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

Kvotheraven

I’m emailing the defence in tomorrow folks. Does what I have in post #30 look ok?
Thank you for your help

Coupon-mad

I noticed a few things:

Kvotheraven wrote: »

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No: xxxx

BETWEEN:

PARKINGEYE LTD (Claimant)

-and-

xxxx (Defendant)

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

2. The facts of the matter are that the Defendant was in a capacity as carer for a person with severe and long term mental health anxiety, a debilitating condition which caused the trip to take longer by virtue of the symptoms at the time, from his condition. Severe ongoing/repeating anxiety meets the definition of disability within the Equality Act 2010 section 6(1) (EA 2010 from hereon) and service providers are required to allow reasonable adjustments for people and carers of people with such 'protected characteristics' (EA 2010 S.29 (7a)). The Act states that any attempt to restrict consumer rights under the Act renders the term unenforceable. [STRIKE]The[/STRIKE]

3. The defendant is being subjected to discrimination by association as defined in chapter 4.19 of EHRC Equality Act Code of Practice (EA CoP from hereon). This sets the instant case apart from the case of ParkingEye v Beavis [2015] UKSC 67 ('the Beavis case') where HHJ Maloney (at the earliest stage trial) did pay regard to whether the original second Defendant, Mr Wardley - who had an injury accounting somewhat for his overstay - had the protection of the EA 2010. In the Beavis case it was held that Mr Wardley could not rely upon that protection, as the medical condition was not long term and did not meet the definition of disability within the EA 2010. And even the Supreme Court Judges were careful to establish at para 107: ''The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute'' (the consumer in that case was Mr Beavis, an able-bodied driver who was unaccompanied and was not able to rely upon the EA 2010).

4. In all relevant facts, the Beavis case is distinguished.
The charging term does exclude a right which this consumer may be said to enjoy under the general law or by statute. The claimant 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 of the person cared for by the [STRIKE]defendent[/STRIKE] Defendant because the Act sets out illegal conduct including by 'indirect discrimination' (EA 2010 S.19).

5. The claimant has a legal duty to adhere to this Act and must make anticipatory adjustments of fixed policies for the protected population and carers at large (EA CoP chapter 7.20-22).

6. No reasonable adjustment was made by the Claimant despite being required by EA CoP (chapter 5.37). No risk assessment has been made to take the needs of people with protected characteristics and their carers into account at the time of starting and ending the contract. The Claimant will be unable to demonstrate strict proof that they have allowed more time than able bodied/unprotected people would need.

7. The law applies as much to inflexible arbitrary time limits as it does to physical adjustments at any consumer-facing location (per example in EA CoP chapter 5 on 'tours').

8. Furthermore, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person attempting to read them.

9. The Particulars of Claim state that those who park on site agree to be bound by the terms and conditions of the signage. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing or stationary vehicle, and is in such a position that anyone attempting to read the font would be unable to do so easily, even outside the vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

10. The judgment in Beavis makes clear that if a driver has not had ample opportunity to become acquainted with the full contractual terms then the [STRIKE]costs of a private parking company is considered a[/STRIKE] charge is an unrecoverable penalty [STRIKE]or unfair consumer charge[/STRIKE].

11. Even if the court is minded to believe that the terms were clear, they cannot be applied to a driver who is a carer to a shopper who is legally entitled to more time than an able bodied visitor.

12. Further and in the alternative, 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 re issuing parking tickets and to pursue payments by means of litigation. This cannot be assumed just because this was demonstrated in the Beavis case where the facts and location were entirely different. Indeed the provisions within the landowner contract and the 'User Manual' that ParkingEye provide to retailers are both key to establishing whether the Claimant bothered to consider the rights allowed under the EA 2010 and whether any provisions were made at all in anticipation of those people the landowner 'knew or should have known' would visit with 'protected characteristics' such as the driver's companion (NB: this is not the same as 'people with Council Blue Badges' as the EA 2010 legislation is not about mere badges/permits or provisions for people with mobility impairments alone).

13. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the claim by adding purported Solicitor’s costs of £50 which have not been actually incurred by the Claimant. In the Beavis case only £85 (the parking charge) was recovered. Notwithstanding the admission that Mr Beavis was driving, the relevance of the Protection of Freedoms Act 2012 (Schedule 4) was nevertheless considered by the Supreme Court Judges as the primary legislation and this provides for a ceiling of recovery of the sum of the parking charge itself, as stated on the Notice to Keeper only (only actual court costs may be added).

14. ParkingEye Ltd have not even expended any such sum in this case, because they have a Legal Team with a salaried in-house solicitor. An admin team handles hundreds of similar ‘cut and paste’ robo-claims per month and the cases incur no individual legal input or scrutiny. The Defendant puts the Claimant to strict proof to the contrary.

15. According to Ladak V DRC Locums UKEAR/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity,not any administrative costs allegedly incurred by already renumerated clerical staff.

16.The Claimant’s particulars disclose no legal basis for the sum claimed,and the court is invited to dismiss the claim in it’s entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.


Statement of Truth:

I believe that the facts stated in this Defence are true.

Name

Signature

Date

Kvotheraven

Defence has been sent. I cannot thank you all enough for your advice on this.

I want to email the litigation team at Parking Eye as per the Newbie thread advice (I have already requested the SAR but nothing yet). How much of my defence should I include in it? I don't want to give them anything that would help them refute my defence in court - but obviously the aim would be for them to cancel the PCN. Would this email be more "narrative" as per my original post?

Kvotheraven

Hello everyone. If it's possible, I'd be really grateful to get some advice as to post #34.

P.S. I've had a letter from the court to say they've received my defence.

KeithP

Kvotheraven wrote: »

Hello everyone. If it's possible, I'd be really grateful to get some advice as to post #34.

P.S. I've had a letter from the court to say they've received my defence.

And as that letter says, the CCBC will send a copy of your Defence to the Claimant.