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Hi,
I received a court claim for a private parking charge related to a 12 minute overstay in a free car park.
The guys and girls over at pepipoo have been great in helping me form my defence statement (I filed for acknowledgement of service last week).
Would any people here mind lending another pair of eyes over my statement? I must admit I borrowed parts from similar cases, but I think is all relevant.
Some have suggested offering the company an amount to settle out of court - If I offered £20 (which they almost definitely would not accept - would that support my defence as I've tried to settle out of court?
Here is my statement, thanks
The keeper of the vehicle was issued a parking charge notice for an overstay of 12 minutes in a 'free' car park, at Flemming Way Retail Park. However the claimant has no cause of action against the defendant on the following grounds;
1. Criminal offence on forming a contract
The Claimant relies on its provision of signage at the site and upon the content of that signage. However, the Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage. At Flemming Way Retail park, “there are no separate applications for advertisement consent”, such that, at the time the driver parked at Flemming Way Retail park, a criminal offence was being committed by the Claimant in order to create a contract with the Defendant. The signage at Flemming Way Retail park is classified in planning law as an advertisement. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display this kind of advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.
The Court’s attention is drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn in particular to paragraph 20 of the Transcript of that case “It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”. Paragraph 28 continues - “cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.” In this case it was not lawful for the Claimant to have in place its signs upon which it relies for the formation of an asserted contract with the Defendant.
If there was a contract between the Claimant and the Defendant, then it was created through an illegal act (the erection of the un-consented signs stating the terms and conditions relied on by the Claimant, and the erection of un-consented ANPR cameras). Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced. Further, it is submitted, it must be contrary to public policy for a court to enforce such a contract whereby a party may profit from its criminal conduct.
It must be noted that, as indicated in the Claimant’s Particulars of Claim, the illegality in this case is central to the formation of the contract and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.
Please note also that none of these issues were argued in ParkingEye v Beavis [2015] UKSC 67 (the Beavis case).
2. The signage was insufficient; No sign was within readable distance from the location at which the vehicle was parked, photographs provided show this. Therefore neither the driver nor the defendant are aware of any contract with ParkingEye. Neither the defendant nor the driver have ever entered any contract with ParkingEye, nor any other business at Flemming Way Retail Park.
3. The signage states that the car park is for customers only. However the driver was not a customer; therefore the formation of such a contract between the Defendant and the Claimant is not possible.
4. Failure to adhere to paragraph 2.4 of the BPA Code Of Practice.
Paragraph 2.4 of the BPA Code Of Practice states that “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” The Claimant failed to apply for advertisement consent for their signs, and failed to apply for planning permission for their cameras, which means the Caimant illegally erected signs and cameras to attempt to form a contract with the driver(s). They have hence clearly breached paragraph 2.4 of the BPA Code of Practice. If there is any liability argued on the part of the Defendant then it is submitted that a contractual term cannot be fair if the requirements of the Code of Practice are disregarded and a crime has been committed to create that term and/or the contract between a motorist and the parking enforcement company.
Compliance to the Code of Practice was not only to ensure the best practice of the industry, but also an obligation required in order to access details from the DVLA database; In the case of ParkingEye Limited v Beavis paragraph 111; "while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced."
The contract of KADOE / Keeper of a Vehicle at the Date of an Event between the Claimaint and the DVLA requires compliance with the BPA Code of Practice;
A6.1. The Customer shall at all times be a member of a DVLA Accredited Trade Association (“ATA”) and maintain membership of the ATA and comply with the ATA’s Code of Practice or Conduct.
The Claimant is required to comply with the BPA code of Practice as stated in A6.1 stated above. Failure to comply with the Code of Practice, had the DVLA been aware of this failure, would have caused them to be denied access to records from the DVLA database.
A5.1. The Customer shall at all times comply with Law and Industry Best Practice in carrying out its obligations under the Contract.
