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Parking Eye Court Case
OneTrickpony
Posts: 10 Forumite
Hello and Good Evening,
First time poster, could i please get your thoughts on the defence below? Ive read the threads, sent back the acknowledgement response to MCOL to give 14 days extra, so time runs out 7 days from now.
Keeper of vehicle did not respond until court letter stage, parked at local hotel covered by PE ANPR, overstayed and in particulars states that breach of T+Cs has taken place (the contract). PE's ANPR monitoring xxx hotel captured vehicle entering and leaving the car park, parking without auth. etc etc.
So now trying to fight back.... Hope thats vague enough? Please do let me know if you need more info. My case seems unremarkable in that there are no "special" issues like some have. I've looked at standard defences and have drafted:
1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
i. The Claimant has no standing to bring a case
ii. The Claimant has no capacity to form a contract with the motorist
iii. The signage did not offer a genuine contract with the motorist
iiii. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
v. The Claimant has no Cause of Action
vi. Even if a debt existed, it would be due to the land-owner, not the Claimant
vii. The Claimant has included a solicitor charge that was not incurred
Due to any combination of the above points, the Claimant has no case and the Defendant invites the Court to strike the matter out.
2. The Claimant manages the car park. The Claimant is not therefore the Land-owner. Neither has it claimed to be an Agent. The Defendant has the reasonable belief that it is merely a contractor. The Claimant has not therefore explained what authority it has to bring the claim. The proper claimant is the landowner.
3. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.
4. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for two reasons:
• It was established that ParkingEye paid a premium of £1000 per week to operate at the site. This was ruled to give them standing as Principal. In the present case they are acting as an contractor to the land-owner
• In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts
If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a contract exists and of its content.
Also the Claimant has claimed that “ParkingEye v Beavis” confirms that any amount will be recoverable provided it is proportionate to a legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty.
5. As this case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
6. If the driver happened to see the signage (if any were present) on each occasion, signs are located at a distance in pale, unlit and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The signs do not comply with BPA Code of Practice.
7. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print and does not comply with Denning MR’s “Red Hand Rule”
8. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.
9. The claimed contract that the Claimant has provided to me is a close up of a sign which contains a charge for £90 only. Therefore there is no evidence of any sign creating a contract to pay £100 for any contraventions as claimed.
10. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and indeed the wider industry is being looked into by parliament due to the unscrupulous nature of its business model.
11. Due to the length of time, the Defendant has little to no recollection of the days in question, which were unremarkable. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.Due to the Claimant’s history of lack of compliance with regulations, the Claimant must prove that it has fully complied with the strict requirements sent out in POFA 2012 Schedule 4. As the Defendant is the registered keeper of the vehicle, these regulations must be complied with in order to hold the keeper liable.
12. The POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £50 to each PCN and that those sums formed part of the contract in the first instance.
13. The Claimant has not complied with the pre-action protocol under the Practice Direction as a compliant ‘Letter Before County Court Claim’ was not issued. Despite repeated attempts by the Defendant to receive a compliant letter, one was not sent before court proceedings were started.
14. The Particulars of Claim submitted by the Claimant is not compliant with the Practice Directions. The Claimant has not attached the contract(s) it wishes to rely on that it alleges were in place at the time. The Claimant has not clarified whether it is seeking keeper liability and has not attached any confirmation that is has gone through the necessary steps to do so. The Claimant has not clarified if there are any amounts claimed over and above the initial charge and on what basis they are being claimed.
15. The POFA 2012 Schedule 4 states that before seeking keeper liability, the Claimant must demonstrate that there was a “relevant contract”. The Claimant is put to strict proof that a “relevant contract” existed to pay £100 and that there was (as defined in 2(3) of the statute) 'adequate notice' of that sum and legible terms.
16.The purported 'legal costs' are not justified additionally it would have been factored within the additional £50 charge thus claiming again would be considered double charging creating financial gain. It is worth pointing out that Mr Beavis was only required to pay £85, the sum on the PCN and signs and no more. To add extra costs is contrary to the CPR and against the POFA Schedule 4: Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery). Also, Mr Beavis was an admitted driver who accepted that he had seen the signs and that a contract existed. None of those facts match this matter.
17. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
First time poster, could i please get your thoughts on the defence below? Ive read the threads, sent back the acknowledgement response to MCOL to give 14 days extra, so time runs out 7 days from now.
Keeper of vehicle did not respond until court letter stage, parked at local hotel covered by PE ANPR, overstayed and in particulars states that breach of T+Cs has taken place (the contract). PE's ANPR monitoring xxx hotel captured vehicle entering and leaving the car park, parking without auth. etc etc.
So now trying to fight back.... Hope thats vague enough? Please do let me know if you need more info. My case seems unremarkable in that there are no "special" issues like some have. I've looked at standard defences and have drafted:
1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
i. The Claimant has no standing to bring a case
ii. The Claimant has no capacity to form a contract with the motorist
iii. The signage did not offer a genuine contract with the motorist
iiii. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
v. The Claimant has no Cause of Action
vi. Even if a debt existed, it would be due to the land-owner, not the Claimant
vii. The Claimant has included a solicitor charge that was not incurred
Due to any combination of the above points, the Claimant has no case and the Defendant invites the Court to strike the matter out.
