Parking Eye reply to defence and notice to proceed

[Resilient]

I think there are many grounds for defence beyond those already well cited here:

 

Signage: Under the Decriminalised Parking Enforcement Act, the signage is clearly specified to define what is considered legally acceptable signage for application on the roads. Where Councils fail to apply the EXACT signage the penalty can be thrown out. However with private parking claims, there appears to be no correlatory standard for signage that has legal significance - a private body the BPA cannot simply determine what it thinks is suitable any more than a Council (which is democratically elected) can. Further, as a driver, you are under government instruction to pay clear attention to the road, and the legal road signs, if you were to be observing advertisements (such as an offer to contract from a private parking company) and had an accident then you would be liable. Therefore, due care and attention stipulates that you ignore such signs whilst driving. Once parked, there is NO legal ruling that says you should read any advertising AT ALL - these guys are woring incorrectly under the assumption that you are obliged to read their signs, when you are not. You are no more obliged to read them than you are to read the health and safety policy, the latest McDonalds offer or any other adverts because THEY HAVE NO LEGAL SIGNIFICANCE.

 

Contracts: Under contract law, you cannot be opted into a contract. What some magistrates fail to understand is the way these firms apply the Protection of Freedoms act assumes you can - you can't. You need to know the offer is extended to you and accept the offer (did you have your glasses, can you read?). Parking alone does not constitute acceptance. Under contract law I cannot send you a contract that says you owe me £1 million pounds and by not responding to reject it it will be assumed proof of your acceptance of the terms. Contracts must be explicitly accepted. The assumption that parking constitutes an acceptance is false, since you entered the grounds with the intention of parking before you were aware any contract was being offered, and as with my example, could be oblivious of the offer and therefore have not made an explicit decision to accept the offer terms. Further, you have the right to reject the terms of the offer, so you could simply write on the notice sign, terms rejected and make a counter offer of free parking for two days, and your parking will constitute that agreement - since if the court were to consider that you could be opted into a contract by parking, then the rules should work both ways, and they can be opted into your contract by not replying. With contracts you have the right to accept, reject, and counter offer. In this instance the contracts are imposed with no right to counter offer, so by rejecting it you could argue right of access or trespass by simply saying I rejected the offer. By counter, stick up a sign behind you in the court, stating that by sitting in the room today all parties agree to pay you whatever the judgement against you is plus 25%, then let the event proceed. During the course point it out, that it is very feasible that the public could see but not read or comprehend the meaning of the sign, however if the court wants to state that contracts can be made in such a manner then yours should have legal standing too (risky example I know, but in principle it stands).

 

Parking: What is the definition of Parking, and what evidence exists to support the view that you parked? Normally the cameras support the argument that you came in and left, whether you parked is open to debate. I've driven into multi-storey car parks where I've spent 20 minutes driving around following other drivers looking for a space only to drive out again in London when I couldn't find a spot. Was I parked during this time? Since there are no double yellow lines on the entry and exit roads, and you pull over (so you're not in a parking bay) does that constitute parking, or filling up with petrol in the services? Are they trying to argue that being on the premises at all is parking? Since in most places, especially motorway service stations, they've been open for more than 25 years and therefore you'd have a right of access which they can't deny, and you right of access does not come with speed guidelines, you must walk or drive across this land at x speed. Bottom line is, the evidence does not support PARKING, it supports entering and exiting with the ASSUMPTION that you parked. This would need to be proved.

 

Demonstrable loss: This is really a messy area. These businesses set up to lose money on purpose. Infact it could be argued that their sole purpose is to lose money on parking so they can fine you to profit much much more. The business model they claim is about parking tariffs, yet we know that most of their money comes from parking fines. The fact that any profit comes from parking fines means there is NO LOSS. You cannot profit from an injury claim only receive recompense. This requires two things: first demonstrate that you suffered a loss - what loss did they suffer - £1.50 for parking, then they should have sought £1.50 from you. However, they argue that they have to chase you, so they should be able to evidence the cost of the transaction at each stage. What your contesting is whether they've been reasonable in their estimates, or whether because they are unreasonable you are seeking a judgement in court. When a business operates it accepts costs, those costs are carried by the revenue from normal operations. If you send out an invoice, you don't charge extra for the invoice on top of the bill, it's factored into the initial operating charge (the parking cost). What these firms could argue is that they've got DVLA costs, fair enough. But all of the rest of it, is part of collecting payment. Therefore, the damages they seek in court or in their letters should in the first instance reflect the actual damage, but it never does, they try to hit you with a penalty as if you agree to a penalty for breach of a contract you never reviewed. There are no grounds for a penalty charge in contract law beyond demonstrable loss. So, bottom line is you can argue they are attempting on purpose to create situations where they can lose, it being more profitable to them to seek penalty charges that initial parking payments. In your defence ask the magistrate to insist the firm provide a clear copy of their financial accounts demonstrating that they are entirely revenue neutral on parking penalty charges, that they make zero profit (not that the profit covers their standard BAU activities) but that it literally covers the cost of chasing you for that additional £1.50 and not a penny more in profit. That way these firms will dry up.

