PARKINGeye wrong address at county court claim stage

[Happygoodman]

I think that paying the money does not mean that we had read and understood the terms and cons. We had paid but not with full understanding of terms due to signage.

apologies for my ramblings!!

on.another note, it turns out that xxxxxx pub are the landowners. I have the map. So twice they asked to cancel 'fine'.

[charitynjw]

They've come through with amendment stating that the clear signage gave cost and hours of stay and that we exceeded this either side by 47 mins (no mention of grace period). Now I can get defence in order! If only!
One question: obviously the signage was very poor but can't they argue that because we paid for a ticket we must have understood the terms. My argument back is that the terms were still not clear neither was it clear we were in a fully functioning carpark or who's carpark it was but we paid it to be on the safe side and in.hurry due to 5 min rule. So we kind of eventually knew we were in.a carpark but the terms were not clear all.the same. IYHO, will that stand?

Could you post up (or type verbatim) a redacted copy of the Particulars?

[Happygoodman]

Sure, why I didn't do it in the first place.
If can't read, I'll just type it up.

[charitynjw]

PE's notices to keepers are usually fairly compliant with PoFA, but just in case, could you post up the original one? (Not reminders.)
Front & rear, redact personal info but leave all times/dates visible.

Has the court asked you for an amended defence to the amended Claimant PoC?

Have you been given directions re allocation to track/venue/ & swapping evidence etc yet?

[Happygoodman]

With POFA, do you mean the original, first letter?

court not asked for an amended defence. Can I apply and how go about it if can.

no been given directions yet to track /venue etc etc as far as I know.

[charitynjw]

With POFA, do you mean the original, first letter?
Yes, the original (first) postal notice to the registered keeper.

court not asked for an amended defence. Can I apply and how go about it if can.
It would seem to me to be only fair (just) that an amended Particulars of Claim should trigger the right to an amended defence, if necessary.
& as the other party were given the opportunity of doing so FOC, it should follow that the Defendant is given the same opportunity.
I'd email the court accordingly to 'voice' my concerns (providing that an amended defence is warranted or desirable, that is.)


no been given directions yet to track /venue etc etc as far as I know.
Ok.

####

[Happygoodman]

This I took from PE defence documents. I do not have any copies other than CC claim as moved out of house and area a month before they sent this and mail got lost with building work and people staying there. Only received CC Claim (by lucky chance) at year later when house was sold and emptied. Will email court now. Spoke to them. Judge normally sends a defence amendment but hasn't yet. She said he was a really cool judge!

[Happygoodman]

Darn, in.a hurry, i've sent the reminder but it is exactly the same on page 1 with car pics.
However, Page 2 of original is blank, taken from their defence documents. So im guessing p2 of reminder above is same as original.

[charitynjw]

Darn, in.a hurry, i've sent the reminder but it is exactly the same on page 1 with car pics.
However, Page 2 of original is blank, taken from their defence documents. So im guessing p2 of reminder above is same as original.

Re PE NtKs, the 2nd page (rear) usually has many of the important bits. (Parking Charge info, invitation to ID the driver, etc.) & as these are mandatory (ie must be included) for the NtK to be compliant, it follows that it must be evidenced exactly what was included.
But imho, the chances that it will not be included in their trial bundle is fairly slim....they are more likely to say that it's non-disclosure was an unfortunate oversight.
If the original NtK is substantially the same as that reminder, imho it is pretty compliant.
As previously stated, PE usually are pretty spot on with their NtKs, but it's always worth scrutinising, just in case.......

[ostell]

So what matters is the original Notice to keeper. Idf, as you say, the reverse is blank then you ave a valid case that they did not comply with the requirements of POFA and therefore they cannot hold the keeper liable. The compliant NTK has to be delivered within 14 days. It sounds as though it wasn't so there can be no keeper liability. Work on that one.

