County Court Claim - Parking Eye / Birchanger Service Area Bishop Strotford

Coupon-mad

It’s too long. 

- say as background what sort of car park this is and whether you got a PCN or not at the time.

- no signs were seen and having returned to check the state of the signs, they were sparsely placed on high poles and no signs were within the buildings, contrary to the DFT rules on MSAs. 

- say what you do for a living, showing that you are a professional and observant, regular driver yet were caught out by what seemed to be just the sort of ‘concealed pitfall or trap’ that the Supreme Court observed would not result in a recoverable parking charge. 

- say that you have discovered that the DFT mandatory rules for MSAs require a minimum 2 hours parking/rest time. However neither the Letter before Claim nor the Particulars states how long the car was there so you cannot admit or deny being stationary in a bay for more than 2 hours.  

- Also, the DFT rules require signs to be prominently displayed inside the buildings to draw attention to any tariff due. This is not the case and the C is put to strict proof.

- As a Private hire driver, you often visit MSAs more than once in a day, sometimes on 2 different sides of the carriageway at the start of a journey then again on the return. If it wasn’t that well known ANPR flaw (2 visits taken as one) then even if it was a single visit, you usually spend time in this MSA petrol station, either getting petrol or topping up tyre pressure. 

- None of the time spent in the petrol station is parking/resting, so this C is put to strict proof of how long the car was in a bay for on this occasion. 

- then add the stuff about the barrister but add QC after his name! 

- nothing about adding £50 (because they can, and they haven’t added anything they shouldn’t). 

- then suggest that the contract with Welcome Break requires that ParkingEye can only litigate on behalf of the MSA with their ‘prior authority’ and you do not believe that this was obtained.  The C is put to strict proof.

- Also, there is clearly a disclosed principal on the signs that identify ‘Welcome Break’ therefore the principle established in Fairlie v Fenton applies and the agent is unable to sue in their own name. 

- the facts distinguish this case from the Supreme Court case of ParkingEye v Beavis, which involved an undisclosed principal and a free retail car park. This case is about not paying an unknown £11-£15 tariff, a sum in damages that is fully quantifiable and monies that are paid to Welcome Break as the creditor, not to Parking Eye, who neither retain those tariffs nor pay the VAT on them. 

estevenin

Have checked and added all the above, have removed the lawyer cost claim argument. Shorter but still around 18k words, I shrinked it as much as I could, but after the 3rd read I am struggling to see anything else to remove, I feel like every word in the draft has its impact. Not sure what else to delete without missing out on some explainations. If there is any last suggestion on arguments to remove I will, otherwise I will take the shot with that one ! Thank you again, nothing I could I done alone.

1/ Background - The Defendant has no contract with the Claimant.

The Defendant is a private hire driver, the registered keeper and driver of the vehicle involved in the claim, which relates to an alleged debt arising from an alleged breach of contract, at a Motorway Services Area car park, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 “parking charge” for the lawful conduct described below, as the defendant had no knowledge of such parking charge, as no PCN has been received.

2/ Unclear terms – no signs readable at entry / inadequate signage to form a contract

As a private hire driver, the Defendant is used to be on the road several hours a day, being professional and observant is an obligation to ensure both driver and passenger security. Yet the Defendant found himself caught out by what seemed to be just the sort of “concealed pitfall or trap” that the Supreme Court observed would not result in a recoverable parking charge.

The small signs at the entrance are in a confusing location, written in small font which is particularly difficult - if not dangerous - to read whilst driving, with any potential contract terms too small to be visible. ParkingEye can’t realistically expect a driver to notice the sign amongst all the others, stop the car in the only single carriageway slip road towards the car’s parking (and become a road hazard), read it in full, process it and agree to the terms, so they can claim that entry to the service automatically forms a contract between the driver and Parking Eye.

The Defendant has now discovered that the distribution of the sparse, unlit signs around the car park is also inadequate. Surprisingly, it appears that from the parking’s entrance to the main building or other facilities such as Starbucks Coffee, it is very likely that no sign at all will be seen. Whilst there are other signs around the car park, these are usually badly lit, covered by trees, hidden by cars or facing directions that means no patron would look at them, with equally small size and font that would fail to make it easily visible .

ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.

The Department for Transport (DFT) rules of the Motorway Service Areas (MSAs) require signs to be prominently displayed inside the buildings to draw attention to any tariff due. This is not the case and the Claimant is put to strict proof of their signs inside WH Smith and other buildings in the service area.

A similar case, Nicholas Bowen vs ParkingEye in particular was awarded to Mr Bowen after defending ParkingEye’s misconceived claim on a public interest basis by breaching consumer protection law and having an unenforceable contract. This resulted in ParkingEye paying £1,550 in legal costs to Mr Bowen

3/ Unclear terms - unconscionable penalty relying upon a hidden pay and display machine

According to the sparse signs in this car park, it transpires that to avoid a Parking Charge, drivers are expected to pay a fee after a 2h free stay limit, at the WH Smith store. The text that includes the T&C's (alleged contract) on these signs is smaller than recommended by the DVLA for road signs and so are impossible to see whilst driving past. Paying that fee would only be possible if a Pay and Display machine or similar were to be available and visible, in the car park. Alternatively, a barrier ticket would be provided at entry and exit.

It is unclear where those machines are and it appears that most facilities (such as Starbucks Coffee) do not provide such a machine.

For example, a first visit at the petrol forecourt for tyre maintenance, then a second visit later towards the Starbucks Coffee drive-in or facility, would not allow awareness of those machines being there, not from the unreadable entry sign or from the facilities themselves.

4/ Lack of good faith, fairness or transparency and misleading business practices

Parking firms should ensure that consent from the car driver is collected, by requiring an action from them, such as collecting a ticket on entry or displaying a ticket through Pay and Display machines. Failing to do so could be considered as “misleading omissions” of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

Any contract must have offer, acceptance and consideration both ways. There is no consideration from ParkingEye to motorist; the gift of parking is the landowner’s, not ParkingEye’s. There is no consideration from motorist to ParkingEye; this is a Free car park, and there is no method or contemplation of payment of any parking charges whilst on site. As such, the essential parts of the contract that the claimant purports to exist are missing ab initio.

4.1/ 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.

4.2/ Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed: 'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

5/ Insufficient evidence from the claimant that a breach of contract occurred – “parking time” within MSA rules.

There aren’t any signs warning people at the petrol station that the time spent there is counted by ParkingEye (who have no signs at the petrol pumps) as if it were part of the allowed rest time.

According to the POC, the car has “parked without paying to park”. A “parked car” is a stationary car, the time spent looking for a parking space (or taking petrol or ordering a coffee in a drive-through) is not deemed as parking, as found in case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. ParkingEye has no evidence of how long the vehicle was in a “moving situation” vs. “stationary”, and there is no provision made for a “grace period”, in their terms. Therefore, the enforcement of “overstaying” after 2h free parking is hazardous, and does not rely on any concrete action or timeline.

The ANPR cameras are not positioned exclusively on the car parking spaces, the time calculated by the Claimant for the parking charge would include time driving around the car park and using other services and the time to leave the site, and is therefore unfair to include in the minimum rest time that is legally required to be offered free, as the Defendant now discovers is set as a minimum, under the Motorway Service Area (MSA) rules from the Department for Transport (DFT), none of the time in the petrol station is parking/resting time and the Claimant is put to strict proof to differentiate the parking event from the time spent in other facilities, and for how long the car was in a bay for at this occasion.

However, no Letter Before Claim was received, and the POC doesn’t state how long the car was there, so the defendant can’t admit or deny being stationary in a bay for more than 2 hours, however due to the nature of his profession, the Defendant believes it wasn’t. He believes he spent time in the petrol station topping up tyres and cleaning the vehicle as he often does when there is time ahead, and that time cannot be included in the “parking time”.

6/ Insufficient evidence from the claimant that a breach of contract occurred – the Claimant is put to strict proof that the car has not done more than one visit.