2. The Claimant manages the car park. The Claimant is not therefore the Land-owner. Neither has it claimed to be an Agent. The Defendant has the reasonable belief that it is merely a contractor. The Claimant has not therefore explained what authority it has to bring the claim. The proper claimant is the landowner.
3. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.
4. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for two reasons:
• It was established that ParkingEye paid a premium of £1000 per week to operate at the site. This was ruled to give them standing as Principal. In the present case they are acting as an contractor to the land-owner
• In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts
If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a contract exists and of its content.
Also the Claimant has claimed that “ParkingEye v Beavis” confirms that any amount will be recoverable provided it is proportionate to a legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty.
5. As this case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
6. If the driver happened to see the signage (if any were present) on each occasion, signs are located at a distance in pale, unlit and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The signs do not comply with BPA Code of Practice.
7. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print and does not comply with Denning MR’s “Red Hand Rule”
8. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.
9. The claimed contract that the Claimant has provided to me is a close up of a sign which contains a charge for £90 only. Therefore there is no evidence of any sign creating a contract to pay £100 for any contraventions as claimed.
10. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and indeed the wider industry is being looked into by parliament due to the unscrupulous nature of its business model.
11. Due to the length of time, the Defendant has little to no recollection of the days in question, which were unremarkable. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.Due to the Claimant’s history of lack of compliance with regulations, the Claimant must prove that it has fully complied with the strict requirements sent out in POFA 2012 Schedule 4. As the Defendant is the registered keeper of the vehicle, these regulations must be complied with in order to hold the keeper liable.
12. The POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £50 to each PCN and that those sums formed part of the contract in the first instance.
13. The Claimant has not complied with the pre-action protocol under the Practice Direction as a compliant ‘Letter Before County Court Claim’ was not issued. Despite repeated attempts by the Defendant to receive a compliant letter, one was not sent before court proceedings were started.
14. The Particulars of Claim submitted by the Claimant is not compliant with the Practice Directions. The Claimant has not attached the contract(s) it wishes to rely on that it alleges were in place at the time. The Claimant has not clarified whether it is seeking keeper liability and has not attached any confirmation that is has gone through the necessary steps to do so. The Claimant has not clarified if there are any amounts claimed over and above the initial charge and on what basis they are being claimed.
15. The POFA 2012 Schedule 4 states that before seeking keeper liability, the Claimant must demonstrate that there was a “relevant contract”. The Claimant is put to strict proof that a “relevant contract” existed to pay £100 and that there was (as defined in 2(3) of the statute) 'adequate notice' of that sum and legible terms.
16.The purported 'legal costs' are not justified additionally it would have been factored within the additional £50 charge thus claiming again would be considered double charging creating financial gain. It is worth pointing out that Mr Beavis was only required to pay £85, the sum on the PCN and signs and no more. To add extra costs is contrary to the CPR and against the POFA Schedule 4: Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery). Also, Mr Beavis was an admitted driver who accepted that he had seen the signs and that a contract existed. None of those facts match this matter.
17. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
0
Comments
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Hi and welcome.OneTrickpony wrote: »I've read the threads, sent back the acknowledgement response to MCOL to give 14 days extra, so time runs out 7 days from now.
From that it sounds like you have received a Claim Form from the County Court Business Centre in Northampton.
What is the Issue Date on your Claim Form?0 -
OneTrickpony wrote: »Hello and Good Evening,
First time poster, could i please get your thoughts on the defence below? Ive read the threads, sent back the acknowledgement response to MCOL to give 14 days extra, so time runs out 7 days from now.
Keeper of vehicle did not respond until court letter stage, parked at local hotel covered by PE ANPR, overstayed and in particulars states that breach of T+Cs has taken place (the contract). PE's ANPR monitoring xxx hotel captured vehicle entering and leaving the car park, parking without auth. etc etc.
So now trying to fight back.... Hope thats vague enough? Please do let me know if you need more info. My case seems unremarkable in that there are no "special" issues like some have. I've looked at standard defences and have drafted:
1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
i. The Claimant has no standing to bring a case
ii. The Claimant has no capacity to form a contract with the motorist
iii. The signage did not offer a genuine contract with the motorist
iiii. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
v. The Claimant has no Cause of Action
vi. Even if a debt existed, it would be due to the land-owner, not the Claimant
vii. The Claimant has included a solicitor charge that was not incurred
Due to any combination of the above points, the Claimant has no case and the Defendant invites the Court to strike the matter out.
2. The Claimant manages the car park. The Claimant is not therefore the Land-owner. Neither has it claimed to be an Agent. The Defendant has the reasonable belief that it is merely a contractor. The Claimant has not therefore explained what authority it has to bring the claim. The proper claimant is the landowner.
3. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.
4. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for two reasons:
• It was established that ParkingEye paid a premium of £1000 per week to operate at the site. This was ruled to give them standing as Principal. In the present case they are acting as an contractor to the land-owner
• In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts
If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a contract exists and of its content.
