ParkingEye County Court Claim - Please Help Me With A Defence! - won

[sammiefields2512]

Hi

As the Registered Keeper of my car, I've received a County Court Claim Form from Parking Eye and would really appreciate it if someone could help me come up with a defence.

The Issue Date is 09 Jan 2017. I’ve filed acknowledgement of service (so I'm assuming deadline is 6th of Feb)

• Alleged Incident Date: 05 October 2016
• Alleged Incident Location: Loxford Polyclinic “Drop Off Zone” in Ilford Essex, with “10 mins max stay”.
• Detection Method: ANPR camera
• Total Time Spent In “Drop Off Zone”: 22 minutes (hence a 12 minute overstay)
• Driver: unknown
• Amount claimed: £175 (£100 + £25 court fee + 50 legal costs)

NB: The car was not left unattended. The driver remained in the car while a passenger went into the building.

I know I shouldn’t have ignored the PCN and follow-up letters in the mail, but I was busy so decided to try my luck. I’ve learned my lesson, but now need a written court defence.

I received and ignored:

- 2x PCN’s in the post with reduced fee of £60
- 1x letter with full fee of £100
- 1x letter before county court claim

All of my letters are attached with this post.

Here are the defence points I think I can use:

1. According to the Redbridge Council website, https://my.redbridge.gov.uk/planning, the claimant has not applied for planning permission for their signs or their ANPR cameras. They hence committed a criminal offence in order to create a contract with the defendant.

[This point was mentioned here:

http://parking-prankster.blogspot.co.uk/2016/08/parkingeye-discontinue-two-cases.html

apparently ParkingEye has dropped claims when this point was raised]

2. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements.

[Can I use this??? To me it seems they HAVE complied with POFA, but maybe I’m missing something?]

3. The proper claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Parking Eye Ltd.

4. No contract was formed:

i) The signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice.

ii) With a 10 minute maximum stay, they are not providing enough time to read the terms and conditions, and not providing the driver a reasonable “grace period” as advised by the BPA Code of Practice. Also if any contract was formed, it would be formed after the driver had read the notice and made his/her decision to stay/leave, NOT when the ANPR camera took a photo on entry. [how to word this?]

5. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. (i.e. referring to the £25 court fee + 50 legal costs)

6. [Something about how this case is different from the Beavis case, I need to look into the Beavis case.]

Here are close-up pictures of the signs:

Sign on entering the car park:

http://i1127.photobucket.com/albums/...pstztyrmft.jpg

Other signs:

http://i1127.photobucket.com/albums/...psawptg3ty.jpg
http://i1127.photobucket.com/albums/...pswymol90c.jpg
http://i1127.photobucket.com/albums/...psm3ydjus4.jpg
http://i1127.photobucket.com/albums/...ps9anx7byz.jpg
http://i1127.photobucket.com/albums/...psikhvyhsi.jpg

Close-up of terms and conditions:

http://i1127.photobucket.com/albums/...psbrqm5bok.jpg

Here are pictures of views at the Drop Off Zone:

On entering Drop Off Zone:

http://s1127.photobucket.com/user/sa...tml?sort=3&o=3

Views from where you might leave your car:

http://i1127.photobucket.com/albums/...pslocg2rfn.jpg
http://i1127.photobucket.com/albums/...psed8v9dcv.jpg
http://i1127.photobucket.com/albums/...psraapy8s2.jpg

Any help would be very much appreciated!

If you need more info, please just let me know and I'll add it in.

Thanks in advance,
Sammie

[mystery1]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

I have a few to do with deadlines before this but will get back to you.

Get as much confirmation of the advertising consent point as you can by asking the council etc via email.

Have you spoken with the clinic management ?

M1

[sammiefields2512]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

Hi M1, thanks for getting back to me.

I just sent an email to the council re advertising consent.

I emailed the site management couple weeks ago. They contacted Parking Eye and Parking Eye said they would reduce the fine back down to the original £60 and cancel the County Court Claim. It would have been easier for me to pay the £60, but I didn't want to give these thieves my money, they haven't earned it.

