Parking Charge Notice: Parkingeye, Sainsburys Eltham

busymerchbee73

ParkingEye v Beavis is distinguished

33.  Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

34. The Supreme Court held that 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 alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

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

(iii) 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''. 

35.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review' the IPC's CEO observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t." 

Lack of standing or landowner authority, and lack of ADR

36. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

37. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

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Conclusion

38. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

39. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

40.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

 

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.

Coupon-mad

No to the second two thirds. Remove all that 'additional information' and replace it.  As I said, just add paras 4-10 of the new CONCISE Defence, not the old, long one!

Here's an example of a concise WS of facts, albeit they didn't add paras 4-10 of the short defence but I think you should.  I'm just showing you this for the style of writing.  Also your first sentence should state your address.

https://forums.moneysavingexpert.com/discussion/comment/81555055/#Comment_81555055

HTH

busymerchbee73

Many thanks - am currently amending.

Looking at their WS, they make points that I didn't reply to their LBCCC letter and I didn't submit POPLA.  Is this going to be an issue, is this something I need to be prepared to defend?

Coupon-mad

No.

POPLA is the industry's own 'appeals service' and it's obvious why people don't use it. The judge won't care a jot about that. The judge will consider the evidence you provide. Evidence is key.

How about replicating the problem this weekend on video? Go back and have a passenger film you walking over to the sign and then trying to download the app on a different phone that doesn't have it. See if the same issue happens.

Then pay on another phone (as long as you note your ARRIVAL time past the entrance camera and pay for the full time while the car is still on site, you cannot get a PCN).

busymerchbee73

Thank you.

Q1: Is it worth putting in my rejected appeals to Sainsbury's and the car park owners as Exhibits?

Q2: I don't have Wilkinson v Excel point in my WS - is this worth me adding or irrelevant? 

Sorry for all the questions, nearly finished WS.

Coupon-mad

1. No it actually doesn't help.

2. Yes I would add that transcript.

busymerchbee73

oh, I should add that the car park owners reply stated “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.”..... so I have added that in to my WS and exhibits......  

Coupon-mad

busymerchbee73 said:

oh, I should add that the car park owners reply stated “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.”..... so I have added that in to my WS and exhibits......  

Actually yes then!

busymerchbee73

Hi, thank you for all your help.  I think I've nearly finished with my WS.  If it's okay, I will post here for any feedback before I send off.  I have redacted out personal bits at the start.  Numbering and layout looks better in my document than here.


1.... redacted out opening with my name, address, occupation

2.     Where facts are not within my own knowledge, I state the source of my information and belief, referring to reference numbers where appropriate.  My defence is repeated, and I will say as follows:

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Facts and Sequence of Events

3.      I was the driver of vehicle XXXX and parked on XXXX at XXXX at XXXXX. I had limited time before collecting my child from football training, so I sought to pay for one hour’s parking immediately using the PayByPhone app, as I had no cash or card available.

4.      The app required an update, and due to poor reception this took until 09:38. I remained in the car throughout while waiting for the update to complete.

5.      At 09:39 I authorised payment of £1.60 for one hour’s parking at location #808698, using ApplePay facial recognition. The app confirmed “processing” and I left the car believing the transaction would slowly complete.

6.      At 09:41, while entering Sainsbury’s, the app was still showing “processing,” so I took a screenshot (Exhibit 1).  

7.      ParkingEye’s ANPR records confirm my vehicle left the site at 09:46. This means I remained in the car park for 39 minutes, the majority of which was spent inside my vehicle updating the app and authorising payment. I made every reasonable effort within my means to pay for parking.  I had no intention of avoiding payment, and I only left my vehicle once I had authorised payment and had confirmation on screen that the transaction was processing.

8.      I made all reasonable efforts to make payment for parking using the approved PayByPhone app. The app screen showed it was processing a £1.60 payment for one hour’s parking at location #808698 for vehicle XXXXX (Exhibit 2). To reach the “processing” throbber stage, ApplePay requires a double click and facial recognition, which I completed, meaning the payment was fully authorised on my part. The technical failure occurred only after authorisation, at the Claimant’s end, not mine. My screenshot taken at 09:41 on 20/04/2024 (Exhibit 3), provides clear evidence that I entered into the contract to pay and had approved the transaction. ParkingEye’s ANPR records show my car leaving at 09:46, less than 21 minutes after the end of the paid-for session would have finished, and well within any reasonable grace period.

