So just adapt this then do you think?
Claim Number: [REF]
ParkingEye Ltd (Claimant)
Defence Skeleton Argument
I am [NAME] of [ADDRESS], [postCODE], defendant in this matter.
1. My defence to this claim relies principally on three main points, as follows:
a) Lack of Standing by Claimant: The Claimant is not the landowner of the car park, and has no proprietary interest in it. This means that the Claimant, as a matter of law, has no locus standi to litigate in their own name. Any consideration is provided by the landholder, and only they can sue for damages or trespass.
b) No Loss Suffered by Claimant: Their claim is based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on my part. Any losses are due to the landholder, not the Claimant. I further submit that the loss to the landholder is zero or negligible.
c) No contract with the claimant. Any contract must have offer, acceptance and consideration both ways. There is no consideration from ParkingEye to motorist; the gift of parking is the landowner’s, not ParkingEye’s. The car park is free. Therefore there is no consideration from motorist to ParkingEye.
2. Case Law Relied Upon:
a) With regard to point 1a, there are two Court of Appeal judgments of note, ParkingEye v Somerfield [2012 EWCA Civ 1338] and HMRC v VCS [2013 EWCA Civ 186]. In the first, the court ruled that the parking company could not take legal action in their own name. In the second the court ruled they could. The nature of the relationship between landowner and car park operator, and the wording of the contract between them, is key to distinguishing these two cases. It is instructive therefore to compare the current relationship between ParkingEye and landowner, and the wording of the contract, to see whether this more closely resembles ParkingEye v Somerfield or HMRC v VCS. The defendant submits that it is obvious the relationship is more like the ParkingEye v Somerfield case.
In 3JD04329 ParkingEye v Martin (12/05/2014 St Albans) District Judge Cross found ParkingEye’s contract to be more like the Somerfield case than VCS v HMRC, and dismissed the claim. No transcript is currently available.
A sample landowner contract, which is believed to be similar to the landowner contract in this current case (if one existed at the time) is appended at Appendix A. Attention is draw to clause 3.11 which shows that all damages for breach of contract are passed to the landowner (and then reclaimed as a service charge incurring VAT) and to clause 23, which shows there is no landlord and tenant relationship. A sample VAT only invoice is appended at Appendix B.
b) With regard to point 1b, I rely upon the following cases and evidence:
OBServices v Thurlow (Worcester County Court, 2011) (Appeal hearing before Circuit Judge).
ParkingEye have lost the following cases recently on this point.
3JD00517 ParkingEye v Clarke (Barrow-in-Furness, 19/12/2013) Deputy District Judge Buckley ruled that the amount charged was not a genuine pre-estimate of loss as any loss was to the landowner and not the Claimant. “The problem which the present Claimants have, however, in making this assessment is that on any view, any loss is not theirs but that of the land owners or store owners”
3JD02555 ParkingEye v Pearce (Barrow-in-Furness, 19/12/2013) This case followed on from the previous case and Deputy District Judge Buckley ruled the same way. (No transcript is available)
3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). The judge ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss as the loss for a four minute overstay was negligible.
3JD03769 ParkingEye v Baddeley (Birmingham 11/02/2014) District Judge Bull. The judge found that the defendant's calculation of ParkingEye’s pre-estimate of loss of around £5 was persuasive. As ParkingEye could not explain how their alternate calculation of £53 was arrived at, he accepted the defendant's calculations. The transcript is not yet available. However, as ParkingEye attended, they will be able to confirm this.
The British Parking Association (BPA) have ruled the normal maximum charge for breach of contract should be £100. (Appendix C, clause 19). However, they also ruled that the charge must be a genuine pre-estimate of loss – the parking company cannot just charge an arbitrary amount. The Office of fair Trading agreed with this, pointing out that all costs must be directly attributable to the breach, that day to day running costs could not be included and that the charge cannot be used to create a loss where none exists.(Appendix D). Taking this into account, the BPA’s independent appeals body POPLA has refused to authorise ParkingEye’s charges and has published a special 17 page report (Appendix E) detailing why ParkingEye’s charges are not valid. POPLA have made over 100 judgements that ParkingEye’s charges are not a true pre-estimate of loss and no known judgements that they are (Appendix F). This number has stopped rising, but only because ParkingEye have stopped contesting POPLA appeals when the motorist raises the issue of charges. ParkingEye have filed a number of conflicting attempts to explain their charges, both to the court and to POPLA. They are currently on their 5th significantly different version. (Appendix G,H,I,J,K). Their current explanation can be seen as a filibuster attempting to deflect attention from the fact that it is the landowner loss which is significant, not the charges incurred by ParkingEye. It contains a large number of incorrect facts and unsubstantiated statements, together with snippets of text from small claim cases. The number of different explanations establishes that ParkingEye do not have a true calculation for pre-estimate of loss, but are continually trying different versions in an attempt to get one accepted.
ParkingEye's accounts to 31-Aug-2013 (Appendix L) shows profits for 2011/12 were over 30%. Profits for 2012/13 dipped to 7%, presumably reflecting takeover costs as they were purchased by Capita. Capita’s press release (Appendix M) confirms that in 2014 profits are expected to return to more than 30%. Such a large profit margin is inconsistent with a business whose main income is charges intended to negate the loss to the landowner.
ParkingEye’s true pre-estimate of loss can be calculated as follows. The accounts show that the entire cost of running the business is £9,439,343 (2012) and £12,637,764 (2013). Although not all these costs are allowable against parking charges, this can be used as a useful upper limit. The number of keeper requests made to the DVLA (Appendix N) during these periods are 629,181 and 720,090. The maximum cost per ticket issued is therefore total cost/number of tickets, or £15 (2012) and £17 (2013). Not all keeper requests will result in a ticket issued. An allowance of 10% is generous. However this only raises the maximum cost to around £17 and £19. This is a maximum. Many costs to the company will not be allowable heads of loss. For instance, the entire ParkingEye infrastructure is used to provide management information to customers as well as for enforcement purposes, and costs must therefore be apportioned. In addition ParkingEye issues many tickets incorrectly which they are forced to cancel (over 55% on appeal) and these costs cannot be passed on as they do not result from breach of contract. ParkingEye also run pay and display machines to generate profit for landowners, and this is not enforcement-related but a normal cost of doing business.
Appendix O contains the minutes of the British Parking Association meeting where parking charge levels were decided, showing that there was no consideration whatsoever given to pre-estimate of loss, and that at least one factor was to set the charges the same as council penalties. The minutes also show there is no financial basis for the 40% discount but that it is needed to ‘prevent frivolous appeals. Any charge set to deter is a penalty. A charge set to the level of a penalty is a penalty.
c) With regard to point c, this is trite law. I rely on the following cases
3JD09409 ParkingEye v Green. (08/05/2014 High Wycombe). Judge Jones ruled there could be no contract in a free car park as there was no consideration from the motorist. “"If you give me your coffee mug as a gift, and it then cracked five minutes later, I couldn’t sue you." There is no transcript available for this case. However, as ParkingEye attended, they will be able to confirm this.
I deny that I am liable to the Claimant for the sums claimed, or any amount at all. I invite the Court to strike out the claim as being without merit, and with no realistic prospect of success.
All evidence and transcripts referred to will be provided at least 14 days before any hearing date.