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Notice of allocation to small claim (Parking eye)

2

Comments

  • Can I argue that the photos of signs PE submitted in their defense were taken two year prior, the photos are in the day time and the contravention was at night? 

    Furthermore the photos of the signs apart from one, are just photos of signs stuck on walls with no context, the signs have no mention of the where they are and do not prove they were in the carpark. Where I parked was under a tree yet none of their photos show this tre.
  • Coupon-mad
    Coupon-mad Posts: 131,184 Forumite
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    Yes and yes.
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  • In PEs WS: The agreement for Car Parking dated 15/8/2019 says the intial term is ' 3 years from the Go-Live date' yet no Go-Live date is stated (maybe because it has been redacted but I can't see it anywhere). The parking charge was issued 19/2/2023 which is more than 3 years from 15/8/2019 date and more that 3 years later than when the photos of the signs were taken 23/1/2020. Does this mean the agreement is no longer valid?
  • KeithP
    KeithP Posts: 37,503 Forumite
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    edited 13 February at 9:21PM
    In PEs WS: The agreement for Car Parking dated 15/8/2019 says the intial term is ' 3 years from the Go-Live date' yet no Go-Live date is stated (maybe because it has been redacted but I can't see it anywhere). The parking charge was issued 19/2/2023 which is more than 3 years from 15/8/2019 date and more that 3 years later than when the photos of the signs were taken 23/1/2020. Does this mean the agreement is no longer valid?
    You tell us that the initial term is three years. Is there anything there that allows for the extension of that initial term?
    The mere fact that the word 'initial' is used, meaning the first of several, indicates that the contract continues beyond that 'initial term', doesn't it? 
  • KeithP said:
    In PEs WS: The agreement for Car Parking dated 15/8/2019 says the intial term is ' 3 years from the Go-Live date' yet no Go-Live date is stated (maybe because it has been redacted but I can't see it anywhere). The parking charge was issued 19/2/2023 which is more than 3 years from 15/8/2019 date and more that 3 years later than when the photos of the signs were taken 23/1/2020. Does this mean the agreement is no longer valid?
    You tell us that the initial term is three years. Is there anything there that allows for the extension of that initial term?
    The mere fact that the word 'initial' is used, meaning the first of several, indicates that the contract continues beyond that 'initial term', doesn't it? 
    Yes you are correct, I've reread and seen the small print saying it becomes a rolling contract after the initial term.

    Does it matter there is no effective date or go live date stated for when the contact started? 

    Just trying to find anything I can query!
  • Coupon-mad
    Coupon-mad Posts: 131,184 Forumite
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    edited 13 February at 10:34PM
    Can I argue that the photos of signs PE submitted in their defense were taken two year prior, the photos are in the day time and the contravention was at night? 

    Furthermore the photos of the signs apart from one, are just photos of signs stuck on walls with no context, the signs have no mention of the where they are and do not prove they were in the carpark. Where I parked was under a tree yet none of their photos show this tree.
    I think the above points are far stronger.
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  • This is my drafy ws, the numbers have gone wrong whne posting but are correct on the real document. Still needs some work but any feedback is welcome!
    1. I, xxxxx, make this witness statement in response to the claim brought against me by ParkingEye.

    2. I admit that I was the registered keeper and driver of the vehicle xxxx.

    3. On xxxxxx, at 00:xxxx, I arrived at a car park owned by xxxxxx. I departed the car park at 02:xxxx on the same day, and the claim alleges a breach of the car park's terms and conditions.

    4. The claimant contends that appeals should be put in writing within 28 days. However, I did not receive any correspondence within this time frame, possibly due to the post being delivered to 1 xxxxx Lane instead of my home address at 1 xxxxxx, xxxxxx Lane.

    5. It was impossible for me to appeal. Upon receiving a claim form from ParkingEye, I immediately contacted them on the 30th May 2023, asking for any previous correspondences. In ParkingEye's defence (15), they claim ‘we have had no correspondence whatsoever from the Defendant.’ On the 9th June, ParkingEye emailed me (exhibit 1) saying ‘Thank you for your correspondence…,’ proving that ParkingEye did receive correspondence.

    6. As soon as I discovered I had been issued a parking charge notice, I contacted ParkingEye to ask if I could appeal or pay the tariff charge. However, they stated in exhibit 1 that they had ‘no choice but to enter into legal proceedings.’ This is not true, as ParkingEye has withdrawn parking charge notices on multiple occasions, as evidenced online, indicating an inconsistency in their approach and a lack of fairness.

    7. I also contacted the xxxxx Hotel and asked them whether I could pay the tariff but they refused

    8. At the time, I believed I was allowed to park without incurring charges based on a sign at the entrance (exhibit 3) that indicated, 'Tariff payable by phone, 8 am - 8 pm. The car park is private property; see signage in the car park for terms and conditions.' I interpreted this to mean that the tariff applied only during those hours, and outside of that time frame, parking was free.

      Exaggerated claim

    9. The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.


    10. I say that fees were not paid out or incurred by this Claimant, who is put to strict proof of:

      1. the alleged breach, and

      2. a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

    11. This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.


    12. The Department for Levelling Up, Housing and Communities ('the DLUHC') first published its statutory Parking Code of Practice on 7th February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice in which The Code's Ministerial Foreword was damning:

    13. "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

    14. This Private Parking Code of Practice includes the following which supports my case:

    15. ****** ADD SOME QUOTES HERE  *****

    16. IT IS ALL THERE FOR YOU - AND NONE OF THE CLAUSES WERE CHALLENGED BY THIS INDUSTRY (EXCEPT THE MONEY)...

    17. Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/a ttachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

    18. Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.