I replied to the site management on the 19th of January, asking them politely to either cancel the charge and Court Claim entirely, or to send me a copy of the contract between the landholder and Parking Eye, as I will need to produce it in court. They haven't gotten back to me yet.

I will send them a reminder email by the end of the week.

Again M1, thanks so much.

Sammie

[sammiefields2512]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

So site management just got back to me today. They said if I had contacted them sooner (i.e. before the County Court stage), they could have canceled the ticket, "but as it has now gone to County Court stage there is nothing NHSPS can do"

Can I argue this with them? Maybe they do have powers to cancel the County Court Claim, since it's the landholder who should be taking me to court, not Parking Eye.

Or maybe I can ask them for written acknowledgement that they don't want Parking Eye to pursue this matter, so I can use it in court. If so, how should I get them to word it?

Or is it better in the short time I have left to pursue management for the contract between them and Parking Eye, or to get them to admit that there IS no contract, so I can use this admission in court???

It seems they're are only capable of handling one thing at a time, since I asked about the contract and they seem to be ignoring it.

Damn, I wanted to contact site management the moment I got the PCN. I walked into the building and the useless NHS staff would refuse to refer me to management. It took a whole load of digging around and emailing online to find the site manager's email address. Shoulda done the digging around sooner I guess.

[mystery1]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

They said if I had contacted them sooner (i.e. before the County Court stage), they could have canceled the ticket, "but as it has now gone to County Court stage there is nothing NHSPS can do"

They could i'd imagine but as PE will have paid money to file a claim they maybe insisting on money to do so.

since it's the landholder who should be taking me to court, not Parking Eye.

That argument usually doesn't fly now, since Beavis.

Or maybe I can ask them for written acknowledgement that they don't want Parking Eye to pursue this matter, so I can use it in court. If so, how should I get them to word it?

Let them put it in their own words. When the contract is exposed this might be an issue for them.

Or is it better in the short time I have left to pursue management for the contract between them and Parking Eye, or to get them to admit that there IS no contract, so I can use this admission in court???

Gathering evidence is always best done asap. Verbal admissions are far from ideal. Email/letters are perfect.

M1

[sammiefields2512]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

Just received a response from the local council RE advertising consent:

"Dear [Name],

Thank you for your enquiry about the building at 417 Ilford Lane.

According to our records, there are no separate applications for advertisement consent in relation to the above address.

Kind regards,"

Strike!

http://i1127.photobucket.com/albums/...psb83dy7nh.jpg

Hmmm should I contact Parking Eye and threaten to complain to the council and take this issue of illegal signs and cameras to the local press? Or should I make this threat to the landholder?

[mystery1]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

I would send a polite email to parking eye pointing it out. This gives them notice that you know but also a chance to correct any misunderstanding on the point. It'll be included in the defence when i get round to it.

M1

[sammiefields2512]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

OK so I went back to the site and took some new photos of their entrance sign with a tape measure (links below).

It seems their font sizes don't comply with the BPA Code Of Conduct.

Group 1 text on entrance sign: “Drop off area only 10 mins max stay”
Group 2 text on entrance sign: “If you wait for longer than 10 minutes in any area you may be subject to a Parking Charge Notice”
Group 2 text on entrance sign: “Failure to comply with the terms and conditions will result in a Parking Charge of:”


According to the BPA Code Of Practice Appendix B on “Entrance Signs”, the “Minimum capital height for Group 1 text” for “a parking area entered immediately by turning off a 30 mph road” is 60mm. he capital letter height for Group 1 text on the entrance sign to the Loxford Polyclinic “Drop Off Zone” is 40mm, which is 33% less than the mandatory minimum of 60mm.


Appendix B of the BPA Code Of Practice also states that Group 2 text should be at least 50% the size of Group 1 text. The capital height for Group 2 text on the Loxford Polyclinic entrance sign measures 20mm, which is 33% less than the mandatory minimum of 30mm.


The second set of Group 2 text, “Failure to comply with the terms and conditions will result in a Parking Charge of:” has a capital height of 10mm, which is 66% less than the mandatory minimum of 30mm.

