Parking Charge Notice: Parkingeye, Sainsburys Eltham

Castle

busymerchbee73 said:

just paying my court fee for up coming trial in September.  Getting anxious.  Any top tips about what will happen in court and what to be prepared for?

Why do you have to pay a court fee?

busymerchbee73

oh dear god. I'm an idiot. please ignore me!  Think I will need all the luck in the world at this rate!

busymerchbee73

My court documents don't provide me with any information on how to send the witness statements and other documents for the hearing.  Any advice on this please?  Do I just send my registered post to court office and claimant?

Le_Kirk

All information about this stage can be found in the NEWBIE sticky; search for your court and find their email address.  You should, by now, have had email communication with the solicitor.  Use that email address.  NOT snail mail.

busymerchbee73

I'm checking on MCOL and it hasn't updated to show the claimant as having paid the trial fee by 7/08.  Should it show on MCOL?  If they haven't paid and it's been struck out, would it show/update on MCOL by now 09/08?  Otherwise, would I ring the court office to find out?  Many thanks.

Gr1pr

Mcol stopped being updated when they sent the case to your local civil court months ago

You would have to contact the local civil court that you nominated in your N180 DQ document months ago 

busymerchbee73

I'm following the advice on the newbies thread and starting to write my witness statement.  I'm having doubts again on the strength of my case as I don't have many of the points (a,b,c etc Beavis, smallprint etc) to rely on.  If you remember, I did try to pay and the app didn't work, and I admitted driving(!).  Parkingeye have offered £60 settlement fee, which I won't be accepting, but I'm worried I will lose this case and end up £210 out of pocket as my case is weak.

My witness statement is NOT going to be any different from what I have already submitted in my FACTS known to DEFENDANT - is it okay to just rewrite these points?  I don't have anything new to add.  Any advice please?

  

Coupon-mad

busymerchbee73 said:

Thank you all again, as always, great advice.

I hope I've got this right. I've attempted to write a defence - please would anyone kindly be able to have a read and see what they think.  I'm subject to waffle and worry this is a bit weak.

I follow the template for all points apart from 3 and 7, which I have redacted and pasted below.

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3A. The defendant parked the car on DATE at ***** Passey Place, Eltham.  The defendant had only 40minutes to spare before having to leave to pick child up from football training at nearby football ground. On arrival to the car park, the defendant, not having any cash or cards to pay for the stay, attempted to use online PayByPhone app.  However, the app needed updating before use, so the defendant sat and waited in the car whilst the app updated.  Reception and service was very slow in the car park and this took until approximately 9:38am for PayByPhone app to update. At 9:39am, the defendant, now in a hurry to get back for her child, applied for parking payment at #808698 location Passey Place Eltham, using PayByPhone app to cover one hour’s parking at a total cost of £1.80 and paid for £1.80 using ApplePay with her phone.  The app showed that this payment was “processing”. The defendant left the car and headed into Sainsburys PLC Eltham.  At 9:41am, the defendant checked the app and noticed “processing” payment still showed and took a screenshot.  At 9:45 the defendant left Sainsburys and ANPR shows the defendant left the carpark at *****am.

3B. The total recorded duration of the visit from entry to exit according to Parking Eye Ltd was 39minutes. The driver of the vehicle was there as a genuine customer of Sainsburys Eltham and has successfully parked here on previous occasions paying using PayByPhone.

3C. The defendant made all reasonable efforts to make payment for parking using an approved payment channel and by following the signage in the car park.  The online payment system showed that it was processing a payment of parking for £1.80 for one hour parking.  ParkingEye’s photographs show the defendant’s car leaving the car park at 9:46am which is less than 21 minutes later than the finish time of the parking session attempted to purchase online and within any reasonable grace period. Thus, it is clear that the defendant made every attempt to make appropriate payment using the means advertised by ParkingEye, and returned to the car at the time specified by ParkingEye’s online parking system.

3D. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment. In Jolley V Carmel LTD (2000) 2-EGLR-154; it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to comply with the terms.

3E. The defendant remained on site during the event. The allegation in the POC is denied "parking without a valid paid parking ticket" because the Defendant's vehicle was exempted by the PayByPhone app. There was no relevant obligation to obtain a 'parking ticket'.  The Claimant has failed to explain what went wrong with the PayByPhone app nor even tell the Defendant if it is their position that there was perhaps a minor 'error' with PayByPhone at that time. This is clearly an error down to the app, and the defendant has history of having paid at this car park using this app, and clearly made all efforts to pay for parking using PayByPhone on this occasion.

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7. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

Further to this, in a new tactic only seen from this Claimant in Summer 2023, the sum claimed under purported 'contract' is disproportionately exaggerated by £25 which was not on the signs.  The Defendant takes the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

The signage could not have formed a valid contract for a £125 parking charge, as this exceeds the maximum amount allowed by trade bodies, which is capped at £100. There was no contract to pay £100, let alone the inflated sum of £125.

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MANY THANKS IN ADVANCE.

The above is a good defence, so yes I think you can just convert that to the first person, add the usual headings and the usual first paragraph introducing yourself (seen in all WS on the forum!).

