Having a PCN CCJ Set Aside and Defending
Comments
-
RESPONSE TO APPLICATION - SUMMARY
- It is Parkingeye’s position that the Defendant does not satisfy any of the mandatory or discretionary grounds for the setting aside of a regular default judgment pursuant to Part 13 of the CPR.
- The Defendant’s principle reason for applying to have judgment set aside is that they had no knowledge of the Parking Charge or any related proceedings as the letters were not received due to the Royal Mail strikes. Parkingeye can confirm that we issued a total of 4 letters to the Defendant prior to legal action and that the Claim Form was also issued using the same address, before being served by the Court. We note
3 of 46
- efault Judgment. The Claimant took all reasonable steps to serve the Claim Form on the Defendant, and it is not through any fault of the Claimant that the Claim Form was not received.
- The address used by the Claimant is the address as held by the DVLA for the Registered Keeper of the vehicle and remains the Defendant’s current address, as outlined within their application.
- Parkingeye note that the Defendant has provided submissions in relation to a proposed defence to the claim. The Defendants main point of defence is that the contract is bsed onteh presumption that they saw and read the signage, however, they aver that the signage is woefully inadequate. Parkingeye oppose this submission and will address in detail below.
- Given the above, it is Parkingeye’s position that setting aside the judgment would be disproportionate and that the Defendant could potentially incur further costs in taking this matter to a final hearing with little chance of success. Parkingeye also submit that the application has not been made promptly as required by CPR 13.3(2).
- For these reasons, we request that the court dismisses the Defendant’s Application as there are no grounds to set aside the Judgment in accordance with CPR Part 13.
CIVIL PROCEDURE RULES – PART 13 AND APPLICABLE TEST
- In fully considering the Defendant’s Application, we draw the court’s attention to Part 13 of the CPR.
Mandatory (CPR 13.2)
- Parkingeye submits that this is a regular judgment, that the claim has been issued correctly and that no defence or acknowledgment of service was filed by the Defendant. We can further confirm that the claim has not been satisfied prior to judgement being entered and that this current application does not satisfy any of the mandatory grounds to be set aside.
Discretionary (CPR 13.3)
- Parkingeye submits that this application must fall to be assessed on its’ discretionary merit in accordance with CPR 13.3(1), which states (emphasis added):
“(1)In any other case, the court may set aside or vary a judgement entered under Part 12 if –
the Defendant has a real prospect of successfully defending the claim; or 4 of 46
- (b) it appears to the court that there is some other good reason why – the judgement should be set aside or varied; or
- the Defendant should be allowed to defend the claim.
The court should also consider CPR 13.3(2), wherein it is stated that:
(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
PROMPTNESS
- Parkingeye submit that the application has not been made promptly and that the lateness of the application should be found to be fatal to the application pursuant to CPR 13.3(2). Parkingeye can confirm that Judgment was entered on or around 07th February 2023, but that the application is dated the 31st July 2023.
In the case of Regency Rolls Ltd & Anor v Carnall [2000] EWCA Civ 379, LJ Simon Brown stated;
“I would accordingly construe “promptly” here to require, not that the applicant has been guilty of no needless delay whatsoever, but rather that he has acted with all reasonable celerity in the circumstances. That said, I too would regard the applicant here as having failed even in that obligation. 30 days was altogether too long a delay.”
- The delay in bringing this application amounts to 5 months and Parkingeye submits that this application can in no way be considered to have been dealt with promptly. It appears likely to Parkingeye that the Defendant will contend that the application was delayed as they were unaware of the Parking Charge or the proceedings, but Parkingeye submits that this explanation should not be accepted given the submissions already made regarding the address used by the Claimant for service.