As a Private hire driver, the Defendant has to make some safety stops to rest (As recommended by Motorway Signage : Tiredness can kill, take a break), for food, toilet and petrol breaks between fares, and visiting a MSA more than once in a day is not unusual whilst in shift in the area, sometimes on 2 different sides of the carriageway at the start of a journey then again on the return. As such, it could also be that the ANPR camera has captured two or more visits, only capturing the first entry and the last exit, whilst on a shift in that area. Capturing two visits as if they are one is a known fault of ANPR, which is known by the Claimant as well, as suggested in the many news articles featuring the matter. If it wasn’t that well known ANPR flaw (2 visits taken as one) then even if it was a single visit, the Defendant usually spend time in this MSA petrol station, either getting petrol or topping up tyre pressure and cleaning the car.

The ANPR camera provides evidence of a vehicle entering and exiting the facility. This is merely an image of the vehicle in transit and is no evidence of  “No Authorisation” or not being a patron of the facility. Thus the premise of this charge is insubstantial. No breach of any contract has occurred and no charge can arise.

7/ Lack of willingness from the claimant

No Letter Before Claim which was compliant with practice directions, have been received. As a result, the parties have not been able to complete the exchange of information needed for the Defendant to file his full defence and have not been able to complete Alternative Dispute Resolution (ADR). The Defendant has learnt of the claims on the 15th of June 2021, for an alleged breach of contract that occurred on the 6th of October 2020, more than 9 months after, time in which the matter could have been resolved without wasting the court’s time. To confirm that the Defendant is aware of such a charge, ParkingEye could use a tracked letter or require a signature on reception.

Upon receiving the claim, the Defendant researched this all too common issue and was advised to communicate with the solicitor in charge, Miss/Mrs Jayne Leonard QC, employee of ParkingEye, to seek debt advice (yet any debt is denied) and asked that the case to be put on hold for not less than 30 days, under PAP for debt claims 2017. The Defendant contacted ParkingEye on the 22nd of June, and responded back to their answer on the 26th of June, in both occasion ParkingEye ignored the Defendant’s request, did not contact their in-house solicitor on the Defendant’s behalf as requested, preventing any mediation other that court proceedings and breaking the PAP for debt claims 2017.

A request for Subject Access Request (SAR) has been made on the 22nd of June 2021. As of today, the request hasn’t been fulfilled either, so the details of the alleged breach of contract such as “parking time”, “entry time” and “exit time”, are still unknown. But it is expected that it will show no signs and no paperwork from the Claimant, giving any hint to the registered keeper recipients, that the onside businesses could very easily cancel a charge as well, giving the Defendant as the only choice the Payment of an arbitrary charge. Withholding the Welcome Break route of cancellation/complaint from a consumer is, yet again after explained in point 4), a “misleading omission” of material facts. Along with the hidden unlit T&Cs, this too is a breach of the CPUTRs 2008 which caused the unfair Parking Charge and prevented its cancellation before proceeding started. This conduct by the Claimant in suppressing key information about a cancellation route, is in any case severely disadvantaging for the Defendant.

According to research the only route offered would have been a supposed “appeal” to ParkingEye themselves, which the Defendant wasn’t offered at all, but the Defendant knew that no offence or mischief had occurred and honestly believe that, private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating “an outrageous scam” typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and indeed, ParkingEye themselves were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self-regulation has failed, and in many cases any 'appeal' is futile.

The Defendant also points out that the POC does not precise the sum owed after the free period, therefore the sum “owed” was nil.

estevenin

8/ No legitimate interest - the penalty rule remains engaged

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 to issue parking charge notices in these circumstances, and to pursue payment in the court in their own name.

Even if they show general authority for "parking management" regarding this site, it is in the public domain that a Schedule addendum in the Welcome Break/ParkingEye contract states that Welcome Break's agreement must be obtained before court action in every case and that  ParkingEye can only litigate on behalf of the MSA with their ‘prior authority’, the Defendant do not believe that this was obtained. The Claimant is put to strict proof that they obtained this landowner agreement specific to this case, in advance of filing this claim.

The Claimant is then 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.

Also, there is clearly a disclosed principal on the signs that identify “Welcome Break” therefore the principle established in Fairlie v Fenton applies and the agent is unable to sue in their own name.

