Parking eye ''letter before action' x 3 - help! Please

[lisa76]

Hi there, I know there are loads of posts but still can't find my answer

hoping for some help as my situation is a bit different :

I used to park my car in a staff car park on a retail park for years.

Not supposed to but no one ever said anything as loads of spaces and saved me £6 a day on pay and display

- parking eye must have been set up by the retail park and before I knew I received 3 lots of charges in jan 2013

I ignored them as I had heard that they can't do anything but recently apparently the law has changed and they can prosecute

now I have received 3 letters by recorded delivery saying unless I pay £85 then court proceedings will be issued.

I am about to just pay them

- but it totals £255 

just wanna check with you guys that I should just pay.

Thanks very much

[citizenB]

As I understand it, these are NOT fines and if they have implied they are then it might be a problem for them.

 

I also understand in normal circumstances that you would write to the Land owner/Retail Park Owners. Then ignore. But from what you explain above this might be a different situation. It might be worth waiting until the end of the day to see if any of the experts can advise what to do.

[lisa76]

Thank you for your quick reply citizenB

- ill give it till Monday and decide what to do.

I appreciate its my fault - cant believe I didn't spot the cameras and signs!

The car in question I sold months ago not sure if that could make a difference in them perusing me

[citizenB]

If the dates they have you parking on their speculative invoice are dates on which you owned the vehicle then I rather suspect that is not going to help.

[lisa76]

Yep I owned the car at the time

[citizenB]

[green_and_mean]

I'm no expert on PPC tickets but there is no rush to pay they cannot increase the 'penalty' or whatever they call it and they cannot collect it without first going to Court.

[lisa76]

Thank you for your reply - it's just the last thing I need is to be issued court papers - scares the life out if me ! I think I read somewhere that the next letter they send is £135 to be paid instead of £85

[ericsbrother]

OK,

they are not fines,

they cannot prosecute so they are resorting to threatening you with suing you for their perceived losses.

If you want you can write to the land owner or managing agents and ask for a copy of the contract between themselves and Parking Eye that allows PE to sue people on the occupiers behalf on in their own name.

It is unlikely that you will get the document but if the matter is taken further you can demand a copy from Parking Eye.

There is plenty of help in this forum so if you dont want to pay money that you dont have to then sit tight or write the letters demanding to see the contracts.

[lisa76]

Thank you ericsbrother for your detailed reply that makes me less worried

- just a question though....

If I'm issued court papers do I still have a chance to pay and not go to court??

Or do I have no choice by then?

Many thanks

[Crocdoc]

Don't pay anything to this company , I will come back later with written questions that PE can never answer. Sorry for the delay but I am at work at the moment. Are you in England or Wales , as Scotland differs.

[citizenB]

Thank you ericsbrother for your detailed reply that makes me less worried - just a question though.... If I'm issued court papers do I still have a chance to pay and not go to court?? Or do I have no choice by then? Many thanks

 

Yes, if they do issue a claim then you have 14 days to make payment to the company which will mean the claim is withdrawn/discontinued.

 

You might find they want you to pay the costs involved in issuing the claim as well !

[lisa76]

Thank you crocdoc and citizenB, crocdoc I am in England thanks for your reassurance

[ericsbrother]

Preempt them and write the letters asking for proof of contract between them and occupier that specifically allows PE to chase customer for debt to occupier. get this off now.

They will get slaughterd in court if they have to admit that you have requested the proof of right(and thus prrof of alleged debt) and they havent provided it by the time they issue court papers. For this reason they will not issue a summons yet and may never do so.

[Crocdoc]

This letter is one I hold on record and asks all relevant questions, PE and their side kicks Debt Recovery Plus don't like questions. (Too many big words)

I may get shot down in flames here, However in my view ignoring should be a thing of the past, I would always respond with the appropriate questions and use POPLA to the maximum. Remember PPC'S so far have lost 60% of POPLA appeals, therefore the goal should be to obtain 100%.

(Don't use this letter in Scotland)

Name

Address

Parking Eye

Address

Date

Dear Sir /Madam Invoice ref xxxxx

On (date) I was the registered keeper of a (make and model of vehicle) registration number (reg number).

Before I decide how to deal with your Notice to Driver/Keeper (delete as appropriate), I should be grateful if you would first answer all the questions and deal with all the issues I have set out below. Once you have done so, I will be able to make an informed decision on how I deal with the matter.

