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Drafted Defense for Claim (Parking Eye)

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  • Drafted Defense for Claim (Parking Eye)

    Hi All!

    I have a draft defence and would be really grateful if anyone could have a look over it for me (I really don't know what I'm doing!)

    My main defence is signage, in this particular case, the driver did not leave the car during the parking stay. There is no signage on the wall in front of the space occupied. The only signage the motorist passed is at the busy entrance so it's unreasonable that a contract was entered. The second major part is £100 stay for a 16 minute overstay, and an overall stay of 36 minutes in a Tesco express car park. I think you'll agree that this is grossly inflated.



    Claim Number: xxxx

    BETWEEN:

    ParkingEye Ltd (Claimant)

    vs

    xxx (Defendant)




    Hi All, I have my draft defence, I'd be really grateful for any feedback. (submission Monday).




    My main defence is signage, in this particular case, the driver did not leave the car during the parking stay. There is no signage on the wall in front of the space occupied. The only signage the motorist passed is at the busy entrance so it's unreasonable that a contract was entered. The second major part is £100 stay for a 16 minute overstay, and an overall stay of 36 minutes in a Tesco express car park. I think you'll agree that this is grossly inflated.




    Claim Number: F5FC7315

    BETWEEN:

    ParkingEye Ltd (Claimant)

    vs

    xxx (Defendant)

    The claim is denied in its entirety.




    1. The Unfair Terms in Consumer Contract Regulations 1999 applies

    2. The signage does not offer a contract with the motorist

    3. The Consumer Contracts (Information, Cancellation and Additional Charges)

    Regulations 2013 applies

    4. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable

    penalty




    The Defendant is the registered keeper of the vehicle in question. The Claim relates to an

    alleged debt in damages arising from a driver's alleged breach of contract, when parking at car

    park on xx/xx/2018 from xx.xx.xx to xx.xx.xx.




    The defence asserts that they are not liable to the Claimant for the sum claimed, or any amount

    at all. Any breach is denied, and it is further denied that there was any agreement to pay the

    Claimant's £100.00 'Parking Charge Notice (‘PCN’)’, for the following reasons, any one of which

    is fatal to the Claimant's case.




    The claimant has not provided enough details in the particulars of claim to file a full defence. In

    particular, the full details of the contract which it is alleged was broken have never been

    provided. As the claimant has not provided this information, signage details have been inferred

    from stock photographs and the details may not be correct. Minor variants in text may occur. All

    references to signage therefore, are subject to change once the full particulars of claim have

    been provided.




    1. The Unfair Terms in Consumer Contract Regulations 1999 applies




    1.1. It is asserted that the Claimant’s charges are unlawful, as they are in breach of

    the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation

    8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing

    that an unfair term is not to be binding on the consumer), which is to redress the

    imbalance between the contracting parties’ bargaining power, and to re-establish

    equality between them, so that the contract terms which bind the parties are such

    as the parties would have agreed if they had negotiated the contract on equal

    terms.




    1.2. The European Court of Justice case of Aziz v Caixa d’Estalvis de Catalunya,

    Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is

    submitted that European Court of Justice decisions must be taken judicial notice

    of by lower courts in England and Wales. The test for unfairness and imbalance

    in that case is as follows (para 77);

    Article 3(1) of Directive 93/13 must be interpreted as meaning that:

    – the concept of ‘significant imbalance’ to the detriment of the consumer must be

    assessed in the light of an analysis of the rules of national law applicable in the

    absence of any agreement between the parties, in order to determine whether,

    and if so to what extent, the contract places the consumer in a less favourable

    legal situation than that provided for by the national law in force. To that end, an

    assessment of the legal situation of that consumer having regard to the means at

    his disposal, under national law, to prevent continued use of unfair terms, should

    also be carried out;

    – in order to assess whether the imbalance arises ‘contrary to the requirement of

    good faith’, it must be determined whether the seller or supplier, dealing fairly and

    equitably with the consumer, could reasonably assume that the consumer would

    have agreed to the term concerned in individual contract negotiations.




