Parking Eye PCN

A_plan

A_plan said:

In response to Coupon-mad's reply to my defence, I sent the below yesterday. Unfortunately, Coupon-mad hasn't had time to reply and I'm wondering if anyone else is able to advise please.

I need to email my witness statement today.  Many thanks

Sorry, but I do have a couple of question concerning the Beavis paragraphs. Is 25 needed? My, probably incorrect, thought is that as my statement mentions that I didn't breach the T&C's, is it worth mentioning and enclosing a picture of the sign? I'm not highlighting how awful the small print sign was in my case.

For paragraph 26, I'm not sure how 'concealed pitfalls or traps’ applies in my case.

Sorry, first sentence should have said 'witness statement' not 'defence'!

Coupon-mad

If you used the template defence, then don't repeat the bottom half verbatim in your WS.

Le_Kirk

A_plan said:

Sorry, first sentence should have said 'witness statement' not 'defence'!

You are a forumite now,, which means you can edit your own posts, no need to post another post to correct a previous post ......... if you see what I mean!

A_plan

Le_Kirk said:

A_plan said:

Sorry, first sentence should have said 'witness statement' not 'defence'!

You are a forumite now,, which means you can edit your own posts, no need to post another post to correct a previous post ......... if you see what I mean!

I do, thanks - will remember that for the future. Thanks to you, Coupon-mad and Gr1pr for your help. I will post again after I've been to court with details of their decision.

A_plan

Hi All,

I have received a second witness statement from Parking Eye and would be grateful for any advice regarding if I have to/should do anything.  Many thanks

1) The Claimant are now in receipt of the Defendant’s witness statement in which further issues were raised which we address below.

 

2) The Defendant states that the car park was dark, and the driver did not see the sign. The British Parking Association (BPA) does not stipulate that signs must be lit at night. Parkingeye can confirm that there is sufficient ambient lighting from lampposts in the car park and numerous signs are affixed to these lampposts. As the images of the Defendant’s vehicle entering the car park show, the vehicle had its headlights on. This would have rendered the signs in the car park, of which there are many, visible. Parkingeye firmly believe that more than sufficient efforts have been made to bring the terms and conditions, by way of the ample signage onsite, to the motorists attention on the day in question.

To this end we wish to direct their attention to the signage plan enclosed within our first witness statement and images of signage, which further demonstrates the prevalence of the signs onsite. There are in fact 81 signs distributed around the car park outlining the terms and conditions that are applicable to parking here. Please note that thereafter entering the car park, the motorist is expected to familiarise themselves with the clear and ample signage before parking. The Defendant was not coerced into parking here, thus by making the conscious decision to do so he also agreed to adhere to and be bound by the terms and conditions. In this case by failing to make tariff payment on either date of the parking events, the Defendant was found to be in breach of the terms and conditions, and in accordance with the signage onsite the Defendant was issued with two Parking Charges of £70.

 

3) The Defendant states that they were not the driver. The claim that the Defendant was not the driver of the vehicle is no longer a valid defence. Paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012 states that the operator (Parkingeye) must inform the Registered Keeper of the vehicle that the driver of the motor vehicle is required to pay the Parking Charge in full and that the Registered Keeper should, if not the driver, provide the operator with the driver’s name and current postal address, and pass the notice to them. The Act also states that if, after 29 days, the Parking Charge has not been paid in full, and the operator does not know both the name and current address of the driver, that they have the right to recover any unpaid part of the Parking Charge from the Registered Keeper. The Registered Keeper has failed to provide Parkingeye with the driver’s name and contact address. This is subject to the operator complying with the applicable conditions under Schedule 4 of that Act (which Parkingeye submits it has). The Defendant was made aware of this in the Parking Charge Notices sent to them. The Defendant was also sent a Keeper Liability Letter informing them that the provisions of Schedule 4 had been met and that, as the Registered Keeper, they were now required to pay the full outstanding amount.

 

