Court defence for Parking Eye - comments on draft please!

NicRa

Hello
Thanks for all the templates and advice available on this site. I wish I had searched earlier but my parking fine seemed so ludicrous (and one of the two I received that week was overturned by Parking Eye) that I, naively, thought that the other was bound to be overturned. Ha! Anyway not so as I've got a Claim Court defence to submit now. I'd very much appreciate some constructive criticism on the below - I've based it on other defences (including POPLA) ones that I've seen on this site so may be too long for a court defence?
Thank you so much
NicRa
nb document attachments not included here plus because I'm new it won't let me post links

DRAFT

The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the terms of the parking charge itself as regards a seven day parking ticket having different terms to the other types of parking ticket offered. Furthermore Parking Eye have not shared their evidence with me throughout the appeals process, despite being told that this had not occurred.

Summary
I purchased a 7 day parking ticket (Document A) on 5th October 2018 to cover the previous 7 days parking. Documents B and C taken on site show that parking charges can be paid on entrance or exit.

Parking Eye will note that I did not park the vehicle at the RUH in the subsequent 7 days from buying the ticket. Paragraph 5 of Further Information in their letter to me dated 5th March 2019 (Document D) states that the “charge is proportionate to our loss”. As I paid for a 7 day parking ticket and used it over 7 days Parking Eye has incurred no loss.

I have not seen the submission by Parking Eye to POPLA. Document F shows a screenshot of the POPLA website that shows “the operator didn’t provide a case summary”. There are no links to any evidence from Parking Eye on the POPLA website and no indication that any was given. I have at no point been told by Parking Eye that the ticket I purchased they did not consider to be valid due to 7 day tickets only being valid if purchased at the beginning of the 7 day period - a condition not made clear on their signage. The first I was aware the Parking Eye considered the ticket to be invalid was in the POPLA assessors summary. I put this to Parking Eye in my LBCCC, that I have had no sight of any evidence they submitted to POPLA and therefore had no opportunity to comment. I have still not had sight of any evidence.


Defence: Poor Signage

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - is clearly misleading for people who may buy 7 day tickets as its states clearly that “you can pay on arrival or exit” and gives no indication on this sign that this does not apply to all ticket types. Furthermore on signs where the different information about ticket types in presented this is in a far smaller font size and there is no indication on the list of charges (ie with an asterix) that different conditions apply for 7 day tickets, thereby not bringing the exception in conditions to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this variation in charge terms, which is at odds with the clear messages on site about paying on entrance or exit and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

[website link]

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

[website link]

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' on the need to pay on entrance only for 7 day tickets that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here at the RUH, the signs are sporadically placed, and carry consistent, large and clear messaging about the drivers ability to pay on exit or arrival. For the detail about 7 day tickets having different conditions, that information is not displayed on all signs. Having read two signs about parking charges (Documents B and C), and looking at the headline information on D (When to pay - on exit - or on arrival - how to pay) it is not obvious that D contains important information that then negates the ‘pay on exit or arrival’ for certain classes of ticket. The yellow sign (Document C) by its colouring stands out as an important sign to read yet does not mention that different terms apply for 7 day ticket. On the one type of sign where the information that 7 day tickets should be paid for on arrival only appears, the font giving that information is less than a centimetre (estimated as sign is about 10 feet off the ground) this is under half the font size of the ‘on exit or arrival’ font size, and not in bold or capitals like the ‘on exit or arrival’ font. It is indisputable that too small a font size, placed at a height above the ground which is above eye level and significantly above drivers eye level can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car as the 7 day ticket should be purchase on entrance.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the variation in terms for a 7 day ticket which is hidden in small print and does not feature at all on many of the signs). Areas of this site are unsigned and there are no full terms displayed on any one sign - i.e. with the variable terms of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about a centimetre high (ie less than half an inch), approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for this important exclusion to their general terms.

The letters seem to be no larger than 40 font size going by this guide:

[website link]

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

[website link]

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

“A good rule of thumb is every 1 inch of letter height provides 10 feet of readability with the best impact.”

The UK Government’s Health and Safety Executive provide guidance on height of signs here;

[website link]

They state that:

“The minimum size of letters within warning signs should be based on the following:
Viewing distance (mm)
Height in mm
501-900
5
901-1800
9
1801-3600
18
3601-6000
30



Therefore for the font size of under 1 cm (ie 9mm), this is only visible under 2m away from the sign (901-1800mm). This is impossible for a driver to read entering the site, and unclear for a pedestrian given the height of the signs.

So, a letter height of under a centimetre, showing that different terms apply for 7 day tickets on only one of three types of sign about parking charges available on site, placed high on a wall or pole, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it to be able to read the terms - and this is not always possible when cars park in front of the signs (Document E).

Under Lord Denning's Red Hand Rule, the variation in terms of a 7 day ticket (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast and to be placed on all signs about parking charges. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

[website link]

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Defence: Non-compliance with protocols

Whilst the LBCCC should be compliant with the PRE-ACTION PROTOCOL FOR DEBT CLAIMS it most certainly does not. In fact, Paragraph 7.1 of this Pre-Action Protocol clearly states "If a matter proceeds to litigation, the court will expect the parties to have complied with this Protocol. The court will take into account non-compliance when giving directions for the management of proceedings".

