Parking Eye court summons - advice appreciated

[motorwaymadness]

Don't worry guys, not a single PM has been sent, there is no background conversation happening. I get there are likely many more people benefiting from this thread than me and I shan't be withholding a single part of this fight from my silent comrades.

 

I'm currently drafting a letter to the landowner CEO and what I would like to do either with Honeybee's permission or via Honeybee, is to run it past a more experienced member via PM so as not to run the risk of the recipient seeing potentially unsuitable drafts of his letter online. Then post the final letter on here as soon as it's done, followed by any response updates (or lack thereof). I don't think you'd be missing anything in not seeing my draft first because I'll bet you £100 (or £60 if paid within 14 days) that I won't get it right first time.

 

If anyone has any objections to that one PM though, just say.

[Billy's mate]

* Like. *

[DragonFly1967]

OK MM, obviously you'll have to edit this and add any personal details, and details of your vehicle etc. And this is adapted from the forum sticky with a few bits added.

 

Others may advise on more to add, or stuff to take away, and as always, many heads are often better than one

 

 

1. It is admitted that the Defendant is the registered keeper of the motor vehicle in question. Registration XXXX XXX.

 

2. The Defendant is unable to admit or deny the precise times he was parked in the car park of the motorway services at Newport Pagnell (Northbound) as he has no recollection of this. The Claimant is put to proof of the same.

 

3. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

 

4. The Claimant will no doubt argue that there are signs placed all around the car park. Whilst it is unfortunate that I have not been able to revisit the car park in question, it's located at the other end of the country, I can assure the court that this is not the case. According the the British Parking Association - Codes Of Practice (version 4, Feb 2014), hereafter BPA CoP, signage should be visible at the entrance to the carpark, bearing in mind that at a motorway service area, vehicles can be moving at higher than normal speed on access roads.

 

Section 18.2 of the BPA CoP says... "The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this."

 

Section 18.3 of the BPA CoP goes on to say... "Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand."

 

As I did not exit my vehicle at any point, and bearing in mind that it was XX.XX AM/PM and therefore quite dark where I parked my vehicle, I did not see any signs stating that there was a charge for overstaying the two hour free period, nor any signs telling me how and where to pay for any excess parking if there was any due.

 

Since leaving the service area and having time to research the matter on the internet, I have found that there is a charge of £11 for excess parking at all Welcome Break service areas, and I have offered to pay this amount directly to Welcome Break in full and final settlement of the matter.

 

5. If there was a contract, it is denied that any penalty charge is incorporated into the contract. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, the relevant term must be made known before a contract was formed. Here, the charge was not incorporated into the contract because I was unable to read any signage (if it exists) because I parked in a dimly lit area of the car park, there were certainly no signs anywhere near my vehicle and I did not exit my vehicle to go and find signs that I did not know existed. I only pulled in at the motorway services because I was tired and I felt that it would be a safe and prudent course of action to take a break from driving rather than attempt to continue my journey without doing so.

 

6. Alternatively, even if there was a contract, the provision requiring payment of £60 rising to £100 if not paid within 14 days is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

(a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay;

(b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant or the landowner;

© the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten days.

 

7. Further and alternatively, the provision requiring payment of £60, rising to £100 if not paid within 14 days is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the car park for its designated purpose.

 

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

 

 

 

It's not finished yet, but I've got to go and pick my missus up from the train. She won't be too pleased if I leave her standing there

 

I'll add some more when I get back, or tomorrow

[motorwaymadness]

DragonFly you are an absolute star. I might offer to marry you myself if you didn't already have a wife waiting at the train station.

 

That's sooo much smarter than anything I could have cobbled together myself and I'll bet there are others for whom it's very relevant too, I'm sure this scenario must be a common one. I do have a couple of questions but perhaps I should leave them until tomorrow?

 

I shall have my letter to the landowner ready soon too, just trying to cut the opinion out of it and make it a bit more er, Dragonfly-ish.

[DragonFly1967]

DragonFly you are an absolute star. I might offer to marry you myself if you didn't already have a wife waiting at the train station.

 

Would you be really offended if I politely declined your most gracious offer?

