CLAIM FORM for parking charges in 2018

Coupon-mad

No to getting a solicitor, because they are generally useless at knowing the nuances of parking law and you can't reclaim legal fees.

This is amusing:

 It is submitted that the Defendant was aware of the terms as they had requested a Permit from my Company. Therefore, it is assumed that the Defendant was aware that a PCN would be issued as a result of non-compliance with the terms.

So, they are basically saying:

"We were aware from before PCN issue, that the Defendant was permitted to park as a genuine resident (because we had received his permit application and he was paying the managing agents for the parking spot from the outset).  Of course, we could have added his VRM to a temporary electronic whitelist, given the delay and inconvenience we were causing by failing to supply the permit, but then we wouldn't have made any money cashing in on unjustified and unfair PCNs at £100 per day, penalising him for our delaying conduct and omission."

This has set you up for a fall, and IMHO such conduct can be argued to be unfair (Consumer Rights Act 2015) and in clear breach of the CPUTRS (misleading conduct / misleading omission) which is illegal from traders.

Also you can grab some exhibit transcripts from here:
https://barkingreachra.wixsite.com/barkingriverside/parking-case-law

PACE v Noor
PACE v Lengyel
LINK v Parkinson
Saeed v Plustrade

etc.

Mouse007

HA HA HA HA, ROFLMAO

x. My company’s legitimate interest is to fulfil its obligations to the landowner. The landowner’s legitimate interest in managing the Land is to provide parking for those who wish to park on the land. Because there is a clear legitimate interest/commercial justification, the same as that established in Parking eye -v- Beavis [2015], this case does not fall foul of the penalty rules established in that case the issue of ‘loss’ is further dealt with in the ‘amount claimed’ section below.

Well, you wished to park on the land, didn’t you? So how does that work?

I'll be back with your Parking Eye defence points later tonight, but that was too good to wait for.

Mouse007

You need to understand what Parking Eye v Beavis (PEvB) was about and what it was not about.

Firstly this case concerned a retail outlet car park, not a residential one, where the landowner wanted a turnover of customer for the benefit of its retail tenants. This is important to note, the landowner had a legitimate interest in a parking management scheme to achieve this outcome.

It started with both parties actually agreeing the sign formed a contract, or to be precise created a contractual licence. That point was not disputed.

123 The signs exhibited at the entrance and throughout the car park are large, prominent and legible.

188 There is common ground ... that the relationship between ParkingEye and Mr Beavis was a contractual relationship, whereby Mr Beavis undertook not to park for more two hours and, upon any breach of that obligation, incurred a liability of £85 ...

Your starting point is different, your Defence is the signs did not create a contract because you already had the right to park.

The PEvB case was actually about whether the charge was a penalty or not. In contract law a penalty clause is unenforceable and that was Beavis’ Defence argument.

The whole of PEvB was about the penalty rule or the penalty doctrine, not parking tickets per se.

128 ParkingEye does not challenge the existing law of penalties, but, ... submits that it is inapplicable to clauses not aimed at compensating for the breach, but for which some other valid (not necessarily commercial) reason exists.

111 ... The object of the £85 charge is simply to influence the behaviour of motorists by causing them to leave within two hours. It is reasonable that the risk of exceeding it should rest with the motorist, who is in a position to organise his time as he sees fit. ...

199 ... What matters is that a charge of the order of £85 ... is an understandable ingredient of
 a scheme serving legitimate interests.

127 ... the law governing penalties enables and requires account to be taken of the interests intended to be protected by the relevant clause ... subject to the over-riding control that it must not be extravagant, oppressive or manifestly excessive ...

99. In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty... deterrence is not penal if there is a legitimate interest in influencing the conduct...

The Law Lords ruled that is was not a penalty because the Claimant (Parking Eye) had a legitimate interest in the secondary obligation and the amount (£85) was not unreasonable.

94 ... In the circumstances, the £85 can only be regarded as a charge for contravening the terms of the contractual licence.

193 The penalty doctrine is therefore potentially applicable to the present scheme. It is necessary to identify the interests which it serves... the scheme also covered ParkingEye’s costs of operation and gave their shareholders a healthy annual profit

198 The £85 charge for overstaying is certainly set at a level ... intended to have, a deterrent element ... Turnover of customers is obviously important for a retail park ... The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.

97 Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space... The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit

That is no other costs were required, the £85 was enough to make a profit.

100. None of this means that ParkingEye could charge overstayers whatever it liked.

iii. The Defendant alleges that there is no contract between them and my company. It is my company’s position that there is and the details of which are set out above. Parking eye -v- Beavis established that this form of contract is perfectly workable.

