obviously trying to scam you.

Nine out of ten of these so called breaches of contract are scams

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

klaus303

Will do.

I have done a bit of research this morning, and parking eye will be sending a local 'hired gun' to defend their claim.

Given non-appearance of claimant and RoA, and their late WS, could i use this to my advantage in anyway?

The_Deep

As stated above, you need to take it up with the judge. Have you read this thread?


https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading

klaus303

Just read it now, and the signs at the car park in my case are near identical. Thankfully they have included the pictures in their WS, and my original evidence (as above) highlights the small text.

i'm assuming it will be worth further expanding on the signage in my WS

Coupon-mad

Given non-appearance of claimant and RoA, and their late WS, could i use this to my advantage in anyway?

Yes.

i'm assuming it will be worth further expanding on the signage in my WS

Yes, always, with evidence. If you can't get photos, use Google Streetview.

nosferatu1001

Dont complain about THEIR late WS when YOUR WS is late, I would suggest.

Just get it in, today.

klaus303

I'm just fully reading through all the documents that PE have submitted as part of their WS.

I note that they have appended their 'reply to defence', submitted to the court some months ago, however this is the first time that i have seen such document. Should i not of been sent this at the outright?

klaus303

Well after a long day at work and a late night, i have finally had time to complete my witness statement. i would be very grateful if the experts could cast an eye over it prior to submission later today.

it is a bit long winded, but i have discovered some new evidence regarding the lack of planning permission at the time of the alleged incident. Additionally, i have remembered that a shipping container and skip were located in close proximity to where my car was, thus blocking the line of sight to the signs. thankfully the signage pictures submitted within their evidence show these objects.


WITNESS STATEMENT

"I, Joe Bloggs am the Defendant in this matter, and will say as follows.

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked AP to which I will refer.

Before I describe what happened on the day I parked in the Holiday Inn car park, I confirm that the essence of my defence to this claim is that:
a) I did not breach the terms and conditions of parking.
b) Planning permission was not in place for the ANPR system and advertising consent for the signage was also not in place.
c) Signage within the car park was obstructed from view, and contained.
d) Signage within car park contains lots of small text
e) No details of the land owner have been provided, or areas which the land owner has granted enforcement rights to Parking Eye

The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.

It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark xxx which is the subject of these proceedings.

It is not admitted that on xxx October 2018 the Defendant's vehicle was actually parked up and left the car, at the Holiday Inn, Milton Keynes East. Instead the driver was merely driving round and waiting within the car park, never getting out of the car and leaving it unattended.

a) The Claimant has provided no evidence, photographic or otherwise that the vehicle was indeed parked unattended, or where within the site, and/or whether the car stopped adjacent to, or in close proximity to which signage terms.

According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, drivers were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed.

Criminal Conduct
The Claimant places reliance on its provision of signage at the site and upon the content of that signage. However, the Claimant is under a duty to the Court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage.

At AP1 there is a copy of a letter from the Local Planning Authority (LPA) at Milton Keynes council, dated 7th February 2019, advising the Holiday Inn that unauthorised adverts were being displayed without the express consent of the LPA. Namely several signs relating to parking considerations at the site.

This confirms that the signs did not benefit from any advertisement consent such that, at the time the Defendant parked at the Holiday Inn a criminal offence was being committed in order to create a contract with the Defendant.

The signage at the Holiday Inn is classified in planning law as an advertisement. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display this kind of advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.

The Claimant has since made application for advertisement consent under the 2007 Regulations, however the decision notice was not approved until just recently on the 5th April 2019. However, the 2007 Regulations make no provision for any future consent to be backdated such that a consent that may be in place by the time that this case is heard, will only apply going forward from the date of such consent. Consent cannot and will not grant authority and legality for display of the signage, prior to the approval date so that the crime being committed when the vehicle in question, was within the car park, will remain a crime for all time.

The Court’s attention is drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes), (B/3). Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn in particular to paragraph 20 of the Transcript of that case “It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”. Paragraph 28 continues - “cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.” In this case it was not lawful for the Claimant to have in place its signs upon which it relies for the formation of an asserted contract with the Defendant.

The Court’s attention is also drawn to RTA (AP2). This case is drawn to the Court’s attention for the purposes of evidencing paragraph 34 in which the Judge discusses the relevance of the public law principle going back well over 200 years that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that:

“The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the
plaintiff and the defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would have the advantage of it; for where both are equally in default, potior est conditio defendentis.” In this claim there has been a transgression of a law (the 2007 Regulations) and it is submitted that the Court should not “lend its aid” to this Claimant “who founds his cause of action upon an illegal act”.

It seems to follow from the paragraphs above that, if there was a contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (the erection of the un-consented signs stating the terms and conditions relied on by the Claimant). Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

Further, it is submitted, it must be contrary to public policy for a court to enforce such a contract whereby a party may profit from its criminal conduct. The commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.

The illegality is central to the contract and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.