 

 

Anyway... Latest/final? draft...

 

1. It is admitted that the Defendant is the registered keeper of the motor vehicle in question. Registration XXXX XXX.

 

2. The Defendant is unable to admit or deny the precise times he was parked in the car park of the motorway services at Newport Pagnell (Northbound) as he has no recollection of this. The Claimant is put to proof of the same.

 

3. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

 

4. The Claimant will no doubt argue that there are signs placed all around the car park. Whilst it is unfortunate that I have not been able to revisit the car park in question, it's located at the other end of the country, I can assure the court that this is not the case. According the the British Parking Association - Codes Of Practice (version 4, Feb 2014), hereafter BPA CoP, signage should be visible at the entrance to the carpark, bearing in mind that at a motorway service area, vehicles can be moving at higher than normal speed on access roads.

 

Section 18.2 of the BPA CoP says... "The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this."

 

Section 18.3 of the BPA CoP goes on to say... "Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand."

 

As I did not exit my vehicle at any point, bar visiting the garage, filling up with fuel and buying a coffee at the end of my stay, and bearing in mind that it was XX.XX AM/PM and therefore quite dark where I parked my vehicle, I did not see any signs stating that there was a charge for overstaying the two hour free period, nor any signs telling me how and where to pay for any excess parking if there was any due.

 

Since leaving the service area and having time to research the matter on the internet, I have found that there is a charge of £11 for excess parking (for cars, upto 24 hours) at all Welcome Break service areas and I have offered to pay this amount directly to Welcome Break in full and final settlement of the matter.

 

5. If there was a contract, it is denied that any penalty charge is incorporated into the contract. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, the relevant term must be made known before a contract was formed. Here, the charge was not incorporated into the contract because I was unable to read any signage (if it exists) because I parked in a dimly lit area of the car park, there were certainly no signs anywhere near my vehicle and I did not exit my vehicle to go and find signs that I did not know existed. I only pulled in at the motorway services because I was tired and I felt that it would be a safe and prudent course of action to take a break from driving rather than attempt to continue my journey without doing so.

 

6. Alternatively, even if there was a contract, the provision requiring payment of £60 rising to £100 if not paid within 14 days is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

(a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay;

(b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant or the landowner;

© the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten days.

 

The Genuine Pre-Estimate Of Loss, which of course means the loss that ParkingEye or the landowner has suffered as a result of my vehicle taking up a space. If the parking is free for two hours, and my vehicle was in situ for X hours, given that there is an excess charge made by Welcome Break of £11 (for cars, upto 24 hours) the "loss" would be £11 and not the amount claimed by the Claimant.

 

ParkingEye cannot justify the charge of £60 or £100 (or more) when the actual loss was £11. Anything over and above that (actual) loss, bar perhaps, what it's actually cost ParkingEye to write to me, let's be generous and say a further £10, is a penalty, and I argue that this penalty is unenforceable as per submission 6 of this defence statement.

 

ParkingEye cannot include (in their GPEOL) a percentage of their running costs, as they'd incur those whether or not my vehicle had been parked there that day.

 

7. Further and alternatively, the provision requiring payment of £60 rising to £100 if not paid within 14 days is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the car park for its designated purpose.

 

8. The Claimant will no doubt be relying on a recent judgement that was faound in their favour. That being ParkingEye V Beavis & Wardley. The Claimant may have omitted to include the initial part of HHJ Moloneys' summing up which says...

 

1.2 "I should however emphasise:

a. that since I am a Circuit Judge not a High Court Judge, this decision has only persuasive force;

b. that it is based on one particular set of the Claimant's standard notices and terms, which may have varied from time to time, a point which should be checked in other cases;"

 

In my humble opinion, ParkingEye were able to win that claim based on a particular set of circumstances, those circumstances being that in the case of the car park in question, ParkingEye pay a 'rent' to the landlord which would of course give them the rights of a tennant to bring a case themselves.

 

Those circumstances do not exist at this car park and therefore ParkingEye have no entitlement (by virtue of contract or otherwise) to bring a claim in their name in respect of land over which they have no title.