9.      I was a genuine customer of Sainsburys Eltham and have successfully parked here on previous occasions, always paying via the PayByPhone app. In their written reply to my appeal, the car park operator, Greenwich Car Parking Services Ltd, 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.”  (Exhibit 4) 

This admission supports my position that the failure to complete payment was due to a technical fault beyond my control, not any unwillingness or refusal on my part to pay the parking fee. 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.

 

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Efforts to Pay and Mitigating Circumstances

10. The British Parking Association (BPA) Code of Practice states that operators should allow a reasonable grace period to enable motorists to read the terms and pay, and should consider genuine mitigating circumstances, such as technical failures, when deciding whether to issue a Parking Charge Notice (PCN).

11. A similar point was accepted in Hudson v Excel (2023), where a motorist was wrongly penalised following app failures and signal issues. The court found that such issues are outside the motorist’s control and are valid mitigating factors. Taken together with the BPA guidance, this shows that operators are expected to act fairly when technical problems occur.

12. I acted in good faith and with the clear intention to pay. I neither ignored the requirement to pay nor attempted to avoid payment. The inability to complete the transaction was caused entirely by the Claimant’s chosen payment system, which failed, not by any action on my part.

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Legal Position

13.  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. This principle applies directly to my situation where I made reasonable endeavours.

 

14.  Following Hudson v 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.

 

15.  The claimant’s case also fails to meet the standard set by ParkingEye v Beavis (2015) UKSC 67, where the Supreme Court made clear that charges must protect a legitimate interest and be proportionate. In this case, there is no legitimate interest in penalising a motorist who made all reasonable efforts to pay, and thus the rationale from Beavis does not apply.

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Frustration of Contract

16.  In addition, this case falls under the doctrine of frustration of contract. I entered the car park with the genuine intention of paying, and I attempted to do so immediately using the approved app. However, the Claimant’s chosen payment system failed, freezing after payment authorisation, which prevented completion of the transaction. This was entirely outside my control. A contract cannot be enforced when one party is ready and willing to perform their obligation but is prevented from doing so by an unforeseen event caused by the other party’s system. 

17. Demonstrating the principle of frustration, cases such as Taylor v Caldwell (1863) 3 B & S 826, and National Carriers v Panalpina (1981) AC 675, show that a contract may be discharged where an unexpected event renders performance of a contract impossible. The same principle applies here: the payment system meant I was unable to perform my side of the contract, despite genuine attempts to do so.

18. Taken together, these authorities demonstrate that no breach occurred on my part. Accordingly, the contract was either performed (through authorised payment) or frustrated by matters outside my control, and any attempt to enforce a penalty is both unfair and contrary to established contract law principles.

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Inflated and Unlawful Additional Costs

19.  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.

20. This is consistent with Excel Parking Services Ltd v Wilkinson (2020), where the court held that disproportionate charges could not be enforced where no genuine loss had occurred. Just as in that case, the Claimant is seeking to impose an unfair penalty in circumstances where the motorist had not acted in bad faith but was thwarted by factors beyond their control.

21. The original PCN was for £100. The claimant is now seeking an additional £70 in “debt recovery” fees. In Excel Parking Services Ltd v Wilkinson (2020, Bradford County Court, case no. G4QZ465V), the court found such added amounts to be an abuse of process and struck them out.

22. This decision aligns with numerous other county court judgments that have confirmed the £100 PCN already includes all operational and debt recovery costs, and no further sums are recoverable. The claimant is therefore attempting to claim an amount which is neither contractual nor a genuine pre-estimate of loss, and which has been expressly disallowed in similar cases.

23.  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.

 

24.  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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Additional Information

25.  It is neither admitted nor denied that a term was breached but to form a contract, there must be an offer, acceptance, and valuable consideration (absent in this case). The Consumer Rights Act 2015 (s71) mandates a 'test of fairness' duty on Courts and sets a high bar for prominence of terms and 'consumer notices'. Paying regard to Sch2 (examples 6, 10, 14 & 18), also s62 and the duties of fair, open dealing/good faith, the Defendant notes that this Claimant reportedly uses unclear (unfair) terms/notices. On the limited information given, this case looks no different. The Claimant is put to strict proof with contemporaneous photographs.

