Parking Eye Court Claim

[ab2175]

Re: Parking Eye Court Claim

Hi M1,

Have now submitted AoS and now need to write my defence. Any help appreciated. Once again thanks for your time

AB2175

[mystery1]

Re: Parking Eye Court Claim

Will get on it asap.

M1

[mystery1]

Re: Parking Eye Court Claim

A defence should look like http://www.compactlaw.co.uk/free-leg...t.html#Defence. So make sure you put the header and footer on. The meat in the middle is case specific so that is below.


1. Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre action correspondence.


2. I am the Defendant, xxxxx, a brain surgeon.


3. I am the registered keeper of vehicle, registration number xxxxx.

4. I do not have, and never have had, a permit for parking at Wigmore park district centre.

5. It was dark at the time of the parking event as can be seen from the anpr images.

6. The signs are not illuminated upon a subsequent inspection.

7. The claimant contends that there is a "the contract" and this allows the claimant to pursue the registered keeper under the protection of freedoms act 2012 schedule 4.

8. I deny that the strict terms of schedule 4 have been complied with and as such that any keeper liability exists. The particulars of claim only mention the registered keeper and as such the claim should be dismissed.

9. Schedule 4 states that in order to pursue the registered keeper certain criteria need to be fulfilled.

1(1)This Schedule applies where—


(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and


(b)those charges have not been paid in full.


(2)It is immaterial for the purposes of this Schedule whether or not the vehicle was permitted to be parked (or to remain parked) on the land.

Relevant obligation is defined as

“relevant obligation” means—
(a)an obligation arising under the terms of a relevant contract

Relevant contract is defined as

“relevant contract” means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—
(a)the owner or occupier of the land; or
(b)authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land;


10. For a contract to exist there must be offer, consideration and acceptance. There is clearly no contract at all. The signage, and particulars of claim confirm this, state you can only park with a valid permit "permit only" there is no offer to park for £100 and as such no consideration or acceptance on either side. There.. clearly is no "relevant contract" OB Services v Thurlow on appeal in Worcester county court claim number 0QT34807 10th February 2011

11. Without a relevant contract there can be no keeper liability under schedule 4. The claim must fail.

12. Clearly the £100 charge is to act as a deterrent and is thus an unenforceable penalty. It is designed to stop unwanted parking and bears no resemblance to a genuine pre estimate of loss. Dunlop Pneumatic Tyre Co. Ltd v Selfridge & Co.Ltd[1915] clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss.

13. Patrick Troy, CEO of the BPA, said when giving evidence to the Public bill committee in the House of Commons in 2010 said “ Two things that consumers most when they use car parks, whether local authority car parks or private. One is the size of the penalty charge and the other is the lack of signage. We tackled those two issues head on in our code of practice. You will find that the charge is more or less similar to that in the local authority sector. We try to base it, as far as possible, on that.”


“The lack of understanding among the public of the distinction between a local authority-maintained car park and a private car park is a major concern. I do not have the solution for that, because you will always have private car parks and you will always have local authority car parks. In developing our code of practice, when dealing with the level of charge, we tried to reflect what goes on in the wider regulated world, and I think we have done that. That is not to say that no more can be done—more can certainly be done. I have said several times that our scheme is not perfect, but at least it is doing something to try to bring people in line with what one might regard as some common sense.”


“You mentioned fast food outlets. The other point that I was going to make is that landowners have a role to play in this too. Landowners often require the operator to carry out certain activities, even though the operator might advise against doing so. From a commercial perspective, I would not have thought that there was any value in a company hugely penalising its customers, so the company must think that it is penalising people who are not its customers. We clearly need some proportionality. In trying to find a resolution to this problem, we need to understand that it is not only the operators who are involved, but the landowners who employ them.”


“I agree with that approach. Our code currently requires the operator to put in place signs indicating his or her name and address and contact details. We go further than that and say it should not be a premium telephone line or a mobile number; it should be a landline, so that the individual can make easy contact with the clamper. It would make a lot more sense for the landowner to be required to do that. Operators would not have to do it, so I am sure they would support such a measure. That seems to be sensible.
I agree about the level of the charge; it has to be proportionate and reflect local conditions, and it should reflect what is going on in the wider community. It comes back to what the consumer regards as fair. If consumers see a particular penalty charge in a local authority car park, they will not understand why in the car park next door the charge is significantly higher or—less likely—lower.
There needs to be some uniformity for the public to understand, but not to mimic that situation. That comes back to Ms McIsaac’s point, that you cannot have a situation where private operators mimic local authority legislation in issuing “penalty charge” notices, that appear to the consumer to be from someone in public authority. There is a balance to be struck between those two things.”