It would be a reasonable assumption that if the DVLA knew an unlawful act was being perpetrated at the time of the acquisition to their database they would have denied access for reasons of integrity to their own set standards. It would also be a reasonable assumption that if the DVLA found out out at a later stage of an illegality, they would prevent the continued use of the gained data. The DVLA does not have a sliding scale of unlawfulness. An unlawful act in the application of the business of their own parking management would be assumed to be a breach of the compliance requirements.
5. On returning to the vehicle, the driver found there to be a flat tyre on the vehicle, which took 10 minutes to resolve in order for the vehicle to begin it's exit from the car park. Therefore any contract would have been made void by by Frustration of Contract.
Upon beginning the exit from the car park, along with other traffic and on a busy Friday afternoon, an RAC van was blocking the exit route of the one-way system, while attending a customer.
It is stated in the British Parking Associations Code of Practice, section 13 - Grace Periods:
13.2) You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go.
13.4) You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before
you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end
of the parking period should be a minimum of 10 minutes.
The driver should have also been granted exta time upon entering the car park - Kelvin Reynolds of the British Parking Association states “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
Given the above quoted minimum 10 minutes grace period, plus the above quoted 5 or 10 minutes' observation period, the driver was well within this allowance of 15 or 20 minutes' grace plus observation period.
6. Failure to comply with the Protection of Freedoms Act.
The Protection of Freedoms Act 2012 Schedule 4 has not been complied with. The registered keeper has not been proven to be the driver, as such the keeper can only be held liable if the Complainant has fully complied with the strict requirements. PATAS and POPLA Lead Adjudicator and Barrister, Henry Michael Greenslade, clarified that with regards to keeper liability. “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort” (2015).
7. Case distinguished from ParkingEye v Beavis
This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landholder. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park for free. None of this applies in this material case, where the Claimant did not adhere to the law, did not adhere to the BPA Code Of Practice, no contract was formed, and no overstay occurred.
8. Costs
The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described some costs as "legal representative's costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver
I received a court claim for a private parking charge related to a 12 minute overstay in a free car park.
The guys and girls over at pepipoo have been great in helping me form my defence statement (I filed for acknowledgement of service last week).
Would any people here mind lending another pair of eyes over my statement? I must admit I borrowed parts from similar cases, but I think is all relevant.
Some have suggested offering the company an amount to settle out of court - If I offered £20 (which they almost definitely would not accept - would that support my defence as I've tried to settle out of court?
Here is my statement, thanks
The keeper of the vehicle was issued a parking charge notice for an overstay of 12 minutes in a 'free' car park, at Flemming Way Retail Park. However the claimant has no cause of action against the defendant on the following grounds;
1. Criminal offence on forming a contract
The Claimant relies on its provision of signage at the site and upon the content of that signage. However, the Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage. At Flemming Way Retail park, “there are no separate applications for advertisement consent”, such that, at the time the driver parked at Flemming Way Retail park, a criminal offence was being committed by the Claimant in order to create a contract with the Defendant. The signage at Flemming Way Retail park is classified in planning law as an advertisement. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display this kind of advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.
The Court’s attention is drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn in particular to paragraph 20 of the Transcript of that case “It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”. Paragraph 28 continues - “cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.” In this case it was not lawful for the Claimant to have in place its signs upon which it relies for the formation of an asserted contract with the Defendant.
If there was a contract between the Claimant and the Defendant, then it was created through an illegal act (the erection of the un-consented signs stating the terms and conditions relied on by the Claimant, and the erection of un-consented ANPR cameras). Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced. Further, it is submitted, it must be contrary to public policy for a court to enforce such a contract whereby a party may profit from its criminal conduct.
It must be noted that, as indicated in the Claimant’s Particulars of Claim, the illegality in this case is central to the formation of the contract and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.
Please note also that none of these issues were argued in ParkingEye v Beavis [2015] UKSC 67 (the Beavis case).