0 -
DEFENDANT’S SUBMISSIONS
- The Defendant contends that the contract is formed based on the motorist seeing and reading the signage, but they state that the signage is woefully inadequate. Parkingeye would clarify that there are 39 signs in this car park, and we do not believe that any reasonable motorist driving through this car park would not have seen any 1 of these signs. Parkingeye can confirm that signage conforms to BPA regulations and are of a similar height to other road signs which are legible from any standard motor vehicle. Parkingeye asserts
5 of 46
- te sight to qualify to drive a motor vehicle then they should be able to read the essential terms and conditions of the signage whilst driving. All non-essential text is in a smaller font at the bottom of the sign, which can be read once the motorist has parked. This notwithstanding, the purpose of the entrance sign is to simply alert the motorist to the fact that there are terms and conditions for parking on this site, in accordance with the BPA Code of Practice.
Parkingeye contends that when a motorist enters a car park they should be at the same level of observances as when driving on the public road. As on the public road, the motorist is expected to pay attention to signage within the car park, whether this is informing the motorist of the speed limit within the car park or making them aware that terms and conditions of parking apply. Furthermore, unlike on the public road, the motorist is able to exit the vehicle and familiarise themselves with signage within the reasonable grace period provided. Furthermore, these terms and conditions of parking are commonly found, and anyone able to drive should be aware that terms and conditions of parking may apply when parking on public or private land. When driving on the public road, motorists are expected to be aware of signs when travelling at speeds of up to 70mph. In a car park, the typical driving speed is between 5mph and 10mph. We therefore contend that it is not unreasonable to expect a motorist to note the signs within the car park and to familiarise themselves with these.
- The Defendant states that they did not exit their vehicle as they entered the car park to sleep. Parkingeye would stress that the terms & conditions apply equally to all motorists, regardless of their reason for being on site. We would also refer to the case of Parkingeye v Welsh, which states that “Parking does not require that the driver or other occupants leave the car. It requires remaining stationary for something other than a temporary period”. Parkingeye would like to refer to the advice given out to drivers by the Department for Transport which directs them to plan their journey to include a 15 minute break every 2 hours and not to start a trip if the driver is tired beforehand. If these guidelines are adhered to then this should minimise the risks identified by the Defendant.
Furthermore, we wish to emphasise that Parkingeye and Welcome Break accept that Motorway services exist partly to provide motorists with a place to rest should they feel tired. As such, we operate a facility at this site for all motorists to park onsite for 2 hours free of charge. If any motorist wishes to stay past the designated 2 hour free stay period, then they can do so by making the relevant tariff payment.
Parkingeye’s operation at this site certainly does not prohibit any motorist from resting for a long period of time and indeed accommodates for the ‘Tiredness Kills, Take a Break’ warning signs distributed along all the motorways across the UK. To this end, all motorists have the opportunity to remain onsite for 24 hours, subject to certain terms and conditions which have been agreed by the landholder. 6 of 46
The Defendant’s vehicle remained on site for a total duration of 3 hours and 14 minutes and they were therefore obliged to make payment for parking as per the signage displayed clearly throughout the site. It should also be noted that the Defendant had the opportunity to make a retrospective payment prior to exiting the car park in order to cover their overall stay.
Please note that the terms and conditions apply equally to all motorists, and customers of the service facilities onsite are still required to make payment for parking if remaining onsite for longer than 2 hours
- The Defendant denies that any contract exists. Parkingeye’s Parking Charges are issued on the basis of a contract with the motorist. Signage at each site sets out the terms and conditions under which a motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by parking within a limited stay period or similar, and that a Parking Charge will be payable if the same are not met. Parkingeye considers that it is trite law that a contract can be formed in this way and this position is supported by the findings in the case of Parkingeye v Beavis.
We would draw the Court’s attention to paragraphs 2 and 5 of HHJ Moloney QC’s first instance Judgment in that case where he states, at paragraph 5.1, that, “it is well established that a valid contract can be made by offer, in the form of terms and conditions set out on the notice, and acceptance, in the form of one’s car in the space provided. This is not a case like Thornton v Shoe Lane […] any unequivocal act of acceptance will suffice, and the signs clearly state (as anyone would expect nowadays) that parking constitutes acceptance.”
