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Good afternoon dear Forum,

 

This is my first post.

I have been advised to ask opinion in the forum by another user

who has so far been very helpful with suggestion as to how to proceed with a ParkingEye PCN.

 

I have read the FAQs and Forum rules so I hope this is correct procedure.

 

The car is in my mothers' name and I am a named driver.

She was notified by mail with pictures of the car entering and leaving the supermarket carpark.

We received several letters and ignored them on advice.

We have not got a Northampton Court Claim Form.

 

Please could you be ever so lovely and review the letter I have drafted

(again from a template from my forum member friend) and let me know if I am on the right track

or if I am missing something pretty important.

Many thanks

Will

 

Dear Sirs

 

On 13/03/2014 I was the registered keeper of a **** registration number ****.

 

Before I decide how to deal with your Notice to Keeper,

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 ParkingEye Limited. 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 £85 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 £85 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 £85 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 Keeper 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.

7. Your status.

Your Notice to Keeper simply mentions ParkingEye Limited. Please tell me who is the actual creditor making this £85 parking charge demand. I need to know exactly who is making the claim and in what capacity.

 

8. Ownership of premises.

 

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

9. Contract to operate.

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

10. 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 Keeper.

11(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.

11(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

 

12. 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.

 

13. 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.

 

14. 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 .

15. 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.

16. 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 Keeper.

17. 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.

18. I request that the acting court be transferred to my local court in Hastings, both where I live and where the alleged offence took place. The address is

The Law Courts

Bohemia Road

Hastings

East Sussex

TN34 1QX

 

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.

Yours faithfully,

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on point 2 only the owner of the land can claim for damages due to trespass.

scrap point 13, not relevant unless they appoint a solicitor and tell you to deal with them.

point 18, when you send back the acknowledgement of service, the courts service will automatically allocate it to your nearest county court unless you say otherwise.

 

Sending this to them will make little difference to their action at this juncture but should be viewed as a request for documents or evidence under the Civil Precedures Regs so if they dont respond in a time you given them such as 14 days then you can complain to the court that they are not following the procedures and ask for the claim to be struck out. make sure you get your AOS in and say that a defence will be provided within the presribed time. this forces PE to pay the allocation fee without revealing your hand to them as yet.

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Thankyou EricsBrother.

Point2 amended to include this.

Point 13... the Claim Form has the name of a person (rather than a signature) and it is noted that she is the Claimant's Solicitor.

 

I then get a little confused. This letter is only a request for data rather than any defence? I was intending to copy this to the court and suggest I cannot get my full defence in place until I have heard back from the Claimants.

 

If they do respond within the prescribed time what's next?

 

Many thanks I really appreciate it.

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If they respond in time you will better know their basis of claim and have the contracts upon which they rely to claim against you. You do not have to send a full defence for some time yyet, the court paperwork will tell you when you need to exchange documents when the case is allocated a hearing date. no need to copy this to court as it is too early but do not delay in sedning the AOS and if need be a skeleton defence such as Claimant not shown any contractual authority to claim in own name, inadequate signage to offer terms to form a contract, no loss, amount claimed not a genuine pre-estimate of loss.

If you dont get the rerquired paperwork from your "discovery" request you find the form that you fill in to request that the claim is struck out as being without cause as PE have not sent the required evidence you asked for under CPRx.xx (its 31.14 or 31.15 if you are asking for pre-action paperwork, cant remember the number for your situation). Court will then make a decision whether to strike out or not, if not you wont be told.

If they respond and supply all of the paperwork then you read it and find things wrong with their claim based upon it, such as does LL give permission for PE to keep all of the money they make from rooking motorists? what other assignments of LL rights are also included?

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What supermarket was this

You need to vent at the supermarket not how customers should be treated

Make a fuss cause them a headache create as much as you can

If i have helped in any way hit my star.

any advice given is based on experience and learnt from this site :-)

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Remember to never admit in writing that you parked in the car park. You are being taken to court for breach of contract with regard to parking on Private lane. Contract law is very specific, and the wording on the court paper clearly says 'Parking'

 

However the claiment has yet to provide any evidence at all that you actually parked your car. All they have is a pretty picture of you driving in and then out of the car park. That is not evidence of a breach of contract. As far as you are concerned you spent all your time driving laps around the car park in an attempt to work out your average MPG :smile:

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