ParkingEye Ltd County Court Claim Form stage

JonnyRotten · 17 August 2014 at 9:40AM

Stroma, thanks

This is interesting and I am just reading the PE v Beavis and Wardley case.

There are many points within it that could be argued another way and some of the points have not looked at all possibilities.

This is telling:
I should however emphasise:
a. that since I am a Circuit Judge not a High Court Judge, this decision has only persuasive force;
b. that it is based on one particular set of the Claimant's standard notices and terms, which may have varied from time to time, a point which should be checked in other cases;
c. that although Mr Foster, the Defendants' McKenzie friend, put his case clearly and well, especially in his very helpful written submissions, and although leading and junior counsel for the Claimant were of course conscious of their duty to the Court to inform it of all relevant authorities that might assist either side, still the Defendants did not have the benefit of professional assistance that might in another case produce different arguments and perhaps a different result.

Herein is the real problem with English Law, where we depend on Judges' interpretations of Case Law and not absolute Law. Unless every Judge has read everything out there that has gone before, we will always get different ruling interpretations.

Take for example my reading of the Terms and Conditions notice size laid down in the BPA code, do those dimensions relate to the whole notice or do they only relate to the Terms and Conditions, it is not absolute? The small print quantifying the Charge at the bottom of the signs when fixed at 9" above ground is almost unreadable. These could be called the T&Cs, and they are much smaller than the dimensions given and could be argued from the wording in the Code to have to be that size.

There are many other items that can be read more than one way and thus need to be fought.

I need to really read the whole document but as already mention it is being taken to appeal, so all may not be lost.

Just JR

Stroma · 17 August 2014 at 9:44AM

The good thing is that you have the time to do your research on this, getting it right will go a long way to defending the claim successfully. The important thing here is understanding what you are defending with, because if it gets to court you need to sit in front of a judge and argue your defence.

JonnyRotten · 17 August 2014 at 10:10AM

Stroma

And therein the other problem with the law, that unqualified laypersons have to defend.

The Claimant should have to prove absolutely their claim and the qualified Legal profession should pronounce on their proof knowing all there is to know about the pertinent law because it is absolute.

We all would then know where we stood.

Something along the lines of -

All motorists will pay to park on any designated parking place, private or statutory. These will be designated by the National standard size, markings, etc(whatever they would be). Charges are set Nationally and are: £x.xx for 15 mins, £x.xx ad infinitum for the 30 mins, 45 mins, 1 hr, 2 to 23 hrs, daily, weekly, monthly and yearly times. Failure to pay, which of course includes overstaying, will result in the lost amount at the rate plus a reasonable but Nationally set Administration fee. No profiteering set by Statute.

Everyone would know where one stands! And even we who hate to pay for parking anywhere would probably be happy.

Where do you get a business model that the only income that you can achieve is if motorists break the so called "Ts&Cs".

Does the landowner have consents placed upon the car-park from the Planning process, does he/she have a rental agreement with Retailers that includes a fee for the car-park availability, does he/she get any income from the Parking Company, etc etc etc to show that there is any possible loss.

This whole Parking Scam needs to be stopped and why it should be fought, but in the present our 'driver' needs to just obey any signage and not cause the angst!

Always JR

Umkomaas · 17 August 2014 at 10:19AM

Look forward to you helping by joining the fight with us JR.

bargepole · 17 August 2014 at 10:47AM

JonnyRotten wrote: »

The Claimant should have to prove absolutely their claim and the qualified Legal profession should pronounce on their proof knowing all there is to know about the pertinent law because it is absolute.

There are very few 'absolutes' in law.

If all the Judges, barristers and solicitors agreed with each other, none of them would ever make any money.

It's all about argument and interpretation.

JonnyRotten · 17 August 2014 at 11:32AM

bargepole

Just my point, it is not about Judges, Barristers and Solicitors making any money.

It is about all of the population being treated equally across the country by getting a point of Law ruled on in exactly the same way and to the same conclusion by every member of the Law Fraternity because there is no possibility of disagreement as the Law has been made absolute.

