Parking Eye court summons - advice appreciated

[Billy's mate]

Fascinating stuff. If you get to Court and present your information on the tiredness open day at Newport Pagnell to the Judge, I'm sure he'll laugh them out of Court. MM, I'm still following this closely, and you have my full support.

[motorwaymadness]

I do hope so Billy's mate and thanks for your support, it made me smile.

 

I agree armadillo, there is a clear public interest angle to all this. Though if I was doing PR for WB or PE I think I'd be suggesting they take the small hit to kill the story. Obviously it'd still be great if they see sense and do that, but we'll have a better story for the Mail if they don't.

 

I need to get my defence outline finished this week. DragonFly - should I now be including details of the settlement in that? I'll get it all tweaked and posted here asap.

[Surfer01]

if it went to court and you won, you would probably pay a lot less than the £21 WB were requesting as the admin fee would be part of business practice anyway. In addition, WB would need to show their losses after PE have taken their cut. This means that the bill may probably drop even lower. I doubt if PE and WB would want any one to see the contract that is supposed to exits between the two of them.

[DragonFly1967]

@motorwaymadness.

 

File the following (edit as necessary) as your outline defence. You can add to this and ask for disclosure at the "allocation questionnaire" stage.

 

 

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 strict 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. 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.

 

5. 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.

 

6. 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.

 

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 maximum total of 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 if there were any loss at all it would amount to £11. Anything over and above that, bar perhaps, what it's actually cost ParkingEye to write to me is a penalty and I argue that this penalty is unenforceable as per submission 5 of this defence statement.

 

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

 

7. 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.

[robj]

Hi,

this could be relevant - and note the last paragraph.. Different services company but the idea is there.

 

[Can't post a link..]

 

Google "Tired driver hit with fine for taking a nap" and look for The Telegraph article, likely the first item.

 

RJ.

[motorwaymadness]

That's fab, thanks DragonFly. That list of requests from PE - do you mean that's the disclosure I ask for at the allocation questionnaire stage or am I sending that directly to them now?

 

Thanks robj - yes I've seen that one. Moto has a policy of not enforcing penalties against motorists who stop for safety reasons. So the message is don't be afraid to stop at a service station - just make sure it's a Moto one!

 

WB CEO Rod McKie defended their contrary policy in a similar AOL Cars story: "If customers did not have to pay at night, our car parks would be full of people sleeping in cars, vans, caravans, etc. This is a major concern for us."

 

I visit Moto service stations as frequently as I do WB ones (and probably more frequently from now on) and I can anecdotally confirm that Moto car parks are no less empty at night than WB ones.

 

I wonder if Mr McKie bases his policy on quantitative research or whether that's as grumpy a melodramatic excuse as it sounds...

[motorwaymadness]

And another thing...

Where does the arrogance come from that they think thousands of people are just dying to spend their nights in WB car parks?

When I stop at a motorway service station it’s for as short a time as possible. I want to get back on the road and head for home as a matter of urgency. Am I unusual in my approach to these things?

Ooh the allure of the WB car park with its glorious tarmac, so hard underfoot. With the soothing roar of juggernauts thundering down the M1 I lie in my motor under the protective gaze of CCTV cameras, all snuggled up next to my handbrake that gives me a reassuring nudge in the thigh as I try to get comfortable.

How could I resist all that when all I’ve got waiting for me at the other end of the motorway is a deliciously snugly king-sized bed, a hot shower, slippers, curtains that close, a toothbrush, a family, coffee that doesn’t cost the price of a full day’s parking in a reasonably-priced car park and most importantly... a proper alarm clock?

But that’s not going to form part of my defence statement so had better get back to work. Rant over.

[DragonFly1967]

That's fab, thanks DragonFly. That list of requests from PE - do you mean that's the disclosure I ask for at the allocation questionnaire stage or am I sending that directly to them now?

 

Once you've submitted your outline defence, you'll be sent an 'allocation questionnaire' by Northampton BCC. Which will cost ParkingLie another £40. That also gets sent back to the court I believe (it will say on it anyway). That's when you start firing off requests for disclosure from ParkingLie, and they won't want to disclose anything, which never looks good on them in court. I really don't know why they bother, the only claims they win are the ones upon which they get a default judgement and those that aren't defended properly.

 

They *might* drop it (stranger things have happened) once they see your defence statement, as they must know they'll lose, so why waste another £40.

[motorwaymadness]

I really don't know why they bother, the only claims they win are the ones upon which they get a default judgement and those that aren't defended properly.

 

That's reassuring DragonFly. I know they're a bit er, 'selective' with the cases they choose for their propaganda.

 

That begs the question how many people have been hit with CCJs by default for these pathetically trivial matters? Thankfully I deal with financial stuff at work so I understand what a CCJ is and why I can't afford one.

 

But how many don't understand what that can mean for them? How many don't have the time, money or mental capacity to make PE go away? How many simply hide in fear? How many mortgage applications get declined or interest rates hiked in PE's bid to teach us all a lesson by sabotaging our credit records?