This is meaning less twaddle. PEvB established that where the landowner had a legitimate interest that the parking charge was not a penalty. Not that “this form of contract is perfectly workable”. In PEvB the parties already agreed that a contractual licence was in play, here you don’t.

viii. The recent successful appeal in Britannia parking group ltd v Semark-Jullien [2020] EW misc 12 (cc) (29 july 2020) found that the inclusion of the debt recovery charge in the claim does not fall foul of the decision of Parking Eye ltd v Beavis [2015] uksc 67, because that was not the point in discussion in that case.

Not so and the Judge was misled with an inept Defendant who was no more than a mere spectator to the proceedings against him. In PEvB the charge was allowed because it was not unreasonable and covered the whole cost of the parking scheme including a profit. Thankfully this case is not binding.

As an aside this appeal case was an underhand manoeuvre by Britannia. They had originally lost when Semark-Jullien accidentally found himself in Court with CouponMad as lay rep for a similar case, both of which were heard together. Britannia did not dare to appeal against CouponMad’s victory, instead they took advantage and appealed against this clueless defendant who had unwittingly piggy backed on someone else’s excellent defence.

Dess

Thank you @Mouse007, I need to edit the section I have drafted on my WS as I was unsure about the difference with Parking Eye ltd v Beavis.

Also, I thought it would be interesting to post the entire WS submitted by the Claimant. They have evidence of the contract stipulated between VCS and the Landowner, so I'm not entirely sure if I should include a section about Lack of landowner authority.

Anyway, here it is - https://www.dropbox.com/s/4bwwi0nxfo5qa1v/Witness Statement and Evidence bundle - Claimant - redacted.pdf?dl=0

I hope I redacted all the information - I only kept the exhibit they submitted for the contract between VCS and the landowner and one of the PCNs issued. I was meant to keep the signs in the car park but I deleted them by mistake, so maybe I'll upload them separately.

KeithP

Are your initials DM?
Have you used your real name when signing up to Dropbox?

Dess

Below you can find my WS. I think this is the third draft.

I need to submit it by Monday 06/02 before 4pm. It's taking longer than anticipated, but I should be able to finish everything during the weekend. I need to sort out the exhibits, so you can ignore the order of the letters.

My partner will also submit a WS as I introduced them as second witness. It'll be a short WS anyway. Then I'll upload everything on Dropbox and share it here.

Let me know your thoughts and if you think some parts are incoherent or should be edited. Thank you!

https://www.dropbox.com/s/emoigtvsa39h5mr/Witness Statement - Defendant MSE.pdf?dl=0

Coupon-mad

Nothing unusual about that template WS. As seen on every VCS thread where posters have shown the claimant's WS.  Very basic!

What I said in my previous reply stands - PACE v Lengyel and other transcripts will assist your case.

That and a copy of the tenancy agreement, plus those emails that prove you made reasonable endeavours to obtain a permit and the managing agent apologised for the delay (and the Claimant admits you had more than once applied for a permit and your emails show you kept reminding them).

What more could a tenant reasonably have done to comply?  And you thought the unfair PCNs were all cancelled.  Why wouldn't they be?  VCS could easily have added this car to the site whitelist to exempt your vehicle,  if permits were taking so darn long that the system was failing residents.

Galloglass

@Dess

Some background for you (and a judge) about VCS and Permits. It may not be persuasive but it may shade the discussion about permit difficulties. Paragraph #3

In practice, most of VCS’s revenue is derived not from parking permits, but from parking charge notices (“PCNs”) which it issues to motorists who are in breach of the rules for parking in the clients’ car parks (“PCN revenue”). This formerly included clamping and tow-away charges which were charged to motorists prior to such charges being outlawed by the Protection of Freedoms Act 2012. In the tax year 2012/13 92% of VCS’s income came from PCNs, and just 8% from parking permits

https://assets.publishing.service.gov.uk/media/58ac4cc5e5274a2a5c000040/vehicle-control-services-v-hmrc.pdf

Mouse007

Dess said:

 to post the entire WS submitted by the Claimant. They have evidence of the contract stipulated between VCS and the Landowner, so I'm not entirely sure if I should include a section about Lack of landowner authority.

I can not comment on the lack of landowner authority because the identity of the party which signed that contract is redacted - is that party the landowner and who signed (a director or the office pet)?

Dess

Thanks everyone! Your comments have been very helpful in referencing some more cases. I will post an updated version soon (hopefully this will be the last one).

@Mouse007 the contract was stipulated between VCS Director and the Management Surveyor. Not really sure what to make of it.