And this exchange which highlights only actual damages can be recovered


“Q15 Tony Baldry [MP for Banbury]: “I was concerned by Mr. Troy’s suggestion that in this part of
the Bill we were simply displacing clamping to private firms’ ticketing. It would be helpful if we could
remind ourselves where we are. This is a trespass. It is a civil tort. It is not a criminal offence.
Professor King in his opening comments talked about the punishment not fitting the crime. There is
no constitutional right for a private citizen to punish another private citizen. We are where we are
because of the case of someone who parked in Exeter: the divisional court said that if you park
where a sufficiently clear notice is placed, you are inviting someone to clamp you...
“But that case gave no authority for fines. It gave no authority to impose a ticket. Otherwise you have
to go to the small claims court or prove damage. What possible authority, Mr. Troy, do your members
have to impose tickets on individuals? If you are to go around imposing tickets on individuals, clearly
the Bill needs to deal with that as well, does it not?”
Patrick Troy [Chief Executive, British Parking Association]: “Absolutely. It should deal with both
issues in order to control both issues. This is an entirely unregulated sector. What the private
companies do on private land is unregulated both from their perspective and from the public’s
perspective. Therefore, there needs to be some form of regulation. Through the DVLA route some
legitimacy has been given to ticketers because only those ticketers that are members of an
accredited trade association can access keeper details. That gives the ticketing fraternity some
legitimacy. But the Bill needs to address both these areas if it is to control parking properly.”
Q16 Tony Baldry: “But if I park on your land and you send me a ticket in the post, which I tear up
and then throw away, your only redress is to issue proceedings against me in the small claims court
where you have to prove that I caused damage by parking where I parked and you have to prove the
measure of that damage. That is right, is it not?”
Patrick Troy: “That is absolutely right.””

14. I assert that if the Claimant is levying a contractual charge, that is a
breach of the Unfair Terms and Conditions in Consumer Contract Regulations1999.
Schedule2 Paragraph 1: “.....terms may be unfair if they have the object or effect of:
(e) requiring any consumer who fails to fulfilhis obligation to pay a disproportionately high
sumin compensation.


UnfairTerms
5(1)A contractual term which has not been individually negotiated shall be regarded as
unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the
parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2)A term shall always be regarded as not having been individually negotiated where it
has been drafted in advance and the consumer has therefore not been able to influence the
substance of the term.


And from the Office of Fair Trading, Unfair Contract Terms Guidance:
Itis unfair to impose disproportionate sanctions for breach of contract. A requirement to pay
more in compensation for a breach than a reasonable pre-estimate of theloss caused to the
supplier is one kind of excessive penalty. Such a requirement will, in anycase, normally be
void to the extent that it amounts to a penalty under English commonlaw...''


Group 18(a): Allowing the supplier to impose unfair financial burdens
18.1.3 These objections are less likely to arise if a term is specific and transparent as to what
must be paid and in what circumstances. However, as already noted,transparency is not
necessarily enough on its own to make a term fair. Fairness requires that the substance of
contract terms, not just their form and the way they are used, shows due regard for the
legitimate interests of consumers. Therefore a term may be clear as to what the consumer has
to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract...


Group 18(h):Unreasonable ancillary obligations and restrictions
18.8.1 There is a clear risk of unfairness where terms put consumers at risk of incurring
contractual penalties that are more severe than is necessary to protect the real interest of the
supplier. This form of unfairness most obviously arises where a term provides for an excessive penalty...


Group 19: Regulation 7 – plain and intelligible language
19.14The concern of the Regulations is with the 'object or effect' of terms, not their form. A
term that has the mechanism of a price term...will not be treated as exempt if it is clearly
calculated to produce the same effect as an unfair exclusion clause, penalty,variation clause or
other objectionable term.


15. I deny that I am liable to the Claimant forthe sums claimed, or any amount at all. Iinvite the Court to strike out the claim as beingwithout merit, and with no realistic
prospect of success.



M1

[ab2175]

Re: Parking Eye Court Claim

Dear M1,

Thanks so much for your time and effort. Very much appreciated. It is about time the government put an end to this shambolic behaviour!!

Best regards AB2175

[ab2175]

Re: Parking Eye Court Claim

Hi M1,

Received this yesterday. "Notice of Proposed Allocation to the Small Claims Track" and also Directions questionnaire.

It states on the letter that this is now a defended claim and that it is suitable for allocation to the small claims track.

Do I just fill it in and say I do not agree or is there more to it than that??

Thanks in advance

AB2175

[mystery1]

Re: Parking Eye Court Claim

http://www.legalbeagles.info/forums/...l-Claims-Track

Pretty much just fill it in.

I would also include a letter requesting a stay to await the Beavis case http://parking-prankster.blogspot.co...urt-cases.html which is scheduled for February.

M1