This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis (2015) UKSC 67, which involved an undisclosed principal and a free retail car park. This case is about not paying an unknown £11-£15 tariff, a sum in damages that is fully quantifiable and monies that are paid to Welcome Break as the creditor, not to Parking Eye, who neither retain those tariffs nor pay the VAT on them. In ParkingEye Ltf v Beavis the decision turned on a legitimate interest and clear notices, neither of which exist to save this case from the penalty rule.

9/ In the matter of costs, the Defendant seeks:

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-actions phases by this claimant, and will seek further costs pursuant to CPR 46.5

Conclusion

In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to use a Payment machine at the venue reception, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

As a result of the above, the Defendant denies the claim in full and intend to fully defend it, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons, and submit that it ought to be struck out as having no reasonable prospect of success due to the Claimant’s failure to comply with the statutory requirements for Keeper Liability. The Court is invited to dismiss the Claim, 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. 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

I've tried to cut it down and removed the unnecessary headings. You must have a paragraph number for every paragraph:

Background - The Defendant has no contract with the Claimant.

1.  The Defendant is a private hire driver the registered keeper and driver of the vehicle involved in the claim, which relates to an alleged debt arising from an alleged breach of contract, at a Motorway Services Area car park, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 “parking charge” for using a Motorway Services Area.  the lawful conduct described below.   , as the   Further, the Defendant had no knowledge of such parking charge, as no PCN has been was received.

2.  As a private hire driver, the Defendant is used to being on the road several hours a day.  Being professional and observant is an obligation to ensure both driver and passenger security and the Defendant is very familiar with the requirement to read and follow clear road signs. Yet the Defendant found himself caught out by what seemed to be just the sort of “concealed pitfall or trap” that the Supreme Court in ParkingEye Ltd v Beavis (2015) UKSC 67 ('the Beavis case') observed would not result in a recoverable parking charge.

3.  The small signs at the purported 'entrance' are very high and placed in a confusing location, on a slip road of moving traffic.  The text on the other sparsely-placed signage is written in small font which is particularly difficult - if not dangerous - to read whilst driving, with any potential contract terms too small and too high to be considered sufficiently prominent to be legible.  Accordingly, no contract was agreed between the parties.  visible.  ParkingEye can’t realistically expect a driver to notice the sign amongst all the others, stop the car in the only single carriageway slip road towards the car’s parking (and become a road hazard), read it in full, process it and agree to the terms, so they can claim that entry to the service automatically forms a contract between the driver and Parking Eye.

The Defendant has now discovered that the distribution of the sparse, unlit signs around the car park is also inadequate. Surprisingly, it appears that from the parking’s entrance to the main building or other facilities such as Starbucks Coffee, it is very likely that no sign at all will be seen. Whilst there are other signs around the car park, these are usually badly lit, covered by trees, hidden by cars or facing directions that means no patron would look at them, with equally small size and font that would fail to make it easily visible .

ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract.

4.  The Department for Transport (DFT) rules of the for Motorway Service Areas ('MSAs') require signs to be prominently displayed, not only in the car park but also inside the buildings to draw attention to any tariff due. This is not the case and the Claimant is put to strict proof of their signs inside WH Smith and other buildings in the service area.

5.  In a similar case, Nicholas Bowen QC successfully defended  vs ParkingEye in particular was awarded to Mr Bowen after defending ParkingEye’s misconceived claim about a parking charge also issued for alleged 'overstay' at another Welcome Break MSA.  on a public interest basis by breaching consumer protection law and having  This Claimant's signage was too small and lacked the prominence to form an unenforceable contract. This resulted in ParkingEye paying £1,550 in legal costs to Mr Bowen, a barrister.

