Parking Eye, Court papers recieved from Northampton.

**mystery1** · 11th July 2013, 14:29:PM

Re: Parking Eye, Court papers recieved from Northampton.

Are they chasing the registered keeper or the driver? If it's the registered keeper do not admit who was driving and delete all references to the driver above. Replace with "the driver".

Who does the car park belong to ?

M1

**bluebottle** · 11th July 2013, 15:03:PM

Re: Parking Eye, Court papers recieved from Northampton.

It is becoming clearly evident that PPCs are misrepresenting the Protection of Freedoms Act 2012 (PoFA). This practice needs curbing and quickly. I would not be at all surprised to see all and any of Parking Eye's contested claims struck-out or withdrawn at the last minute. The feature on last night's episode of BBC TV's "Your Money, Their Tricks" (Hope I've got that right.) exposes some of the more insidious tactics PPCs wil use in their desperation to grab motorists' money. A legal professional who was on the programme, made it quite clear that unless they can prove actual loss suffered, they haven't a cat in hell's chance of getting any money out of a motorist. If the PPC is running a Pay & Display car park, then all they are entitled to claim is the fee for the unpaid period of time and no more. I can see PoFA being amended to consign PPCs to the dustbin of history, as happened to clamping firms.

**mystery1** · 11th July 2013, 15:10:PM

Re: Parking Eye, Court papers recieved from Northampton.

Originally posted by bluebottle View Post

It is becoming clearly evident that PPCs are misrepresenting the Protection of Freedoms Act 2012 (PoFA). This practice needs curbing and quickly. I would not be at all surprised to see all and any of Parking Eye's contested claims struck-out or withdrawn at the last minute. The feature on last night's episode of BBC TV's "Your Money, Their Tricks" (Hope I've got that right.) exposes some of the more insidious tactics PPCs wil use in their desperation to grab motorists' money. A legal professional who was on the programme, made it quite clear that unless they can prove actual loss suffered, they haven't a cat in hell's chance of getting any money out of a motorist. If the PPC is running a Pay & Display car park, then all they are entitled to claim is the fee for the unpaid period of time and no more. I can see PoFA being amended to consign PPCs to the dustbin of history, as happened to clamping firms.

Not quite true. They can get any money the motorist hands them, default judgment when the defendant doesn't defend and they may get a judge like DISTRICT JUDGE NIELD case 5 from http://www.penaltychargenotice.co.uk...rking-tickets/ However see case 5a.

M1

**bluebottle** · 11th July 2013, 15:49:PM

Re: Parking Eye, Court papers recieved from Northampton.

Originally posted by mystery1 View Post

Not quite true. They can get any money the motorist hands them, default judgment when the defendant doesn't defend and they may get a judge like DISTRICT JUDGE NIELD case 5 from http://www.penaltychargenotice.co.uk...rking-tickets/ However see case 5a.

M1

Thanks for that , Mystery. It does make one wonder exactly which planet District Judge Nield is on. If the law says you cannot penalise someone through a contract, that is it. The law is pretty clear. It does make me wonder whether the courts were being mislead.

**Talkinman** · 11th July 2013, 15:55:PM

Re: Parking Eye, Court papers recieved from Northampton.

Originally posted by mystery1 View Post

Are they chasing the registered keeper or the driver? If it's the registered keeper do not admit who was driving and delete all references to the driver above. Replace with "the driver".

Who does the car park belong to ?

M1

I do not know who the car park belongs to. It is a small shopping complex with a Mcdonalds, Lidel and various others on. They are chasing the registered keeper.

Is my way forward to respond to the court papers and dispute the claim and let it go forward?? Or to ask for further time to prepare my defense or contest the courts jurisdiction??

**mystery1** · 11th July 2013, 19:57:PM

Re: Parking Eye, Court papers recieved from Northampton.

