*WON* 70 Page PROSECUTION STATEMENT - Parking Eye!!! - won

[R0b]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

I Think this thread is getting overly complicated, the primary argument is following M1's advice in that there is no contract, the parking is for members only not the whole world - therefore there is no contract unless you are a member. Parking in the space is trespass and it would be up to the Gym to bring an action on trespass as they are the owners.

The alternative argument, if the court sides with PE that a contract does exist for whaever reason (any reasonable person would come to the conclusion there is not a contract as you've not fulfilled the criteria I.e. Being a gym member) then that arrangement was varied by the manager of the gym who had authority to do so and allowed Penny to park free of charge.

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

I Think this thread is getting overly complicated, the primary argument is following M1's advice in that there is no contract, the parking is for members only not the whole world - therefore there is no contract unless you are a member. Parking in the space is trespass and it would be up to the Gym to bring an action on trespass as they are the owners.

The alternative argument, if the court sides with PE that a contract does exist for whaever reason (any reasonable person would come to the conclusion there is not a contract as you've not fulfilled the criteria I.e. Being a gym member) then that arrangement was varied by the manager of the gym who had authority to do so and allowed Penny to park free of charge.

If you vary the terms you need extra consideration - it cannot be the same consideration. If there is a contract, the estoppel defence is legally substantive. However, if there is not a contract by way of no offer present, there can be no acceptance, but there could be a counter offer. I personally think saying there was no offer is misunderstanding the nature of an offer. If the terms are parking for gym members only it's still an offer, ie the offer is that gym members can park in parking spaces albeit subject to the penality where the terms are contravened. So it is an invitation to treat in the first instance which is non legally binding, but in the second instance, ie where the person goes on to park it is automatically an exclusive legally binding offer and acceptance automatically. It's analogous to having permission to stay in a friend's house, but that permission rapidly changes to trespass if the visitor breaches the home owner/ occupier's rules. It's like the criminal act and guilty mind in that normally the two are separate elements of crime, but the exception is that the actus reus and mens rea can be instantaneous. Why would contract law be any different in that an invitation to treat cannot escalate to a binding offer: Carbolic.

[mystery1]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

So a burglar who breaks in to a house becomes a guest. Gotcha.

M1

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

So a burglar who breaks in to a house becomes a guest. Gotcha.

M1

No, but visitor could at one stage be trespasser, then the person could become a burglar: trespass with intent, ie to steal. It does not work the other way around, burglar, to trespass, to visitor.

[Penny1]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Hello all,

I have just received a 'without prejudice save as to costs' letter.

It says 'In light of the circumstances raised, as a gesture of goodwill, Parking Eye are willing to accept £80.00 as full and final settlement. We can do this on a without prejudice basis (save as to costs), and must warn you that if this remains unpaid within the next 7 days, the claim against you will remain. Should this matter be settled in court, ParkingEye firmly believes that all of the associated costs will be found to be owed by you, especially as ParkingEye gave you ample opportunity to appeal these Parking Charges.'

What should I do? Are they scared now that I will win in court? I'm in two minds...

Your opinions will be most appreciated. Thank you x

[R0b]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

It would appear you have good grounds to defend the case, if you are not a member of the gym there can be no contract for parking as you have not satisfied the criteria. You can only be a trespasser and that any action could only be taken by the gym themselves as landowners and not ParkingEye.

It sounds like scared tactics to me ultimately its up to you.

An option for you would be to respond to them in a 'without prejudice' letter/email and explain to them that you firmly believe there are no grounds for a valid claim as they cannot prove/satisfy the criteria that you are a member and therefore they cannot have standing to bring a claim in their own name. If found successful you will seek costs on an indemnity basis as you consider their claim to be vexatious.

M1 might have other suggestions

[Kati]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Hello all,

I have just received a 'without prejudice save as to costs' letter.

It says 'In light of the circumstances raised, as a gesture of goodwill, Parking Eye are willing to accept £80.00 as full and final settlement. We can do this on a without prejudice basis (save as to costs), and must warn you that if this remains unpaid within the next 7 days, the claim against you will remain. Should this matter be settled in court, ParkingEye firmly believes that all of the associated costs will be found to be owed by you, especially as ParkingEye gave you ample opportunity to appeal these Parking Charges.'