 

Payment Terms: They offer terms, buy a ticket. You should get a receipt. However, you might argue you wanted to be invoiced. Or are happy to pay the parking fee but didn't have the cash on you. Therefore were happy to be invoiced - no breach there just a payment scheduling. Again, offer them the nominal £1.50 plus the £2.50 for DVLA costs. if they don't accept then they are seeking more than demonstrable loss.

 

Right of Access: Many places, such as Motorway service stations have existed beyond 25 years with roads through them allowing access to the business on site, back routes to the country, and the ability to walk over the motorway to the other side. Right of access is accepted and cannot be constrained by a charge. So you could walk across a field, sit, eat lunch and then get up and carry on. The Farmer can't come out and hit you with a charge for eating lunch on an historic route. Likewise, eating lunch in your car on the motorway services whilst you pass through is another hurdle they would need to overcome.

 

Right to Silence - Confirmed in the public order act. You are under no legal obligation to speak to incriminate yourself or name the driver. Refusing to do so is not illegal. So unless they can prove you are the driver, then the court would be attempting to impose a sanction on a person for using their right to silence (since there is no actual evidence of a contravention). Too much assumption goes into these claims, that you were the driver, that you did actually park, that you read this advert contract, that by parking you agree to all of the terms without right to counter offer, that your right of access is removed by this contract (on grounds where access has historically existed over 25 years).

 

1689 Bill Of Rights - this has come up a few times historically. The right confirms that no fine or forfeiture can be laid against you prior to trial and any such is void if attempted. It is constitutional law and cannot be implied repealed - so it overrides the Freedoms of Protection act. It is an act that binds the Queen and therefore HM Courts and grants them authority as if they break it, technically the Queen would be in breach and dethroned, which means the Courts lose authority to judge. Since they tried to fine you before a hearing the fine is VOID. If they argue loss then demonstrate it without BAU costs or profits.

 

Bottom Line: Hopefully the courts will realise that to uphold these silly claims for these corrupt parking firms they need to throw the rest of the law into the toilet. By doing so they are accepting that contracts can be formed without awareness or real consent, that contracts offer no right to challenge terms, that photos of you coming in and leaving constitute sufficient evidence of parking when you could have been in the petrol station the whole time, that the Bill of Rights does not apply to these fines,

 

Finally, these firms capture your private information from the DVLA despite the Data Protection act being in place. Yet they don't like it when the tables are turned on them. You could go onto the anonymous site and let them know (they know already but additional updates help) - about the abuses caused by these firms and their legal advisors. Anonymous have a bad press yet they are largely civil defenders, seeking to help the people against abuses by governments and companies. They are very good at publishing the directors names, addresses, and office details and much much more. I'm sure you can find where they've posted them with a bit of digging.

Edited November 13, 2013 by Resilient

[Resilient]

Thanks SweetRevenge, it was an off the cuff, albeit long response. It probably needsto be re-written with more robust examples, citing case history.

 

I've noted of late that these companies are pushing back on the Bill of Rights defence,using a ruling from 2006 against Robin Decrittenden, however, having read that ruling I have strong grounds to believe the ruling is flawed for two reasons. First, the Judge argues that the Penalty isn't a fine but a civil penalty, attempting to avert a constitutional conflict with semantics (I can produce evidence of both Privateand Council Parking notices referring to it as a fine historically which means they are changing the term trying to squirm under the scope of the 1689 Bill of Rights). Secondly, the Bill of Rights is very explicit in one crucial matter...it say ALL promisesof Fines or Forfeiture. This means we should be without doubt as to the scope, everything that looks like a fine, sounds like a fine, is a fine and is VOID.

 

 

 

In terms of signage,the Seventh Parliamentatry Transport Committee Report states: "The clarity and accuracy of signs and lines is critical. On-street parking controls must be indicated with approved signs and markings according to Traffic Signs Regulations and General Directions (TSRGD) guidance. Signs for restrictions not covered by the Traffic Signs Regulations require authorisation from the Secretary of State."

 

You'll note that this is a hurdle that the Police, Highways Agency, and Councils are bound to comply with in order to ensure that all Parking Contraventions are legally enforceable. These Crown appointed bodies have been placed under this responsibility because it is viewed as in the public interested to ensure sufficient oversight. It would seem odd that all of these Crown appointed bodies should be held to a higher standard than the private sector.