Unless the registered keeper or the carpark is in England and the other one is in Scotland then no you don't contest jurisdiction. However they need to have jumped through all the hoops to pursue the registered keeper in court. Any failure and you have an even better defence than penalties because the law is crystal clear and should not be ignored. No opinion, just fact so it's very difficult for M'lud dimwit to screw you over.

http://www.parkingcowboys.co.uk/keeper-liability/

M1

**Talkinman** · 1st November 2013, 10:26:AM

Re: Parking Eye, Court papers recieved from Northampton.

Its been a while but the story goes on, I now have a date to attend the Small claims court but have been contacted by the courts Mediation service who indicate that they (Parking Eye) are willing to proceed to Mediation.
Has anyone had experience of the mediation system and how seriously Parking Eye might take this. If I go to Mediation could this have any effect on the small claim if it fails.

**mystery1** · 1st November 2013, 10:44:AM

Re: Parking Eye, Court papers recieved from Northampton.

I don't think i've heard of them doing that before. Usually i'd say they want money, you don't want to give them any so there isn't a middle ground and it's not worth it. However in a bid to appear reasonable to the court i'd accept even if you and i wouldn't expect it to work. The worst that happens is you fail to agree and it proceeds to court.

I take it you entered a defence ?

M1

**Talkinman** · 1st November 2013, 12:12:PM

Re: Parking Eye, Court papers recieved from Northampton.

My thoughts were to accept which I will do. I have entered a defence which they have refuted point by point.

**mystery1** · 1st November 2013, 12:17:PM

Re: Parking Eye, Court papers recieved from Northampton.

Any chance you could post it up ? And their reply to it ?

M1

**Talkinman** · 1st November 2013, 12:38:PM

Re: Parking Eye, Court papers recieved from Northampton.

Their reply is pages and pages of precedents and a full plan of the car park and pictures of the signs as well as the so called authority from the owners of the land who are a firm called "Threadneedle Pensions". If you think it would help I will post up the written pages if I can find my around this computer as I am not very computer literate.

**mystery1** · 1st November 2013, 13:21:PM

Re: Parking Eye, Court papers recieved from Northampton.

Originally posted by Talkinman View Post

Their reply is pages and pages of precedents and a full plan of the car park and pictures of the signs as well as the so called authority from the owners of the land who are a firm called "Threadneedle Pensions". If you think it would help I will post up the written pages if I can find my around this computer as I am not very computer literate.

Like this ?

Reply to Defence

1 ParkingEye agrees with the defendant on this point.

2 ParkingEye does not dispute this.

3 ParkingEye's Parking Charges are issued on the basis of a contract with the motorist, set out
via the signage at the site. The signage sets out the terms and conditions under which a
motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by
parking within a limited stay period or similar, and that a Parking Charge will be payable if
the conditions are not met. We ensure signage is ample, clear and visible in line with the
British Parking Association (BPA) code of practice to ensure that the motorist is bound by
them when they enter and remain at a client site, so that all users of the site are obliged to
follow these rules. This is a matter of contract law. In ParkingEye v Kevin Shelley (2013),
Circuit Judge Dodd stated that a contract can be formed by conduct, not just in writing He
further stated that the contract, as set out on the signage, is clear and certain enough, and that
the terms were clear and easy to understand. He stated that it was not common for the
courts to find penalty terms within a contract. It was further found that, on private land, the
landholder is entitled to set out terms and conditions, subject to law, and that these are fully
enforceable.

3.1 The case of Vine v London Borough of Waltham Forest (2000) proves
particularly useful in respect to the creation of a contract with the driver. It was found
by Lord Justice Waller that:

“Normally the presence of notices which are posted where they are bound to be seen, for
example the entrance to a private car park, which are of a type which the car driver would
be bound to have read, will lead to a finding that the car driver had knowledge of an
appreciated the warning.”