Hope this helps with my case.

http://i1127.photobucket.com/albums/...psqwz2dzob.jpg
http://i1127.photobucket.com/albums/...psayf1zllz.jpg
http://i1127.photobucket.com/albums/...psuttrgoq4.jpg
http://i1127.photobucket.com/albums/...psuinr9arq.jpg

- - - Updated - - -

I've also gone ahead and written out my own draft M1, just in case it helps. Please feel free to either critique it or disregard it completely. I have no legal background, so I have little idea of how to do this.

Here it is:

It is admitted that Defendant is the registered keeper of the vehicle in question. However the Claimant has no cause of action against the Defendant on the following grounds:


1. Criminal offence on forming a contract


The Claimant relies on its provision of signage at the site and upon the content of that signage. However, the Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage. The Redbridge Planning Authority have confirmed that at the building at 417 Ilford Lane, “there are no separate applications for advertisement consent”, such that, at the time the Defendant parked at the Loxford Polyclinic “Drop Off Zone” on 417 Ilford Lane, a criminal offence was being committed by the Claimant in order to create a contract with the Defendant. The signage at the Loxford Polyclinic “Drop Off Zone” is classified in planning law as an advertisement. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display this kind of advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.


The Court’s attention is drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn in particular to paragraph 20 of the Transcript of that case “It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”. Paragraph 28 continues - “cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.” In this case it was not lawful for the Claimant to have in place its signs upon which it relies for the formation of an asserted contract with the Defendant.


If there was a contract between the Claimant and the Defendant, then it was created through an illegal act (the erection of the un-consented signs stating the terms and conditions relied on by the Claimant, and the erection of un-consented ANPR cameras). Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced. Further, it is submitted, it must be contrary to public policy for a court to enforce such a contract whereby a party may profit from its criminal conduct.


It must be noted that, as indicated in the Claimant’s Particulars of Claim, the illegality in this case is central to the formation of the contract and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.


Please note also that none of these issues were argued in ParkingEye v Beavis [2015] UKSC 67 (the Beavis case).


2. Failure to comply with the Protection of Freedoms Act.


The Protection of Freedoms Act 2012 Schedule 4 has not been complied with. The registered keeper has not been proven to be the driver, as such the keeper can only be held liable if the Complainant has fully complied with the strict requirements. PATAS and POPLA Lead Adjudicator and Barrister, Henry Michael Greenslade, clarified that with regards to keeper liability. “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver
and operators should never suggest anything of the sort” (2015).


3. Parking Eye Ltd lacks authority to bring this claim.


The proper Claimant is the landholder, NHS Property Services Ltd. Parking Eye Ltd are not the lawful occupier of the land. Strict proof is required that there is a chain of contracts leading from the landholder to Parking Eye Ltd. Absent a contract with the lawful occupier of the land being produced by the Claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that Parking Eye do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.


4. Failure to adhere to signage regulations of the BPA Code Of Practice (paragraph 18 and Appendix B)


The signage on and around the site was small, unclear, not prominent and did not meet the British Parking Association (BPA) Code of Practice. The Defendant has photographic and video evidence which shows this.


RE: Group 1 text on entrance sign: “Drop off area only 10 mins max stay”
Group 2 text on entrance sign: “If you wait for longer than 10 minutes in any area you may be subject to a Parking Charge Notice”
Group 2 text on entrance sign: “Failure to comply with the terms and conditions will result in a Parking Charge of:”


According to the BPA Code Of Practice Appendix B on “Entrance Signs”, the “Minimum capital height for Group 1 text” for “a parking area entered immediately by turning off a 30 mph road” is 60mm. The Defendant has photographic evidence that the capital letter height for Group 1 text on the entrance sign to the Loxford Polyclinic “Drop Off Zone” is 40mm, which is 33% less than the mandatory minimum of 60mm. Hence the font specifying that this is a 10 minute max stay area is too small and not readable by a driver from their car.