I dispute the parking charge for the reasons set out below. Please note that although I dispute the whole basis of the parking charge, my main concern is its disproportionate and punitive level.

1. No contract

There was no contract between the driver and [insert name of parking company]. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

2. Trespass

If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.

3. Punitive/unfair/unreasonable charge

Even if there was a contract (which is denied), the following matters are relevant: 3(a). Punitive

The parking charge you are imposing is punitive and therefore void (i.e. unenforceable). The £[insert amount] parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.

3(b). Unfair

The £[insert amount] parking charge you are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’

And 5(2), which states:

‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’ 3©. Unreasonable

The £[insert amount] parking charge you are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’ Further information I require you to provide and take notice of:

Please note specifically that this letter is not an appeal however, it is a challenge to the issue of the Notice to Driver/Keeper (delete as appropriate) as set out in the BPA AOS Code of Practice B.22. I should be grateful for answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct. 4(a). Cause of action.

Please make this clear. If it is your claim that the driver entered into a contract, please send me a complete version of the terms and conditions of that contract to which you say the driver agreed to.

4(b). Further to the above please explain fully on which of the following grounds your claim is based:

(i) Damages for trespass

(ii) Damages for breach of contract

(iii) A contractual sum

5. Your loss.

If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages, please give me a full breakdown of the actual loss you say was suffered by your business or the landowner/landholder.

6. Appeals procedure.

I require a copy of any appeal procedure you follow, along with details of what factors you take into account; who is the judge or arbitrator and whether they are independent; whether you require oral or written submissions; whether it is governed by the Arbitration Act 1996 and any other relevant factors.

In addition, please give me disclosure of any arguments you would put forward on this matter in any subsequent appeal process so that either the registered keeper or the driver might consider his or her response to any existing or new issues which are raised. 8. Your status.

Your Notice to Driver/Keeper (delete as appropriate) simply mentions [insert name of parking company if that is who is named on the NTD/NTK]. Please tell me who is the actual creditor making this £[insert amount] parking charge demand. I need to know exactly who is making the claim and in what capacity.

 

9. Ownership of premises.

 

Please tell me who owns the car park as I wish to send them a copy of this letter.

10. Contract to operate.

 

Please provide me with a copy of the contract between your company and the landowner/landholder.

11. Involvement of landowner/landholder.

 

Please explain any involvement, if at all, of the landowner/landholder with the management of parking at this site and specifically with regard to the issue and enforcement of your Notices to Driver/Keeper. (delete as appropriate)

12(a). Photographs- handling.

 

Your notice refers to ‘photographic evidence’. Please send me a copy of your procedures for handling and processing that evidence and the relevant audit trail. Furthermore, under section 7 of the Data Protection Act 1998 please send me a copy of all such photographs along with a copy of all other data you hold relating to me. As this would be required to be disclosed in any event as part of your evidence bundle in the small claims process, I do not expect to pay for the release of my personal data which you hold.

12(b). Photographs – evidence.

 

The copies of the photographs that you have provided along with the Parking Charge Notice merely show my vehicle entering and leaving the car park but do not show the actual alleged parking contravention on which your Parking Charge Notice has been issued. Please therefore provide me with copies of all photographs that evidence the actual alleged parking contravention itself

 

13. Signage.

 

If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to

evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.

14. Legal representation.

Please provide me with the name and address of your solicitors, if any, in order that I may copy them into this correspondence.

15. To avoid doubt, please do not do any of the following:

(i) Send any further correspondence or documents to me or try to communicate with me in any way except to address in writing the specific points I have raised in this letter.

(ii) Send me any document purporting to be from the county court unless it is a valid claim form duly issued.

(iii) Write to me threatening to send bailiffs to my address without first issuing a court claim form and obtaining judgment.

(iv) Send me any standard letters from your company or debt collectors.

16. If you wish to make a claim you may do so online. My address for service is set out at the top of this letter. If you do decide to issue proceedings, please note that:

(i) I reserve the right to add further arguments to the defence

(ii) I or my representative will be happy to attend any court mediation that might be offered.

17. I look forward to receiving your acknowledgement within 14 days and a comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8). I will then be able to make an informed decision as to how I shall respond to your Notice to Driver/Keeper (delete as appropriate).

18. If you reject this challenge or fail to address the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision.

19. If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.

Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.

 

Love Crocdoc

[RayGuselli]

Hi CrocDoc...

Just received the reply below...any thoughts please???

