Parking Eye PCN

A_plan

Hi All,

I received two PCNs from Parking Eye last year that I didn't pay and with the help of reading this forum I have been able to respond accordingly at the various stages I've needed to. I now have a court date at the end of this month and am in the process of preparing my witness statement but have a question, and apologies in advance if it’s a silly one! 

The section on the ‘Newbies’ thread giving advice on preparing for court mentions that if the Claim form did not specify the term breached, include the strike out orders shown in a link to CEL v Chan and similar case 'strike out' Judgments from all over the English courts.

I have attached the Claim form from Parking Eye and would be grateful for advice as to whether they have specified the term that has been breached. I know they have said that on each occasion the car was captured entering and leaving the site without paying to park, so is this the term that has been breached? I don’t know if the wording itself signifies the breach or if they have to quote the specific clause(s) that has/have been breached.  

I must admit that because I’ve never gone this far before in disputing a PCN I am apprehensive what will happen when I do go to court. My apprehension centres around my complete lack of knowledge around the legalities of the matter and if I’m asked a question by the judge or claimant’s representative I won’t know how to answer!

For example, one of the points in their reply to my defence invites me to show how they have not complied with the POFA 2012 requirements. I wouldn’t have a clue how to answer this!

I was not the driver of the car on both occasions the PCNs were issued so, as per the advice on the forum, will include a copy of Schedule 4 of the POFA and also exhibit the transcripts of Excel v Smith and VCS v Edward in my witness statement.

Any advice gratefully received!

Many thanks

Gr1pr

To my non legal eye they have specified the breach or breaches in the POC, probably on the NTK PCN letter too

Parking Eye do tend to comply with POFA, so may well have transferred liability from the driver to the keeper, so to you, under POFA legislation 

You could compare the original NTK PCN letters to the ones in the thread by coupon mad to double check them, one quick check is to look at the back and see if the POFA warning paragraph is there or not, usually the second paragraph down, after the alleged breach paragraph at the top

Any real defence would possibly win on poor signage or no landowner authority, but possibly nothing else 

The £185 seems incorrect for 2 alleged breaches, each PCN was NOT £92.50

Coupon-mad

What did you put in your defence in response to 'parking without paying to park'?

Show us your defence (not the entire template defence if you used that, please spare us!).

Show us the t&cs sign please.

Which site? Was it a hospital?

A_plan

Thank you for your replies, Gr1pr and Coupon-mad.

Coupon-mad - it was the template defence I used and I only put in one line of my own (the reason the car was parked there) as I wasn't sure how I could include anything else as the driver didn't pay. He said he missed the signs! The photos PE have included in their witness statement were taken in the daytime but on both occasions it was nightime  when the car park was used, although having visted the site it is pretty well lit up. That said, the signs at the entrance are pretty high up and I can see how they might be missed if you're concentrating on the road as it's a narrow two-way entrance. There are, though, signs in the site's other car parks that are lower down. The site is a university car park and I attach the first page of my defence and the T&C's sign. 

Coupon-mad

A_plan said:

The photos PE have included in their witness statement were taken in the daytime but on both occasions it was nightime  when the car park was used, although having visted the site it is pretty well lit up. That said, the signs at the entrance are pretty high up and I can see how they might be missed if you're concentrating on the road as it's a narrow two-way entrance.

There are, though, signs in the site's other car parks that are lower down. The site is a university car park 

Had the driver applied for a permit?

I would NOT supply a sign picture that suggests good lighting (can you not visit and get a dark one in a corner?) but I'd argue in the WS:

I am struggling to see how the sign (shown in bright daylight in the Claimant's evidence bundle) creates a contract to 'pay and display'.  This is an unusual error by ParkingEye. That sign is not well drafted at all.

Whilst a tariff is displayed on the sign at the top, there is no actual contractual obligation to pay for the stay (in the t&cs box in the middle), which only lists four completely different contractual obligations.

None of those involve payment and none of those 4 terms were breached.

Even if the Court is not at first minded to construe the sign that way (that only 4 contractual obligations are listed), the law says that ambiguous terms MUST be interpreted in the way that most favours the consumer.  The Consumer Rights Act 2015 'ambiguous terms' rule applies as does s71, which imposes a statutory duty upon courts, whether or not either party raises the matter in pleadings or at a hearing.

In the alternative, even if the Court determines that the sign that merely lists a tariff somehow does create an unstated obligation to pay, it was dark and the driver did not see the very high up sign on a pole in the distance (nowhere near the bay used).  No pay & display machines or reminders 'HAVE YOU PAID & DISPLAYED' were there either, so in the dark there were no visual cues.

