Parking Eye Court Claim - Defence help - deadline 25 July to submit - cannot find similar on forum

Le_Kirk

Defence can be sent by e-mail - see post # 5 by KeithP. If you do use post, do not use a signed for service, just first class with a free certificate of posting. I believe you state the number of witnesses on the DQ and supply Witness Statements and evidence at a later stage once the case has been allocated to your local court.

KeithP

Please don't send your Defence by post.

Things get lost either on their way or in the internal post systems of large organisations.

Why are you even considering disregarding the advice given in post #4 above?

For one thing, email is almost instantaneous - giving you a couple of extra days to hone your Defence if needed.

And of course we shouldn't forget that we are currently on a money saving website.

Kvotheraven

Thanks Keith - I was more thinking of a "back-up copy" to go along with the email. I will follow your advice in #4.

Do you think I need to add my friend's statement (and the reply from The Range to my complaint) in my Defence, or do I add that later?

KeithP

Nothing gets added to a Defence.

Evidence and Witness Statements come later.

Time for you re-read post #2 of the NEWBIES thread to better understand the process.

Kvotheraven

Sorry Keith, I know how much you guys have to wade through on here and I apologise for wasting time when I should have re-read the Newbie post.

I am finishing my defence and will post it shortly. I really do appreciate the time you're all taking to help me.

Kvotheraven

Hello everyone. Below is a draft of my defence. I would be so grateful for some expert eyes and advice/amendments before I email it. Thank you!

(also, do I email MY MP - or the MP where the charge was issued?)

Background
1. I shopped in The Range with my baby daughter (and have a credit card payment of £4.59), and then met my friend with a long-term mental health issue at the cafe upstairs in The Range. We ate lunch (he paid for this). We also walked around the store for half an hour (to get my daughter off to sleep), and then returned again for coffee at the same cafe. My friend will be providing a witness statement.

2. The main reason for the time: my friend (a primary school teacher) was going through a terrible time with mental health problems - and had been signed off work with anxiety and depression. He opened up to me about his condition and his situation and we talked for a number of hours. He has since left his teaching post because of this. Time completely got away from me, and even if I had been aware of the time I did not want to stop him from talking as we sat in the cafe and walked around the store – as I know it was helping him to talk to me about it. I am a sufferer of depression and was able to talk to him based on my own experiences.

3. I left completely unaware I had violated the parking time. Once I became aware (after the first notice letter received on 4 April) I went into the store directly to complain despite not being advised any course of action from Parking Eye, but The Range offered no help and did not advise any course of action. I have since complained in writing to the store.

Primary Defence
1. I believe I was operating in capacity as a carer for my friend on this day under the Equality Act 2010 (EA 2010 hereon in). I was with a person with severe and long-term mental health anxiety. This is a debilitating condition which is drastically affecting his life - and which caused my trip to take longer by virtue of the symptoms he had from his condition. I am being subjected to discrimination by association as defined in chapter 4.19 of EHRC Equality Act Code of Practice (EA CoP from hereon).

2. Severe ongoing/repeating anxiety meets the definition of disability within EA 2010, section 6 (1), and service providers (in this case Parking Eye) are required to allow reasonable adjustments for people and carers of people with such 'protected characteristics' (EA 2010 S.29 (7a)).

3. Indeed it has recently been confirmed that people with mental health conditions, not just mobility problems, will be entitled to Blue Badges if they qualify due to their specific needs – and my friend will be looking at obtaining one of these.

4. Parking Eye cannot justify an arbitrary time limit that causes detriment to disabled people - and nor can they be lawfully heard to say that they 'did not know' about the medical condition for my friend because the Act sets out illegal conduct which includes a concept called 'indirect discrimination' (EA 2010 S.19). 'We did not know' is not a lawful excuse.

5. Under the EA CoP chapter 7.20-22, all private service providers have a legal duty to adhere to this Act and must make anticipatory adjustments of fixed policies, for the protected population and carers at large.

6. I believe no reasonable adjustment was made or are in place by Parking Eye, despite being required by EA CoP (chapter 5.37). I do not believe any risk assessment was or has been made to take the needs of people with protected characteristics and their carers into account before any enforcement started - at the time of starting and ending the contract with the landowner. Can the Claimant demonstrate strict proof that they have allowed more time than able bodied/unprotected people would need? I do not believe they have, and I do not believe they have strict proof.

7. As well as EA section 19 about indirect discrimination, I have attached the example given in EA CoP chapter 5 on 'tours', which shows that the law applies just as much to inflexible arbitrary time limits as it does to physical adjustments at any consumer-facing location.

8. I want to be clear that this case is very different from ParkingEye v Beavis (& Wardley) 2015. In this case, a second defendant, Mr Wardley, had an injury and it was discussed whether he met the definition of disability. He did not as his issue was very much temporary. In the final decision in Beavis, at 107, their Lordships remarked about the fact-specific and complex case: ''In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute.''

In my case, the unfair charge was not 'agreed' and did exclude my friend’s rights under the Equality Act statute (his condition is ongoing and has significantly affected his life – and is defined as a disability under The Act). Furthermore, because I was his confidante and carer that day, my rights were restricted illegally, by way of indirect discrimination and discrimination by association. Whether ParkingEye knew about him/his needs, or not, is immaterial in law and the Equality Act states that any attempt to restrict consumer rights under the Act, render that term unenforceable.

Please find attached all relevant sections of EA 2010 and EA CoP.

Secondary Defence

1. I believe that there was no loss to the landowner (The Range) in this time period. I bought items in their store (I have attached my credit card statement), and my friend bought us food and drink in their caf!.

2. The reason for Parking Eye’s presence on this site can only be for the sole purpose of deterring parking by uninvited individuals, for the benefit of drivers authorised by the landowner. However, in this case – contrary to consumer laws – Parking Eye has carried out a predatory operation on the individuals whose interests they are purportedly there to protect and uphold.

3. If Parking Eye is truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring that if patrons did receive an unfair PCN as a genuine customer with legitimate reasons for overstay (detailed above), they had a right to ask the landowner/Managers to cancel it and should be informed of this process.

4. The Claimant's unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that ParkingEye withheld mentioning the option of landowner cancellation all along.

Under the Parking Code of Practice (2019) such guidance will be required under law, but was never offered to myself. I have complained to my MP about this.

I believe the facts stated in this Defence are true.

Kvotheraven

Hello awesome folks.
Does anyone have any advice for me regards my draft defence above?
Any help would be really appreciated

KeithP

(also, do I email MY MP - or the MP where the charge was issued?)

Why not both?

Your MP is obliged to listen to you, but I am sure the other MP would be very interested to know what sort of dubious things are happening in his constituency.

Le_Kirk

Would you like to rewrite your defence so that it is presented using the Third Person, i.e.

1. I believe I was operating in capacity as a carer

should be:-

1. [strike]I believe I[/strike] The Defendant believes she was operating in capacity as a carer

Secondly you should review some of the 17 defences already written in the NEWBIE sticky post # 2 and adapt one to suit your circumstances.
Thirdly, a lot of the narrative should be retained for the Witness Statement (WS) stage which is your opportunity to relate what happened on the day and is indeed written in the First Person, whereas defences are restricted to legal/technical arguments.

Kvotheraven

Thank you. I will rewrite in the third person and post it after my shift tonight. Based on the feedback here, can anyone advise on the following:
1) Should I get rid of the narrative-heavy background information section completely?
2) I looked at the defences in the NEWBIE post but could not see one that fit my situation. Is there one in particular on which anyone thinks I should be relying?
Thank you