Thanks

Ray

“You are notified under paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012 that the driver of the motor vehicle is required to pay this parking charge in full.

As we do not know the driver’s name or current postal address, if you were not the driver at the time, you should tell us the name and current postal address of the driver and pass this notice to them.

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.

This warning is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of that Act.”

The Protection of Freedoms Act 2012 states that the operator (ParkingEye) is able to acquire the Registered Keeper Details from the DVLA. It is then the Registered Keeper’s responsibility to provide the operator with the name and contact address of the driver. 28 days are provided for this to be done. This is considered to be ample time for a Registered Keeper to uncover and provide the driver details.

As these 28 days have now expired, it is too late for these details to be provided, and ParkingEye is now pursuing the registered keeper for the full outstanding Parking Charge. This was outlined in the Keeper Liability Letter dated 06/08/2013.

As stated in the Letter Before Action, ParkingEye is fully prepared to pursue this matter through the courts if needs be. In our most recent case that was settled in court, the defendant relied upon the fact that she was not the driver of the vehicle for her defence.

The Judge found this defence to have, “no basis in law,” and it was struck out. ParkingEye was therefore able to reclaim its full costs from the defendant.

For your consideration, please find copies of the correspondence sent attached with this message.

In relation to your claim that our charges are disproportionate and therefore not a genuine pre-estimate of loss, we refer you to the below cases that indicate that the Parking Charge amount is fair and reasonable.

Furthermore we have calculated this sum 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);

• 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.

This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner (or the landowner’s agent).

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.

We also note that a number of your queries are of a generic nature, a number of which we have seen before.

Please see ParkingEye’s answers to Frequently Asked Questions below.

FAQ’s

How was a contract formed with the driver?

The Parking Charges issued for and on behalf of the landowner are levied on the basis of a contract with the motorist, set out via the signage at the site.

The signage sets out the 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 visible and in line with the BPA (British Parking Association) Code of Practice to ensure 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.

A number of cases, such as Vine v London Borough of Waltham Forest [2000], prove particularly useful in respect to the creation of a contract with the driver. This is again reiterated in Section 7.1 of the Department of Transport’s guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012.

This provides strong evidence that if the signage and terms and conditions are sufficient it will be considered that the driver has entered into a contract to park on the land. Also see Combined Parking Solutions v Dorrington (2012), Combined Parking Solutions v De Brunner (2007), Combined Parking Solutions v Blackburn (2007) and Combined Parking Solutions v Rees (2007).

Is the Parking Charge enforceable, is it a penalty?

ParkingEye does not issue or collect Penalty Charges, fines or Excess Charges which are only relevant to on-street or civil enforcement area and enforced by police/traffic wardens or council civil enforcement officers under the Traffic Management Act 2004 or the Road Traffic Acts. This legislation is not applicable on private land. We can confirm, however, that ParkingEye has the authority to issue and enforce Parking Charge Notices, for contractual breach.

Further evidence, that ParkingEye’s Parking Charges cannot be viewed as penalties, can be found in Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [2008], Combined Parking Solutions v De Brunner [2007]

and, in a case tested at High Court and the Court of Appeal (ParkingEye v Somerfield Stores [2011]) and more recently in ParkingEye v Mr Kevin Shelley [2013] where it was found that ParkingEye’s Parking Charges were not a penalty and were upheld in court.

Furthermore the judge ruled that there was a commercial justification for them.

Is the Parking Charge fair and reasonable?

ParkingEye firmly believes that its Parking Charges are fair and reasonable, ParkingEye’s Parking Charges are in line with the British Parking Association guidelines, and have been tested at the Court of Appeal.

A charge of £75 was found by HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound.

See also Combined Parking Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007).

How can the charge be enforceable if there is a reduction for early payment?

The offer to reduce the charge for the first 14 days is not indicative of the fact that it should be considered a penalty. As a matter of practicality there are many commercial situations where a discount is offered for the early settlement of a contractual claim. HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) stated that this was the case.

Does ParkingEye have the authority to issue Parking Charges?

ParkingEye can confirm that it only operates on sites that are situated on private land, are not council owned and that ParkingEye has written authority to operate and issue Parking Charge Notices on all of its sites from the landowner.

It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169).

It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract.

I wasn’t the driver, therefore I will not be paying the Parking Charge?

Paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012, states that the operator must inform the registered keeper that the driver of the motor vehicle is required to pay the parking charge in full.