6.  According to the sparse signs in this car park, it  It transpires that to avoid a Parking Charge, drivers are expected to pay a fee after a 2h free stay parking limit, at the WH Smith store. The text that includes the T&C's (alleged contract) on these signs is smaller than recommended by the DVLA for road signs and so are impossible to see whilst driving past. Paying that fee would only be possible if a Pay and Display machine or similar were to be prominently drawn to a driver's attention outside in the car park and inside WH Smith, if that is where payments are made.  The Defendant avers that, in order to comply with the Department for Transport mandatory rules for MSA signage, the vital information about the tariff should have been visible from all areas, pointing towards the location of the payment facility with large lettering with a message such as: 'Stayed more than 2 hours? Pay the tariff inside WH Smith before leaving, to avoid a £100 parking charge'.  available and visible, in the car park. Alternatively, a barrier ticket would be provided at entry and exit.

It is unclear where those machines are and it appears that most facilities (such as Starbucks Coffee) do not provide such a machine.

For example, a first visit at the petrol forecourt for tyre maintenance, then a second visit later towards the Starbucks Coffee drive-in or facility, would not allow awareness of those machines being there, not from the unreadable entry sign or from the facilities themselves.

4/ Lack of good faith, fairness or transparency and misleading business practices

Parking firms should ensure that consent from the car driver is collected, by requiring an action from them, such as collecting a ticket on entry or displaying a ticket through Pay and Display machines. Failing to do so could be considered as “misleading omissions” of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

Any contract must have offer, acceptance and consideration both ways. There is no consideration from ParkingEye to motorist; the gift of parking is the landowner’s, not ParkingEye’s. There is no consideration from motorist to ParkingEye; this is a Free car park, and there is no method or contemplation of payment of any parking charges whilst on site. As such, the essential parts of the contract that the claimant purports to exist are missing ab initio.

4.1/ 

7.  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.

4.2/ 

8.  Fairness and clarity are paramount in the new statutory Code of Practice, being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed: 'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t."  The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

5/ Insufficient evidence from the claimant that a breach of contract occurred – “parking time” within MSA rules.

9.  Further and in the alternative, the Defendant has seen no evidence that the car was actually parked for more than two hours on this occasion.  Two hours minimum rest are a statutory requirement so a parking charge cannot be based upon 'total stay' at a MSA.   As a private hire driver, the Defendant often visits MSAs more than once in a day, sometimes stopping at the same MSA but on two different sides of the carriageway, firstly at the start of a journey then again on the return. If this case was not caused by that well-known ANPR flaw (two visits taken as one) then even if it was a single visit, the Defendant invariably spends time in the MSA petrol station, either getting petrol or topping up tyre pressure. 

10.  None of the time spent in the petrol station is parking/resting, so this Claimant is put to strict proof of how long the car was in a bay for on this occasion. 

There aren’t any signs warning people at the petrol station that the time spent there is counted by ParkingEye (who have no signs at the petrol pumps) as if it were part of the allowed rest time.

According to the POC, the car has “parked without paying to park”. A “parked car” is a stationary car, the time spent looking for a parking space (or taking petrol or ordering a coffee in a drive-through) is not deemed as parking, as found in case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. ParkingEye has no evidence of how long the vehicle was in a “moving situation” vs. “stationary”, and there is no provision made for a “grace period”, in their terms. Therefore, the enforcement of “overstaying” after 2h free parking is hazardous, and does not rely on any concrete action or timeline.

The ANPR cameras are not positioned exclusively on the car parking spaces, the time calculated by the Claimant for the parking charge would include time driving around the car park and using other services and the time to leave the site, and is therefore unfair to include in the minimum rest time that is legally required to be offered free, as the Defendant now discovers is set as a minimum, under the Motorway Service Area (MSA) rules from the Department for Transport (DFT), none of the time in the petrol station is parking/resting time and the Claimant is put to strict proof to differentiate the parking event from the time spent in other facilities, and for how long the car was in a bay for at this occasion.

11,  However, no  Neither a parking change notice, nor a Letter Before Claim was received, and the Particulars of Claim fail to specify POC doesn’t state how long the car was there, so the defendant can’t  Defendant cannot admit or deny being stationary in a bay for more than 2 hours on an unremarkable day several months ago.  , however   Due to the nature of his profession, the Defendant  believes it wasn’t. He  believes he spent time in the petrol station topping up tyres and cleaning the vehicle as he often does when there is time ahead, and that time cannot be included in the mandatory “minimum two hours free parking time” at a MSA site.