2. The signage was insufficient; No sign was within readable distance from the location at which the vehicle was parked, photographs provided show this. Therefore neither the driver nor the defendant are aware of any contract with ParkingEye. Neither the defendant nor the driver have ever entered any contract with ParkingEye, nor any other business at Flemming Way Retail Park.
3. The signage states that the car park is for customers only. However the driver was not a customer; therefore the formation of such a contract between the Defendant and the Claimant is not possible.
4. Failure to adhere to paragraph 2.4 of the BPA Code Of Practice.
Paragraph 2.4 of the BPA Code Of Practice states that “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” The Claimant failed to apply for advertisement consent for their signs, and failed to apply for planning permission for their cameras, which means the Caimant illegally erected signs and cameras to attempt to form a contract with the driver(s). They have hence clearly breached paragraph 2.4 of the BPA Code of Practice. If there is any liability argued on the part of the Defendant then it is submitted that a contractual term cannot be fair if the requirements of the Code of Practice are disregarded and a crime has been committed to create that term and/or the contract between a motorist and the parking enforcement company.
Compliance to the Code of Practice was not only to ensure the best practice of the industry, but also an obligation required in order to access details from the DVLA database; In the case of ParkingEye Limited v Beavis paragraph 111; "while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced."
The contract of KADOE / Keeper of a Vehicle at the Date of an Event between the Claimaint and the DVLA requires compliance with the BPA Code of Practice;
A6.1. The Customer shall at all times be a member of a DVLA Accredited Trade Association (“ATA”) and maintain membership of the ATA and comply with the ATA’s Code of Practice or Conduct.
The Claimant is required to comply with the BPA code of Practice as stated in A6.1 stated above. Failure to comply with the Code of Practice, had the DVLA been aware of this failure, would have caused them to be denied access to records from the DVLA database.
A5.1. The Customer shall at all times comply with Law and Industry Best Practice in carrying out its obligations under the Contract.
It would be a reasonable assumption that if the DVLA knew an unlawful act was being perpetrated at the time of the acquisition to their database they would have denied access for reasons of integrity to their own set standards. It would also be a reasonable assumption that if the DVLA found out out at a later stage of an illegality, they would prevent the continued use of the gained data. The DVLA does not have a sliding scale of unlawfulness. An unlawful act in the application of the business of their own parking management would be assumed to be a breach of the compliance requirements.
5. On returning to the vehicle, the driver found there to be a flat tyre on the vehicle, which took 10 minutes to resolve in order for the vehicle to begin it's exit from the car park. Therefore any contract would have been made void by by Frustration of Contract.
Upon beginning the exit from the car park, along with other traffic and on a busy Friday afternoon, an RAC van was blocking the exit route of the one-way system, while attending a customer.
It is stated in the British Parking Associations Code of Practice, section 13 - Grace Periods:
13.2) You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go.
13.4) You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before
you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end
of the parking period should be a minimum of 10 minutes.
The driver should have also been granted exta time upon entering the car park - Kelvin Reynolds of the British Parking Association states “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
Given the above quoted minimum 10 minutes grace period, plus the above quoted 5 or 10 minutes' observation period, the driver was well within this allowance of 15 or 20 minutes' grace plus observation period.
6. Failure to comply with the Protection of Freedoms Act.
The Protection of Freedoms Act 2012 Schedule 4 has not been complied with. The registered keeper has not been proven to be the driver, as such the keeper can only be held liable if the Complainant has fully complied with the strict requirements. PATAS and POPLA Lead Adjudicator and Barrister, Henry Michael Greenslade, clarified that with regards to keeper liability. “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort” (2015).
7. Case distinguished from ParkingEye v Beavis
This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landholder. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park for free. None of this applies in this material case, where the Claimant did not adhere to the law, did not adhere to the BPA Code Of Practice, no contract was formed, and no overstay occurred.
8. Costs
The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described some costs as "legal representative's costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver
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