HM Courts & Tribunal Service - Parking Eye Charges

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/82120004#Comment_82120004

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MSE_ForumTeam5

We've merged two threads

Hats8

Hello

I have completed a draft of my template, but actually think I have missed my deadline of 4pm today as thought it was the 20th not the 21st.

Please can you see if it reads ok, as I need to send off asap and wasn’t sure if I kept paragraphs in numbered or not or if I have given enough/ too much information:

1. The Claimant’s sparse case lacks specificity and does not comply with CPR 16.4, 16PD3 or 16PD7, failing to 'state all facts necessary for the purpose of formulating a complete cause of action'. Further, the Claimant has improperly added a false 'fee' or damages to the original Parking Charge (PC). This sum is not legally recoverable and constitutes an attempt at double recovery, which is unreasonable conduct under CPR 27.14(2)(g). The binding Supreme Court judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 held that an £85 parking charge more than covered all the 'costs of enforcement' which HHJ Moloney had listed as the pre-action work of a DVLA look-up and a simple automated letter chain, including a LBC. The same heads of cost cannot lawfully be counted twice and interest should also be disallowed. Exaggerated claims for impermissible sums are good reason for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

2. The allegation(s) are vague and liability is denied for the sum claimed, or at all. The delay in bringing proceedings lies with the Claimant, making retrieving material evidence difficult, which is highly prejudicial. The Defendant has little knowledge of events, save as set out below and to admit that they were the registered keeper and driver.

On 10 January 2023, I made a complaint against the parking charge of £100.00 which ParkingEye issued me with on 15 December 2022. The amount ParkingEye charged me is disproportionate and was not based upon any commercially justifiable loss to their company or the landowner.

It was dark, visibility was poor, and the car park was extremely busy at the time. I couldn’t see any signage clearly directing me what to do and I was unable to find an available designated Blue Badge holder space. 

I am disabled and a Blue Badge holder. Due to restricted mobility, it takes me longer to walk between different shops, and I need more time to both shop and load my shopping. For these reasons, had I known, I would have paid the extra hour at £2.00 to avoid risking overstaying. I included a copy of my Blue Badge to ParkingEye for their information.

I parked in front of the parade of shops directly opposite Poundland. There were no visible signs in the immediate vicinity providing instructions and I couldn’t see with all the vehicles and poor lighting that there was even a Pay Station located in the car park.

It is clear from the correspondence that ParkingEye sent to me that visibility was poor as I could barely make out my own vehicle in the pictures they provided.

I have since returned to the carpark to try and recreate the conditions of that night. At night, even in July, visibility remains poor. Parking information signs are not self-illuminated, but rely on either daylight, car headlights or on the retail parks own low overhead lighting to be visible.

Where I parked my vehicle, outside of Poundland there are no signs at all. There is one sign, high up on a lamppost at one end of the parade of shops and one at the other end again high up on a lamppost, approximately 30 metres apart. There is nothing in between to advise those parking in the spaces of any parking conditions at all.

I have taken photographs to show this and to highlight the poor visibility/ lack of sufficient lighting. 

The £100.00 charge they asked for (plus an additional £20 administration fee and now the threat of Court costs) far exceeds the cost to them or the landowner. I spent money in three of the Retail Park’s establishments and I only overstayed by 12 minutes. I therefore feel the charge they have asked for is excessive, especially given my mitigating circumstances. 

4. 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.

5. DVLA keeper data is only supplied on the basis ofprior 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).

6. 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 Beavis.

7. Attention is drawn to:

(i) paras 98, 100, 193, 198 of Beavis (an £85 PC covered all costs and generated a huge profit shared with the landowner); the court should also read paragraph 3.4 of the original judgment by HHJ Moloney in Beavis, confirming what that authority means by 'costs of the operation', and

(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 references costs abuse. HHJ Hegarty held in paras 419-428 (his judgment later ratified by the CoA) that 'costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the very minor cost of a letter-chain and 'would appear to be penal'. The court should note that HHJ Moloney referenced this case in Beavis. 

8. The Parking (Code of Practice) Act will curb rogue conduct by operators and debt recovery agents (DRAs). The Government launched a Public Consultation likely to herald a ban on double recovery 'fees', which the relevant 2022 Minister called ‘extorting money from motorists’. Both the previous and present Governments found that the high profits may be indicative of firms having too much control 'indicating that there is a market failure'.

9. 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))'. There is no keeper liability for added false fees and the POFA specifically states that 'double recovery' is not allowed if a creditor uses any other remedy.

Thank you! 

 

Gr1pr

A defence is written in the 3rd person, and should be able to fit into the 122 lines on MCOL

The Beavis case stopped the argument about excessive, regardless of how much was spent or how many businesses were visited

Save the stories for your future Witness Statement

Use the 10 paragraph Chan and Akande defence, as is, no changes

1505grandad

A heads-up - the Defence is written in the third person i.e. the Defendant - not I, me etc.

Also there are two PoC posted - no breach pleaded so the Chan and Akande cases should be para 3.

Hats8

Thank you @Gr1pr and @1505grandad

To clarify, I leave out all the personal stuff - I don’t make any mention of my personal circumstances etc.?

Am I using the right template as I thought I was in breach by over staying by 12 minutes?

Where do I find the Chan and Akande cases and do I copy it all word for word? I thought that’s what I had but maybe not.

I am getting so confused, sorry.

Hats8

I do have until 4pm tomorrow though, so that’s good.

What is PoC again?

MrJenkinsEsq

https://forums.moneysavingexpert.com/discussion/comment/82144274#Comment_82144274

The claim has to set out the facts it relies on (CPR 16.4). "Remained on private property in breach of the displayed T&Cs" doesn't say which term was broken or how. You may assume it's an overstay, but that's your guess, not their pleading.

The court decides on what's pleaded, and you can't properly respond to an allegation that hasn't been made. That puts you on the back foot, having to guess their case when it's their job to set it out.

Gr1pr

Use the Chan and Akande paragraph 3 slotted into the 10 paragraph template defence by coupon mad in announcements at the top of the forum, no personal stuff, save that aspect for your Witness Statement in several months time

POC = Particulars of Claim, lower left of each Claim form

Rinse and repeat for the 2nd Claim

Login to MCOL, copy and paste into the defence box, save it, submit ( same for both claims. )

Hats8

Thank you. That makes more sense.

Do I use the whole ten paragraphs; slotting in the Chan and Akande as Paragraph 3?

Do I keep the paragraphs numbered or remove them?

I am so grateful for your help and so sorry if I am not grasping what is simple. I guess I am scared of making a mistake and still just finding out how to use the forum. And not very well😬