ParkingEye Defense Letter - 10 Minute Overstay

Well_Well

Hi All
I would be grateful if you could review and comment on my draft defense letter that I will soon submit, hopefully successfully to fend off ParkingEye for having overstayed the 3 hour free stay period by just 10 minutes. Any feedback is welcome. And thanks to the Sticky Threads and other posts, particularly hatman404 whose defense template I have used. 

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 is 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 in XXXX, which is the sole purpose of the facilities.

In making this claim against the defendant the claimant must reference ‘British Parking Association Code of Practice – Version 7’. Section 13.4 states that, “You 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 a peak shopping period in the run up to Christmas and because the defendant was obstructed from exiting the carpark promptly and safely due to the volume of pedestrians and other motor vehicles entering and exiting the carpark, the penalty levied by the claimant is unreasonable given the claimed total time in the car park was 3 hours and 10 minutes – this being within the 3 hours permitted stay period time and Grace Period.

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 reasonable Grace Period referred 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).

 

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

Name/signature

Date

Coupon-mad

It's nearly there for a P/Eye defence but needs a bit added about the fact it is unlikely that their landowner authority allows them to disregard the BPA CoP about grace periods, and chucking in mention of a lack of a 'legitimate interest' in pursuing genuine customers whose actual parking time did not exceed the allowed hours, and adding in mention of the BPA/Kelvin Reynolds article, like this one:

https://forums.moneysavingexpert.com/discussion/6110926/parking-eye-county-court-claim-form-received/p1

You also need every paragraph to have a number, and we assume you are well aware that there will also be later paperwork stages before the hearing too, DQ stage then WS & evidence.  Not just a defence then run!  Stick around.

KeithP

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service yet? If so. when?

Well_Well

Thanks for the feedback Coupon-mad. I'll update and re-post later today, thanks.

The Issue Date was 09 March 2020. I haven't filed an Acknowledgement of Service. So I plan on responding with the Defense Letter in the next day or two.

Redx

Get the AOS done today , asap , online , the newbies thread tells you how

There is no rush to submit the defence ( no S in Defence ) , it's not a letter , it's a statement , so make the changes mentioned by coupon mad

KeithP

Well_Well said:

The Issue Date was 09 March 2020. I haven't filed an Acknowledgement of Service.

With a Claim Issue Date of 9th March, you have until Monday 30th March to file an Acknowledgment of Service, but there is nothing to be gained by delaying it. 

Having filed an AoS, you have until 4pm on Tuesday 14th April 2020 to file your Defence.

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

To file both an AoS and a Defence, follow the guidance in this post:

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

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

D_P_Dance

PE are losing court claims because of their War and Peace length signs, read this.

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading

Also read this

https://forums.moneysavingexpert.com/discussion/6116701/let-us-ignore-all-pcns-not-for-milquetoasts/p1

Nine times out of ten these tickets are scams, so consider complaining to your MP, 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, when life gets back to normal, it will become impossible for those scammers who are left to continue their vile trade, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

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

Well_Well

I have updated my Defence and would appreciate any final feedback before submitting

In the County Court

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

 

Between

PARKINGEYE LTD

v

#########

 

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 is denied, and it is further denied that there was any agreement to pay the Claimant any 'parking charge' or any sum at all.

 

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

 

4.             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 in Caversham, which is the purpose of the car park.

 

5.             No payment for parking was required as this is a free 3-hour stay car park “St Martin’s Precinct, RG4 8BA Customer”.

 

6.             In making this claim against the Defendant the Claimant must reference ‘British Parking Association Code of Practice – Version 7’. Section 13.4 states that, “You 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.”

 

6.1.       The Defendant considers, given this was a peak shopping period in the run up to Christmas and because the defendant was obstructed from exiting the carpark promptly and safely due to the volume of pedestrians and other motor vehicles entering and exiting the carpark, the penalty levied by the claimant is unreasonable given the claimed total time in the car park was 3 hours and 10 minutes – this being within the 3 hours permitted stay period and Grace Period.

6.2.       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 reasonable Grace Period referred to above.

 

6.3.       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.

 

6.4.       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.

 

7.             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.

 

7.1.       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.”

 

7.2.       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.

 

7.3.       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).

 

8.             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.

 

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

 

 

Name/signature

 

 

Date

nosferatu1001

Did you file your AOS as explicitly instructed to do? yes or no. 

Well_Well

Yes, AOS was filed

Well_Well

AOS filed on 24/03/2020