In support of this analysis, Parkingeye would also draw the Court’s attention to paragraphs 188 to 189 of the Supreme Court Judgment, where Lord Mance states that, “There is common ground between all before the court 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, reducible, in this case, to £50 if he had paid within 14 days of ParkingEye’s demand.”
He then goes on to state that, “The Court of Appeal raised a question about this analysis, which the Supreme Court also took up. But I am satisfied that it is correct in law. The terms of the signs which Mr Beavis must be taken to have accepted by conduct in entering and parking in the car park are to that effect. Mr Beavis thereby expressly agreed to stay for two hours maximum […] and to pay the stipulated sum if he failed so to comply.”
Parkingeye ensures that signage is ample, clear and visible, so that it complies with the British Parking Association (BPA) Code of Practice. Parkingeye wish to ensure that the motorist is bound when they enter and remain at a site, so that all users of the site are obliged to comply with the terms. 7 of 46
In terms of the content of signage on site, Lord Sumption and Lord Neuberger of the Supreme Court provide a description of Parkingeye’s signage within their joint Judgment at paragraph 9, wherein it is stated that, “The signs are large, prominent and legible”. This analysis is supported by Lord Mance at paragraph 123. Lord Sumption and Lord Neuberger then go on to state, “that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.” They also add that additional terms were laid out in “small, but legible black print on the same orange background”. The signs in the case before the Supreme Court were representative of the signage used at the majority of sites, and signs are generally of a very similar size and colour, with small print being universally the same size.
Parkingeye contends that when a motorist enters a car park they should be at the same level of observance as when driving on the road; anyone able to drive should be aware that certain terms and conditions may apply when parking on public or private land. When driving on the road, motorists are expected to be aware of signs when travelling at up to 70mph. In a car park, the typical driving speed is between 5mph and 10mph. We therefore contend that it is not unreasonable to expect a motorist to note the signs and to familiarise themselves with these.
Furthermore, unlike on the public road, the motorist is able to exit the vehicle and familiarise themselves with signage within the reasonable grace period that is provided at all sites. The grace period operates to allow motorists to park and decide whether or not they wish to be bound by the terms and conditions clearly displayed. If they do not wish to be bound, they can exit the car park. It is Parkingeye’s position that the signage installed is more than sufficient to bring the terms and conditions to the attention of any motorist and that a legally binding contract is formed between the motorist and the party offering that contract.
- The Defendant asserts that the amount of the Charge is disproportionately high, making it penal and is therefore unenforceable. In respect of the enforceability of the Parking Charge, Parkingeye relies upon the Supreme Court decision in the matter of Parkingeye v. Beavis [2015] UKSC 67. This decision, handed down on 4th November 2015, reaffirms the first instance decision of HHJ Moloney QC [2014] and the Court of Appeal decision [2015] EWCA Civ 402.
In reaffirming the findings of the Court of Appeal, the Supreme Court considered the Defendant’s submission that it would be proper to consider the Parking Charge both a penalty and unfair, but six of the seven Justices on the panel agreed with the findings of the lower courts, dismissing the Defendant’s appeal.
At paragraphs 94-98, Lord Neuberger and Lord Sumption conclude that, “[…] the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. […] The other purpose was to 8 of 46
provide an income stream to enable Parkingeye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. These two objectives appear to us to be perfectly reasonable….”
They then conclude within paragraph 99 that, “while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although Parkingeye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss.”
In support of this position, Lord Mance references the conclusions drawn by HHJ Moloney within paragraph 7.16 of his Judgment, wherein it is stated that, “although there is a sense in which this contractual parking charge has the characteristics of a deterrent penalty, it is neither improper in its purpose nor manifestly excessive in its amount. It is commercially justifiable, not only from the viewpoints of the landowner and Parkingeye, but also from that of the great majority of motorists who enjoy the benefit of free parking at the site, effectively paid for by the minority of defaulters, who have been given clear notice of the consequences of overstaying.”