As I stated in my response to Parking Eye’s LBCCC I did not receive the required information Parking Eye are obliged to provide under the Pre-Action Protocol. As stated there was no evidence available from the operator for me to see as part of the POPLA process. I alerted this to Parking Eye in my response to the LBCCC and have had no response, the next correspondence on this matter being my receipt of the Claim Form to Court. This goes against, not limited to but including, the following:

DISCLOSURE OF DOCUMENTS Paragraph 5

5.1 Early disclosure of documents and relevant information can help to clarify or resolve any issues in dispute. Where any aspect of the debt is disputed (including the amount, interest, charges, time for payment, or the creditor’s compliance with relevant statutes and regulations), the parties should exchange information and disclose documents sufficient to enable them to understand each other’s position.
5.2 If the debtor requests a document or information, the creditor must – (a) provide the document or information; or (b) explain why the document or information is unavailable, within 30 days of receipt of the request.

With reference to this Pre-Action Protocol for Debt Claims Paragraph 5.1 and 5.2 I would still request the operator to provide Photographic Evidence of the signage as it appeared on the days of the alleged breach of the alleged contract. This must include the exact geographical location of each sign, dimensions, and the exact content of each sign relevant to this alleged breach of the alleged contract. Photographic evidence to support the above is also requested.

Furthermore, Paragraph 5 of the LBCCC states that "The sum detailed in this Letter of Claim is in line with guidelines set out by the British Parking Association (BPA)....the charge is proportionate to our loss”. I have no idea how ParkingEye Ltd or Bath Royal United Hospital have suffered loss in this instance be it financial or otherwise as I paid for a 7 day parking ticket.

The_Deep

Have you seen this?

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

NicRa

No I hadn't thank you. I assume you're pointing towards Benjamin's draft defence as that's got some useful paragraphs in?
Re your actual thread, the signs are on hospital land so would they have needed any sort of consent other than BPA? The 7 day parking 'on entrance only' is not buried in T&Cs but only occurs in one of three types of signs on site about parking - another one of which does say you can park on arrival or exit without saying this doesn't apply to all types.

Le_Kirk

Is that a POPLA appeal, a defence or a witness statement? If it is a defence it is far too long. Check out the concise defences provided by Bargepole and others in the NEWBIE section post # 2 and adapt one to suit your situation. Defences are written in the third person.

NicRa

Thanks Le_Kirk, useful tip and somehow I didn't see that defence section in the Newbies although I did look at a lot of the links provided until my brain went fuzzy!
** Is there some way I can delete this thread while I rework the defence? So it doesn't continue littering the forum...**
Thank you and sorry for not finding the defence bit...honestly don't know how I missed the bit that was actually relevant...

tboo

No you don't delete the thread
Just keep drafting a defence until it's good to go


What is the issue date on the claim form

The date you did your AoS

NicRa

Thanks tboo. Issue date was 10th June, and I did the AOS on 17th June.

I particularly struggle with all this as on the first day of parking I was taking my dad to a hospital visit and we found he had 12-18 months to live. We paid for the parking. But were called back to the hospital later that day as tests had shown he was critically ill and could die over the next 48 hours - I had no change for the second visit that day, I knew I'd be returning the next day and by the time he went off to theatre (he was delirious by then and I had to persuade him to get treatment) it was over 24 hours so I thought I'd do the 7 day ticket when he was released (which he was and into a hospice and died 3 weeks latter). All of which is to explain that although I'm normally pretty sharp every time I have to fight this damn thing it takes me back to that awful time...so please bear with!

Thanks

tboo

Sorry for your loss NicRa


KeithP will come along hopefully to tell you the date to submit and give you guidence


Was the parking on hospital land - if so did you complaim to PALS at the hospital?

KeithP

NicRa wrote: »

Issue date was 10th June, and I did the AOS on 17th June.

With a Claim Issue Date of 10th June, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 15th July 2019 to file your Defence.

That's nearly three weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


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

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

NicRa

Hello

Revised draft below and thanks very much for the advice so far. I haven't put anything in about not having seen the evidence they have against me (and submitted to POPLA) as I saw pre action protocols not followed was on the irrelevant defences list.

PLUS I have just noticed that although the ticket they issued was on XXX (& I paid the 7 day ticket to cover the previous 7 days parking on the YYY), on the 'particulars of claim' box on the Claim Form they refer to "a Parking Charge, issued YYY". Should they have said XXX here or does the "issued" here just refer to the date which they sent out the fine, which might have been YYY? If they've put the wrong date in the 'Particulars of Claim' that changes the defence a bit as a) I have a ticket for that day and b) the dodgy signage argument is irrelevant?

Many thanks
NicRa

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

PARKING EYE LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date and the Defendant purchased a 7 day ticket which covered the stay.

3. The Claimant alleges that it provides “clearly displayed” signage. The clear signage viewed by the Defendant states clearly that “You can pay on arrival or exit” and contains no information to indicate that this does not apply to all ticket types.

4. Further signage which gives Parking Tariffs, and was viewed by the Defendant, does not indicate that the terms and conditions vary by ticket type.

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

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. 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. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

NicRa

If anyone is able to give me an opinion on the revised draft above - and a view about the meaning of 'date issued' as per the Particulars of Claim I'd be very very grateful.
Many thanks
NicRa