 

It also notes: 214.The Institution of Highways and Transportation suggested that the TSRGD guidance leads to complex signs which are unhelpful to drivers. Several other organisations indicated that signs and lines are often not well understood by the public. The Department for Transport acknowledged that confusion reigns telling us that "There are too many examples of signs that are so incomprehensible or confusing that drivers findit difficult to comply with them because they simply do not understand therestrictions."

 

This raises the question as to whether Parking Eye or any other private company are legally authorised to post signage that has any legal significance.

 

A further questionis whether circumstances support you having time to read and consider such signage. Signing a contract under duress makes the contract void. Can you givethe contract due consideration if it is pouring down with rain - does the court really expect that even if you saw the signage, had your glasses, were sufficiently gifted in English to read and comprehend the signage that you would stand in the pouring rain until you've read it through.

 

The difference between these signs and Traffic Signs is one set forms a part of the Highways guide and drivers are expected to remain up to date with them as a condition of driving, the others are simply offers of a contract. If Banks can be taken to court over claims related to PPI forcing you into a contract you did not want, then Parking companies should be bound by equal rules.

 

Again, i'm brain dumping here. You'd need to take all of this, structure it into a coherent and robust argument using meaningful examples. I'd also advise that you set out the basis of the claim before the magistrate and be respectful at all times as you need them to give you the benefit of the doubt and hear you out fully. All ofthe above arguments and case examples combine to show the unreasonable burden that is being placed on motorists that the Public Sector parking bodies agree it is unfair for them to impose. There are many grounds to throw the cases out, the largest of all being that in every respect these firms are intentionally preying on motorists and have invented a mechanism for generating profit that is both blatantly unfair, clearly profiting way above loss, and exhibits all the manifestations of knowing and purposefully engaging in sharp practice.

 

Finally, had the initial letter to you acted as an invoice and simply asked for pro-rata payment for provision of parking possibly even with the DVLA costs added on, then that might have been viewed as reasonable, but since the opening demand is typically £60-100 pounds this is far beyond loss, and is not supported in contract law asit does not support profiting from contractual disputes.

 

Bring your £1.50 with you on the day. Put it on the table to evidence you are serious and that this isn't about you attempting to duck and dive, but is you legitimately exerting your rights as a citizen and seeking protection from the court against sharp practice.

 

Good luck, apologies again for rambling.

 

 

 

Edited November 14, 2013 by Resilient

[Resilient]

I came up with a new idea and wanted to float it for your consideration:

 

Place a notice in the back of your car simply stating that the owner does not grant permission to photograph this vehicle without prior written consent. Photographs of this vehicle used for any commercial purpose are subject to a charge of £500 for each use. Photographing this vehicle will be deemed acceptance of these terms.

 

Then drive into a Parking Eye car park, photograph your car in their and their camera's. Then send them the invoice.

 

If they are able to accept that we are bound to their contract by the act of parking even if we fail to read the signs, then by equal measure they should be bound to ours by the same. Send your invoices and pass them on to debt collection agencies.

[Resilient]

Here are two other major flaws:

 

1. YOU PARK BEFORE YOUR READ THE CONTRACT. You can't sign a contract you've not yet received.

2. Freedom of Protection Act says they can come after the Owner of the vehicle, however the DVLA only provides information on who the registered KEEPER of the vehicle us and the Log Book makes it clear that the keeper and owner are not necessarily the same person. You can therefore write back and explain that whilst you registered the vehicle you are not the owner, and since according to the this is contract law and not criminal law there are no grounds to compel you to testify or provide evidence.

 

(Sorry, i'm on a roll today).

Edited November 19, 2013 by Resilient

[Resilient]

Hi SweetRevenge,

 

you are correct, i was actually reading the same act tonight to check the position on it. However, i think it still presents the same significant problem in court. The Log Book can be used as evidence of the fact that the keeper is not the owner, and as such placing a penalty against the administrator of the paperwork who is not the owner seems highly questionable. It just goes to show how much the Freedoms act is not placing the rest of the law in good order and magistrates would have to make ridiculously illogical rulings to accept it - against the public good and completely removed from the idea of justice. The whole mess needs overhauling. These firms are parasites end of.

 

Remember, it is for the magistrate to decide. Interestingly the act does make it clear that the loss, or pre-estimate needs to be reasonable. I still have a copy of one of Parking Eyes threatening letters which directly lists their costs and includes four items, such as the cost of installing camera, signage and their maintenance, and membership in parking bodies. However, these costs are already subsumed in their standard parking tariffs, and therefore they cannot be used as to justify a penalty charge in the region of £60-100 pounds.