What should I do? Are they scared now that I will win in court? I'm in two minds...

Your opinions will be most appreciated. Thank you x

Personally, I'd say that they're hoping to get you to pay them something/anything before the day of the court case (they probably already believe you will win :lol

I doubt you'd have to pay any more than that even if you lost (although @mystery1 will know better than I do )

Stick to your guns Penny1 ... the only person who can decide to pay is you.

K xx

...............................................
EDIT:
or ... what [MENTION=71570]R0b[/MENTION] says (he beat me to it again)

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

It would appear you have good grounds to defend the case, if you are not a member of the gym there can be no contract for parking as you have not satisfied the criteria. You can only be a trespasser and that any action could only be taken by the gym themselves as landowners and not ParkingEye.

It sounds like scared tactics to me ultimately its up to you.

An option for you would be to respond to them in a 'without prejudice' letter/email and explain to them that you firmly believe there are no grounds for a valid claim as they cannot prove/satisfy the criteria that you are a member and therefore they cannot have standing to bring a claim in their own name. If found successful you will seek costs on an indemnity basis as you consider their claim to be vexatious.

M1 might have other suggestions

Rob, what you're saying is too simplistic. Penny may be better advised to pay the offered £80 than take the risks of court action and the stress that goes along with it. It is likely an offer, acceptance and consideration, meaning Penny has a contract by an objective strict court's view. It is very controversial but Beavis is the authority. I cannot see Penny winning this by arguing there wasn't a contract, but she may have a promissory estoppel defence if there were a contract. So, it's better to have a contract to benefit an estoppel defence than to not have one and forfeit the estoppel defence. M1 says there wasn't an offer but in my view there was even if were an exclusionary type offer.

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Personally, I'd say that they're hoping to get you to pay them something/anything before the day of the court case (they probably already believe you will win :lol

I doubt you'd have to pay any more than that even if you lost (although @mystery1 will know better than I do )

Stick to your guns Penny1 ... the only person who can decide to pay is you.

K xx

...............................................
EDIT:
or ... what @R0b says (he beat me to it again)

I read Parking Eye's claimant statement from Penny's documents and in my view, they're more than certain they'll win. They have taken great pains to explain their case in detail, and have not mentioned Penny's defence until at later point so as to separate her defence from their claims. It is professionally produced and they know what they're talking about, and have either had help drafting the claimant statement from their lawyer or the lawyer has produced the entire thing. It is better commercially for them to put this whole thing to bed by offering Penny the £80 to settle - as the overriding objective of CPR is to try to settle before court, in which case the court will probably view Parking Eye's offer as more than reasonable.

[Kati]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

I read Parking Eye's claimant statement from Penny's documents and in my view, they're more than certain they'll win. They have taken great pains to explain their case in detail, and have not mentioned Penny's defence until at later point so as to separate her defence from their claims. It is professionally produced and they know what they're talking about, and have either had help drafting the claimant statement from their lawyer or the lawyer has produced the entire thing. It is better commercially for them to put this whole thing to bed by offering Penny the £80 to settle - as the overriding objective of CPR is to try to settle before court, in which case the court will probably view Parking Eye's offer as more than reasonable.

I disagree

PE have a habit of putting so much bumf in their statements to the court now that much of it doesn't even have a bearing on specific cases. They are masters at the "baffle with bulls**t" angle and always try to get the defendant to settle before the court date ... I'd hazard a guess that in some cases this works (especially when there is no support for the appellant).

Penny has all the help and support she needs here on LB to be able to fight this. She has a choice if she wants to continue with her appeal (and if it were me ... I would :nod. She was not liable for this pcn to begin with and has a right to see this through! Why should she pay £80 which she shouldn't owe just because PE have decided she does?