 

It's probably the case that the more vulnerable you are, the better candidate you make for a default CCJ off PE.

 

And on that sad note, I have our outline defence statement tweaked. DragonFly I haven't changed much - any point posting on here or shall I post it straight in the postbox?

[ericsbrother]

their biggest number of wins come from people just folding at the sight of the N1 envelope dropping on their doormat. Basically PE is using the courts system as a chep debt collecting agency rather than actually having much of a reason to turn to the law. Look at some of those they have lost where they have doctored their evidence or told lies to pull the wool over the judge's eyes.

[motorwaymadness]

their biggest number of wins come from people just folding at the sight of the N1 envelope dropping on their doormat. Basically PE is using the courts system as a chep debt collecting agency rather than actually having much of a reason to turn to the law. Look at some of those they have lost where they have doctored their evidence or told lies to pull the wool over the judge's eyes.

 

Indeed ericsbrother. An appropriate use of HMCS? This has naff all to do with my credit worthiness. The punishment is no more appropriate than it is proportionate.

 

For anyone who missed it at the beginning of this thread, DragonFly posted this which I found enlightening: http://parking-prankster.blogspot.co.uk/2014/08/parkingeye-dodgy-practices-exposed.html

[motorwaymadness]

Maybe PE are right and they are dealing with a dimwit here.

Ever had one of those moments where your brain screams at you to stop doing something but your body hasn’t enough time to react? That’s how I felt in the millisecond after this annoying fly finally landed somewhere on my desk where I could swat it.

I think I’ll name it ParkingFly.

Maybe sensible to file online now though...

[ATTACH=CONFIG]53092[/ATTACH]

[DragonFly1967]

Any updates on this?

[motorwaymadness]

Not yet DragonFly. I left filing my defence until the last minute to give me as much time as possible until the next stage. So now just waiting...

 

I'll update as soon as I hear something. Do you know how long that takes?

[DragonFly1967]

Not yet DragonFly. I left filing my defence until the last minute to give me as much time as possible until the next stage. So now just waiting...

 

I'll update as soon as I hear something. Do you know how long that takes?

 

If I remember rightly, the claimant has something like a month (maybe 35 days??) to respond to your outline defence, or of course, drop the case.

 

If they fail to respond, you win by default (or rather, they lose).

 

 

 

If they've got any sense (doubtful) they'll drop it. As you're going to put up a fight, they might consider that it's not really worth their time. But you still have to play their waiting game

[motorwaymadness]

Ok, thanks DragonFly. I'm happy with the waiting game. It'll be an er, Welcome Break from PE.

[motorwaymadness]

Ok, thanks DragonFly. It'll be an er, Welcome Break from PE.

[DragonFly1967]

Ok, thanks DragonFly. I'm happy with the waiting game. It'll be an er, Welcome Break from PE.

 

Groan

[motorwaymadness]

Hello all.

 

I was hoping to post next week that the deadline had elapsed and I'd heard nothing.

 

But alas, some paperwork has arrived this morning: Notice of Proposed Allocation to the Small Claims Track; a directions questionnaire; and some information on the mediation service.

 

So, mediation. Is this to be attempted?

[Billy's mate]

Mediation is a way of avoiding taking up the Court's time with relatively trivial matters. If you're sure of your case, you can refuse this and ask for the case to be heard in Court. However, some Judges take a dim view if one party agrees to mediation but the other party doesn't. You've come this far, so I would be inclined to refuse the mediation, and see if the parking company really will go for the Court hearing.

[motorwaymadness]

Thanks Billy's Mate. Do you know if PE tend to accept or reject mediation?

[ericsbrother]

PE will always reject mediation and I would never suggest agreeing to it otherwise there is an implicit agreement that there is something to their claim.

[motorwaymadness]

Oh I see. If they reject it as well I'll do that then. Just didn't want to come across as the unreasonable one.

 

I think the rest of the form is quite straightforward. I get the opportunity to transfer to my local court now as well.

 

Do we know what the next stage is? Just a hearing date or do they give us more paperwork and possibly some instructions?

[ericsbrother]

It will automatically be allocated to your local county Court unless you have good reason for it to be heard elsewhere (access reasons for disability for example).

When your AOS is logged into the system PE will have to pay the allocation fee and you will have to outline your defence. This will be in a couple of weeks time so get your skeleton arguments sorted.

Using what you have gleaned from here and other palces and anything helpful from the signage/landowners search just put down bullet points. You will be given a hearing date later and be told to exchange documents before a certain time. You then have to supply PE and the court with a copy of anything you wish to rely on. If you do forget somehting then you can still use it during the hearing as oral evidence but dont try and introduce new written evidence or witness material as it is jumped upon by judges as trying to ambush the other party. Likewise do not accept PE doing that to you, complain if they do.

[motorwaymadness]

Ah that's a great help, thank you. I'll keep you all updated.

 

They left it right up to the deadline which has actually done me a great favour as my work crisis has calmed down a bit during that time. So they can now have my full attention in fighting this thoroughly.