Parking Eye - County Court Claim Form Received

hatman404

I have changed it a little bit. Please read ang give me a feedback before I send it.


In the County Court

Claim Number: #########

Between

PARKINGEYE LTD

v

#########

DEFENCE

This claim refers to a private parking charge notice (PCN) relating to a day when the Defendant was authorised to park.

The Claimant has no cause for action based upon the facts of this case. Any breach of contractual terms are denied, and it is further denied that there was any agreement to pay the Claimant any 'parking charge' or any sum at all.

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

The Defendant made all reasonable efforts to abide by the terms and conditions of the Car Park and was using the Parking facilities at this time whilst shopping at Asda, only, which is the sole purpose of the facilities. 

The defendant also wishes to highlight the 4 Hour maximum implemented by many of the carpark facilities at other Asda shopping centres in the Area, for example Harpurhey Shopping Centre, Manchester, M9.

In making this claim against the defendant the claimant must reference 'The British Parking Association Code of Practice - Version 7'. Section 13.4 states the claimant should allow the driver "..a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.” The defendant considers, given this was peak shopping period on a Saturday, the penalty levied by the claimant is unresonable in consignance of the period of 12 minutes claimed.

Further to this, The signage located in this car park does not make it clear that you must leave the entire premises within the permitted stay period. Indeed the final image is of the car in moving traffic, waiting to leave onto a main road, and the car was certainly not parked in a bay for longer than the reasonale grace perios refered to above.

This exact scenario has been tested in the County Court before, and a transcript will be produced which (whilst not binding precedent) is on all fours with this case, namely (3JD08399) Parking Eye v Ms X at Altrincham 17/03/2014, where it was held that driving around the car park was not classed as parking.

In Jolley v Carmel Ltd [2000] 2 EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after permitted time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site.

The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink, and or, with a red hand pointing to it before the notice could be held to be sufficient.''

It is impossible to read the terms on the signage of the site due to the size of the text and the height of the signs.

Further, this Claimant has taken no steps to provide evidence that they were entitled to pursue drivers for a penalty for the time spent driving around the one-way system before completely leaving the site and passing the ANPR camera upon exit. Even if the landowner contract allows for this, it is an unreasonable and unenforceable term, akin to charging a person at the point of joining a queue (to leave the premises).

In addition the added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£70) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

Similarly, in Somerfield a £75 parking charge was not held to be a penalty, but a sum of £145 mentioned in the harassing letters, more than double that amount, almost certainly would be.

The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

Name/signature

Date

Le_Kirk

Have ParkingEye actually added on "debt recovery/admin" or similar costs or is the £145 made up of the original charge plus the permitted additional charges such as filing and hearing fee permitted under CPR?  What is the amount claimed for on the claim form from Northampton CCBC?

hatman404

Thanks for quick reply.
Amount claimed: 70
Court fee: 25
Legal rep costs: 50
Total: 145

D_P_Dance

Ask them for  A Copy of the Legal reps bill.  If they ignore, ask them again, and again, and again.  IIMU that they have an in house legal team 

Le_Kirk

Those costs are allowed.

hatman404

Le_Kirk said:

Those costs are allowed.

Are you suggesting to remove this bit? 

In addition the added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£70) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

Similarly, in Somerfield a £75 parking charge was not held to be a penalty, but a sum of £145 mentioned in the harassing letters, more than double that amount, almost certainly would be.

Thanks D_P_Dance, I have and will remind them daily.

Redx

Yes remove it , you cannot object to the allowed costs to bring the claim

They have listed the original charge , plus filing fee s , plus legal costs

They usually ask for £175 due to the PCN being £100 , not £70

hatman404

Ok so that's the final version. Should I send ot though MCOL as well?

IN THE COUNTY COURT

CLAIM No: XXXXXXXXX

Between:

XXXXXXXXX

-and-

XXXXXXXXX

________________________________________

DEFENCE

________________________________________

1. This claim refers to a private parking charge notice (PCN) relating to a day when the Defendant was authorised to park.

2. The Claimant has no cause for action based upon the facts of this case. Any breach of contractual terms are denied, and it is further denied that there was any agreement to pay the Claimant any 'parking charge' or any sum at all.

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

The Defendant made all reasonable efforts to abide by the terms and conditions of the Car Park and was using the Parking facilities at this time whilst shopping at Asda, only, which is the sole purpose of the facilities. 

The defendant also wishes to highlight the 4 Hour maximum implemented by many of the carpark facilities at other Asda shopping centres in the Area, for example Harpurhey Shopping Centre, Manchester, M9.

In making this claim against the defendant the claimant must reference 'The British Parking Association Code of Practice - Version 7'. Section 13.4 states the claimant should allow the driver "..a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.” The defendant considers, given this was peak shopping period on a Saturday, the penalty levied by the claimant is unresonable in consignance of the period of 12 minutes claimed.

Further to this, The signage located in this car park does not make it clear that you must leave the entire premises within the permitted stay period. Indeed the final image is of the car in moving traffic, waiting to leave onto a main road, and the car was certainly not parked in a bay for longer than the reasonale grace perios refered to above.

This exact scenario has been tested in the County Court before, and a transcript will be produced which (whilst not binding precedent) is on all fours with this case, namely (3JD08399) Parking Eye v Ms X at Altrincham 17/03/2014, where it was held that driving around the car park was not classed as parking.

In Jolley v Carmel Ltd [2000] 2 EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after permitted time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site.

The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink, and or, with a red hand pointing to it before the notice could be held to be sufficient.''

It is impossible to read the terms on the signage of the site due to the size of the text and the height of the signs.

Further, this Claimant has taken no steps to provide evidence that they were entitled to pursue drivers for a penalty for the time spent driving around the one-way system before completely leaving the site and passing the ANPR camera upon exit. Even if the landowner contract allows for this, it is an unreasonable and unenforceable term, akin to charging a person at the point of joining a queue (to leave the premises).

The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

Name

Signature

Date

KeithP

hatman404 said:

Should I send ot though MCOL as well?

No don't do that.

Instead, when the time comes, follow the guidance I offered on 4 March at 7:39PM.

Here it is again:

To file a Defence, follow the guidance in this post:

https://forums.moneysavingexpert.com/discussion/comment/76880595#Comment_76880595

Don't miss the deadline for filing a Defence.

Le_Kirk

You will, of course, make sure that every paragraph is numbered before you print, sign and scan!