[R0b]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

PE must explain how there is a contract, and all Penny needs to explain is that she is not a member of the gym and if the car park is for gym members only, how can there be a binding contract if she is not a member. The car park is signed for members only, it is therefore available for use for a restricted class of people and not the whole world. People who do not fall into that class would be trespassing and trespass can only be claimed by the landowner. If PE brought a claim for trespass they would be acting Ultravires as they are only managing the car park.

As Kati said, there seems to be a good chance and plenty of evidence to prove she is not liable or that PE cannot bring a claim but it is up to her whether she wants to take it on or settle (and if you settle then I would personally settle on a without admission of liability) or even make a counter offer of an amount less than £80.

You can have the best Paticulars of Claim in the world and write it in a fanciful way but at the end of the day, where there's no contract, there's no claim.

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

PE must explain how there is a contract, and all Penny needs to explain is that she is not a member of the gym and if the car park is for gym members only, how can there be a binding contract if she is not a member. The car park is signed for members only, it is therefore available for use for a restricted class of people and not the whole world. People who do not fall into that class would be trespassing and trespass can only be claimed by the landowner. If PE brought a claim for trespass they would be acting Ultravires as they are only managing the car park.

As Kati said, there seems to be a good chance and plenty of evidence to prove she is not liable or that PE cannot bring a claim but it is up to her whether she wants to take it on or settle (and if you settle then I would personally settle on a without admission of liability) or even make a counter offer of an amount less than £80.

You can have the best Paticulars of Claim in the world and write it in a fanciful way but at the end of the day, where there's no contract, there's no claim.

It was likely an invitation to treat: ie all potential gym members may park. Offer, acceptance, and consideration when Penny parks her car. In other words in Parking Eye's view when Penny accepted the offer to park, she did so on the basis she would be a gym member. So it's an offer with a condition attached. The offer is any person may use the car park on the condition that they are a gym member. According to the Parking Eye's claimant statement there was a grace period although it doesn't mention how long the grace period is, just long enough to see signage I would imagine. Just like in Beavis there was an offer with a condition attached, ie park for 2 hours in the retail car park but if the person goes over the 2 hours they will incur a penalty. Beavis was upheld by the appellate courts because the idea is to stop the car parks being bombarded with users abuse parking spaces. For this reason it's likely Parking Eye in Penny's case will use the same rhetoric to convince the judge.

[R0b]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

There's a difference between gym members only and gym members only including prospective gym members. You can't infer something that isn't there already, and as you will know whethe rPenny is liable will rest on the wording. If the wording says for gym members only, that would exclude any non-gym member, unless permission was given otherwise.

So you can't say it was an invitation to treat otherwise there would be no need to put wording regarding use by gym members only on the signage. Your analogy with the retail car parking can be distinguished because when you park there, it is based on an invitation to enter the shop and purchase, you are not obliged to do so. The signage I have seen at retail car parks is something along the lines of those who use the shop - that is deliberately wide and would therefore include people who enter the shop and purchase something as well as those who enter but in fatc do not end up buying anything.

Whereas at this particular gym, in order to become a member you have to satisfy the conditon of signing up to the gym facilities and the car park is for restricted users, namely those being a member of the gym. If you are not signed up then you are not a member, regardless of whether or not you may be a prospective member - the sign states members only, and therefore the definition of gym member is narrowed to those who are signed up to the gym's facilities.

[mystery1]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Another case regarding no contract. http://parking-prankster.blogspot.co...t-are-ipc.html

When it comes to small claims it doesn't always matter who is right and who is wrong. It is clear to most that Penny has the best of the argument but that doesn't guarantee a win or in some judges case, a chance of winning.

The most PE can get, barring unreasonable conduct, is that amount which is on the claim form as LPC do not charge travel costs.

It is for each person to decide whether winning is what they want, at a slight risk of losing or whether a simple life is best for the cost you agree to pay (and you can negotiate from their starting point of £80).

Fighting is not for everyone but some people hate the idea of giving up. I'm the latter.

M1

[des8]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

PE always offer to settle early.
This cannot be taken as an admission that they think they will lose.
It is simply a reflection that LPC fee is in the £250-£300 region and is not recoverable from the defendant, so even if PE win they lose financially.
It is purely a financial decision.