Even if the Court is not minded to accept any of the above and thinks the signs in evidence were enough, the sum stated is £70. But the claim is for £185 which makes no sense whatsoever for two PCNs which add up to £140.

There is no secondary contract displayed (prominently or otherwise, at all) that allows ParkingEye to add a random £45 which does not appear on the sign and isn't even a multiple of two. No damages were incurred and no fees were paid by ParkingEye to a debt collector. In any event, the alleged debt was not collected and if the Claimant did use a third party debt collector, they all operate a 'no collection no fee' policy in this notoriously rogue industry so no fake bolt-on charges can have been incurred. The added £45 was plucked out of thin air and is a brazen attempt at double recovery of the £50 'legal fees' already listed on the claim form.

A_plan

Thank you, Coupon-mad, and noted about looking for a sign in a dark corner. I will do that tomorrow. If I'm not able to find one in a dark corner then I assume it's best not to include any of my own photos in my witness statement. 

No permit had been applied for because the driver was not a student or staff member. The two occasions he parked there was to attend football training as the team he plays for used the university’s facilities.

Am I right to be encouraged about the points you raise about the sign appearing not to create a contract to ‘pay and display’? Could that form the core of my witness statement and my argument in court? To me, as a layman, it could and it would just be a case of ensuring I word it correctly and also get my point across to the judge?

In the event the Court accepts the signs were evidence enough, it’s clear from what both you and Gr1pr said that Parking Eye are trying it on with regards to the costs they are claiming. Can I use what you have written about this in my witness statement as well as raising it when I go to court?

Depending on your reply to the above I will draft a final version of witness statement and post it on his to be checked if that is ok.

As I was not the driver of the car on both occasions would I be correct to include a copy of Schedule 4 of the POFA and also exhibit the transcripts of Excel v Smith and VCS v Edward in my witness statement?

Another question I’d be grateful for advice on is a point I raised in my first post, namely one of the points in Parking Eye’s reply to my defence invites me to show how they have not complied with the POFA 2012 requirements. How would I answer this??

Many thanks

Gr1pr

I suggest that you follow the advice in the newbies sticky thread in announcements, first post, checking the NTK PCN to see if they complied with POFA.  If they did then POFA is of no help, especially if they complied with POFA and transferred the liability to the keeper, to the defendant , meaning none of the POFA stuff or transcripts will help, so no point including them 

No landowner authority and poor signage are possible winners, I did mention earlier that Parking Eye probably complied with POFA, plus they stated it in the claim. ( They are not going to lie on their court claims )

Coupon-mad

I wrote it for you to copy.  You can tell from the language I used, that it is intended for your WS.

A_plan

Gr1pr said:

I suggest that you follow the advice in the newbies sticky thread in announcements, first post, checking the NTK PCN to see if they complied with POFA.  If they did then POFA is of no help, especially if they complied with POFA and transferred the liability to the keeper, to the defendant , meaning none of the POFA stuff or transcripts will help, so no point including them 

No landowner authority and poor signage are possible winners, I did mention earlier that Parking Eye probably complied with POFA, plus they stated it in the claim. ( They are not going to lie on their court claims )

Thank you, Gr1pr. Sorry, I didn't make myself very clear! I take the point you make about Parking Eye complying with POFA and it's evident they have. In my defence (I used the template) point 18 mentions the claimant and POFA compliance if they're seeking 'keeper liability'. In retrospect, and with my very limited understanding of this whole process, perhaps I shouldn't have included it as I'm assuming this is why they have invited me to show their non-compliance (I now know they have complied) otherwise I don’t know why else they would mention it. This is why I asked the question though because I don't know how I would answer it in court if it's raised by their legal rep. I appreciate that I may be overthinking things here!

Coupon-mad

You are overthinking it. Won't come up!

A_plan

Coupon-mad said:

I wrote it for you to copy.  You can tell from the language I used, that it is intended for your WS.

Thank you for this Coupon-mad.

I visted the site this morning and there are no signs that have bad lighting so I won’t use any of my photos. Would it therefore be ok to say in my witness statement that the signs in Claimants photos are taken in bright daylight but the car was parked at night?

Apologies for what might seem like a stupid question, but in addition to what you wrote what else am I to include? I have looked at the Newbies thread and also searched for Parking Eye Witness Statements and there's just so much information I feel like I'm going around in circles. 

Initially after reading your last reply I thought my witness statement was going to be brief and concentrate on the signage and the fact that I have not breached any T&Cs, but now after reading lots of other information on the forum I just don't know!

Any guidance would be much appreciated!