Court defence for Parking Eye - comments on draft please!

Le_Kirk

You need the "landowner consent" from any of the concise defences written by Bargepole, which you will find in the NEWBIE sticky post # 2.

Guys_Dad

Let me see if I have got this correct. You visited the hospital for 7 separate days and at the end of that period, you bought a 7 day pass. You contend that PE are not out of pocket and that seems correct.

But in order to prove that you didn't park after the 7 days, you want PE to help you prove this and thereby give up on their claim for £££,

By your own written admission, you write " The clear signage viewed by the Defendant states clearly that. You can pay on arrival or exit.” Now unless the car was parked there for 7 days and stayed there, you had a number of exits in that period.

However, if the car had been parked there for 7 days without leaving, then you need to make that very clear in your defence and that gives much more weight to the "Pay on exit" defence.

But you admit to entering a number of times and I am surprised you don't have multiple charges for each one. I think that thinking you could pay at the end of multiple parking events is a bit daft as the signs refer to PAY ON EXIT and you seem to have had many of them.

I would relook at the defence again .

NicRa

Thanks le_kirk.
So to add:

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.

I didn't really understand this one as the Hospital gave Parking Eye the contract. I guess it's asking whether the hospital is signed up to this approach in the circumstances, thereby putting the hospital in a potentially difficult position which helps me - is that the rationale?

Le_Kirk

That's the one. It is your defence against Parking Eye and the Hospital won't be in court with you. Parking Eye need to prove to the judge that they have permission to charge and go to court. It is not for you to do the claimant's job for them.

Coupon-mad

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.

Yes if you were trying to rely on it as your only defence, but it is relevant as part of a more detailed defence, so include it.

Something like this maybe?

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. This is a Hospital site and the parking operator was obliged to abide by strict longterm Government policy - the NHS Parking Principles - and must ensure that any mitigating circumstances were properly referred to the NHS Trust to ensure that patients, staff and visitors were not unfairly treated.

4. This Claimant has failed on all counts, having bulldozed the case through POPLA appeal stage, knowingly and negligently failing to share (or perhaps withholding) their POPLA evidence file and photos with the Defendant, which tipped the balance unfairly against the consumer.

5. It is clear for all the reasons within this defence - which are not news to the Claimant - that their claim has no merit, is fully distinguished from the facts in ParkingEye Ltd v Beavis [2015] UKSC 67 ('Beavis'). In the instant case the course of conduct constitutes harassment and the targeted penalising of Hospital visitors, offending against both public policy and consumer law.

6. The Defendant has always paid in full for parking, despite desperate circumstances that the Claimant knew or should have known about well before any court action, from the POPLA appeal made by the Defendant.

7. On the first day of parking the Defendant was taking his father to a hospital appointment and we were informed he had a year to live. The Defendant paid for the parking, but were called back to the hospital later that day as tests had shown he was critically ill and could in fact die over the next 48 hours. Having no change for the second (emergency) visit that day, the Defendant knew they would be returning the next day and by the time he went off to theatre it was over 24 hours so the Defendant decided to buy a 7 day ticket when his father was released (which he was into a hospice and died 3 weeks later). Retrospective payment for the full week appeared (from the drafting of the sign) to be acceptable on the final day, upon exit.

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

9. The Defendant avers that, especially given the extremely upsetting circumstances that parking operators at hospitals are required to treat sensitively and refer to the NHS Trust for a decision, this claim is unreasonable and breaches the Government policy set out for some 4 years now. The NHS Car Parking Principles state that:

(i) ''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (e.g. commuters), or who persistently flout parking regulations (e.g. blocking entrances).''

(ii) ''Concessions, including free or reduced charges or caps, should be available for the following groups:
- disabled people
- frequent outpatient attenders
- visitors with relatives who are gravely ill, or carers of such people
- visitors to relatives who have an extended stay in hospital, or
- carers of such people
- carers of people in the above groups where appropriate

10. The Defendant was the carer of his father, taking him into hospital and bringing in clothes and personal possessions and providing support, as any close family member would. As a carer of a terminally ill patient, the Defendant was also covered by statute law - the Equality Act 2010. The Claimant knew or should have known the circumstances from the appeal stages (as the Defendant did not ignore the unfair charges), yet the Claimant failed in its legal duty as a Service Provider to make 'reasonable adjustments' for the patient who undoubtedly met the definition of 'protected characteristics', and his carer who also had 'protected' status.

11. 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 to pay a three figure penalty even though they paid for the week's parking, on exit.

10. The Defendant at all times made reasonable endeavours to comply with the terms as advertised, and to penalise a hospital visitor in these circumstances is exactly the sort of 'wholly unreasonable, punitive and unconscionable' case that the Supreme Court Judges had in mind in Beavis.

11. 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 NHS Trust to pursue payment by means of litigation under these circumstances, which would in fact be impossible, given the protections offered to the Defendant under the Equality Act 2010, the NHS Car Parking Principles and the Consumer Rights Act 2015.

12. 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

Guys Dad - if you buy a 24 hour ticket you can pay on arrival or exit and there's nothing to say you have to stay on the premises within this period. These longer stays I think are a hangover from the days before PE got the contract - certainly 7 day tickets were available then. I don't see that administration of the scheme is my remit and there is nothing on any of the signs to rule out multiple visits within the ticket period.

Incidentally I did get one other ticket and they revoked it on first appeal. But didn't say why. I did put this in my appeal to POPLA but they said that was up to the operator to clarify with me why they did this which of course they haven't.

I'd still be interested in views on whether in PE putting in the Particulars of Claim the date the ticket was issued not being the date they've previously said there was a violation is worthy of note or not. To me you issue a ticket on the date of the violation - not x days after?

NicRa

Thanks le_kirk

NicRa

Coupon-mad thank you so so much - that's incredibly helpful.

PE really are !!!!!!!s. I'm thinking of copying this defence, with a covering note to my MP, PALS and Hospital Estates.

Can't thank you folk enough for your help.