Overall, the Supreme Court found that, whilst the penalty rule was engaged, the Parking Charge sought was not a penalty. This is because Parkingeye had “a legitimate interest” in charging overstaying motorists, which extended beyond the recovery of any loss. Further it was determined that, “deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract.”
In terms of the amount of the Parking Charge, the Supreme Court Judgment, along with the British Parking Association Code of Practice at paragraph 19.5, support the level of Charge issued by Parkingeye.
Within this Judgment, Lord Neuberger and Lord Sumption note that, “The charge is less than the maximum above which members of the BPA must justify their charges under their code of practice” and Lord Hodge finds that, “…local authority practice, the BPA guidance, and also the evidence that it is common practice in the United Kingdom to allow motorists to stay for two hours in such private car parks and then to impose a charge of £85, support the view that such a charge was not manifestly excessive […] the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.”
0 -
COSTS
- It should be noted that Parkingeye do not seek to recover our additional costs in dealing with this matter and we therefore respectfully request that no order is made as to costs if the court is minded to set aside the judgement. It is our position that the need for this application has arisen due to the Defendant’s
9 of 46
- . We would also seek that the Defendants claim for their costs to be refunded by the Civil National Business Centre is dismissed.
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.
Signed: Dated: 03/10/2023 10 of 46
Case Detail Case Details
Case Reference
*****/**********
Tenant
Parkingeye
Tenant Reference
***************
Case Type
Anpr / EnglandWales / POFA_POPLA
Location
Welcome Break London Gateway
Car Park
Welcome Break London Gateway
Status
Timeout
Contact Details
Contact Type
Keeper
Contact Name
Mr ***** **********
Address
Vehicle Details
Registration
**********
Make
LAND ROVER
Model
RANGE ROVER VOGUE TDV8 A
Colour
*******
Financial
Current Value
£100.00
Outstanding
£207.00
Paid To Date
£0.00
Card Charge
£0.00
0 -
Send in (to ParkingEye and the local court) a supplementary WS attaching the CEL v Chan judgment by HHJ Murch.
Search the forum.
Do the supplementary WS on Monday. Attach the transcript and copy the second half wording of this one:
https://forums.moneysavingexpert.com/discussion/comment/80327796/#Comment_80327796
Re the hearing date, I did tell you to "think hard" about dates when you could not attend a hearing. The point was to avoid this happening about the flights:Include a downloaded N180 form stating all unavailable dates (think hard) - birthdays? End of year self employed declaration week in January? Busy work weeks? Half terms if you have kids? ...plot it for SIX MONTHS at least!Now, I know you didn't have that flight booked in August but THE VERY MINUTE you were contemplating a trip to Spain, you should have told the court to exclude more dates. It was bound to happen.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Coupon-mad said:Send in (to ParkingEye and the local court) a supplementary WS attaching the CEL v Chan judgment by HHJ Murch.
Search the forum.
Do the supplementary WS on Monday. Attach the transcript and copy the second half wording of this one:
https://forums.moneysavingexpert.com/discussion/comment/80327796/#Comment_803277960 -
Coupon-mad said:
Re the hearing date, I did tell you to "think hard" about dates when you could not attend a hearing. The point was to avoid this happening about the flights:Include a downloaded N180 form stating all unavailable dates (think hard) - birthdays? End of year self employed declaration week in January? Busy work weeks? Half terms if you have kids? ...plot it for SIX MONTHS at least!Now, I know you didn't have that flight booked in August but THE VERY MINUTE you were contemplating a trip to Spain, you should have told the court to exclude more dates. It was bound to happen.1 -
Coupon-mad said:Send in (to ParkingEye and the local court) a supplementary WS attaching the CEL v Chan judgment by HHJ Murch.
Search the forum.
Do the supplementary WS on Monday. Attach the transcript and copy the second half wording of this one:
https://forums.moneysavingexpert.com/discussion/comment/80327796/#Comment_80327796
Thanks.0 -
Any advice on the following would be greatly appreciated.
Supplementary Witness Statement
I, ***** ******of [address], am the Defendant in this matter.
