Draft Defence Parking eye charge Court stage. Opinions

[mac132]

Overview of my situation
Evidence from PE

/imgur.com/a/F0VBF

FACTS
Vehicle entered private car park without permit
Length of stay 15mins. Reason: delivering food to customer from hotel. Manager of hotel emailed PE to cancel any charges, yet PE have not done so as its at court stage and offered to lower the amount.
signs not visible. (No lamp posts or anything whatsoever see links above)

Preparing my defence, still looking for relevant paragraphs to add, open for feedback and improvements. Hopefully it will help some of you who are in similar situation.

Also how would you go about getting case referred to POPLA, as I was advised this happened some circumstances? (IF ANYONE KNOWS?)

Feedback will be much appreciated

I believe that this ticket was issued unfairly. I am not liable for the amount payable because:

1.PEs own photographic evidence show it is near impossible to read the small wording on the sign, particularly at the height it is mounted at over 2 meters above the ground, with a non-functioning street lamp / no lighting at all.

2.Entrance to the parking was “pitch-black” due to insufficient lighting, , making signs essentially hidden from view. I could not be bound by a contract I have not seen.

3.Principle has demanded PE to cancel any charges, yet not adhered.

4.The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.

5. PE has also not proved authority of the landowner to issue parking charge notices - a requirement of the BPA Code of Practice, and Consumer Contracts Regulations 2013 to which PE must adhere. PE has not provided evidence to demonstrate authority to issue parking charges on this land in the form of a contemporaneous and unredacted copy of contract between PE and landowner.

6. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case.

7. Unreasonable fine which cannot be justified as no such loss of earnings could have been accrued.

8. Further, the charge is an unenforceable unfair contract with reference to The Consumer Rights Act 2015, para 62.4 - requirement of good faith that adequate notice was given to motorists of the ‘terms’. With reference to Schedule 2 Part 1 para 6, the charge is vastly disproportionate to any alleged interest and nothing other than a punitive sanction.

9. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.

10.The Defendant denies that the driver would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed.

11.The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.

12. Photographic evidence sent by PE was too dark to be able to tell the location of where the vehicle was parked and therefore could not appeal as defendant was not able to tell what place PE was referring to.

13. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.


Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

[mystery1]

Re: Draft Defence Parking eye charge Court stage. Opinions

Also how would you go about getting case referred to POPLA, as I was advised this happened some circumstances? (IF ANYONE KNOWS?)

You are out of time for POPLA so the only way to get it is if the court order it. You just need to ask and hope they agree. It's more likely they would if you've never had any contact from them but if you've just ignored them then probably not.

Poor signage (including darkness) is fine. Unfairness won't wash.

Have you contacted the hotel again ?

M1

[R0b]

Re: Draft Defence Parking eye charge Court stage. Opinions

Just a few tips on how to draft an effective defence to a claim

1. Always start with your strongest defence points and set out each point clearly. Consider using sub-headings to separate each defence point e.g. The terms as alleged were not legally binding on the Defendant and then use each paragraph to explain why the terms don't apply.

2. Unless you specifically deny each and every part of the defence, the parts that you don't mention will be deemed to be admitted. It may be good practice to either state at the top or at the end of the document to say something like the Defendant denies that the Claimant is entitled to the debt as alleged or at all.

3. Use the Defendant and the Claimant to identify the parties instead of using 'I'. Alternatively you may wish to define the parties for ease of reference e.g. The Claimant ("ParkingEye") and the Defendant ("Mr Smith") and refer to them as ParkingEye and Mr Smith thereafter.

As for your defence itself, I assume this would not fit into the MCOL defence box online so you will need to make sure it is set out properly in the correct format and with the correct headings. If you haven't done so already or don't know how let us know.

4.The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.

Those Regulations are no longer applicable post 1 October 2015 and now fall under the Consumer Rights Act 2015. Anyway, I don't think the CRA is applicable to that argument because for those terms to apply they would have need to have been incorporated into the contract. For any contractual terms to be incorporated, they must have been sufficiently drawn to your attention. I think what you are trying to say is that there was poor signage as M1 suggested and combined with them being poorly lit (by virtue of PE's own submission of evidence) the terms stipulated on the signs were not incorporated into the contract since they were not immediately visible.

11.The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.

This is where you might want to argue unfair contract terms apply. If the terms on the sign were incorporated into the contract then they were not prominent and illegible. Under the CRA, a term that is not prominent and illegible is considered an unfair contract term.

Your post also suggested that you drove without a permit, did the sign say anything about a permit being required for parking?

[mac132]

Re: Draft Defence Parking eye charge Court stage. Opinions

Regarding referral to POPLA, would I send an email to the court hoping they agree (worth a shot to save everyone time and hassle) If so, any templates for that?
Did contact the hotel, although the email is just a standard template they use.

[mac132]

Re: Draft Defence Parking eye charge Court stage. Opinions

Which points would you say are strongest as of now? I am currently adding and working on the defence further. In terms of headings and format, layout size, font will definitely need some help. What file format should it be etc. Thanks for all the responses much appreciated.
Are you saying to remove point 4. 4.The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999?

[R0b]

Re: Draft Defence Parking eye charge Court stage. Opinions

Do you know if the signs said permit parking only or something else? It would be helpful if you have photos of the said signs or at least upload what Parking Eye have sent you (personal info redacted) - then we could work out what the strongest points are and go from there, but they all seem as strong at the moment.

