ParkingEye - Defence Form Evidence

Coupon-mad

I'd remove #3, #4, #14 and #15 if this is a ParkingEye defence because they haven't added debt recovery costs and CAN add legal costs up to £50.

stagebob_69

Thanks @Coupon-mad.

Is the rest of the content ok?

Coupon-mad

Show the next draft again here on this page, in a new reply, with those parts removed, so we can read it afresh here.

stagebob_69

@Coupon-mad

Here you go:

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper and the driver of the vehicle in question but liability is denied. 

3.      The defendant’s shopping trip to The Range, Enfield on 03/07/2020 was unduly impacted by the compounding long queuing times (in excess of an hour) to enter the shop and the long queuing times (in excess of half an hour) at the checkout resulting from the Covid-19 social distancing measures in place. The Range was one of the few shops classed as essential during the lockdown and was allowed to remain open. Had these restrictions not been in place the defendant would not have exceeded the 2 hour free parking limit.

 4.    The defendant has shopped at The Range, Enfield on countless occasions prior to the social distancing measures being in place and has never exceeded the 2 hour free parking limit.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

5.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

6.      Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

7.     Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

8.    The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

9.     The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed.

10.    Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

11.   In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

 In the matter of costs, the Defendant seeks:

12.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

13.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Coupon-mad

Looks fine now, except you may wish to add to your #4 that:

The Claimant failed to allow a suitable grace period for the extraordinary conditions and that the Defendant has complained to the Range, who the Defendant now learns, had the power to cancel this for genuine customers all along but ParkingEye fail to mention that fact in the contract, or on the PCN.  Given that the BPA Code of Practice provides for a minimum Grace period and not a set period, the lockdown queues must be an exception, as envisaged by Kelvin Reynolds in his article 'Good Car Parking Practice Includes Grace Periods' that remains in the BPA's News tab online for the public to read regarding interpretation of the mandatory/flexible allowance (https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods?fbclid=IwAR347R1ULeXKZvPz7ArWZ3hBl-5-1EV949-dc4oHbU0NQreZcvRZDrqanQg): 
''“No time limit is specified.  This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”  The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.''


And if your signs are black and yellow I'd remove this for obvious reasons:

 (and in particular, the brief and very conspicuous yellow/black signs)

And of course, URGENTLY complain to the Range Head Office (again, if you already have...escalate it to the CEO) and ask them to please email ParkingEye's cancellation and enforcement teams and ask them to cancel and discontinue this unfair claim against one of their genuine customers.  Tel them it is NEVER too late and ParkingEye will cancel but only if the Ranger ask them to.

stagebob_69

Thanks @Coupon-mad

I've submitted a skimmed down version of my defence as I was only allowed 190 lines of text directly on money claim gov site.

I have emailed CEO and general enquiries so hopefully it doesn't fall on deaf ears!

Le_Kirk

You aren't supposed to submit your defence on MCOL.  If you followed the advice on the NEWBIE sticky you would know what you send it by e-mail to an address provided in the template defence thread.

Umkomaas

stagebob_69 said:

Thanks @Coupon-mad

I've submitted a skimmed down version of my defence as I was only allowed 190 lines of text directly on money claim gov site.

But you weren't supposed to do that!

Coupon-mad

stagebob_69 said:

Thanks @Coupon-mad

I've submitted a skimmed down version of my defence as I was only allowed 190 lines of text directly on money claim gov site.

Oh no. 

How do you think everyone (hundreds of people every year) use the FULL template defence and posters never have this problem? 

Why didn't you ask or re-read the advice, either in the template defence thread...or on your own thread, right here...that told you to email the defence and NOT NOT NOT to use MCOL for the defence because it restricts the lines and truncates the defence?

KeithP

stagebob_69 said:

Thanks @Coupon-mad

I've submitted a skimmed down version of my defence as I was only allowed 190 lines of text directly on money claim gov site.

What didn't you like about my post on 11 November at 12:43PM?

Did I waste my time writing it?

I know you read it - you thanked it withing half an hour of it being written.

Was this statement not clear enough?...

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Note those words - by email.

Apart from that, did you not read Bargepole's 'what happens when' post linked from the second post of the NEWBIES thread? Where he says...

...trying to fit [the Defence] in the online box destroys the formatting, and makes it hard for the Judge to read.