3.2 The driver is not coerced into using the car park. If the driver was not prepared
to agree to the terms and conditions set out on the signage, they should not have used the
car park. However by driving into the car park and parking their vehicle the driver
agrees to the parking terms detailed on the signage. In ParkingEye Ltd v Kevin Shelley
(2013), Circuit Judge Dodd found that, on private land, the landholder is entitled to set
out terms and conditions, subject to law, and that these are fully enforceable.
Furthermore it should be noted that Section 7.1 of the Department of Transport's
guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012 states
that a:

“car park on private land will normally have signs setting out the terms and conditions
upon which parking is offered”.

3.3 In accordance with this ParkingEye's car parks have ample and clear signage that
outlines these terms and conditions. Section 7.1 further states that:

“Drivers can then decide whether or not to accept those terms and conditions. In most
cases a driver who parks in a car park with clear signage setting out the terms and
conditions will be deemed to have accepted the terms and conditions and therefore entered
into a contract to park with the landholder.”

3.4 In this location, as the images attached show, there is clear and ample signage at
the entrance to and throughout the car park. ParkingEye firmly believes that the
defendant entered into a legally enforceable contract.

3.5 In the case, Vehicle Control Systems Ltd v HM Revenue & Customs 2012, the
Upper Tribunal found that:

“On the facts of this case we do not consider that any offer was made by VCS that was
capable of forming the basis for a contract between it and the motorist. VCS was not in a
position, by virtue of its limited licence, to make any offer of a right to park. The ability to
offer such a right was not conferred by the contract with the client, either expressly or by
virtue of the interest in the car park conferred on VCS. That interest did not amount to a
licence to occupy, or give VCS any right to possession. It merely conferred a right of entry
to perform VCS's obligations under the contract.”

3.6 VCS did not have the authority to take legal action in their own name, 'by virtue
of its limited licence”. This does not apply to ParkingEye as our contract with our client
clearly expresses that we can take legal action to recover any unpaid Parking Charges, in
line with the British Parking Association Code of Practice.

3.7 We include a witness statement signed by the landholder confirming that [stet]
had the written authority to issue Parking Charges at this time of this Parking event and
that this authority is contained in a contract. The contract itself contains much
commercial information which is not related to this case and therefore we are disinclined
to divulge it. However, a copy will be made available to the court if requested by the
court.

4 In relation to the value of the Parking Charge, ParkingEye maintains that its charges are fair
and reasonable. Furthermore ParkingEye firmly believes that its Parking Charges are not
punitive or a penalty. A charge of £75 pounds was found by HHJ Hegarty QC in the case of
ParkingEye v Somerfield Stores (2011) to be a reasonable charge and not a penalty, by
which the motorist would be contractually bound.

“I conclude that any motorist using the car park would be contractually bound to pay the
charge of £75 if he exceeded the specified time limit and a demand for payment was made
up on him. Whilst he might argue that the charge in question amounted to a penalty and
was therefore irrecoverable, I think he would probably fail in that contention.” (HHJ
Hegarty QC ParkingEye v Somerfield Stores (2011).

4.1 The case of Combined Parking Solutions v Mr Stephen James Thomas (2008)
provides further evidence that a Parking Charge of a certain value – in this case one that
begins at £60 and rises to £85 and £135 respectively – can be considered fair and
reasonable. District Judge Ackroyd found that these amounts could not be considered as

a penalty. Nor could he find that it was a disproportionately high sum in compensation.
This was upheld by Judge John Robins who ruled that a Parking Charge of £135 was not
unreasonable, being in line with the BPA Code of Practice. Instead he found that it
escalated in accordance with the warnings given and constituted a reasonable charge.
(Combined Parking Solutions v Blackburn [October 2007]).

4.2 Furthermore the figure of £100 has been endorsed as a reasonable upper level of
charging across the industry and both the Parking Charge amounts and the reduction of
40% for early payment within 14 days were prescribed and approved by the British
Parking Association in consultation with the Department for Transport in 2012.