    1.3. It is asserted that no reasonable person, of whatever means, would willingly

    agree to pay a charge of £100 as a consequence of staying over free time, if they

    had the opportunity to negotiate the contract on equal terms with the other

    contracting party.




    1.4. It is asserted that any competent solicitor would have negotiated the charge to be

    equal to a genuine pre-estimate of loss, being the normal legal situation provided

    for by the national law in force. ParkingEye’s charges in the original hearing were

    asserted to be an average of around £18 per ticket issued.




    1.5. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v

    Beavis. However, in that case the court applied the wrong test for imbalance

    (para 34 and also para 37, 38)

    The judge […] held that the term did not cause a significant imbalance in the

    parties' rights and obligations because the charge was no greater than that which

    a motorist could expect to pay for overstaying in a municipal car park.




    1.6. It is submitted that the European Court of Justice definition of imbalance must

    take precedence.




    1.7. However, in any case the instant case is not saved from being unfair by Beavis.

    In this particular location council charges for overstay are £50 discounted to £25,

    not £100 discounted to £60. As the charge is 100% greater than that which a

    motorist could expect to pay for overstaying in a municipal car park there is a

    clear imbalance.







    2. The signage does not offer a contract with the motorist

    2.1. The claim is for breach of contract. However, it is denied any

    contract existed.




    2.2. 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 signs are not prominent, clear or legible from all parking spaces contrary to

    the Consumer Rights Act 2015:

    68 Requirement for transparency

    (1) A trader must ensure that a written term of a consumer contract, or a

    consumer notice in writing, is transparent.

    (2) A consumer notice is transparent for the purposes of subsection (1) if it is

    expressed in plain and intelligible language and it is legible.

    The terms on the Claimant's signage are displayed in a font which is too small

    and too high to be read from a passing vehicle, and is in such a position that

    anyone attempting to read the tiny font would be unable to do so easily

    particularly at night in a badly lit area (as applicable for this case.




    2.3. Although the Claimant has not provided a signage map in many of their car parks

    signs are positioned in such a way as to create ‘entrapment zones’ where

    signage is not clearly visible. The Claimant is put strictly to proof that this is not

    the case on this site.

    2.4. It is submitted that the driver therefore, had no access to clear signage, or fair

    opportunity to review terms as the only signage passed, was that at the narrow

    entrance to a small and busy carpark that required driver focus on traffic, not

    signage set out high above eye level and in small font. There are no signs on the

    wall in front of the space occupied by the driver so there was no possibility of any

    contract being entered between the claimant and defendant. It is, therefore,

    denied that the Claimant's signage is capable of creating a legally binding

    contract. The elements of offer, acceptance and consideration both ways have

    therefore not been satisfied and so no contract can exist.




    3. The Consumer Contracts (Information, Cancellation and Additional Charges)

    Regulations 2013 applies




    3.1. The regulations define three types of contracts; distance contracts, on premises

    contract and off-premises contracts.




    3.2. The definitions concern themselves with how a contract is concluded (and in

    particular if face to face contact occurs during this process) and not where the

    contract is eventually performed. Thus, if a consumer books a hair styling

    appointment over the web, that is a distance contract even though they go to the

    salon for the actual styling. If they re-book at the salon, that will be an

    on-premises contract. If they meet their stylist in Tesco, arrange for an

    appointment and immediately phone the salon to confirm, that will be an

    off-premises contract. All these contracts are performed on-premises, but

    concluded in different ways.




    3.3. The regulations define an on-premises contract as:

    “on-premises contract” means a contract between a trader and a consumer

    which is neither a distance contract nor an off-premises contract;




    3.4. Thus a contract cannot be on-premises if it is a distance contract. The regulations

    define a distance contract as:

    “distance contract” means a contract concluded between a trader and a

    consumer under an organised distance sales or service-provision scheme

    without the simultaneous physical presence of the trader and the consumer, with

    the exclusive use of one or more means of distance communication up to and

    including the time at which the contract is concluded;




    3.5. This is clearly an organised service-provision scheme (for parking). The contract

    is clearly concluded without the simultaneous physical presence of the trader and

    the consumer.There is clearly the exclusive use of one means of distance

    communication (signage) up to and including the time at which the contract is

    concluded.




