Court claim form (Parkingeye)

simonlancs

I have had an ongoing disagreement with ParkingEye for a couple of months now. I have appealed (but foolishly didnt to POPLA) and stated my case again in the LBBC letter. Now i have received court papers from the infamous Ms Ledson.
The situation is as follows.
I was attending a football match at the DW Stadium in Wigan. I pulled up on the DWGym car park. The weather whilst irrelevant was atrocious. Once there i realised i did not have enough change to cover the cost needed (£5) of the time i needed. I only had notes past that value. I had my debitcard but the machine had no facility for this. So quick decision in the pouring rain...i decided to get out and look at their notice and try and pay by app or text or phone. Tried to phone...no signal. I managed to download the app..this took me 5/10 minutes due to the poor signal and once downloaded the car park was not showing on the location map so i was unable to verify the car park i was in. Already understandably frustrated i tried to text but stuggled to understand the format required (im intelligent and these things rarely defeat me) and despite several attempts gave it up..along with the poor signal. Faced with no method to pay i decided the only thing to do was leave as i could not pay to park. I was there a total of 20 minutes according to their cameras.

My crime? Staying to try and pay..and ultimately failing. Left with no choice but to leave.

I have filed my AOS tonight. The claim is dated the 11/11.

I have already been advised that frustration of contract is a possible defence.

Any help with my defence would be appreciated.

KeithP

Hi and welcome.

With a Claim Issue Date of 11th November, and having done the Acknowledgment of Service in a timely manner, you have until 4pm on Monday 16th December 2019 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could 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. No need to do anything on MCOL, but do check it 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 trying to keep you under pressure. Just file it.
   
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.

simonlancs

Thanks for the help. I will look through the many defences posted and pick those that apply. Rather daunting but i will post here for perusal once i have drafted it.

Coupon-mad

Faced with no method to pay i decided the only thing to do was leave as i could not pay to park. I was there a total of 20 minutes according to their cameras.

Can your phone provider interrogate their data for that day and see your attempts to pay? Ask their Data Protection Officer under the GDPR to take a look at the date of parking event for anything stored by them that you don't know they might have. That would be good evidence for the later stages and you have a right to such data.

There is an example of a failed app defence among the examples, I'm sure. And to that I would also add that paras 6, 10, 14 and 18 of the unfair terms 'grey list' of the Consumer Rights Act 2015 has been breached by the Claimant.

simonlancs

Ok I have spent time sorting my defence and it is posted below for perusal. I have found points made in other defences and tailored them to suit mine.



I have evidence in the form of call records from my own phone and i still have the original texts i attempted to pay with too. I alos have a ticket from the car park i ended up parking in. This may seem a little irrelevant but i think it proves that i was willing to pay a charge.

My biggest concern however is that once i revisited the car park in question for evidence purposes they had taken out the pay by cash machines and had certainly changed the signage. Although i still think this fails with regards to the contact terms being too small. On entering the Gym that owns the car park i was told they had been taken out "a few weeks ago" because they had been vandalised. She gave me a landline number in which to contact ParkingEye. This was a false dawn because as with anything ParkingEye it is fully automated and i was unable to ask the question of when they machine had been removed. The car park..quite ironically..is now a pay by phone only car park.

Will this lack of evidence harm my defence? I am certain they have now placed more signs in the car park.
The other point of worry is the poor phone signal. Will the judge see that as not their fault?

I was there for exactly 20 minutes and 22 seconds but they settle on 20 minutes. Are they correct to file a claim against me as i am sure i read somewhere that 20 minutes was the limit?
Anyway here is my defence:



I am XXXXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXXX when it was parked at DW Sports, Wigan.

3. It is denied that :
a) A contract was formed. Even if a contract was potentially formed it was frustrated by the unexpected failure of the claimants app, telephone payment line and text number. This was caused by an inadequate phone signal at the time of attempting to give payment. It is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.
b) There was any agreement to pay a parking charge.
c) That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' was positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.
d) That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

4. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim
5. The Defendant made all reasonable efforts to make payment for parking by using the supplied and approved payment channels.
a) All payment methods attempted failed after being unable to use the pay by cash machines due to lack of correct change. No card or note facility was available. All phone methods failed and this was due to the very poor phone reception at the time of attempting to make payment.
b) Unable to make payment and after exhausting all possible methods the defendant left the car park as he was unable to make payment to park.
c) At no time did the defendant believe he had “parked”. All the time spent at the car park was spent attempting to make payment.

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

7. The Defendant denies that they 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.

8. The signage on this site was inadequate to form a contract with the motorist. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist.

9. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

10. Non-disclosure of reasonable grounds or particulars for bringing a claim: ParkingEye Ltd are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

11. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

12. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is/was believed to be the subject of an investigation by the Solicitors Regulation Authority.


13. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

14. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

15. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.


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

The_Deep

Have you read this?

[FONT=Times New Roman, serif]https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading[/FONT]
[FONT=Times New Roman, serif]
[/FONT] N[FONT=Times New Roman, serif][FONT=Times New Roman, serif]ine times out of ten these tickets are scams, so consider complaining to your MP after the election, as it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]

nosferatu1001

Youve left it three weeks before coming back, so I guess youre getting close to your time?

You state in your defence that the dsignage has now been changed and the failed machine taken away, so that surely makes you realise your position is stronger? They change things for a reason!

simonlancs

My time is up on Sunday but i wouldn't leave it past the last working day on Friday anyway. I hope to have this printed, signed, scanned and emailed later this evening. Was just giving you guys the chance to have a look and maybe advise any tweaks. Do i mention the removal of machine in my defence or do i leave that until my DQ and/or skeleton?

nosferatu1001

You cant mention it later on, and I would suggest that it is material so should be mentioned now
Your time is up MONDAY 4pm, as always when the last day is a weekend

Its mor e- if you wanted people to have time to d omuch more than skim it, then getting it to us even a week earlier would have helped.

KeithP

simonlancs wrote: »

My time is up on Sunday but i wouldn't leave it past the last working day on Friday anyway.

No.

Over three weeks ago I wrote...

...you have until 4pm on Monday 16th December 2019 to file your Defence.

Please re-read the first reply you ever received on this thread.

simonlancs

My apologies. I knew the 16th was the cut off i just had it down as being Sunday for some reason. It will be in well before then though.
I will add in the machines for cash payment have been removed.
I will also add that 20 minutes to attempt the various methods of payment whilst battling a poor phone signal is not unreasonable.