4) The Defendant states that they site fails to create any form of contract. Parkingeye’s Parking Charges are issued on the basis of a contract with the motorist. Signage at each site sets out the terms and conditions under which a motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by parking within a limited stay period or similar, and that a Parking Charge will be payable if the same are not met. Parkingeye considers that it is trite law that a contract can be formed in this way and this position is supported by the findings in the case of Parkingeye v Beavis. We would draw the Court’s attention to paragraphs 2 and 5 of HHJ Moloney QC’s first instance Judgment in that case where he states, at paragraph 5.1, that, “it is well established that a valid contract can be made by offer, in the form of terms and conditions set out on the notice, and acceptance, in the form of one’s car in the space provided. This is not a case like Thornton v Shoe Lane […] any unequivocal act of acceptance will suffice, and the signs clearly state (as anyone would expect nowadays) that parking constitutes acceptance.” In support of this analysis, Parkingeye would also draw the Court’s attention to paragraphs 188 to 189 of the Supreme Court Judgment, where Lord Mance states that, “There is common ground between all before the court that the relationship between Parkingeye and Mr Beavis was a contractual relationship, whereby Mr Beavis undertook not to park for more two hours and, upon any breach of that obligation, incurred a liability of £85, reducible, in this case, to £50 if he had paid within 14 days of Parkingeye’s demand.” He then goes on to state that, “The Court of Appeal raised a question about this analysis, which the Supreme Court also took up. But I am satisfied that it is correct in law. The terms of the signs which Mr Beavis must be taken to have accepted by conduct in entering and parking in the car park are to that effect. Mr Beavis thereby expressly agreed to stay for two hours maximum […] and to pay the stipulated sum if he failed so to comply.”

Parkingeye ensures that signage is ample, clear and visible, so that it complies with the British Parking Association (BPA) Code of Practice. Parkingeye wish to ensure that the motorist is bound when they enter and remain at a site, so that all users of the site are obliged to comply with the terms. In terms of the content of signage on site, Lord Sumption and Lord Neuberger of the Supreme Court provide a description of Parkingeye’s signage within their joint Judgment at paragraph 9, wherein it is stated that, “The signs are large, prominent and legible”. This analysis is supported by Lord Mance at paragraph 123. Lord Sumption and Lord Neuberger then go on to state, “that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.” They also add that additional terms were laid out in “small, but legible black print on the same orange background”. The signs in the case before the Supreme Court were representative of the signage used at the majority of sites, and signs are generally of a very similar size and colour, with small print being universally the same size. Parkingeye contends that when a motorist enters a car park they should be at the same level of observance as when driving on the road; anyone able to drive should be aware that certain terms and conditions may apply when parking on public or private land. When driving on the road, motorists are expected to be aware of signs when travelling at up to 70mph. In a car park, the typical driving speed is between 5mph and 10mph. We therefore contend that it is not unreasonable to expect a motorist to note the signs and to familiarise themselves with these. Furthermore, unlike on the public road, the motorist is able to exit the vehicle and familiarise themselves with signage within the reasonable grace period that is provided at all sites. The grace period operates to allow motorists to park and decide whether or not they wish to be bound by the terms and conditions clearly displayed. If they do not wish to be bound, they can exit the car park. It is Parkingeye’s position that the signage installed is more than sufficient to bring the terms and conditions to the attention of any motorist and that a legally binding contract is formed between the motorist and the party offering that contract.

 

5) The Claimant would highlight that BPA COP 24.1b states, "Where a Parking Charge becomes overdue and before Court Proceedings have commenced, a reasonable sum (which covers the cost of recovering debt) may be added for the debt recovery fees. This sum must not exceed £70 unless prior approval from the BPA has been granted”.

Coupon-mad

But did they attach any pics of the signs in darkness?  The signs are 8 or 9 feet up a pole and headlights don't light up above car height.

Barry Beavis was shopping at lunchtime in broad daylight and admitted he'd seen the signs. In your case, neither is true.

A_plan

Coupon-mad said:

But did they attach any pics of the signs in darkness?  The signs are 8 or 9 feet up a pole and headlights don't light up above car height.

Barry Beavis was shopping at lunchtime in broad daylight and admitted he'd seen the signs. In your case, neither is true.

They didn't, no – all pictures of the signs in their witness statement were taken in the daytime. Also, they have stated there are 81 signs distributed around the car park but this does not pertain to one car park. There are several car parks on site and the one the car was parked in all of the signs are high up on poles. 

Coupon-mad

Say all of that at the hearing when it is your turn to speak. Pleased they missed providing evidence of what the contract looks like in darkness!

One would have thought if they'd gone to the trouble of a Supplementary WS the least they could do was show some photos of their supposed contract in the same lighting conditions.  Nobody in the room knows what it looked like.  It cannot be presumed. Car headlights don't point up.  The court would just be guessing that the contract met the high bar of 'PROMINENCE' (ref: the Consumer Rights Act 2015) which is a mandatory test for courts - see s71.

Say that to the Judge. It's pretty much your only point but a big one.

A_plan

Coupon-mad said:

Say all of that at the hearing when it is your turn to speak. Pleased they missed providing evidence of what the contract looks like in darkness!

One would have thought if they'd gone to the trouble of a Supplementary WS the least they could do was show some photos of their supposed contract in the same lighting conditions.  Say that to the Judge. It's pretty much your only point but a big one.

Will do - thank you.

Coupon-mad

I just edited in a legal point.