[Happygoodman]

Yes but because the original NTK I received is lost and the one I emailed to you guys I have taken from their evidence pack, surely they can get away with saying as NJW Charity says that its 'an unfortunate oversight'. Or do Park Eye, HAVE TO produce evidence exactly to how it is when they sent original NTK? I just don't know these details.
See pic emailed of the reverse of their NTK in their evidence and it contains the rest of their defence.

[ostell]

Taken from their documents that they will submit to court then that's what you use.

So you'll be going with the out of time as well, and all the other items that are missing

[Happygoodman]

But both letters were issued within 9 days going on their a small date at the bottom of each one.
PCN: 30/08/2018
PCN reminder with page 2 filled: 08/09/2018

So is it 14 days from.date issue or date of event which is 24/08/2018?

[Happygoodman]

Okay, it is from day when parked allowing one extra day so using their evidence they are non compliant as 16 days over. As I didn't see the original then I can only go by the evidence they've submitted.

[Happygoodman]

Hi, thanks for checking the first letter!
Below is my amended defence. I have to send it back in about 4/5 days. Do I use 'exhibit' for paperwork such as from BPA? The headlights I've cut and pasted and need to go away and get some extra info on. I hope its not too over written and I have used Cargius Case correctly.
Here we go:

1. Parking Eye confirm that their claim is brought under Schedule 4 of the Protection of Freedoms Act 2012. Parking Eye did not comply with the requirements of POFA and therefore cannot hold the keeper liable. The first letter (issued six days after offence) does not contain on the reverse mandatory information (as shown in the Parking Eye’s evidence): PARKING CHARGE INFORMATION; PROTECTION OF FREEDOMS ACT; APPEALS AND COMPLAINTS PROCEDURE AND PRIVACY INFORMATION. The reminder letter contains this information and was sent 9/9/2018 which is 16 days later from offence making Parking Eye non-compliant with the POFA 14 day rule. (Exhibit AA)
2. The signage at the site was a trap: confusing, contradictory, placed the wrong way round to the natural flow of traffic, unkempt and dilapidated. It contravened the British Parking Association (BPA) code of conduct. It was not ‘ample, clear and visible’ as stated by Parking Eye in their defence. Due to the appalling signage the defendant was not sure if they were in a fully functioning carpark or a carpark that had been closed down and the defendant was unable to read the terms and conditions. No contract was agreed upon between parking eye and the defendant.

1. The defendant thought they were entering a pub carpark.
2. There is no mention of paid parking on the side of the pub. (Exhibit A)
3. The entrance to the pub carpark requires a sharp left turn into a dark tunnel. The driver’s focus is pulled to the back of the carpark as they take the manoeuvre making it easy to miss the three signs to the right of their vision. (Exhibit B)
4. The three signs are too close together rendering them confusing. The signs were contradictory with the pub sign reading: ‘THE xxxxxxxxx Hotel and Pub CAR PARK Patrons only.’ No mention of paid carpark. (Exhibit C)
5. The signage in the tunnel could not be seen even in broad daylight. Headlights on did not illuminate the signs. It is not the responsibility of the driver to supply illumination. Vehicle headlights are not designed for the purpose of illuminating signs, especially relatively small ones. (ie compare size with, say, motorway signs.)
   How do they know there is sufficient ambient light?
   Have they used a lux meter? (Exhibit D)
6. As you exit the tunnel there are no signs ahead (Exhibit E)
7. The signage to the left of the pub was facing the wrong way as was the ticket machine which seemed to blend in with black beams and poles of the pub building.(Exhibit F)
8. As the driver turned to the right centre of the carpark the signage to the left was unclear as it was half concealed by a car with foliage growing down over the Parking sign and could easily be missed as the driver’s focus was at a space to the right. (Exhibit G)
9. When parked the nearest signage in the carpark was to the left of the car and its dilapidated state made it unintelligible. In fact the eye is drawn to the larger sign: ‘academy of music and sound’. All confusing. (Exhibit H, I J)
10. No visible signage facing the pub. (Exhibit K)
11. Signage behind the car was too far away to be visible and blended in with the woods and foliage. (Exhibit L)

I would respectfully direct the court to Section 64 of the Consumer Rights Act 2015 regarding transparency & prominence. (Exhibit M)
The British Parking Association (BPA) states in their Code of Practise:
‘The contract is offered by the signage.’
‘The carpark should be ‘in good working order.’
The terms and conditions, which the driver ‘should be made aware of from the start.’
‘Signs must be conspicuous and legible, and written intelligible language, so that they are easy to see, read and understand.’ (Exhibit N)

1. The signage right by the pub entrance is confusing and illogical. The sign reads: ‘waiting is strictly limited to 5 mins-tariffs thereafter. Failure to comply with the terms and conditions will result in a Parking Charge of £100.’