Appendix B of the BPA Code Of Practice also states that Group 2 text should be at least 50% the size of Group 1 text. According to the Defendant’s photographic evidence, the capital height for Group 2 text on the Loxford Polyclinic entrance sign measures 20mm, which is 33% less than the mandatory minimum of 30mm for a “Parking area entered immediately by turning off a 30 mph road”. The second set of Group 2 text, “Failure to comply with the terms and conditions will result in a Parking Charge of:” has a capital height of 10mm, which is 66% less than the mandatory minimum of 30mm. Hence the font specifying that charges apply for breaching the terms and conditions is too small and not readable by a driver from their car.


The entrance sign, as well as being small, with incorrect font-sizes to meet the criteria set by the BPA Code Of Practice, is also not positioned at the correct angle for a driver entering the parking area to read whilst driving a vehicle.


In light of the above, no sum payable to this Claimant was accepted nor even known about by any driver(s); as they were not given a fair opportunity to discover the onerous terms by which they would later be bound. The signage in this car park does not allow the terms and conditions to be known before entering the land.


The Claimant is a member of the BPA and is committed to follow its requirements. Therefore no contract has been formed with driver(s) to pay £100, or any additional fee charged if unpaid in 28 days. SCHEDULE 2 of the Consumer rights Act 2015, 'Consumer Contract Terms Which May be Regarded as Unfair', Part 1, Number 18 states it is unfair if a term has the object or effect of obliging the consumer to fulfil all of the consumer’s obligations where the trader does not perform the trader’s obligations'.


5. Failure to adhere to paragraph 2.4 of the BPA Code Of Practice.


Paragraph 2.4 of the BPA Code Of Practice states that “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” The Claimant failed to apply for advertisement consent for their signs, and failed to apply for planning permission for their cameras, which means the Caimant illegally erected signs and cameras to attempt to form a contract with the driver(s). They have hence clearly breached paragraph 2.4 of the BPA Code of Practice. If there is any liability argued on the part of the Defendant then it is submitted that a contractual term cannot be fair if the requirements of the Code of Practice are disregarded and a crime has been committed to create that term and/or the contract between a motorist and the parking enforcement company.


6. Failure to adhere to the BPA Code of Practice grace periods (paragraph 13).


In accordance with the BPA Code of Practice grace period, Parking Eye Ltd “should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action. You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes”.


Parking Eye claims the driver(s) stayed for a total of 22 minutes at the car park. The signage states “10 mins max stay”. The BPA Code of Practice allows for Grace periods with a mandatory minimum time of 10 minutes to leave after the parking contract has ended. A Grace period should also be allowed on entering the car park so the driver can find a space to park. Additionally, the ANPR cameras used to define the entry and exit times, only operate at the perimeter and the contract cannot begin until the driver has had the opportunity to read and accept the terms and conditions.


An alleged overstay of 12 minutes does not take grace periods into account. Nor does it take into account the time required to read the terms and conditions in order to be able to form the contract. If grace periods were taken into account as mandated by the BPA Code of Practice, then no overstay has occurred.


7. Costs


The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described some costs as "legal representative's costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver


8. Case distinguished from ParkingEye v Beavis


This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landholder. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park for free. None of this applies in this material case, where the Claimant did not adhere to the law, did not adhere to the BPA Code Of Practice, no contract was formed, and no overstay occurred.


9. Witness statements of the landholder


The Claimant was acting on behalf of, or as an agent for, the landholder, NHS Property Services. According to email communications between the Defendant and the landholder, it appears that the landholder does not desire that a valued and regular customer should be penalised in these particular circumstances.

[mystery1]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

Evidence gathering is something a lot of people don't do. It is a key thing to do and helps enormously with the strength of a case. As promised more later.

M1

[sammiefields2512]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

Hey M1

Just to let you know I'm still checking this thread daily. My deadline is around the 5th of feb, so just 5 days left. It'd be great to get your input if you can make it on time.

Thanks,
Sammie

[mystery1]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

Edit to suit. You had most points covered anyway.

sammiefields2512def.rtf

M1

[sammiefields2512]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

Ah, nice one M1, thanks so much.

I called the court on Friday, and the woman on the phone wasn't sure about my deadline. First she told me it was the 1st of Feb. Then I questioned it and she went away for a while and came back and told me she worked it out and it's the 16th of Feb--calculated by adding 28 days excluding weekends onto my date of service, which was the 9th of Jan.

