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.

---

 

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!