    19. With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position.


    20. The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.


    21. In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal'.


    22. This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.


    23. Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.


    24. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015.

      CRA breaches

    25. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.


    26. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.


    27. The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

      ParkingEye v Beavis is distinguished

    28. The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs - see EXHIBIT XXXX - set a high bar that this Claimant has failed to reach.


    29. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (See EXHIBIT XXXX for paragraphs from ParkingEye v Beavis).


    30. In the present case, the Claimant has fallen foul of those tests. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:


      1. Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

      2. Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and


      3. Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space".

      Observations re this Claimant's Witness Statement
    1. The claimant has supplied photographs in their defense, but the timestamp on these photos is 1/23/2020, over 3 years before the issuing of the parking charge notice. The claimant has failed to prove the presence of any signs at the alleged infringement time.

    2. The claimant relies on photographs and images of signs claimed to be in the car park at the time I parked there. However, four of these signs are images pasted into a document and do not prove their presence in the car park. Sign type – 2 clearly shows the location as xxxxx and not as the location of where the signs are claimed to be. Six photographs show signs attached to walls without context, providing no evidence of their presence. This leaves only three photos that show signs in situ in the car park.

    3. The sign shown in exhibit 3 on page 37 of the claimant's witness statement reveals an unlit sign facing one direction, potentially easily missed by anyone parking on the reverse side, especially at night during the alleged infringement.

    4. This only leaves two signs that could have informed me of any contract I was entering into. It would be unreasonable to expect anyone to be walking around a car park late at night in winter in search of parking signs and then to spend time reading the terms and conditions.

    5. Building work has been conducted in the car park since the photographs of signs were taken (exhibit 5), including removing a wall on the east side where one sign was placed. The claimant has failed to show that signs were put back after this construction work. This building work can be seen in a Google Street View image taken June 2023 (exhibit 6).

    6. Furthermore, the photographs of the signs have been taken in daylight, and the alleged infringement took place at night. This means I would have had to use a torch or have my car headlights pointing directly at a sign for them to be visible, neither of which I was aware was necessary at the time. Photos of the car park at night can be seen in exhibit 7.

    7. These photographs do not show that ‘terms and conditions are clearly set out on signage.’ The claimant has failed to provide evidence of the terms and conditions at this car park.

    8. The claimant states ‘signage on site clearly states that parking is for hotel guest outside of the tariff times (claimant defence 19). This is incorrect. The sign astates in a box below the tariff times ‘Hotel guests only outside of these times,’ which has an ambiguous meaning as it is unclear as to what hotel guest only can do outside of these times. There is no reference to using the car park or hotel guest of which hotel. In such cases the Unfair Terms in Consumer Contract Regulations 1999, section 7, comes into play, and the term must be interpreted to the benefit of the consumer. This has resulted in judges cancelling ParkingEye's claim in all known cases where it has been brought to their attention.

    9. Nowhere on any signs does it say ‘If you are not a hotel guest and park outside of the stated tariff times you will receive a parking charge.

    10. The sign states ‘Failure to comply with the terms & conditions will result in a Parking Charge of:’ but I am unclear as to what part of the sign are the terms and conditions. Does it refer to all the text on the sign or just the middle box? There is no information on what to do if I am not a hotel guest.

    11. Where I parked was a large tree (exhibit 10), and the claimant has failed to provide any sign next to such a large and obvious landmark in any of their evidence. I question the validity of their map.

    12. The claimant has failed to provide evidence for signage at the entrance showing that the car park is for Mercure White Hart Hotel guests only.

    13. The carpark has mutliple areas that are poorly lit (exhibit 11)

    14. Signs in the carpark can easily be obscured by parked vehicles (exhibit 12)

    15. Signs face the wrong way to make them difficult to read due to parked cars (exhibit 13)

    1. The court is also reminded that 'terms' and the new CRA concept: 'consumer notices' must both be fair and prominent.  The signs do not create a contract to pay £120 plus court fees.  The sign that this Claimant relies upon only states £85.  This issue alone - exaggerating the quantum and pretending (according to the POC as pleaded) that the sum of £105 was on the contract when it wasn't - I trust could be enough in itself to persuade the court to dismiss the claim. It cannot pass the CRA fairness test to offer an alleged contract at £85 then try to claim it at £120.

  • Coupon-mad
    Coupon-mad Posts: 131,184 Forumite
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    edited 15 February at 2:31AM
    You aren't copying 15 and 16 I hope.  Not sure why you put/copied them there.

    You need to be more careful! Don't just copy an old one with commentary!  You have to read it all and do a 'sense check'.

    "I departed the car park at 02:xxxx on the same day"
    Shouldn't that say 'night'? Not day.

    Don't you also want to make the point that it was dark, and put the C to strict proof of exactly what the signs & terms nearest the car looked like in terms of visibility and prominence on the material date, in darkness after midnight?

    Finally, have you got evidence attached to show you were a patron at the Hotel and tried to ask them to assist to cancel it?
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  • This isn't the finished ws, I left comments in as I still need to finish it. I wasn't a patron of the hotel I just mistakenly parked there to collect a friend from a near by party but bit at the hotel.
  • Coupon-mad
    Coupon-mad Posts: 131,184 Forumite
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    edited 15 February at 4:25PM
    If collecting a passenger at night you should ALWAYS park on street.  Never a car park. Certainly not one that is unconnected but near to where the person is; just pull up outside at the kerb or round the corner. This is what bays & single yellows at the kerb are for.

    Picking up and setting down passengers is exempt activity on-street.  Make sure you never use a car park when the street is exempt.

    Show us your final draft including my advice and having removed the odd commentary.
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