 

 

9. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

 

 

Attachments (You'll need to print these out (at least 3 copies) and attach them to your (defence) evidence bundles. 1 for PE, 1 for the Judge and 1 for yourself to refer to on the day.)

 

Attachments to evidence:

 

Judgement: ParkingEye V Sharma. Brentford County Court. 3QT62646. 31st Oct 2013. DJ Jenkins. Click for copy of judgement. Claim dismissed. District Judge Jenkins, who is the Honorary Secretary of the Association of Her Majesty’s District Judges, dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land and it thus followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in their own name.

 

Judgement: ParkingEye V Gardam. High Wycombe County Court. 3QT58735. 14th November 2013. DJ Jones. Click for copy of judgement. Claim dismissed as ParkingEye had no rights to bring a case in their own name.

 

Judgement: ParkingEye V Gosnold. High Wycombe County Court. 3JD02357. 23rd January 2014. DJ Devlin. Click for copy of judgement. Claim dismissed as ParkingEye had no rights to bring a case in their own name.

 

Judgement: ParkingEye V Collins-Daniel. Bristol County Court. 3JD06533. 24th January 2014. DDJ Melville-Shreeve. Click for copy of judgement. Claim dismissed as judgment showing that there was no contract, but even if there was, the contract was ambiguous, but even if it was not the charge of £85 was excessive and clearly a penalty. DDJ Melville-Shreeve also ruled that signage was "wholly deficient".

 

Judgement: ParkingEye V Clarke. Barrow-in-furness County Court. 3JD00517. 27th January 2014. DDJ Buckley. Click for copy of judgement. Claim dismissed as ParkingEye had no rights to bring a case in their own name.

 

----

 

MM. I'd also suggest that you have a read of this blog post by the Parking Prankster. It contains some useful info about court and how to conduct yourself and what to be aware of. I've not included the case in the list above (you can if you want to) as I think there's more than enough to prove (beyond reasonable doubt) your case anyway.

 

I think that should do it, unless anyone else has anything to add/change/suggest????

[motorwaymadness]

Thanks DragonFly, that's brilliant.

 

My only concern is the signage bit - I'm not sure I can claim not to have seen the signs at all, just that I didn't see any signs stating their standard parking charges as opposed to the £100 fine. And as this was an accidental overstay I wouldn't have paid the £11 up front even if had I known it existed, though I would have paid it retrospectively before leaving when circumstances changed.

 

Do you think I should include this defence statement in my CEO letter or keep things less formal for him?

[DragonFly1967]

Thanks DragonFly, that's brilliant.

 

My only concern is the signage bit - I'm not sure I can claim not to have seen the signs at all, just that I didn't see any signs stating their standard parking charges as opposed to the £100 fine. And as this was an accidental overstay I wouldn't have paid the £11 up front even if had I known it existed, though I would have paid it retrospectively before leaving when circumstances changed.

 

Do you think I should include this defence statement in my CEO letter or keep things less formal for him?

 

Feel free to change that part to suit your particular circumstances

 

I'd certainly keep it far less formal for the CEO. You need to be mentioning things like...

 

Tiredness, and the "Tiredness can kill, take a break" signs on the motorway. You felt unsafe to continue your journey without taking such a break etc.

How pleasant you felt the staff of Welcome Break were to you, and the fact that they said they were unable to help you but sympathised with your situation.

How you always use Welcome Break service areas if you get the chance because the staff have always been the most helpful. And how you feel that you've been badly let down by the company.

Offer to pay the £11 fee for overstaying and say how, had you realised at the time that there was such a fee, you'd have paid it on the night.

 

And add anything else that you can think of that may convince them that you're a valuable customer that they're about to lose. Even the biggest companies don't want to lose customers if they can help it.

 

 

You might also appreciate the ironic humour of this post

[motorwaymadness]

That's great DragonFly, looks like I'm on the right track already in that case.

 

Could I PM you it later this aft? Unless anyone has any objections. I'll post the final version publicly regardless.

[DragonFly1967]

That's great DragonFly, looks like I'm on the right track already in that case.

 

Could I PM you it later this aft? Unless anyone has any objections. I'll post the final version publicly regardless.

