ParkingEye Court threat

[MrNye]

Hi all, and sorry it's another ParkingEye Court threat, I'll try and make it short

First of all I received a parking notice from ParkingEye on the 21/10/2013 saying that I had parked in a B&Q car park for 4 hours 13 minutes on the 3/10/13 and said I had 1 day to pay £50 or it would rise to £85. The letter seem to apply that they had sent me a previous letter but I had never received it.


Although remembering what I had done 3 weeks ago was hard, I know that I had never parked in that car park for that length of time, so I thought this was just another lame scam and I ignored it.


After getting a few more letters from them I googled the company and it seemed that they were just rogue outfit that relied on threating letters and bully tactics, and contacting them to contest their chargers was just a waste of time.


Then I received a claim form from County Court Bulk Centre, so I now tried to work out what I might have been doing on the 3/10/13, and luckily I found some photos of my bathroom that I was replacing, with a date stamp and time of the 3/10/13, so I know that my car wasn't in that car park for that length of time, but I had probably made 2 visits to B&Q that day.

I gave my defence to the claim form, saying that I had proof that they had made a mistake, but they are still taking it to court because they say their cameras can't make mistakes.

The last letter I had from ParkingEye states that they are still going to take this to court, and it's full of examples of court cases that they have won. The letter isn't really clear about what steps I should take next. Also ParkingEye say I must have received the first letter because they have proof of posting and under the Protection of Freedoms Act 2012 Schedule 4 (9) (6) 'A notice sent by post is presumed, unless the contrary can proved, to have been delivered on the second working day on which it is posted"; how can I prove that I didn't receive it?


What should I do? Thanks.

[mystery1]

Re: ParkingEye Court threat

Calm down for starters.

Post up everything you have including notices, claim form, defence, pictures of the signs etc etc. Remvove you name and adress but leave dates and times.

You should also approach B & Q with your proof of custom and see if they can get this cancelled for you.

M1

[MrNye]

Re: ParkingEye Court threat

Thanks for your reply, do I post everything as scanned pictures?

The last letter I got from ParkingEye is huge, do I post the whole lot?

[wales01man]

Re: ParkingEye Court threat

have you proof of the times you went through the tills?

[MrNye]

Re: ParkingEye Court threat

No, I probably had receipts but it was nearly 3 weeks before I received the first letter, and I've looked but can't find any. I always pay cash, but I may have used my B&Q loyalty card, so B&Q might have a record.

[mystery1]

Re: ParkingEye Court threat

Everything is best but if you mean the parking eye charges justification ******** then you can leave it out.

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.

Like i say you can omit most of that crap

M1

[STEPHEN FENNY]

Re: ParkingEye Court threat

Hi, Totally ignore it and every letter they send they will just go away , i have had 10 of these with all the threats of court, not 1 single case, in all the years they have taken i think only about 3 people to court and lost every case, treat them like something you tread in and try and scrap off they soon go away.

[mystery1]

Re: ParkingEye Court threat

Hi, Totally ignore it and every letter they send they will just go away , i have had 10 of these with all the threats of court, not 1 single case, in all the years they have taken i think only about 3 people to court and lost every case, treat them like something you tread in and try and scrap off they soon go away.

Behave. They HAVE initiated court action as is their want.

M1

[bluebottle]

Re: ParkingEye Court threat

... they say their cameras can't make mistakes.

msl:

de asinis loquuntur

[Laurieloo2]

Re: ParkingEye Court threat

Hi, how do you know they have started court action?
I had a very similar thing happen to me and the parking fine people sent me "court papers" which I discovered were falsified! They were bogus court papers that were never lodged and wa just copied to appear as legitamate to be used as a tactic to scare me......
If you have any court forms check the form number in the bottom corner then check on HMCS website whether the forms are the same. It should specify a court so I would also call the court to confirm.
I dont know how the technology works for these tickets but surely if it knows you arrived at a certain time then it can see you left at a certain time otherwise everyone will end up with tickets?? If I was you I would ask them to explain how the know when a car leaves and is therefore within the time limit as surely they would be able to find you leaving they are just trying their luck.
Just to add, i ignored these letters and they went away, Ive never been taken to court or anything else and its been well over a year.

[mystery1]

Re: ParkingEye Court threat

Parking eye have won and lost quite a few cases now and have issued 13000+ claim forms. Most do not go to court. Some settled and some discontinued.

The original poster has filed a defence so it's pretty certain this one is genuine.

As to those who have ignored, you do realise the statute of limitations is 6 years right ? You may be one of the lucky ignorers but you'll never be 100% sure until statute barred is in effect.

M1

[bluebottle]

Re: ParkingEye Court threat

Hi, how do you know they have started court action?
I had a very similar thing happen to me and the parking fine people sent me "court papers" which I discovered were falsified! They were bogus court papers that were never lodged and wa just copied to appear as legitamate to be used as a tactic to scare me......
If you have any court forms check the form number in the bottom corner then check on HMCS website whether the forms are the same. It should specify a court so I would also call the court to confirm.
I dont know how the technology works for these tickets but surely if it knows you arrived at a certain time then it can see you left at a certain time otherwise everyone will end up with tickets?? If I was you I would ask them to explain how the know when a car leaves and is therefore within the time limit as surely they would be able to find you leaving they are just trying their luck.
Just to add, i ignored these letters and they went away, Ive never been taken to court or anything else and its been well over a year.

Falsifying court papers to give the impression they are genuine is an indictable offence carrying a maximum penalty of up to seven years' imprisonment. If it is a money claim and the "claimant" is not lawfully entitled to claim, then the matter is a lot more serious. Those who engage in this sort of stunt may think they are being clever, but they are being extremely foolish as well as committing a criminal offence.

[ostell]

Re: ParkingEye Court threat

If you think you visited twice then they have taken the start time as the time you first arrived and the leave time when you left the second time. Seems to be a common failure. Their software, when looking for leaving time, seems to scan from the the end of the day rather than from the time you entered.

Showing that you were somewhere other than the car park between the two times would help. Were you working with someone who could swear a witness statement to send to the court (and ParkingEye)?

[MrNye]

Re: ParkingEye Court threat

Showing that you were somewhere other than the car park between the two times would help. Were you working with someone who could swear a witness statement to send to the court (and ParkingEye)?

I was fitting a new shower system that day (on my own), because a lot of the pipe work would end up behind tiles, I took pictures. The pictures have the date stamp on them and checking the digital time stamp I took them at the time they say my car was in their car park.

I will upload the letters tomorrow.

[MrNye]

Re: ParkingEye Court threat

Thanks for all your replies, I've decided not to upload any documents for the moment, I've found other proof that I wasn't in their car park so I'm a 100% happy if they did take me to court.
Also in their reply to my defence they have fabricated that I had admitted to use forums to avoid paying, which is totally untrue, I joined this forum the day I received the letter, and had not taken part in any other discussion relating to them before.


BUT I do have some questions:

1. In ParkingEye's reply to my defence, it says I must supply new evidence to them and the courts, is that true? I'd rather just take it to court on the day.
2. Normally how much notice do you get for a court hearing?
3. Do I need to do anything now, or is it just up to ParkingEye?
4. If this went to court, would it be easy to claim for all the time that I have wasted on this?

A NOTE TO PARKINGEYE IF YOU ARE READING THIS, This is NOT to get advice to avoid paying, it is to get advice to fight your false claims!