4.3 In Combined Parking Solutions v Dorrington (2012), the Judge stated

“The defendant said to me that there was no loss at all the to client in him parking there. I
do not agree with that because if people keep parking on land over some period of time, the
rights over that land can accrue and it is very important for owners of land to make sure
that those rights do not accrue, as they could lose interest in their land. That alone is a
good and valid reason to stop someone from parking on that lad because, quite simply, if he
had parked there loss could at some point have accrued to the owner.”

4.4 ParkingEye does not believe that the terms, set out by ParkingEye in conjunction
with the landholder, are unfair. However, if the defendant believed them to be, he or she
should not have parked in the car park.

4.5 ParkingEye does not believe that its Parking Charges are extravagant and
unconscionable. Furthermore the finding of Lord Justice Colman in Lordsvale Finance v
Bank of Zambia (1996) has since been found to be more instructive. Lord Justice Manse
in the case of Cine Bes Filmcilik Ve Yapimcilik & Anor. V United International Pictures
& Ors (2003) stated,

“I have also found valuable Colman J's further observation in Lordsvale at pp. 763G –
764a, which indicate that a dichotomy between a genuine pre-estimate of damages and a
penalty does not necessarily cover all the possibilities. There are clauses which may
operate on breach, but which fall into neither category, and they may be commercially
perfectly justifiable.”

4.6 In ParkingEye Ltd. V Kevin Shelley, Circuit Judge Dodd found, on a balance of
probabilities, it was more likely that the dominant purpose of the Parking Charge was to
provide for regulation of the car park area.

4.7 ParkingEye have instructed Barrister Johnathan Kirk QC to give his opinion on
the matter of pre-estimate of loss. He has stated that, “the burden of proving that the
fixed charge amounted to a penalty would be upon the motorist,” that ParkingEye
should, “document clearly an attempt to pre-estimate the loss occasioned”, and that,
“the Courts have recognised that this can be 'rough and ready' and will not be defeated
because it is not absolutely accurate. It may be possible to achieve a global figure
across the business.” This then is what we provide here.

4.8 This was supported in Mayhook v National Car Parks and Fuller (2012). Here
the Judge stated “I do not find that this is a penalty. I think it is NCP doing its best in a
very difficult field genuinely to pre-estimate loss.”

4.9 It must therefore be noted that this is a very difficult industry in which to
determine a completely accurate pre-estimate of loss. This will depend both on losses to

ParkingEye, and on the potential losses to the landholder, which will vary depending on
the time of day, the day of the week and even upon the weather.

4.10 We have calculated the outstanding Parking Charge amount as a genuine pre-
estimate of loss as we incur significant costs in managing this car park to ensure
motorists comply with the stated terms and conditions and to follow up any breaches of
these. These costs include (but are not restricted to);

4.11 Erection and maintenance of the site signage, installation, monitoring and
maintenance of the Automatic Number Plate Recognition systems, employment of
office-based administrative staff, membership and other fees required to manage the
business effectively including those paid to the BPA, DVLA and ICO, general costs
including stationery, postage etc.

4.12 This sum, and the calculations which have been made in setting it, has been
approved and agreed by the landholder. This sum was also clearly laid out on the
signage at the site and, by remaining on site, we contend that the motorist has accepted
all of the prevailing terms and conditions of that contract, including the charges for
breach of contract. Furthermore, there is commercial justification for the charges, and
the charges were approved and prescribed by the British Parking Association and the
Department for Transport in 2012.

4.13 Here, ParkingEye has focused on its losses, although, as noted above, there are
also significant losses incurred by the landholder.

4.14 The average payment by motorists who have been issued with a Parking Charge
by ParkingEye is circa £63. Circa 84% of this payment (circa £53) covers ParkingEye's
costs. This information has been taken from ParkingEye's company accounts and these
can be provided to the court if requested.