 

Bear in mind that in many instance, if you are parked over by say 3 minutes, a $60 charge would seem highly unreasonable, and since £11 gets you 24 hours of parking, then a pro rata charge of of pennies would seem a reasonable redress. So if you do end up in court, you can explain to the magistrate that the sole reason you are there is because the demands from Parking Eye were entirely unreasonable and based on what you'd heard from other people were unlikely to change, therefore you wanted to wait to see if they wither withdrew or gave you the benefit of a court hearing as at least you knew there you'd be able to have a magistrate look at it and determine whether seeking £60-100 pounds as their opening demand was remotely reasonable, and since you're able to cite costs in their correspondence defining exactly what those charges are made up of, and that those costs do not remotely correspond to loss in this instance but are the typical costs of performing business, and unfairly allocated against you (since each driver for 24 hours only has to pay £11) therefore how can the actual loss be greater than that in their pre-estimate of loss?

 

Then offer to pay them even the £11 in court for the full 24 hours if need be to evidence that you are being reasonable and that they are not, and you were simply defending against an unreasonable demand, and would ask if the magistrate rules that your request to only pay a fair and reasonable loss is in fair, that they not be awarded costs to further profit out of an attempt to obtain a much larger amount of money from you unlawfully.

 

Nothing i could see in the Freedoms Act supported their right to a £60-100 charge. Remember, the charge is typically £11.

 

Because these firms are such parasites, I've provided all of their details up on the anonymous site, pointing out the types of threatening behavior these guys engage in. I know anonymous engage in activities like hacking, bringing down computer systems, publishing the personal details of directors, including home address and the likes, and i certainly wouldn't condone any of that behavior, but they also do legitimate things like organize lawful protests which in this instance might be useful.

 

Finally, i used to stop in at the same services each week. I would meet a colleague their i went to uni with, he and i would catch up over lunch then sit in the coffee shop with drinks and chat. Finally because of the distance i had to travel home to the south east, i'd fill up with fuel - in the region of £90 a time. Only one time was i over on parking, and was posted one of these nonsense penalty notices. Since then i've moved the venue and we now meet up in a coffee shop in a nearby town, i've never since in the last 12 months used that services nor will i ever use one in the welcome chain again so long as they support Parking Eye. It might be a small protest, but i estimate they've lost in the region of near £5000 in revenue from me over that time frame and i never paid a penny to Parking Eye.

 

On the signage point, the act does not define what signage is reasonable, but it could be a fair comparison to draw between the Parking Eye signage and the lawful highways signage. I note that you cannot read any of the parking eye signage whilst driving, and none of the sign are lit at night, which is a precondition under the highways act for Police and Councils. As such any tickets issued at night would automatically be liable to challenge on viability, as they would under conditions of bad weather. You simply cannot agree to a £60 fine by refusing to stand in the rain.

 

Personally i think everyone should simply boycott any company that works with firms like parking eye, i already do. They can't be making that much from the parking tariffs for all of the ill will these tickets will create, and customers staying for even 4 hours cannot really constitute that much of a burden, especially if they are eating and shopping.

Edited November 21, 2013 by Resilient

[Resilient]

Esmerobbo, I agree.

 

I very much feel this is a badly written act, more so because of the attempt to apply contract law. This act is effectively stating that you as the registered keeper could be forced into a contract you had no knowledge of, did not authorise, nor empower the driver to act as the agent on your behalf.

 

The interpretation of this act used by these parking firms tries to argue that contracts can now be established between two parties (one being the keeper) without the foreknowledge of the keeper or the authorisation by the keeper to a party to act as an agent on their behalf to create contracts. Further that the simple act of parking alone forms the contract which becomes legally binding on the keeper.

 

If that is the case then it must be the case in all contracts. By that reconing, if i borrow your pen and sign up for a mortgage, do you incur liability toward the mortgage debt if i default - because its your pen and you loaned it to me? By their interpretation we are now bound into and liable for all 'contracts' established by any thrid party using any item of our property in a manner to which we would not authorise or condone, but where the other contracted party can argue a claim!

 

The implications are ridiculous. The bank salesman that loans you his pen in the bank to sign the mortgage contract could by the same measure be held liable in the event you default on the loan, it was his 'vehicle' by which the contract was signed even though he did not sign it himself.

 

The simple solution to all of this, were Parking Eye genuine about its attempt to provide a parking service would have been barriers and tickets. That way there would have been no risk of confusion over whether parking was free or paid, and no ability to leave by accident without settling the tarriff, but that would totally undermine what appears to be their business model - which appears to be based on the hope that enough people don't see the signs or realise what they mean so that they can slap them with £60-100 in made up pre-estimate of loss charges.