Parking Eye - Received letter before Country Court Claim

[ognuttah]

As I stated in post 3: "There is little point appealing to PE now as they will want their pound of flesh, so I would wait for the actual court claim."
MY opinion remains unaltered.

Dear Des,

Hope you're well, in good health and having a splendid day.

I've just received a 'CLAIM FORM' letter through post today however the 'issue date' on it is dated 10th of March ! I was just wondering what my deadline is to respond to this as on 'acknowledgement of service' section, it states,

'if you file an acknowledgement of service but do not file a defence within 28 days of the date of service claim form, or particulars of claim if served separately, judgement may be entered against you.

If you do not file an application within 14 days of the date of filing this acknowledgement of service, it will be assumed you accept the courts' jurisdiction and judgement may be entered against you.'

Okay so I've just read that the service date is 5 days + the issue date, which means it's the 15th March, and therefore due by 29th March... (correct me if I'm wrong).

At this stage, I'm assuming I should only prepare complete the 'acknowledgement of service' form and 'the defence form' ??

Should I just return the 'acknowledgement of service' form first which will then allow me the 28 days it states to prepare a defence?

Apologies if any of my questions/statements seem silly, just never been in this position before so just trying to make sense of it all.

Thanks in advance.

Kind regards,

[des8]

Yes, just acknowledge receipt of claim.
Do not enter a defence at this point.

If you post up a redacted copy of the claim form we can help draft your defence

[ognuttah]

Yes, just acknowledge receipt of claim.
Do not enter a defence at this point.

If you post up a redacted copy of the claim form we can help draft your defence

Dear Des,

Thank you so much. Do apologise for delay in getting these back, had been quiet busy.

See attached correspondences, I've listed below my defences;

- entrance to car park on different street address to PCN
- large bin placed in front of 'min 20 mins stay' sign
- poor lighting - 4 of the 5 lights non operational in car park
- signs blocked by crates being used to store cardboard
- non binding contract - font size seems small and sign placement high (will measure and confirm physical dimensions shortly)
- incorrect syntax in contract (ie only shoppers at ? which shop can park)
- font size too small (TBC)
- installation height of signs over 7 foot (TBC)
- Practice Direction - Preaction Conduct & Protocols, especially Para 6 Steps before issuing a claim at Court sec c) the parties disclosing key documents relevant to the issues in dispute was not met.

Thanks in advance, I really appreciate you're help with drafting my defence.

[des8]

I'll draft something up in the next couple of days

[des8]

Draft defence for you
If you intend to use it do not just copy and paste... read it, understand it and type it up getting the numbering correct.
You will be the one in court arguing it, and supporting it with your evidence

1. .The Defendant received the claim xxx from ParkingEye Ltd on dd/mm/yy
2. .Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
3. It seems this claim is for breach of a contract to park at xxxxx
4. The Defendant avers there was no intention to form a contract
5. The Defendant admits to being the keeper and the driver of the vehicle at that time
6. The Defendant denies the Claimant is entitled to any relief.
7. INTRODUCTION
8. This claim has been issued against the Defendant in connection with the Defendant’s refusal to pay a private parking charge which the Claimant alleges that the Defendant is liable to pay the registered keeper. For the reasons set out in this Defence, it is denied that the Claimant is entitled to the sums claimed or any relief at all.
9. RELEVANT FACTS
   
   1. On the date in question, the driver entered a car park off Holden Street etc etc
   2. The on-site signage states "For use only whilst shopping on site". There is no offer for parking other than as a shopper on site. Any person parking but not shopping on site is a trespasser It is not possible to contract to do something which is forbidden. No breach of contract has occurred in this case as the driver was not a shopper on site
   3.Despite, a request by the Defendant asking the Claimant to provide evidence establishing that the Claimant has authority to manage and enforce the car park by way of issuing parking charge notices pursuant to condition 5(1)(a) of POFA 2012, the Claimant has failed to provide the necessary evidence or explanation to establish the Claimant’s authority to enforce the Parking Charge.
   In the absence of the such evidence, it is the Defendant’s contention – and the court is invited to make an inference that – the Claimant has no lawful basis to pursue the Defendant.
   