6/ Insufficient evidence from the claimant that a breach of contract occurred – the Claimant is put to strict proof that the car has not done more than one visit.

As a Private hire driver, the Defendant has to make some safety stops to rest (As recommended by Motorway Signage : Tiredness can kill, take a break), for food, toilet and petrol breaks between fares, and visiting a MSA more than once in a day is not unusual whilst in shift in the area, sometimes on 2 different sides of the carriageway at the start of a journey then again on the return. As such, it could also be that the ANPR camera has captured two or more visits, only capturing the first entry and the last exit, whilst on a shift in that area. Capturing two visits as if they are one is a known fault of ANPR, which is known by the Claimant as well, as suggested in the many news articles featuring the matter. If it wasn’t that well known ANPR flaw (2 visits taken as one) then even if it was a single visit, the Defendant usually spend time in this MSA petrol station, either getting petrol or topping up tyre pressure and cleaning the car.

The ANPR camera provides evidence of a vehicle entering and exiting the facility. This is merely an image of the vehicle in transit and is no evidence of  “No Authorisation” or not being a patron of the facility. Thus the premise of this charge is insubstantial. No breach of any contract has occurred and no charge can arise.

7/ Lack of willingness from the claimant

No Letter Before Claim which was compliant with practice directions, have been received. As a result, the parties have not been able to complete the exchange of information needed for the Defendant to file his full defence and have not been able to complete Alternative Dispute Resolution (ADR). The Defendant has learnt of the claims on the 15th of June 2021, for an alleged breach of contract that occurred on the 6th of October 2020, more than 9 months after, time in which the matter could have been resolved without wasting the court’s time. To confirm that the Defendant is aware of such a charge, ParkingEye could use a tracked letter or require a signature on reception.

Upon receiving the claim, the Defendant researched this all too common issue and was advised to communicate with the solicitor in charge, Miss/Mrs Jayne Leonard QC, employee of ParkingEye, to seek debt advice (yet any debt is denied) and asked that the case to be put on hold for not less than 30 days, under PAP for debt claims 2017. The Defendant contacted ParkingEye on the 22nd of June, and responded back to their answer on the 26th of June, in both occasion ParkingEye ignored the Defendant’s request, did not contact their in-house solicitor on the Defendant’s behalf as requested, preventing any mediation other that court proceedings and breaking the PAP for debt claims 2017.

A request for Subject Access Request (SAR) has been made on the 22nd of June 2021. As of today, the request hasn’t been fulfilled either, so the details of the alleged breach of contract such as “parking time”, “entry time” and “exit time”, are still unknown. But it is expected that it will show no signs and no paperwork from the Claimant, giving any hint to the registered keeper recipients, that the onside businesses could very easily cancel a charge as well, giving the Defendant as the only choice the Payment of an arbitrary charge. Withholding the Welcome Break route of cancellation/complaint from a consumer is, yet again after explained in point 4), a “misleading omission” of material facts. Along with the hidden unlit T&Cs, this too is a breach of the CPUTRs 2008 which caused the unfair Parking Charge and prevented its cancellation before proceeding started. This conduct by the Claimant in suppressing key information about a cancellation route, is in any case severely disadvantaging for the Defendant.

Coupon-mad

According to research the only route offered would have been a supposed “appeal” to ParkingEye themselves, which the Defendant wasn’t offered at all, but the Defendant knew that no offence or mischief had occurred and honestly believe that, private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating “an outrageous scam” typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and indeed, ParkingEye themselves were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self-regulation has failed, and in many cases any 'appeal' is futile.

The Defendant also points out that the POC does not precise the sum owed after the free period, therefore the sum “owed” was nil.

8/ No legitimate interest - the penalty rule remains engaged

12.  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 to issue parking charge notices in these circumstances, and to pursue payment in the court in their own name.