26.  DVLA keeper data is only supplied on the basis of prior written landowner authority. The Claimant (an agent) is put to strict proof of their standing to sue and the terms, scope and dates of the landowner agreement, including the contract, updates, schedules and a map of the site boundary set by the landowner (not an unverified Google Maps aerial view).

27.  To impose a PC, as well as a breach, there must be: (i) a strong 'legitimate interest' extending beyond compensation for loss, and (ii) 'adequate notice' (prominence) of the PC and any relevant obligation(s). None of which have been demonstrated. This PC is a penalty arising as a result of a 'concealed pitfall or trap', poor signs and covert surveillance, thus it is fully distinguished from ParkingEye v Beavis [2015] UKSC67.

28.  Attention is drawn to (i) paras 98, 100, 193, 198 of  Beavis (an £85 PC comfortably covered all letter chain costs and generated a profit shared with the landowner) and also to (ii) the binding judgment in ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which remains unaffected by Beavis and stands as the only parking case law that deals with costs abuse. HHJ Hegarty held in paras 419-428 (High Court, later ratified by the CoA) that 'admin costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the minor cost of an automated letter-chain and 'would appear to be penal'.

29.  The Parking (Code of Practice) Act will curb rogue conduct by operators and their debt recovery agents (DRAs). The Government recently launched a Public Consultation considered likely to bring in a ban on DRA fees, which a 2022 Minister called ‘extorting money from motorists’. They have identified in July 2025: 'profit being made by DRAs is significantly higher than ... by parking operators' and 'the high profits may be indicative of these firms having too much control over the market, thereby indicating that there is a market failure'.

30.  Pursuant to Sch4 of the Protection of Freedoms Act 2012 ('POFA') the claim exceeds the maximum sum and is unrecoverable: see Explanatory Note 221: 'The creditor may not make a claim against the keeper ... for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (para 4(5))'. Late fees (unknown to drivers, not specified on signs) are not 'unpaid parking related charges'. They are the invention of 'no win no fee' DRAs. Even in the (unlikely) event that the Claimant complied with the POFA and CoP, there is no keeper liability law for DRA fees.

31.  This claim is an utter waste of court resources and it is an indication of systemic abuse that parking cases now make up a third of all small claims. False fees fuel bulk litigation that has overburdened HMCTS. The most common outcome of defended cases is late discontinuance, making Claimants liable for costs (r.38.6(1)). Whilst this does not 'normally' apply to the small claims track (r.38.6(3)) the White Book has this annotation: 'Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))'.

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Conclusion

32. Accordingly, no breach of contract occurred on my part. To enforce a penalty in these circumstances would be unfair and inconsistent with both the doctrine of frustration and the duty of traders under the Consumer Rights Act 2015 to exercise reasonable care and skill in providing services, given that the failure to complete payment arose from factors entirely outside my control.

33. The claimant’s own evidence confirms my history of paying for parking via the app. On this occasion, the payment failure was due to technical faults, not by any act of omission on my part. I complied with the BPA Code of Practice’s expectation to make reasonable efforts to pay, and my situation mirrors other decided cases where similar charges were cancelled.

34. For the above reasons, I respectfully request that the claim be dismissed in its entirety. Should the court be minded to award any sum, it must not exceed the original £100 PCN, consistent with Excel Parking Services v Wilkinson and other authorities rejecting additional fees.

35.  There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims and unfair practices like this should be struck out.

 

36.  In the matter of costs, the Defendant seeks:

(a)    standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b)    (b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

 

37.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

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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.

Coupon-mad

Claim form for context:

In your para 14, add a link to (and quote from) the current (open!) MHCLG Public Consultation - we have a whole ongoing thread about it.

The bit to quote is the Government's clear stated intention to add another circumstance where PCNs must be cancelled (they should not get issued at all) which specifically lists 'app failure'.

Also you've mentioned Excel v Wilkinson twice but not put the transcript as an exhibit! It's an unreported case so the Judge won't have access to it like he/she does to higher authorities like Beavis that you don't have to exhibit.