That, of course would take some huge effort by the Law Fraternity and the Government administrators. To get a couple of thousand years of Roman, Anglo Saxon and Norman rulings (never mind Welsh, Irish and Scottish differences) simplified, written and presented on the web in simple English so that all can understand it would mean that a few of them would have to burn the midnight oil and earn their very high wages.

Oh! and make it so that it is easily digestible by the populace.

JR

jkdd77 · 17 August 2014 at 12:04PM

bargepole wrote: »

Further to post #4, I recognise most of the text in your draft, as it is based on defences I used to write.

However, post-Beavis, most of those points no longer apply, and it's quite possible that will be struck out by the Court as disclosing no reasonable prospect of defending the claim.

Back to the drawing board and lots more research, I'm afraid, and only stuff post - May 2014 is relevant.

I must respectfully disagree with this- Beavis is not case law, and does not rule out any of the usual defences at all, certainly not to the extent of having very strong defences, that have succeeded against PE on many, many, occasions before other judges (even after Beavis), struck out without even a hearing.

It's not for me to put words in other poster's mouths, but I recall Andy Foster, who assisted with the Beavis defence, suggesting that the usual defences would still have a reasonable prospect of success before a sympathetic judge.

As far as I know, no strong MSE/ Pepipoo/ Prankster defence has ever simply been struck out without even a hearing- there would simply be no grounds for doing so, and so to suggest that this is a realistic possibility would seem to be alarmist, perhaps even misleading.

Indeed, much of the actual case law on so-called "commercial justification" for penalties is favourable to the motorist, and could be presented in court to rebut Beavis.

That PE were held to have locus standi in the Beavis case, based on a heavily redacted contract, and based upon the payment of a large sum, relating to a specific car park which was found by HHJ Maloney to give PE right to bring claims as principal in relation to that car park, does not mean that they would be found to have that right by other judges in relation to other car parks.
Indeed, Prankster seems to be convinced that the redacted section of the contract would show that PE do not in fact have the right to bring claims in their right.

I think that the OP's defence is actually pretty strong already, and that there is certainly no need for a total re-write.

That said, it couldn't hurt to request a stay on two grounds:
1) Pending referral to POPLA, and;
2) Pending result of Beavis appeal,
and also to aver in the defence that the unredacted contract would show that PE, having previously been found to have been guilty of the "tort of deceit" by the CoA, do not have the right to bring claims as principal, and accordingly to request that PE be required to show the unredacted contract.

In addition, PE claim on their website, in their paperwork, and to the BPA, that their charges are "not penalties", yet now claim in court that they are "penalties, but commercially justified". Which is it- it can't be both?

Stroma · 17 August 2014 at 12:19PM

The problem is case law or not District Judges are swayed by the beavis case and are increasingly finding for the claimants on commercial justification. I think that yes use some of what has worked previously but to re-write it to rebut the beavis case, otherwise it will likely fail.

JonnyRotten · 17 August 2014 at 12:24PM

First, thanks to Umkomaas then Thanks jkdd77

Yes indeed, and I had not ruled out proceeding as the Draft, but I will redraft to include some detail from the PE v Beavis case, just printing it out to read slowly now.

Thanks for the additional points. I did read somewhere in the blizzard of open Tabs other Acts that were also involved, just might have been to do with the Tort of Deceit, must find it again as it seemed relevant.

I suppose a procedure question is, does the Skeleton Defence with N9B to Northampton have to include all Defence points, or can the Full Defence to the local Court go further and add more when one has elicited any information from PE and landowner et al?

Phew, lots to do.

Speed reading JR

bargepole · 17 August 2014 at 1:53PM

jkdd77 wrote: »

I must respectfully disagree with this- Beavis is not case law, and does not rule out any of the usual defences at all, certainly not to the extent of having very strong defences, that have succeeded against PE on many, many, occasions before other judges (even after Beavis), struck out without even a hearing.

As I said in another post above, it's all about opinion.

Just remind us, on exactly how many occasions have you gone to court with a defendant to argue the case for them?

ParkingEye Ltd County Court Claim Form stage

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