This is a supplementary Witness Statement in support of my application, dated ** August 2023, for an order to set aside the judgment, dated ** February 2023.
1. A video, recorded by a friend of the Defendant, entering the carpark at the time of my original witness statement, attached to this email, and marked “Video A” clearly shows the route from the motorway to the space in which the Defendant parked. On this route there is not one legible sign, and whilst the Claimant, asserts that if the Defendant could read official road signs, it should be possible to read the Claimant’s signs, this video clearly shows that this is not the case.
2. Photographs A, B, C, D and E (listed as Appendix A and attached to this document), taken by a friend, at the time of my original witness statement, of the car park, shows the purported contractual sign at the location. It is clear from the photographs that:
a. There are no legible signs between the entrance of the carpark and the parking space in which the Defendant parked (marked with a blue arrow).
b. There are no signs which can be seen, let alone read, from this space.
c. The nearest sign, pictured at the other end of the carpark, cannot be read from since it is faded to the degree that it is illegible from a distance and looks to be abandoned.
3. Photograph F (listed in Appendix A and attached to this document), taken from Google Maps, shows the distance between the parking space and nearest sign (pictured in Photographs D and E). This is a distance of 30 meters or more.
4. Although the Claimant had submitted maps listing the placing of signage around the carpark, it is apparent from the video and photographs that this signage is either neglected or missing altogether.
5. The Defendant would like to take this opportunity to reassert that the £100 penalty charge is disproportionate to the original parking charge, going beyond the £85 charge of that found to be acceptable in Beavis by almost 20%, and not offering for a 50% discount if the fine be paid within 14 days, as is usual.
6. A recent persuasive appeal judgment (attached in Appendix C) in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44). This case confirms that where the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside, and costs awarded to the Applicant/Defendant. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the 'conduct which amounted to the breach' in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4 and award the Defendant costs in full, as happened in Chan appeal case (which also started with a N244 CCJ set aside application, which was initially wrongly refused by the first learned Judge).
7. I believe that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the above persuasive authority and award costs.
8. Since the Defendant’s original Witness Statement, the knock-on effects of the original default judgment have already had a significant impact. As a direct result of the judgment, the Defendant has lost access to any kind of credit and his vehicle insurance has risen from £729.71pa (£61.80pm) to £3222.92pa (£268.58pm). (a photograph marked Photograph G in Appendix B is attached to this document). Obviously, this is unaffordable, meaning that in 14 days, the defendant will no longer have access to a vehicle. Since he works all over the UK and Europe, this will have an undoubted effect on his ability to work, and a direct impact on his income. Should the original judgment be upheld it will have a devastating effect on the finances of the Defendant and his ability to support my family. The Defendant therefore asks the court to take this into consideration when passing judgement.
9. 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.
0 -
bohomark said:Coupon-mad said:Send in (to ParkingEye and the local court) a supplementary WS attaching the CEL v Chan judgment by HHJ Murch.
Search the forum.
Do the supplementary WS on Monday. Attach the transcript and copy the second half wording of this one:
https://forums.moneysavingexpert.com/discussion/comment/80327796/#Comment_80327796
Thanks.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD2 -
Coupon-mad said:bohomark said:
Reading through the info I can find about CEL v Chan, I'm not sure how it relates to my application. Could you expand on that, please. I don't want to get it wrong.
Thanks.
Okay.- Does it matter that I don't have the original letters anymore, so I can't show the language they used?
- It says in the other thread that I should attach the transcript (of the CEL v Chan?) Where would I get that. I've searched the forum and online, but can't find it.
0
Confirm your email address to Create Threads and Reply

Categories
- All Categories
- 348.2K Banking & Borrowing
- 252.1K Reduce Debt & Boost Income
- 452.3K Spending & Discounts
- 240.7K Work, Benefits & Business
- 617K Mortgages, Homes & Bills
- 175.6K Life & Family
- 253.9K Travel & Transport
- 1.5M Hobbies & Leisure
- 16K Discuss & Feedback
- 15.1K Coronavirus Support Boards