Signage
At the time of the alleged infringement, a shipping container and large skip were situated within the western area of the car park, near to where the vehicle in question was situated. Evidence of this has been provided in AP3. Such a large object can therefore obstruct the line of sight between vehicles and the signs.

In addition to the above, the remaining signs on the western edge of the car park are partially located within a tree belt, which could also block line sight to the signs, especially to a driver who does not exit their vehicle.

Thus, the necessary elements of offer and acceptance to form a contract were not clearly present.

The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist. The signage is unclear, unreadable, not visible and too high.

Authorisation of the Landowner
The British Parking Associations Code of Practise (AP4), states that if the parking operator (the Claimant) does not own the land which they are carrying out parking management, then they must have written authorisation of the land owner (or their appointed agent). Section 7.3 states the written authorisation must also set out the follow:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement

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, 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 locus standi to bring this case.

Information submitted as part of the 2019 retrospective planning application for the car park management system (ref 19/00486/ADV), includes a Design and Access statement (AP5). In the introduction this clearly states that the car park is owned by KEW GREEN (SQUARE) LIMITED of Grove House, 27 Hammersmith Grove, London, W6 0NE.

The defendant denies the claim in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14

I confirm that the above facts and statements are true to the best of my knowledge.

nosferatu1001

We dont know what defence you actually submitted, from reading through.

klaus303

My Defence which was submitted in March is detailed below, for reference to my Witness Statement posted earlier

1. "I, Joe Blogs, am the Defendant in this matter, and will say as follows.

2. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.

3. It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark xxxxxx which is the subject of these proceedings.

4. It is not admitted that o nxx October 2018 the Defendant's vehicle was actually parked up and left the car, at the Holiday Inn, xxxxxxx. Instead the driver was merely driving round and waiting within the car park, never getting out of the car and leaving it unattended.

a. The Claimant has provided no evidence, photographic or otherwise that the vehicle was indeed parked unattended, or where within the site, and/or whether the car stopped adjacent to, or in close proximity to which signage terms.

5. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, drivers were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed.

6. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

a. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible to a driver merely driving round and waiting within the car park, never getting out of the car.

b. The Defendant avers that indiscriminate use of ANPR data and images to penalise drivers who are just waiting within the car park, meets the mandatory test of fairness within the Consumer Rights Act 2015 which must be considered by the courts in all alleged 'consumer contract breach' cases, no matter how the issue is raised by a Defendant, and even if they have not raised the point at all. The Claimant has merely assumed that all cars that pass the cameras, park and take up a bay, yet it adduces no evidence to support this incorrect assumption and applies a blanket penalty unfairly.

c. The Defendant denies that the signs at this location meet the mandatory test of transparency of terms that are 'bound to be seen', as set out within the Consumer Rights Act 2015. For a driver just waiting within the car park, any terms relating to a parking contract would not reasonably be expected to apply, and would have had to have been extremely clear in all places within the site, in very large letters to ensure all drivers were 'bound to see' the terms even if not parking, getting out and/or approaching the hotel entrance.

7. The Claimant has sustained no loss, as the driver was merely driving round and waiting within the car park, never getting out of the car, and no contract was established. The defendant avers that if a breach did occur, it is de minimis.

8. If, which is denied, the court finds that the breach was more than de minimis there is a lack of commercial justification to levy the penalty sought. The supreme court authority in ParkingEye Ltd v Beavis (2015) UKSC 67 is distinguishable from the present instance. In Beavis the court held that the penalty rule is engaged in private parking charge claims. The charge was not a penalty only because the commercial need to ensure parking was available for hotel patrons. The penalty sought in this claim is the sum of £100 plus additional costs (totalling £175) for waiting within the car park for a period of around 30 minutes.

9. Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished.

a. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be un-enforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

b. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout. This case is distinguished from the Beavis case in that there are inadequate signs which are incapable of binding the driver who did not park and enter into any contract.

c. This land is not comparable with the retail park in Beavis, and nor are the facts of the case.

10. The ANPR cameras are not identified upon entry to the Holiday Inn, Milton Keynes East site.

a. There is well-recorded evidence of ANPR cameras, being prone to error and inaccuracy. Timings of alleged parking incidents cannot be relied upon. The Claimant is put to strict proof that they have complied with ICO Code of Practice for CCTV Surveillance Cameras, which includes ANPR.

b. The Defendant puts the Claimant to strict proof of the existence of a Privacy Impact Assessment, made before ANPR surveillance and enforcement started. Further, the defendant puts the claimant to strict proof of regular assessments made in consultation with their clients at this location, to establish that ANPR being used 24/7, with all data indiscriminately and excessively harvested, including penalising drivers of cars that are waiting and never leave their vehicle, is justifiable and the least data-intrusive method of enforcement.

11. 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, 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 locus standi to bring this case.

12. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

13. Legal Representatives Costs are disputed
a. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
b. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £175 debt.
c. ParkingEye Ltd appear to have an in house legal department as evidenced by their Letter Before County Court Claim which was signed off from 'ParkingEye Legal Department'.

14. The defendant denies the claim in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14


I confirm that the above facts and statements are true to the best of my knowledge