   4.If (which the Defendant denies), the Defendant is found to be liable for the Parking Charge, the Defendant will say that the Parking Charge is not enforceable on the basis that there was not adequate notice of the Parking Charge given to the Defendant pursuant to Paragraph 2(2) of Schedule 4 of POFA 2012. Paragraph 3(b) defines “adequate notice” as the display of one or more notices which are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.
   
   5.The signage at the car park was not sufficient to give the driver adequate notice of the parking charge because signs were too high and of too small a font to be read easily, and at night time were mainly unlit and at the entrance obscured by waste disposal units
   
   6.The claim form claims £125, but gives no breakdown of how that figure is calculated
   
   7.Mention on the signs of additional costs or similar is not giving fair and reasonable notice and it is trite law that one cannot incorporate terms and conditions after the fact, without giving reasonable notice beforehand.
   
   8.Further and alternatively, if (which is denied) it is found that reasonable notice was given, the Defendant will say that the term was contrary to the requirement of good faith which causes a significant imbalance under the contract to the detriment of the Defendant. Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the Consumer Rights Act 2015. The Defendant will rely on the following points:
10. 1. Section 68 of the CRA requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that:
       1. the font size of the term is extremely small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible considering the amount of blank space available on the sign itself; and
       2. the term refers to ‘charges’ but fails to explain what charges the Claimant is seeking to recover. Accordingly, the term described is vague and ambiguous contrary to the guidance published by the Competition and Markets Authority on unfair contract terms.
11. 2. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. The S C found the parking charge (£85)
    
    was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
    3. In this claim unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b))
    4. As the Claimant is claiming from the Defendant as Keeper paragraph 4(5) of POFA provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper. The unpaid parking charges specified in the notice were £100.
    
    5.It follows that any liability owed by the keeper to the Claimant is several to the driver’s liability and is limited to an amount that does not exceed the unpaid parking charges. The Claimant’s pursuit of these contractual costs is not recoverable and amounts to an abuse of process.
12. CONCLUSION
13. By reason of the Defendant’s non-compliance with the POFA requirements as set out in this Defence, the Claimant is not entitled to pursue the Defendant
14. Statement of truth
15. sign & date

[ognuttah]

Dear Des,

Thank you so much, I really appreciate it.

I have just seen your response today! I intend to read through, fully understand and make any changed by end of today. I will have access to a printer tomorrow, to then print out and send by end of tomorrow.

My only concern now is that the original issue date of the letter is 10th March.... and they asked me to respond with 28 days of the issue date. That is TODAY !

What will happen??? Or must I print out today and deliver to the office myself ????

Kind regards

[ognuttah]

Draft defence for you
If you intend to use it do not just copy and paste... read it, understand it and type it up getting the numbering correct.
You will be the one in court arguing it, and supporting it with your evidence

1. .The Defendant received the claim xxx from ParkingEye Ltd on dd/mm/yy
2. .Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
3. It seems this claim is for breach of a contract to park at xxxxx
4. The Defendant avers there was no intention to form a contract
5. The Defendant admits to being the keeper and the driver of the vehicle at that time
6. The Defendant denies the Claimant is entitled to any relief.
7. INTRODUCTION
8. This claim has been issued against the Defendant in connection with the Defendant’s refusal to pay a private parking charge which the Claimant alleges that the Defendant is liable to pay the registered keeper. For the reasons set out in this Defence, it is denied that the Claimant is entitled to the sums claimed or any relief at all.
9. RELEVANT FACTS
   
   1. On the date in question, the driver entered a car park off Holden Street etc etc
   2. The on-site signage states "For use only whilst shopping on site". There is no offer for parking other than as a shopper on site. Any person parking but not shopping on site is a trespasser It is not possible to contract to do something which is forbidden. No breach of contract has occurred in this case as the driver was not a shopper on site
   3.Despite, a request by the Defendant asking the Claimant to provide evidence establishing that the Claimant has authority to manage and enforce the car park by way of issuing parking charge notices pursuant to condition 5(1)(a) of POFA 2012, the Claimant has failed to provide the necessary evidence or explanation to establish the Claimant’s authority to enforce the Parking Charge.
   In the absence of the such evidence, it is the Defendant’s contention – and the court is invited to make an inference that – the Claimant has no lawful basis to pursue the Defendant.
   