4.15 ParkingEye is required to offer a 40% reduction to motorists for early payment
within 14 days. Therefore, this reduced amount needs to be greater than or equal to £53
in order for ParkingEye to operate as a business. Therefore, the upper amount of the
charge needs to be at the level outlined below. Furthermore, the amount of £100 was
approved and prescribed by the British Parking Association in consultation with the
Department of Transport in 2012. Therefore, the full amount of the Parking Charge,
which is an enforceable charge levied for breach of contract, is £100. The reduced
amount for early payment is £60.

4.16 ParkingEye accepts payment of the reduced amount at many stages of its appeal
process, including when a motorist who has appealed to ParkingEye is given the
opportunity of appealing to the Parking On Private Land Appeals (POPLA) service. It is
only if a defendant ignores all ParkingEye correspondence, or loses an appeal at
POPLA, that the charge will be increased to the higher amount. At this stage,
ParkingEye will have incurred further costs, and this increase is in line with BPA
regulations and the terms and conditions set out on the signage. If legal proceedings are
entered into, this amount will rise accordingly.

4.17 In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd adhered to the
finding of Lord Justice Colman in Lordsvale Finance v Bank of Zambia (1996) QB 752,
which states,

“whether a provision is to be treated as a penalty is matter of construction to be resolved by
asking whether at the time the contract was entered into the predominant contractual
function of the provision was to deter a party from breaking the contract or to compensate
the innocent party for breach . . . deduced by comparing the amount that would be payable
on breach with the loss that might be sustained if breach occurred”.

4.18 This follows the traditional definition of Lord Dunedin in the case of Dunlop in
1915. However, at 763g and following it continues,

“the jurisdiction in relation to penalty clauses is concerned not primarily with the
enforcement of inoffensive liquidated damages clauses but rather with protection against the
effect of penalty clauses. There would therefore seem to be no reason in principle why a
contractual provision the effect of which was to increase the consideration payable under an
executory contract upon the happening of a default should be struck down as a penalty if the
increase could in the circumstances be explained as commercially justifiable, provided
always that its dominant purpose was not to deter the other party from breach.”

4.19 This description was approved by Lord Justice Manse in the case of Cine Bes
Filmcilik Ve Yapimcilik & Anor. V United International Pictures & Ors (2003) EWCA
Civ 1669 in which he stated,

“I have also found valuable Colman J's further observation in Lordsvale at pp. 763G –
764a, which indicate that a dichotomy between a genuine pre-estimate of damages and a
penalty does not necessarily cover all the possibilities. There are clauses which may
operate on breach, but which fall into neither category, and they may be commercially
perfectly justifiable.”

4.20 Circuit Judge Dodd found that the key issue was not whether or not the charge
was a pre-estimate of loss; but whether the purpose of the Parking Charge is to deter
breach, or if the dominant purpose is commercially justified. We strongly argue that
there is commercial justification for the charges. The Judge found that, on the balance of
probabilities, it was more likely that the dominant purpose was to provide for regulation
of the car park area. He also stated that it was not common for the courts to find a
penalty within a contract. He stated that a breakdown of loss was not required, as the
contract was formed on its own terms.

4.21 In Cavendish Square Holdings v El Makdessi (2012) it was stated,

“I am not persuaded that Clause 5.6 is a penalty clause, the onus being upon the Defendant:

i) it serves a commercial purpose.

ii) I am not satisfied that it's purpose is to deter.

However, the reality is that, in the modern approach to the concept of penalty
discussed above, there is no longer the need for the dichotomy between liquidated
damages and genuine pre-estimate of loss, and so the relevant questions seem to me
to be simply:-

i) was there a commercial justification?

4.22 ParkingEye firmly believes that its charges are fair and reasonable. There is
commercial justification for the charges, which means that the charges cannot be
considered penalties (see E-Nik v Dept for Communities (2012) and Cadogan Petroleum
Holdings Ltd v Global Process Systems LLC (2013)). Private management of car parks
is commercially necessary for landholders. They have a right to manage their private

land as they see fit and allow motorists to use this land for parking under certain terms
and conditions. The contracts, and its clauses, are necessary to prevent abuse of private
land. This is commercially necessary as the landholder needs to manage their land in
order to ensure that their business can run successfully. The terms and conditions of
parking on private land are set out in consultation and conjunction with the landholder,
and it is the obligation of the motorist to comply with these when they park in the car
park. ParkingEye does not believe that the terms, set out by the landholder, are unfair.
However, if the defendant believed them to be, they should not have parked in the car
park.