1. It faces the wrong way as you enter the carpark therefore you cannot read it until you are parked and have reached the entrance of the pub.
2. The 5 min ‘grace period’ is utterly ludicrous because it takes 5 mins or more to enter, park, get the family out of the car, walk over and read the terms. In addition, the fact that Parking Eye suggest in their defence that the defendant should have gone into the pub to ask about the location of the ticket machine is ironic and ludicrous as they’re breaking their own ‘5 min’ rule by suggesting it as there is no time within ‘5 min’ to enter the pub and ask questions. (Exhibit O)
3. There was no adequate notice of the terms and conditions.

1. The ticket machine was small and faced the wrong way to the sign. There was no information on the ticket machine other than a tariff and no signage left or right of the payer’s vision. A sum of £8 was paid for four hours. The driver paid in a hurry confused about which carpark they were in and thinking that they had originally entered a free pub carpark to discover suddenly that this was not case. (Exhibit P)
2. Due to the very poor signage, the defendant was not aware that APNR was being used.

The BPA states that APNR must be used in a ‘consistent and transparent manner…signs must tell drivers that you are using this technology.’

1. The Claimant states that the defendant was 47 mins over the four hour period. The Claimant takes this information from their APNR which records the car entering and leaving. It does not take into account the defendant finding a space, parking, getting out etc. -and has not included the ‘minimum of 10 mins’ grace period as set out by the BPA.
2. The charge for overstaying as shown on the signage by the ticket machine (£100) is vastly disproportionate to the level of Parking Eye’s loss. We would like to respectfully draw the Court’s attention to paragraph 13 of the Cargius case, 25^th November 2014. Deputy District Judge C. Mahy states: ‘Mr Cargius paid £4.00 for a four hour stay and, had he fully appreciated the fact that he could have paid for an extra two hours before leaving the carpark, the additional cost to him would have been £2.00. It therefore appears in my judgement that Parking Eye accept that there is no real loss to them by motorists overstaying, provided that they pay a further parking time at the advertised rate before they leave the car park. I accept that once a motorist fails to comply with the terms and conditions searches have been made of the DVLA, letters sent out and so on but in my judgement, and without any evidence to the contrary, the charge in this case of £100.00 is likely on the balance of probabilities to far exceed the actual loss to the Claimant. Furthermore, the wording on the signage ‘failure to comply with this will result in a parking charge of £100.00’ is in my judgement totally disproportionate to the level of Parking Eye’s loss. It is in my judgment a penalty and therefore unenforceable.’(Exhibit Q)
3. The carpark was not a free carpark as it was in the Parking Eye V Beavis case (2015) where Lord Mance remarked that ‘what matters is that a charge of the order of £85…is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.’

We would draw the courts attention to the Cargius Case again. Judge C. Mahy remarks ‘Beavis…dealt with FREE carpark where only charges recovered by Parking Eye were from motorists who overstayed. Thus it was argued that the parking charge of £85.00 levied on overstays was commercially justifiable, as this was the only revenue received by Parking Eye for managing what was otherwise a free carpark. This was not the case here. Parking Eye are charging a significant sum of money to motorists…who park for two to four hours pay a £1.00 per hour…’
13. The defendant did not receive correspondence from Parking Eye as they had moved house and area 13^th Feb 2018. The defendant only received the county court letter by chance from builders when the house was sold a year later. The defendant had no choice but to proceed. The defendant tried to mediate with Parking Eye.