I'm suggesting that perhaps you may want to re-word it - the key issue is whether the signs were sufficiently visible to be drawn to your attention. Due to the poorly lit signage based on PE's evidence supplied the signs were not sufficiently drawn to your attention so no contract could exist (if there was one) and so any terms relied upon by PE could not have been incorporated. Alternatively, if the signs were sufficiently visible to be drawn to your attention (which you would deny), then the terms and conditions are unfair as the Consumer Rights Act requires them to be prominent and legible. Assuming they are so small in size and you wold struggle perhaps to see them unless you were up close, the charges cannot be enforced.

Does that make sense?

[mystery1]

Re: Draft Defence Parking eye charge Court stage. Opinions

If it's permit only then the strongest defence is that there is no contract as a contract requires offer, acceptance & consideration. The signs are prohibitive ( according to what you say)

M1

[mac132]

Re: Draft Defence Parking eye charge Court stage. Opinions

http://imgur.com/a/bATOE On the letter PE state they captured my vehicle without a valid paid parking ticket. The signage is clearly displayed at the entrance and throughout the car park, which states this is private land and is paid parking site along with other T&C's by which those who park on site agree to be bound.

I was also told that I can choose whether I want to attend the hearing on MCOL, if I choose not to would that go against me ?

[mac132]

Re: Draft Defence Parking eye charge Court stage. Opinions

Update: This is what I' have so far.

I believe that this ticket was issued unfairly. I am not liable for the amount payable because:

1 Claimants’ own photographic evidence show it is impossible to see let alone read the small wording on the sign, with a non-functioning street lamp and no lighting at all.

2.Entrance to the parking was “pitch-black” due to insufficient lighting, making signs essentially hidden from view. Defendant could not be bound by a contract that was not seen.

3 Principle has demanded Claimant to cancel any charges, as defendant was a customer at XXX, yet Claimant has not adhered.
3.1 Claimant has recently been contacted via email on by the Manager of the XXX demanding cancellation of any charges, as a result defendant was issued a letter on 19 April 2017 stating Claimant is prepared to accept the sum of £60 in settlement of outstanding claim.

4.The claim is for breach of contract. However, it is denied any contract existed.
4.1The Defendant denies that the driver would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been visible.
4.2 The Claimant states, in their Particulars of Claim, that the signage is ‘clearly displayed’ but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

5. It is denied that the signs used by this Claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case.

6.The signage was not lit and any terms were not prominent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms according to the Consumer Rights Act 2015. Terms and conditions are unfair as the Consumer Rights Act requires them to be prominent and legible, therefore the charges cannot be enforced.

7. Further, the charge is an unenforceable unfair contract with reference to The Consumer Rights Act 2015, para 62.4 - requirement of good faith that adequate notice was given to motorists of the ‘terms’. With reference to Schedule 2 Part 1 para 6, the charge is vastly disproportionate to any alleged interest and nothing other than a punitive sanction.

8. Claimant has also not proved authority of the landowner to issue parking charge notices - a requirement of the BPA Code of Practice, and Consumer Contracts Regulations 2013 to which Claimant must adhere. Claimant has not provided evidence to demonstrate authority to issue parking charges on this land in the form of a contemporaneous and unredacted copy of contract between Claimant and landowner.

9. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper Claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.

10. Unreasonable fine which cannot be justified as no such loss of earnings could have been accrued considering the length of stay.

11.The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.

12 The claim includes a sum of £50, described as ‘Solicitor’s costs’. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service, generating up to £50,000 of income. Given a standard working week, the Claimant’s solicitor can spend no more than a few minutes per claim, hardly justifying the £50.
Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the Claimant, generating over £1.5 million a year in profit.

12.1 The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee.


13. Photographic evidence sent by Claimant made it impossible for defendant to able to recognise location where vehicle was parked and therefore could not appeal as location was not made clear to the defendant.

14.Claimant has not provided proof who was the driver at the time, registered keeper of vehicle cannot be held liable.

15.In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.

The Defendant denies that the Claimant is entitled to the debt as alleged or at all.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

[mystery1]

Re: Draft Defence Parking eye charge Court stage. Opinions

http://imgur.com/a/bATOE On the letter PE state they captured my vehicle without a valid paid parking ticket. The signage is clearly displayed at the entrance and throughout the car park, which states this is private land and is paid parking site along with other T&C's by which those who park on site agree to be bound.

I was also told that I can choose whether I want to attend the hearing on MCOL, if I choose not to would that go against me ?

Which 1 is applicable, staff only or tariff ?

M1

[mac132]

Re: Draft Defence Parking eye charge Court stage. Opinions

Tariff T&Cs are displayed on a wall further down but again not lit.

[mac132]

Re: Draft Defence Parking eye charge Court stage. Opinions

is Font times new roman size 12 with double line spacing ok to use ?

[mystery1]

Re: Draft Defence Parking eye charge Court stage. Opinions

is Font times new roman size 12 with double line spacing ok to use ?

I think you get hung for that If it's readable, in small claims cases, nobody will give a f.....

I think you need to add cancellation etc

M1

[HamEz99]

Any update on this?