    3.6. This is therefore a distance contract.




    3.7. None of the exemptions in regulation (6) apply. No vending machine or

    automated premises was used to conclude the contract. Any contract would be

    concluded by parking and walking away.




    3.8. Regulation 13 lists information to be provided before making a distance contract.

    The contract fails to provide the required information listed in Schedule 2 or a

    means to have a copy of the contract on a durable medium. Accordingly, 13.1

    states the contract is not binding on the consumer.




    4. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable

    penalty




    4.1. The claim is for breach of contract. In such cases, it is trite law that any charge is

    intended to put the recipient back in the position they were had the breach not

    occurred. If the charge is larger, as in this case, then it is a penalty and the whole

    charge is unenforceable.




    4.2. In this case equivalent council fines are £25 rising to £50 after 14 days. In

    comparison to this the sum demanded is clearly far more than that needed to

    deter, far more than genuine losses, and is therefore disproportionate, especially

    so in this case, where a £100 charge equates to a 16 minute overstay, on a

    non-chargeable period of 20 minutes. A total parking time of 36 minutes does not

    equate to a charge of £100.




    4.3. As previously explained, the parking charge amount is due to the landowner, not

    the claimant. The Claimant collects it on the landowner’s behalf. The Claimant

    has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged

    overstay. There is no initial loss to the Claimant, and they have no standing to

    bring any case.




    4.4. 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.




    4.5. The charge for breach of contract is collected on behalf of the landowner,

    according to clause 3.11 of the landowner contract. However, all costs for issuing

    tickets are borne by ParkingEye. The landowner therefore suffers no loss at all.

    This bizarre business arrangement means that there is no cause of action.




    4.6. The Claimant may rely on the ruling of ParkingEye v Beavis, held in the court of

    appeal in February 2015. This case has since been heard in the Supreme Court.

    Consideration should therefore be given to staying this case until the judgment is

    handed down.




    4.7. Each case must turn on its own fact and the facts of that case are different to

    this.




    4.8. The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss

    it could nevertheless be saved as a penalty if (i) there was social justification, and

    (ii) the charge was no more than needed to deter, which was established by

    comparison with council charges at that site.




    4.9. The social justification was because the car park was in a town centre and so

    might be abused by commuters who stayed all day. Additionally it was alleged

    that retailers would suffer if motorists stayed longer than allowed, and other

    motorists would not be able to find a space when they wanted to shop.

    ParkingEye have not established any social justification in this particular case.




    4.10. Additionally the sum is roughly equivalent to a week’s state pension or a day and

    a half take home pay at average earnings. It is therefore a huge sum, completely

    disproportionate to the costs involved in any overstay.




    4.11. Solicitor Costs

    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 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.




    4.12. Additionally, as this is already included as part of the costs of the claimant,

    factored into the £100 parking charge, this is essentially double charging.




    4.13. To put this into context, if the work was done by an outside solicitor who charged

    ParkingEye £10 (which is believed to be the going rate for this type of work) then

    ParkingEye would only be able to claim £10, and not £50.




    4.14. The defendant therefore puts the claimant strictly to proof, by way of timesheets

    or otherwise, that work was done by the litigant’s expert staff to the value of £50.




    4.15. 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.




    4.16. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v

    Mrs S, claim number B9FC508F.



    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.




    Signed: THE DEFENDANT
    Last edited by hannah141; 16th February 2019, 16:10:PM. Reason: removed claim number and corrected numbering
    Tags: None

  • #2
    Just seen that all my numbering messed up on paste, I'll get it sorted!

    Comment


    • #3
      If you need extra reading try this website.

      They specialise in driving & parking issues & they have a good forum too http://www.pepipoo.com/

      Comment


      • #4
        You seem to have found someone else's old defence and copy and pasted it without reading and understanding.

        You will be hit by Beavis. Beavis was found that it was a penalty and was justified for commercial reasons in order to allow a turn around of patrons. You are in exactly the same situation: a free car park that required a turnover of spaces and a disincentive for staying past the permitted time.

        4.6 is rubbish as the judgement was handed down in 2015

        Comment

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