Parkingeye Defence

EronD60 · 16 November 2019 at 10:24PM

Good evening all.

This is my first post on here, I have read the very helpful Newbie guide, however I have a few questions relating to my case, as I feel it is slightly different..

I was originally served with a PCN relating to a 'Violation' in April last year at my local gym, where I did not know about submitting my details into a computer.

Due to me working away/abroad a lot and rarely being at home I missed all correspondence about the ticket up until the threat of a CCJ. I spoke to the gym and they said they would speak to parkingeye which did not work as when I returned from another overseas trip I was hoping to buy a house but was denied due to a CCJ which I knew nothing about.

After a lengthy process I have now had to CCJ set aside, and now have to submit a defence to the court and to the Claimant. my real question is, what 'stage' of the proceedings am I now at now the CCJ has been set aside? is it as if I have just received to PCN again or am I right at the last stage before CCJ again?

I have written proof from the gym manager that I was a member at the time and entitled to 2 hours free parking.

I have read Coupon-Mad's very helpful defence on the 'ParkingEye County Court Defence- I have proof?' thread, could I also use that defence, albeit tweaked to fit my claim particulars.

Thanks all in advance,

Eron

Coupon-mad · 16 November 2019 at 10:50PM

my real question is, what 'stage' of the proceedings am I now at now the CCJ has been set aside?

You are at defence stage, within the court system, not at any appeal stage.

So you need to look at the defence examples in the econd post of th NEWBIES thread, and use/adapt the ParkingEye one about the hidden keypad at the Odeon.

I have read Coupon-Mad's very helpful defence on the 'ParkingEye County Court Defence- I have proof?' thread, could I also use that defence, albeit tweaked to fit my claim particulars.

Yes, if that is the one about the Odeon & the hidden keypad!

I have written proof from the gym manager that I was a member at the time and entitled to 2 hours free parking.

Good.

Normally after defence stage (when it is not a set aside case) the court will set a hearing date and give both parties the chance to exchange witness statements and evidence. But after a set aside, this process is often a bit skewed and you submit your defence then just a get an Order with a hearing date, and wonder when to submit your evidence!

If that happens, just send a WS and evidence to the court and the Claimant anyway, not less than 2 weeks before the hearing. No evidence goes with a defence UNLESS your Judge has ordered that you must submit evidence now as well?

Did you get the £255 fee 'reserved' (i.e. frozen until the main hearing so you can include that £255 fee in your costs schedule?). It would be good to know you can potentially claim it back.

EronD60 · 16 November 2019 at 11:04PM

Thank you for a quick reply,

Yes it was the defence about Odeon and the hidden keypad I was referring to.

I have only been told by the court - 'Defendant shall send to the court and the Claimant a full defence'

I've heard nothing in relation to having the £255 fee reserved, is this something I can ask for after a court case (if successful) or should I include that as part of my defence or WS?

Coupon-mad · 16 November 2019 at 11:18PM

Put it in your defence and later in your WS (but you should have asked at the hearing really and included that in your Witness Statement way back with your N244 application to set aside).

But there is no harm in suggesting in the defence and WS at the end, that the claimant's conduct is such that you will be seeking your full costs, because there was never any 'legitimate interest' excuse in their pursuing the matter to court, when the Gym had contacted them to cancel it and ParkingEye ignored that information, which normally sees these cancelled due to an absence of any commercial justification (unlike in ParkingEye Ltd v Beavis [2015] UKSC 67, which is fully distinguished).

Remember when you get a hearing date it may or may not mention WS and evidence, given you are communicating directly with a named Judge now, but submit a WS and evidence anyway.

EronD60 · 16 November 2019 at 11:24PM

Apologies I should have mentioned that the CCJ was set aside on the papers, I submitted a pretty long WS along with my N244 form and the Judge decided that it did not need a court case, and Parkingeye's failure to provide a written response to the application served on them within the 14 days allocated.

Thank you, I will add the statement about claiming cost back in my defence at the end then.

Coupon-mad · 16 November 2019 at 11:30PM

Parkingeye's failure to provide a written response to the application served on them within the 14 days allocated.

Sounds like you could build a picture of unreasonable conduct that might just get a Judge agreeing that they have breached the Consumer Rights Act 2015 as well, with that hidden keypad.

I should have said, we have an extra defence point (new this week) about the CRA 2015. Read CEC16's thread to understand it. You can also cite the CPUTRs as well, as the hidden tablet is a 'misleading omission'.

I wrote some extra wording here this week that covers a defence like that:

https://forums.moneysavingexpert.com/showthread.php?p=76489078#post76489078

Now this will end up very long (too long, I expect) so show us your draft defence first in a reply and we will try to hone it down to the important bits.

EronD60 · 16 November 2019 at 11:41PM

Claim Number: *********

Between

*************

v

************

DEFENCE

Background - the driver was an authorised patron of the onsite business

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract on *******, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera on site. This is merely an image of the vehicle parked and is no evidence of 'No Authorisation' or not being a patron of the facility.

3. The Defendant has proof of patronage, in the form of an email from **************** stating that they were a member and entitled to 2 hours free parking whilst using their facilities and it is the Claimant's own failure, caused by their deliberately obscure terms and terminal that catches out far too many victims at this location, that has given rise to a PCN that was not properly issued from the outset.

Unclear terms - unacceptable penalty relying upon an unseen keypad

4. According to the signs in this car park, it now becomes apparent that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed or communicated to patrons.

4.1. It is contended that the Claimant failed to alert regular local visitors to an unexpected obligation to use a terminal, or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

5. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. The Manager was incensed that these complaints were becoming a daily occurrence and catching out customers ever since the contract began.

5.1. The Manager stated that the staff now must take time out to verbally prompt the customers that come in because the terminal used for signing in VRN details, and the sign used to indicate this, are far from obvious.

6. There was no overstay, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this shocking sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

6.1 This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

7. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN into an unseen terminal, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

Lack of good faith, fairness or transparency and misleading business practices

8. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the terminal and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way ParkingEye make any money.

9. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings.

Inflation of the parking charge - an abuse of process

10. The Parking Charge of £100 with a discount to £60 for early payment is excessive and unconscionable. In the case of Parking Eye vs Beavis the court allowed the charge of £85 as being agreed by the Defendant due to the unusual prominence of the Terms and Conditions signage upon which Mr Beavis noticed and agreed at the material time, and the charge was allowed in that it was broadly in line with Local Authority charges. The charge claimed in this matter is double the local authority charge of £50 and in the case of early payment more than double the local authorities discounted charge of £25.

11. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

Name/signature

Date

- apologies if there are key parts missing etc, this is my first time dealing with such a case!

Coupon-mad · 16 November 2019 at 11:54PM

No, I meant show us AFTER you've added everything we told you to add...and that it will be a long draft. That's short, not what I was expecting to see.

EronD60 · 17 November 2019 at 12:02AM

Apologies, will get onto that now, cheers.

Parkingeye Defence

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