13.  Even if they show general authority for "parking management" regarding this site, it is in the public domain that a Schedule addendum in the Welcome Break/ParkingEye contract states that Welcome Break's agreement must be obtained before court action in every case and that  ParkingEye can only litigate on behalf of the MSA with their ‘prior authority’.   the Defendant do not believe that this was obtained.   The Claimant is put to strict proof that they obtained this landowner prior agreement specific to this case, in advance of filing this claim.

The Claimant is then 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.

14.  Further and in the alternative and unlike in the Beavis case,  Also, there is clearly a disclosed principal on the signs that identify “Welcome Break” therefore the principle established in Fairlie v Fenton (1870 LR 5 Exch 169)  applies and a mere broker contracting for a disclosed principal cannot sue upon the contract.   and the agent is unable to sue in their own name.

15.  This case is fully distinguished in all respects, from the Beavis case, ParkingEye Ltd v Beavis (2015) UKSC 67, which involved an undisclosed principal and a free retail car park. This case is about not paying an unknown £11-£15 tariff, a sum in damages that is fully quantifiable and monies that are paid to Welcome Break as the creditor, not to ParkingEye, who neither retain those tariffs nor pay the VAT on them. In ParkingEye Ltf v Beavis the decision turned on a legitimate interest and clear notices, neither of which exist to save this case from the penalty rule.

16.  In the matter of costs, the Defendant seeks standard witness costs for attendance at Court, pursuant to CPR 27.14 should the Claimant proceed to trial.

  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-actions phases by this claimant, and will seek further costs pursuant to CPR 46.5

Conclusion

In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to use a Payment machine at the venue reception, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

As a result of the above, the Defendant denies the claim in full and intend to fully defend it, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons, and submit that it ought to be struck out as having no reasonable prospect of success due to the Claimant’s failure to comply with the statutory requirements for Keeper Liability. The Court is invited to dismiss the Claim, 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. 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.

estevenin

Oh! That's a lot of stuff removed! Didn't expect that one. So the fact that PE has not answered positively to the SAR and contact request to their solicitor is not something to mention at all to show to the judge that they did not help the claim ? Well noted for the rest, I will proceed and send that using the procedure on the NEWBIES Claim this weekend. Thanks a million Coupon-Mad for the last push.

Coupon-mad

The fact you have asked for a SAR is not relevant to the defence and the rest of the stuff was repetition or ranty!

estevenin

Hi all,

Coming to the news : I have sent my defence by mail, on the 17th of July. Today I have received notice, that I have been served a county court jugement, on the 27th of July. Is this a normal process or does this mean something went wront ? I do have the email in my "sent" box, didn't receive any notification whatsoever since then.

So does it mean they haven't received the defence (Or didn't see it ?). And if so, what are my options ?

Thank you again

Castle

estevenin said:

Hi all,

Coming to the news : I have sent my defence by mail, on the 17th of July. Today I have received notice, that I have been served a county court jugement, on the 27th of July. Is this a normal process or does this mean something went wront ? I do have the email in my "sent" box, didn't receive any notification whatsoever since then.

So does it mean they haven't received the defence (Or didn't see it ?). And if so, what are my options ?

Thank you again

But your deadline was 13th July according to your first post; so PE could have applied for a default judgement at any time from the 14th to 19th July, (17th was a Saturday); (and it looks like that's what they have done but you check on MCOL).

Redx

You are supposed to keep checking MCOL claim history to ensure that the Defence was logged , plus people receive an auto email receipt in their inbox folder or spam folder , so those should have been checked too , not just Assume that sent means received !!

Login to MCOL and copy and paste the claim history below , it's only a dozen lines at most

If your deadline was Friday the 13th then nobody would email it 4 days later although PE were quick off the mark if they filed for judgment that quickly !!

Your actual deadline was the 19th of July according to KeithP !! So sent 2 days early !!

Plus no point telling us in a Sunday because the CCBC isn't open at weekends

Forward the email from your sent folder to the ccbcaq email address today , adding a note that it was sent on the xxth day of July ( change XX to the date sent ) and tell them that they failed to log it promptly , if that is true !!

Actions are required , not just making assumptions that everyone does their jobs properly

Now please post that claim history below , we want to see exhibits , not hearsay , thank you !!