 

I've no objection to you PM'ing me, but do please post (a redacted) version of the letter publically as well, there may be things to add that neither of us have thought of

[motorwaymadness]

Fab, thanks.

[chrismk]

Fab, thanks.

 

Hi I have received excellent advice from this site and read this post with interest. I live 5 mins from Newport Pagnell services northbound, if you need pictures of the signage let me know happy to take some for you tomorrow just let me know

[DragonFly1967]

Hi I have received excellent advice from this site and read this post with interest. I live 5 mins from Newport Pagnell services northbound, if you need pictures of the signage let me know happy to take some for you tomorrow just let me know

 

That would be exceedingly useful chrismk, you're an absolute star

[chrismk]

That would be exceedingly useful chrismk, you're an absolute star

It's no problem ill do it tomorrow anything in particular you need or just the sign ?

[DragonFly1967]

It's no problem ill do it tomorrow anything in particular you need or just the sign ?

 

The entrance sign (presuming there is one), a picture of the signs in the car park (showing the T&C's), a general overview photo of the car park as a whole, and, if you park in a bay, just a rough count of how many signs you can see clearly and read from your car.

[motorwaymadness]

Hey thanks chrismk, that's a lovely offer. I'm hoping that because I live roughly the cost of a ParkingEye charge's worth of diesel away from Newport Pagnell, that there won't be an expectation of me having such evidence.

 

However I am taking counsel from wiser heads on here so it's lovely to know we've got a comrade near the scene if we need one.

[motorwaymadness]

Ah, DragonFly beat me to it! In that case thanks loads chrismk.

 

Would it be useful to explain where I parked to see what was in my immediate vicinity?

[chrismk]

Yes if you explain roughly where you parked I'll grab the info you need.

[DragonFly1967]

Hey thanks chrismk, that's a lovely offer. I'm hoping that because I live roughly the cost of a ParkingEye charge's worth of diesel away from Newport Pagnell, that there won't be an expectation of me having such evidence.

 

However I am taking counsel from wiser heads on here so it's lovely to know we've got a comrade near the scene if we need one.

 

I think the court (though ultimately it's up to the Judge on the day) would accept photographs taken by a third party on your behalf given the distance involved. Whereas you couldn't realistically expect a court to accept 'pictures' from Google Maps, which could be months or even years out of date.

[motorwaymadness]

Ok, on the right of the entrance I think there were some trees lining the edge of the car park. I was within their shadow but not right on the edge, perhaps one row in from the edge. And I was towards the main entrance side but not right next to it, several spaces in from the entrance side. And I parked facing the motorway rather than the rest of the car park, so I was facing away from the main entrance.

 

Hopefully that'll make sense when you're there.

[motorwaymadness]

Anyway if you're taking a couple of general shots I can pinpoint my space and my likely route to it and see where the signs were in relation to it.

 

DragonFly might correct me if it's not necessary, but perhaps when you're taking a pic of the sign itself can you hold something like your mobile phone up to it so we can accurately judge font size?

[DragonFly1967]

Anyway if you're taking a couple of general shots I can pinpoint my space and my likely route to it and see where the signs were in relation to it.

 

DragonFly might correct me if it's not necessary, but perhaps when you're taking a pic of the sign itself can you hold something like your mobile phone up to it so we can accurately judge font size?

 

Not too bad an idea, it will give it some sort of sense of scale. Also @chrismk if your phone or camera has the feature, could you show the time/date stamp on the photos. That way, if they are allowed in evidence, no one can say that they're old pictures.

[motorwaymadness]

Alternatively hold a copy of one of tomorrow's newspapers next to it if you have one to hand.

[DragonFly1967]

Alternatively hold a copy of one of tomorrow's newspapers next to it if you have one to hand.

 

This isn't Proof of Life with a ransom demand you know

[chrismk]

Hi All

 

No problem I've made some notes and ill take care of this tomorrow, I'm sure my camera has a date/time stamp, will post the pics on here once done.

[motorwaymadness]

This isn't Proof of Life with a ransom demand you know

 

Maybe ParkingEye's attempts to hold us to ransom are rubbing off on me.