Parking Eye County Court Claim filed - Payment Made but no reciept given by PADM

chijiokeike

Hi,

I need some help from the experts on this forum.

I am fighting a county court claim issued on the 16th of August to my Mrs for a parking event on 12/11/2020. We went through the whole appeal process with Parking Eye and POPLA to no avail. I however wish I had gone through the forum properly before appealing as these parking firms and their regulatory bodies seem not to be bothered about the truth of events. We made the further mistake of not replying to the LBC and doing the other steps like requesting a SAR and emailing to say we were seeking debt advice.

On the day the PCN was issued, my wife made payment of £6 at the parking lots PADM, but no receipt was given and the money was not returned by the PADM. The parking lot was not manned at the time, and there was no service available on the PADM to seek help. She left the car parked in the lot as She had an exam to attend. She came back later to see if She could get help but no one was still available. She was advised by somebody to make a payment online so she could have some sort of proof, which She did reluctantly, She paid for the time she had left to spend in the parking lot online, which was a total of £4.50. Regardless Parking eye issued a PCN and ignored everything that was presented to them during the appeal process which included the online payment receipt and proof that She had used the lot and the PADM before, all they referred to was their policy on grace periods. POPLA said there is no proof machine was not functional and online payment though not backdateable should have been paid to cover the cost of all the time spent in the lot, meaning she should have paid £8 online on top of the £6 already paid.

I have filed the AOS as of today 24th August and I am currently looking to start working on the defense to send in before the 28 days is up. I was wondering if anyone here can provide a template defense that will suit our circumstances, so I can adapt this.

Also, I was wondering if I can represent my wife if the case goes to a hearing.

Any Help is much appreciated 

Coupon-mad

Parking lot is American so dont use that in the defence.  And PADM will also mean nothing to a Judge although I get it.

I hope you did the AOS in her name not yours. As you are not the Defendant? 

Parking Eye defence examples are in the Newbies thread post #2

Whats the issue date of the claim?

KeithP

chijiokeike said:

I am fighting a county court claim issued on the 16th of August to my Mrs for a parking event...

I have filed the AOS as of today 24th August... 

The first thing to say is that as your wife is the named Defendant everything must be done in her name.

With a Claim Issue Date of 16th August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 20th September 2021 to file your Defence.

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

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.


When the time comes, you can certainly help your wife through the hearing, doing all the talking for her, but she must be present at the hearing and must be prepared to answered questions directed her way.

chijiokeike

Thanks, @KeithP, and @Coupon-mad for the quick response.

The AOS is in her name.

I take it from your responses that the circumstances don't change the content of the defense. I will work on this tonight/tomorrow based on the thread 2 templates. Can I post the redacted version on this thread here for your inputs/amendments?

chijiokeike

@Coupon-mad, I am working on that already.

Redx

You can assist her in court as a lay representative , but she must be present and answer any questions put directly to her, but yes you can assist her on the day, do a search for the details on being a lay representative

Ps , there is no S in defence 😜😜. Change your keyboard to UK English

D_P_Dance

PE's signs are pants, read this and complain to your MP.

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading/p1

chijiokeike

Hi, @KeithP, and @Coupon-mad

Please see below my defense. I have constructed this based on a few other defenses seen on this forum and the template defense as well as facts known to me of the case. Your advice and recommendations would be much appreciated

IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

ParkingEye Ltd (Claimant)

-and-

xxx  xxx(Defendant)

DEFENCE

1. The defendant denies any breach. 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 £100 ‘parking charge’ and it is denied that this Claimant (understood to have a bare license as manager) 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 Defendant is the driver of the vehicle in question, but Parking Charge liability is denied.
 
3. The allegation appears to be that the defendant fails to make required payment based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the defendant 'not purchasing the appropriate parking time'.

4. The payment was made in two parts by the defendant for the time parked. Payment of £6 at the PDT machine for the first three hours and a further payment of £4.70 made using pay by phone service to cover a further two hours, totaling 5 hours. The total time parked was under 4 hours.

5. Receipt was not issued by PDT for the first three hours paid neither were monies returned.

6. The Particulars of Claim set out an incoherent statement of the case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that The claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair. The signage at the site in question is woefully inadequate. The defendant did not observe any such signage during parking due to their placement which was either too high, obscured/hidden, and not in the line of sight of the defendant when exiting/entering the car park.



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

7.  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.  

8.  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.

9.  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.  

10.   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 an operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

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

12.   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.

13.   Fairness and clarity are paramount in the new statutory CoP being finalized 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.

 

14.  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 authorizes this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has the standing to enforce such charges by means of civil litigation in their own name rather than a bare license to act as an agent ‘on behalf of’ the landowner.

 

Additional costs claimed by claimant

15. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which the defendant submits have not actually been incurred by the Claimant.

16. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd has not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' claims. Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

In the matter of costs, Defendant seeks:

17.   (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.  Defendant seeks a finding of unreasonable behavior in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

18.   The Defendant invites the court to find that this claim is entirety without merit and to dismiss the claim. 

 

Statement of Truth

I believe that the facts stated in this defense 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.

Defendant’s signature:

Date:

 

KeithP

It's been mentioned before... there is no letter 's' in the word Defence.

Not the biggest issue, except that not only do you continue to misspell it on this forum, you have now repeated that mistake in your Defence document.

chijiokeike

KeithP said:

It's been mentioned before... there is no letter 's' in the word Defence.

Not the biggest issue, except that not only do you continue to misspell it on this forum, you have now repeated that mistake in your Defence document.

Ha, good spot. I used Grammarly to spell check. That will teach me.

chijiokeike

KeithP said:

It's been mentioned before... there is no letter 's' in the word Defence.

Not the biggest issue, except that not only do you continue to misspell it on this forum, you have now repeated that mistake in your Defence document.

Apart from the spelling errors, are there paragraphs I need to change/remove or be wary about given the facts of the case?