Doesn't need a template but you could also add paras 4-10 of the new Template Defence (yes the new defence, even though this is a WS) before the usual WS Statement of Truth.

busymerchbee73

Great, thank you so much for your reply!  I've written it out now and if it's okay, I'm going to post here and see what you think.  I don't really know what I'm doing, but I've added in the Hudson vs Excel case and more points about the fact that I fully intended on paying but tech failure was the issue.  Anyhow, I need all the help I can get, so will post if that's okay......

busymerchbee73

1. I, XXXX of XXXXX, XXXXX, will say as follows:

2. I make this statement in connection with ParkingEye Ltd parking claim XXXXXX

3. The facts and matters set out in this statement are within my own knowledge unless stated otherwise. Where facts are not within my own knowledge, I state the source of my information and belief.

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Account of Events

4. I was the driver of vehicle XXXXX I parked the car on XXXX at XXXXX Passey Place, Eltham.  I had only 40minutes to spare before having to leave to pick up my young child from football training at nearby football ground. On arrival to the car park, I was without cash or cards to pay for the stay, so I attempted to use online PayByPhone app.  However, the app needed updating before use, so I sat and waited in the car whilst the app updated.  Reception and service was very slow in the car park and this took until approximately 9:38am for PayByPhone app to update. At 9:39am, I was now running late and in a hurry to get back for my child, I applied for parking payment at #808698 location Passey Place Eltham, using the updated PayByPhone app to cover one hour’s parking at a total cost of £1.60.  I cliked to pay £1.60 using ApplePay on my phone.  The app correctly showed that this payment was “processing”. Presuming that this would also be a slow process, I took my phone with me and left the car  to head into Sainsburys PLC Eltham.  At 9:41am, whilst entering Sainsburys, I checked my phone again and the app still showed “processing” payment, so I decided to take a screenshot (attached) to prove payment.  At 9:45 I left Sainsburys and ANPR shows correctly that I left the carpark at 9:46am.

5. The total recorded duration of the visit from entry to exit according to Parking Eye Ltd was 38minutes. As the driver of the vehicle, I was there as a genuine customer of Sainsburys Eltham and I have successfully parked here on previous occasions and have always paid using PayByPhone.

6. I made all reasonable efforts to make payment for parking using an approved payment channel and by following the signage in the car park.  The online payment system showed that it was processing a payment of parking for £1.60 for one hour parking.  ParkingEye’s photographs show my car leaving the car park at 9:46am which is less than 21 minutes later than the finish time of the parking session attempted to purchase online and within any reasonable grace period. Thus, it is clear that I made every attempt to make appropriate payment using the means advertised by ParkingEye, and I returned to the car at the time specified by ParkingEye’s online parking system.

7. My screenshot taken 20/04/2024 at 09:41am provides clear evidence that I had entered into the contract to pay £1.60 for 1 hour parking at #808698, vehicle XXXX.  To get to the “Processing” throbber means that I had already double clicked applepay and completed facial recognition to approve the payment.  This screenshot proves that the technical error occurred after I had agreed and authorised to pay £1.60 in the PayByPhone app.

8.  I made very reasonable effort within my means to pay for my parking before leaving my vehicle, as evidenced by my screenshot. I was not seeking to avoid payment under any circumstances. In fact, in their written reply to my appeal, the car park operator, Greenwich Car Parking Services Ltd (26 Burney Street, London SE10 8EX, Registered in England 02058552), expressly acknowledged my history of successfully paying via the same app, stating: “I can see that your vehicle has previously parked successfully in our car park using the App so am unclear why it did not work on this occasion.”   This admission supports my position that the failure to complete payment was the result of a technical fault beyond my control, not any unwillingness or refusal on my part to pay the parking fee.

 

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Additional Information

9. I deny that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  The contract between myself  and the operator requires acceptance of clear terms on entering the car park. As the payment failed due to app malfunction, I did not breach the agreement through any fault of my own. Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

10. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the driver.

11. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment. In Jolley V Carmel LTD (2000) 2-EGLR-154; it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to comply with the terms.

12. Following Hudson vs Excel (2023), app malfunctions, weak signal, or payment delays are considered mitigating circumstances under the revised Code of Practice.  In this case, charges were cancelled and the claim was dropped following tech failure and payment issue.

13. The defendant remained on site during the event. The allegation in the POC is denied "parking without a valid paid parking ticket" because the Defendant's vehicle was exempted by the PayByPhone app. There was no relevant obligation to obtain a 'parking ticket'.  The Claimant has failed to explain what went wrong with the PayByPhone app nor even tell the Defendant if it is their position that there was perhaps a minor 'error' with PayByPhone at that time. This is clearly an error down to the app, and the defendant has history of having paid at this car park using this app, and clearly made all efforts to pay for parking using PayByPhone on this occasion.

14. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

15. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

16. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

17. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

Further to this, in a new tactic only seen from this Claimant in Summer 2023, the sum claimed under purported 'contract' is disproportionately exaggerated by £25 which was not on the signs.  The Defendant takes the point that enhancing their claim on either impermissible sums or on an incorrect basis, is reason enough to disallow the claim.

The signage could not have formed a valid contract for a £125 parking charge, as this exceeds the maximum amount allowed by trade bodies, which is capped at £100. There was no contract to pay £100, let alone the inflated sum of £125.

18. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

19. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022:  

https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is damning: "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." 

20. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

21. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

22. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

23. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the  fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

24. It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  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 ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

25. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

26. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

27. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

28. 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 from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

29. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

30. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

31. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

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

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