   4.If (which the Defendant denies), the Defendant is found to be liable for the Parking Charge, the Defendant will say that the Parking Charge is not enforceable on the basis that there was not adequate notice of the Parking Charge given to the Defendant pursuant to Paragraph 2(2) of Schedule 4 of POFA 2012. Paragraph 3(b) defines “adequate notice” as the display of one or more notices which are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.
   
   5.The signage at the car park was not sufficient to give the driver adequate notice of the parking charge because signs were too high and of too small a font to be read easily, and at night time were mainly unlit and at the entrance obscured by waste disposal units
   
   6.The claim form claims £125, but gives no breakdown of how that figure is calculated
   
   7.Mention on the signs of additional costs or similar is not giving fair and reasonable notice and it is trite law that one cannot incorporate terms and conditions after the fact, without giving reasonable notice beforehand.
   
   8.Further and alternatively, if (which is denied) it is found that reasonable notice was given, the Defendant will say that the term was contrary to the requirement of good faith which causes a significant imbalance under the contract to the detriment of the Defendant. Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the Consumer Rights Act 2015. The Defendant will rely on the following points:
10. 1. Section 68 of the CRA requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that:
       1. the font size of the term is extremely small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible considering the amount of blank space available on the sign itself; and
       2. the term refers to ‘charges’ but fails to explain what charges the Claimant is seeking to recover. Accordingly, the term described is vague and ambiguous contrary to the guidance published by the Competition and Markets Authority on unfair contract terms.
11. 2. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. The S C found the parking charge (£85)
    
    was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
    3. In this claim unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b))
    4. As the Claimant is claiming from the Defendant as Keeper paragraph 4(5) of POFA provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper. The unpaid parking charges specified in the notice were £100.
    
    5.It follows that any liability owed by the keeper to the Claimant is several to the driver’s liability and is limited to an amount that does not exceed the unpaid parking charges. The Claimant’s pursuit of these contractual costs is not recoverable and amounts to an abuse of process.
12. CONCLUSION
13. By reason of the Defendant’s non-compliance with the POFA requirements as set out in this Defence, the Claimant is not entitled to pursue the Defendant
14. Statement of truth
15. sign & date

my mistake, the issue date is 11th March.... and so the service date is +5 days. Therefore, I have 5 days to respond if I'm not mistaken.

[ognuttah]

1. The Defendant received the claim xxx from ParkingEye Ltd on dd/mm/yy

Am I right in thinking this is the original fine received from Parking Eye?

[ognuttah]

1. On the date in question, the driver entered a car park off Holden Street etc etc

in place of 'etc etc', do i need to explain further that the ticket is issued from Alfreton Road whilst the entrance to car park is on Holden Street?

[des8]

Am I right in thinking this is the original fine received from Parking Eye?

no, this is the date you received the court claim

[des8]

in place of 'etc etc', do i need to explain further that the ticket is issued from Alfreton Road whilst the entrance to car park is on Holden Street?

no, just insert the full Holden Street address

[ognuttah]

no, just insert the full Holden Street address

Thanks so much Des, words can not express how thankful I am for your help.

I think I understand most of my defence now, however may be in touch again if something doesn't make sense.

I will print tomorrow, complete along with the 'defence form', and send out tomorrow on signed delivery.

Kind regards,
Shyam

[ognuttah]

no, this is the date you received the court claim

Hi Des, just had one more question, do i need to submit my defence evidence i.e photos etc with my defence or do I just bring that along with me to the hearing?

Thanks in advance.

[des8]

You do not submit evidence at this stage.
You will in due course receive directions from the court instructing you about filing your evidence which you present in a witness statement

[ognuttah]

You do not submit evidence at this stage.
You will in due course receive directions from the court instructing you about filing your evidence which you present in a witness statement

hi Des,

Hope you're well and been in good health.

Just completing the ''directions questionnaire''..

One of the questions is 'Suitability for determination without hearing'... would you suggest 'yes' or 'no'?

If no, they are asking for reasons why..

Thanks in advance.