5 ParkingEye does not believe that the contract is unfair. In Combined Parking Solutions v
Dorrington (2012), it was found that the contract was fair. The Judge stated,

“I am satisfied that this is a contract freely entered into by the defendant. An offer was
made by the owners of the land that if someone to park there they could, subject to charge.
That offer was accepted by the defendant when he parked there. There was consideration
on both sides of parking by the defendant and the sum of money that the claimant was
entitled to expect and, because of the way it was set up, because it was at arm's length,
because there were formal legal notices there, there was clearly an intention to create legal
relations, and the law simply holds the defendant to that contract.”

5.1 The Judge also referred to the case of Lord Roskill Export Credits v UOP,

“It is not and never has been for the court to relieve a party from the consequences of what
may be in the event proved to be erroneous or possibly even a commercially imprudent
bargain.”

5.2 It is therefore ParkingEye's strong belief that this contract is not unfair. The
driver was made aware of the terms and conditions of parking, in keeping with the
British Parking Association regulations. Having entered the contract, the defendant
cannot now decide that they do not wish to be bound by it. The contract was presented
to the driver and was entered into freely. The contract did not cause a significant
imbalance in the parties' rights and obligations. The landholder was obliged to provide
managed parking space while the motorist was obliged not to break the terms and
conditions of parking laid down by ParkingEye in conjunction with the landholder.
ParkingEye does not believe that these terms are unfair. However, if the driver believed
them to be, they should not have parked in the car park.

5.3 In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd found that, on
private land, the landholder is entitled to set out terms and conditions, subject to law, and
that these are fully enforceable.

5.4 All of our correspondence sent to the defendant has clearly outlined the reasons
for the claim, being due to an overstay of the max stay time on site. All this information
has subsequently been provided to the defendant in the particulars of claim, which also
included an image of the sign, to evidence the terms and conditions that were broken.

5.5 ParkingEye would also like to add that on the reverse of all correspondence sent
to the defendant, ParkingEye has stated that all appeals should be put in writing and sent
to ParkingEye within 28 days. ParkingEye believes that the defendant broke the terms
and conditions of parking and that therefore they are required to pay the outstanding
charge. However, had the defendant corresponded with us initially, as requested,
ParkingEye believes it could have answered many of the defendant's points directly and
resolved the matter without having to issue court proceedings. However, as we have had
no correspondence whatsoever from the defendant, we have had no choice but to enter
into legal proceedings, and have incurred further costs in pursuing this matter (see
attached letter).

5.6 Please note that, according to Civil Procedure Rules 1998, a document, other
than a claim form, which is sent by First Class Post, shall be deemed to be served on the
second day after it was posted, left with, delivered to or collected by the relevant service
provider provided that day is a business day; or if not, the next business day after that.

5.7 ParkingEye would also like to state that this defence is a standard, generic
defence, distributed on online forums to motorists attempting to avoid paying Parking
Charges and that we receive many near identical defences.

M1

**ostell** · 1st November 2013, 13:25:PM

Re: Parking Eye, Court papers recieved from Northampton.

And how was the confirmation of authority shown? Was it a signed witness statement signed by the office boy?

**mystery1** · 1st November 2013, 13:29:PM

Re: Parking Eye, Court papers recieved from Northampton.

Originally posted by ostell View Post

And how was the confirmation of authority shown? Was it a signed witness statement signed by the office boy?

Seems to be after a brief interlude via PM.

No statement of truth = toilet roll.

M1

Parking Eye, Court papers recieved from Northampton.

Parking Eye, Court papers recieved from Northampton.

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