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

chijiokeike

The Beavis case is against this case

37.               This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

38.               However, there is no such legitimate interest where the requisite fee has been paid in full and then some for the time stayed. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

Redacted Landowner Contract and T&C’s

39.               The Claimant has appended a redacted ‘landowner contract’ as an exhibit which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?). It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act. The network of contracts are key in these cases since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

40.               In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...'

Abuse of process

41.               The Claimant has added a sum disingenuously described as 'Solicitor costs'. The added £50 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit xx-12 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

42.               Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

43.               The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

44.   This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both

45.               This Claimant knew or should have known, that by adding £50 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit - xx-10), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

Statement of Truth

I believe that the facts stated in this Witness Statement 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.

KeithP

Initialisations need to be explained the first time of use.

E.g.
8.                   Initial Parking Charge Notice ('PCN') for £100 was issued by parking eye to...
(and ParkingEye is one word with a capital 'E' in the middle)

Other initialisations that need similar explanation are... PADM, POPLA, ANPR, SAR, PDT, NTK, VRN... and maybe others.

I could be wrong, but I thing your para 27 is flawed. I believe that whilst ANPR technology does indeed look continuously for number plates, and would therefore see everything else whilst looking, it is only when a number plate is detected that an image is recorded. 

(as a humorous aside, you might like to read this... surrey-writing-on-womans-jumper-landed-couple-with-fine-when-she-walked-in-bus-lane)

patient_dream

They have put forward LPC law to represent them

As PE normally go to court themselves, are they aware that LPC have added a fake amount.

As this goes totally against what the Supreme Court said in the PE v Beavis case, which said the charge of the ticket was to cover costs of recovery.

This could easily make PE look rather stupid in front of a judge which of course you will point out

chijiokeike

KeithP said:

Initialisations need to be explained the first time of use.

E.g.
8.                   Initial Parking Charge Notice ('PCN') for £100 was issued by parking eye to...
(and ParkingEye is one word with a capital 'E' in the middle)

Other initialisations that need similar explanation are... PADM, POPLA, ANPR, SAR, PDT, NTK, VRN... and maybe others.

I could be wrong, but I thing your para 27 is flawed. I believe that whilst ANPR technology does indeed look continuously for number plates, and would therefore see everything else whilst looking, it is only when a number plate is detected that an image is recorded. 

(as a humorous aside, you might like to read this... surrey-writing-on-womans-jumper-landed-couple-with-fine-when-she-walked-in-bus-lane)

Thanks @KeithP.

I will remove the ANPR arguments. I will go through and explain the initialisations in the first instance of each.

Couple Questions:
a) Do She need to include my name in the Witness statement when She says, Husband? Especially bearing in mind I will now be Her Lay Rep. Does it matter I guess is the question.
b) As PE has now provided the Landowner (Britannia Hotels), is it still worth at this stage contacting them to let them know what PE has been up to in this case 

chijiokeike

patient_dream said:

They have put forward LPC law to represent them

As PE normally go to court themselves, are they aware that LPC have added a fake amount.

As this goes totally against what the Supreme Court said in the PE v Beavis case, which said the charge of the ticket was to cover costs of recovery.

This could easily make PE look rather stupid in front of a judge which of course you will point out

@patient_dream Thanks for the comment. As you can see from the above snip taken from money claim, they included it at the claim stage.

I take it this could be one of my strongest arguments for getting the claim struck off?

Le_Kirk

We do not call it Abuse of Process any more, it is called Double Recovery.  Did they actually add the fake debt admin costs, given it is ParkingEye?  Also check that the £50 is allowed, even though PE have their own in-house team and don't use solicitors.  Also might be better to refer to a Pay & Display Terminal (PDT) rather then a PADM as the judge may know the term PDT but not PADM.

chijiokeike

Le_Kirk said:

We do not call it Abuse of Process any more, it is called Double Recovery.  Did they actually add the fake debt admin costs, given it is ParkingEye?  Also check that the £50 is allowed, even though PE have their own in-house team and don't use solicitors.  Also might be better to refer to a Pay & Display Terminal (PDT) rather then a PADM as the judge may know the term PDT but not PADM.

They have not stipulated any of the costs as admin costs in the claim or LBC, just the charge, court fees and solicitor costs. They are leaning on the Supreme court ruling of ParkingEye vs Beavis as their justification for the claim, in both the LBC and Witness Statement. In the Witness Staement, with relation to the solicitor costs, they have stated "Solicitor's Costs can be claimed in proceedings allocated to the small claims track if the work is done by the litigan's own expert staff if they are the most suitable or convinient experts to employ (Nossen's Letter patent (1969) 1 WLR 638). See also London Scottish benefit Society vs Chorley (1884)

There is a letter attached to there Witness statement, which states "The Witness will not be in attendance at the Hearing, in order to minimise costs that would have to be sought from the other side. Attendance for the claimant will be through its agent from LPC law. We request that the matter be decided in the presence of our advocate from LPC Law, and confirm our agreement that the matter can be decided in the absence of the claimant"

I will change all instances of PADM to PDT.

chijiokeike

I noticed a slip up in their Witness Statement not sure if its a huge deal  "The motorist breached the terms and conditions displayed on the signage on the date of the parking event, and THE DEFENDANT, AS REGISTERED KEEPER, is liable to pay the subsequent parking charge".

My wife is not the registered keeper, I am. Any Thoughts?

Umkomaas

Almost never do PE attend court; almost always LPC represent them. PE never (nor do LPC) add any spurious charges. Lose the case, your costs will be as PE have laid them out. PE are the most straightforward of all the PPCs issuing court proceedings.

Le_Kirk

You need to adjust your WS then to remove any reference to added costs.  Hearing, claim and solicitor fees are allowed.  Regarding the "defendant as registered keeper" comment probably not worth anything as defendant is defending as driver and has no protection in law (POFA) whereas keeper does.  So long as the name is correct on the claim!  Might be worth raising it with the judge as a preliminary matter at the hearing or mentioning it in the WS.