I want to send this thing off asap though, as she obviously wasn't very sure.

Thanks M1 for adding in the bit on Consumer Contract Regulations, and for putting it all together so it looks more professional.

A few quick questions though...

1. I haven't yet found proof that Parking Eye have not complied with PoFA. Instead of saying "The Protection of Freedoms Act 2012 Schedule 4 has not been complied with", is it better to say something along the lines of “the Claimant is put to strict proof that they have complied with The Protection of Freedoms Act”?

Some folks advised me on another forum that I state PoFA is not complied with but don't say how, and that by doing so the judge might decide I've been unreasonable and dismiss my defence.

2. Could I ask why you've taken out section 7 on "Costs" in my defence above? I figured it would help show the judge that Parking Eye are being unreasonable, and should I lose in court this point may save me from paying the full fee of £175.

Again, thanks so much for helping me out M1.

[ostell]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

I don't think she is correct about disregarding weekends, it is calendar days. Usually about 33 days from issue date

[sammiefields2512]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

Hey Ostell, thanks for that. 33 days would be 11th of Feb.

That woman on the phone was totally clueless. Like I say, I'm going to send it ASAP, just looking into a few extra things, especially trying to find a PoFa flaw.

I've found 2 mistakes thus far:

Mistake #1:

One thing I've found is nowhere in the Notice To Keeper have ParkingEye mentioned that "the parking charges relating to the specified period of parking have not been paid in full":

7 (2) (c) inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—

(i)specified in the notice; and


(ii)no later than the time specified under paragraph (f);

The closest they come is in the 2nd letter, sent on the 20th of October, where they say “…this Parking Charge remains outstanding”.

Mistake #2:

Also, paragraph 9(2)(f) of PoFA Schedule 4 states (bold added by me):

(2)The notice must—(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and


(ii)the creditor does not know both the name of the driver and a current address for service for the driver,


the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

In letter #1, ParkingEye state (bold added by me):

"You are warned that if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you."

So instead of 28 days, they said "29 days".


-----

My question: can I use these points in my defence to say that POFA wasn't complied with? Kinda feels like I would be nitpicking with small points like these, but what say the experts of this forum?

Be great to get some help with the wording

[mystery1]

Re: ParkingEye County Court Claim - Please Help Me With A Defence!

Ah, nice one M1, thanks so much.

I called the court on Friday, and the woman on the phone wasn't sure about my deadline. First she told me it was the 1st of Feb. Then I questioned it and she went away for a while and came back and told me she worked it out and it's the 16th of Feb--calculated by adding 28 days excluding weekends onto my date of service, which was the 9th of Jan.

I want to send this thing off asap though, as she obviously wasn't very sure.

Thanks M1 for adding in the bit on Consumer Contract Regulations, and for putting it all together so it looks more professional.

A few quick questions though...

1. I haven't yet found proof that Parking Eye have not complied with PoFA. Instead of saying "The Protection of Freedoms Act 2012 Schedule 4 has not been complied with", is it better to say something along the lines of “the Claimant is put to strict proof that they have complied with The Protection of Freedoms Act”?

Some folks advised me on another forum that I state PoFA is not complied with but don't say how, and that by doing so the judge might decide I've been unreasonable and dismiss my defence.

2. Could I ask why you've taken out section 7 on "Costs" in my defence above? I figured it would help show the judge that Parking Eye are being unreasonable, and should I lose in court this point may save me from paying the full fee of £175.

Again, thanks so much for helping me out M1.

5 days service plus 14 days. 14 extra days if acknowledgement of service is filed so as stated 33 days.

PoFA for Parking Eye is unlikely to win. They are as near to compliance as you find in the PPC land. Period of parking, as i included, is weak although i do believe correct. To beat PE solely on PoFA you'll need a friendly judge.

7 2 (c) is where a notice to keeper is used. Yours is ANPR ? and so para 7/8 are not applicable as you are covered by para 9.

Feel free to add in the 29 day thing. " The statutory wording from 9 2 (f) is incorrect"

Costs you can add back in again at the end. I simply forgot to paste. 1 of the reasons i advise "edit to suit".

M1