It also notes that, as the operator does not know the driver’s name or current postal address, the registered keeper, if they were not the driver at the time, should inform the operator of the name and current postal address of the driver and pass the notice to them.

The Act also warns that if, after 29 days, the parking charge has not been paid in full and the operator does not know both the name and current address of the driver, they have the right to recover any unpaid part of the parking charge from the registered keeper.

This warning is given under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to the operator complying with the applicable conditions under Schedule 4 of that Act (which ParkingEye firmly believe it has).

Is Vehicle Control Services v The Commissioners for her Majesty’s Revenue & Customs applicable?

The Court of Appeal reversed the decision in March 2013. In this case HM Revenue & Customs was claiming that VCS had to account for VAT as they had no interest in the land and as such were acting as agents. HM Revenue & Customs therefore argued that the retention of Parking Charge Notices was payment for services.

However this was found not to be the case in this ruling. This notwithstanding the VAT treatment of Parking Charge Notices remains the same, this was decided in the Tribunal Case, Bristol City Council LON/99/261 and is enshrined within HM Revenue & Customs VAT Brief 57.

ParkingEye accounts for VAT to HM Revenue & Customs on all its Parking Charge Revenue. However the Parking Charge Notice itself remains outside the scope of VAT. Therefore any VAT ruling in respect to VCS does not currently apply to ParkingEye.

ParkingEye must accept or reject my appeal within 35 days?

The clause to which this argument refers to has been amended and has been made accessible to the general public in the latest British Parking Association Code of Practice (June 2013).

Yours sincerely,

ParkingEye Enforcement Team

[ericsbrother]

I note that they answer questions you didnt ask in a manner that suits themselves. Dont bother playing their silly games and either pay up on day one or let things take their natural course. I do, however, laugh at the idea of a reduction of 50% for an early settlement is not proof of the sum requested being a penalty otherwise the commercial decision to discount everything by that amount would be financial suicide. Why dont they offer a park "twice and get penalised once" bargain? answer- because it is ALL obfuscation and twaddle.

[Scouse Magic]

Hi there, as you can see, there is some awesome advice on here, never worry about court, it's a fantastic day out.....what contravention is stated on your letters please IE breach of contract / parking without authority...we could have some fun with this

[citizenB]

they fail to quote the reference of the claim they won and are relying on ? Do we know about this one ?

[Scouse Magic]

Quote from ParkingEye's letter......

• 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.

 

This is where they fail in court......With the exception of postage in any event that they are successful, all the others are the running costs of their business and they would remain the same if no one used the retail park in the first place and therefor it follows that this is not the loss of revenue that the actual landowner incurred...

 

To state that this is a genuine pre estimate of loss caused by the vehicle being there, is nothing short of contempt and this needs to be pointed out to the court even before the penalty is addressed....

 

Regards.

[Homer67]

PE must be running out of Desk jockeys with any capability at all to come up with that load of tripe. The basic defense shoots holes all the way through it. Exactly what SM said.

 

 

What is this one about? ParkingEye v Mr Kevin Shelley [2013] I can't find any reference to it?

Edited August 30, 2013 by citizenB

[lisa76]

Hi everyone, just a quick update.

I got a court letter stating how much I had to pay or if I can't afford that then I had to do an Income and expenditure form (which came attached to court letter )

I offered £30 per month in which they wrote back to me saying that was declined and I had to pay £50 per month and reading the letter I will get a ccj or some kind of entry on my credit report.

Wish I'd paid the damn thing now!

Also, just to clarify I didn't write any letters to parking eye heeding advice from all you people on here.

Just too busy with work and toddlers, so I haven't help myself to be honest!

[Tony P]

Oh dear.

It seems that apart from ignoring Parking Eye letters you also ignored previous papers sent direct to you by a Court.

Is this so?

 

In those circumstances PE will always win by default as there would have been no defence.

 

And I'm sorry to say, blaming the advice on this thread is totally wrong as you ignored that too !

[themagician]

as always there are some people in life you just cannot help,

i see you all did your best, next one please.

[lisa76]

Hmmmm

I would never blame anyone here you were all more than helpful.

I responded immediately to court papers hence setting up the agreement to pay back the fine on a monthly basis.

Completely my fault to be honest.

And when I said I wish I'd paid the damn thing- that was not having a dig at the helpers on here but to myself, I thought I would simply update my situation.

No need for rudeness thank you !