Also the Claimant has claimed that “ParkingEye v Beavis” confirms that any amount will be recoverable provided it is proportionate to a legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty.
5. As this case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
6. If the driver happened to see the signage (if any were present) on each occasion, signs are located at a distance in pale, unlit and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The signs do not comply with BPA Code of Practice.
7. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print and does not comply with Denning MR’s “Red Hand Rule”
8. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.
9. The claimed contract that the Claimant has provided to me is a close up of a sign which contains a charge for £90 only. Therefore there is no evidence of any sign creating a contract to pay £100 for any contraventions as claimed.
10. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and indeed the wider industry is being looked into by parliament due to the unscrupulous nature of its business model.
11. Due to the length of time, the Defendant has little to no recollection of the days in question, which were unremarkable. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.Due to the Claimant’s history of lack of compliance with regulations, the Claimant must prove that it has fully complied with the strict requirements sent out in POFA 2012 Schedule 4. As the Defendant is the registered keeper of the vehicle, these regulations must be complied with in order to hold the keeper liable.
12. The POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £50 to each PCN and that those sums formed part of the contract in the first instance.
13. The Claimant has not complied with the pre-action protocol under the Practice Direction as a compliant ‘Letter Before County Court Claim’ was not issued. Despite repeated attempts by the Defendant to receive a compliant letter, one was not sent before court proceedings were started.
14. The Particulars of Claim submitted by the Claimant is not compliant with the Practice Directions. The Claimant has not attached the contract(s) it wishes to rely on that it alleges were in place at the time. The Claimant has not clarified whether it is seeking keeper liability and has not attached any confirmation that is has gone through the necessary steps to do so. The Claimant has not clarified if there are any amounts claimed over and above the initial charge and on what basis they are being claimed.
15. The POFA 2012 Schedule 4 states that before seeking keeper liability, the Claimant must demonstrate that there was a “relevant contract”. The Claimant is put to strict proof that a “relevant contract” existed to pay £100 and that there was (as defined in 2(3) of the statute) 'adequate notice' of that sum and legible terms.
16.The purported 'legal costs' are not justified additionally it would have been factored within the additional £50 charge thus claiming again would be considered double charging creating financial gain. It is worth pointing out that Mr Beavis was only required to pay £85, the sum on the PCN and signs and no more. To add extra costs is contrary to the CPR and against the POFA Schedule 4: Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery). Also, Mr Beavis was an admitted driver who accepted that he had seen the signs and that a contract existed. None of those facts match this matter.
17. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
This is a very old 'spray and pray' defence, which contains no facts whatsoever about how the parking charge came to be issued. That should be stated right from the start.
It also doesn't state whether the Defendant, or someone else, was driving. Many Judges will view this as an attempt to avoid admitting that the Defendant was the driver.
I would scrap this completely, and look at more recent and concise defences.
I have been providing assistance, including Lay Representation at Court hearings (current score: won 57, lost 14), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.0 -
Hi,
Thanks for your replies - should I be posting specifics on this forum for dates etc?
Bargpole - thanks for the reply, Wow Ok it took me ages to get that one, i don't suppose you have any pointers for more recent applicable cases?
Cheers0 -
OneTrickpony wrote: »Hi,
Thanks for your replies - should I be posting specifics on this forum for dates etc?
It's up to you.
How many Claim Forms do you imagine are issued every day?
I don't know either, but it must be hundreds - if not thousands.
You did say "I've read the threads...".0 -
KeithP - Yes Northampton - 18 FEB 20190
-
With a Claim Issue Date of 18th February, you had until Monday 11th March to do the Acknowledgement of Service.OneTrickpony wrote: »KeithP - Yes Northampton - 18 FEB 2019
I'll assume you did do the AoS by that date. Please confirm.
Having done the AoS in a timely manner, you have until 4pm on Monday 25th March 2019 to file your Defence.
That's just over a week away. Loads of time to produce a Defence, but don't leave it to the very last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
0 - Sign it and date it.
-
Keith - many thanks - yes acknowledgement was done before the deadline, i thought next fri was deadline - good to have a couple of extra days.
Thanks again.0 -
The calculated deadline is 23rd March.OneTrickpony wrote: »I thought next fri was deadline - good to have a couple of extra days.
As that's a Saturday, you have until 4pm on the next working day to file your Defence.0 -
There are concisely written defence posted by Bargepole and Coupon-mad if you look at the NEWBIE thread post # 2 and scroll down to here: -Bargepole - thanks for the reply, Wow Ok it took me ages to get that one, i don't suppose you have any pointers for more recent applicable cases?Here are some cases won or in progress:
Here is a defence I suggested for a case0 -
Thanks for the replies pointing in the direction of the latest defences. i've read a few and come up with the following first draft.
Please let me know any thoughts on where to make better.
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. 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, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN).
2.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.
2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.
3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The car park was served by signs with text that is so small, it would be difficult to read.
5.1. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.
5.2. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beaviscase is distinguished.
6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.
6.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.
6.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.
7. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £50, for Legal fees is inappropriate and wholly unfair.
8. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.0
This discussion has been closed.
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