Parking Eye- Welcome Break services

[hsbcfiddled]

The registered keeper has recieved a Claim Form from Parking Lie through Northampton County Court the POC reads;

 

Claim for monies outstanding from the defendant, as registered keeper, in relation to a Parking Charge, issued 00/07/2014, for parking on private land in breach of the T+Cs (the contract). Parking Eye’s automated number plate recognition system, monitoring Welcome Break Michael wood (North), M5 Jct 13/14, Michael wood, Lower Wick, Dursley, Gloucestershire, GL11 6DD, captured vehicle reg.UL1ARS entering and leaving the car park, parking without a valid paid parking ticket. The signage, clearly displayed at the entrance to and throughout the car park, states that this is private land, is managed by Parking Eye Ltd, and parking tariffs apply after a free stay period, along with other T+C’s by which those who park on the site agree to be bound. In accordance with the T+C’s set out in the signage, the parking charge became payable. Notice under the Protection of Freedoms Act 2012 has been given under Sch 4, making the keeper liable. This claim is in reference to Parking Charge(s): 1234567890 end!

 

 

There is only a date of issue and no mention of date or time that this refers to?

Advice please?

Edited September 30, 2014 by hsbcfiddled
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[ericsbrother]

Have they sent out all of the required paperwok up to this point?

We would need to know what has been received up to that date to be able to advise.

[hsbcfiddled]

Have they sent out all of the required paperwok up to this point?

We would need to know what has been received up to that date to be able to advise.

 

They have sent initial letters with photo of car all of which were ignored.

[ericsbrother]

Never a good thing to do, as you can now see.

they need to send off acknowledgement of service within the time allowed and start getting a defence sorted out.

this will include demanding sight of contract between landlord and PE that assigns right to make claims in their own name. you send this to PE directly under CPR 31.14

Next we need to know whetehr the signage is adequate to be considered and form a contract at the time. this means the wording must be visible and legible from car when entering car park and unambiguous. This means revisiting and photographing signage.

Lastly you rely on the chage not being their true loss nor a genuine pre-estimate of their loss. It was a free car park with the rider that staying beyond a certain time requires the purchase of a ticket with a prescribed fee of £x (usually £9-11) and therefore the maximum loss that can be caused by any breach of contract is this sum and that the claim for £XXX is a penalty charge rather than a sum that reflects the damages caused by the breach of contract.

Read the parking pranksters work on defending a claim for more info.

[hsbcfiddled]

Thanks ericsbrother;Got a week left to reply to court papers.Its too far away to re-visit to see signage.The rest of your advice is noted..and will do.This is for a friend its not my car and I wasnt driving or in the car.

[renegadeimp]

If in doubt, use GPEOL. Gets them every time.

[hsbcfiddled]

sent off the reply intending to defend.

 

The driver of the vehicle (similar to another post I have read) pulled into the services to take a break because of feeling tired. Not intending to be there very long the driver thought to 'just rest their eyes'. Next thing the driver recollects was waking and thinking OMG I am going to be late. Started the car and drove away.

The driver had not seen to read any signage and does not state that they failed to comply with any signage. There was no thought of staying beyond any time limit as the intention was a short rest. Its entirely unintentional.

Edited October 8, 2014 by hsbcfiddled
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[renegadeimp]

Theyll just reject it. As usual.

[hsbcfiddled]

I havnt replied to Parking Lie ..This was just an update so that I could get advice as the defence I put forward within next 14 days?

[ericsbrother]

There is another defence that has been looked at by judges and that is the signage is just "an invitation to treat" and therefore no contract was formed by offer and acceptance.

you can go into detail about land not belonging to PE and therefore signage can only be invitation to treat as they have no right to remedy for trespass if ignored. Reinforce this with GPEOL and argue that all other parts of their supposed contract are arbitrary as they cannot prevent access to the car park and cannot determine how it is used as they dont have any interest in the property. Fisher v Bell 1961would be the best example of invitation to treat, commonly used in A level law.

[hsbcfiddled]

Are there any example templates that I can adapt or any succesful defences?

It seems that they use the same POC from what I have read and just adapt?

[ericsbrother]

look at the parking prankster's blog spot, there is a link to a standard defence

[hsbcfiddled]

So just adapt this then do you think?

Claim Number: [REF]

BETWEEN:

ParkingEye Ltd (Claimant)

vs

[NAME] (Defendant)

 

___________________________________________________________________________

Defence Skeleton Argument

 

I am [NAME] of [ADDRESS], [postCODE], defendant in this matter.

 

1. My defence to this claim relies principally on three main points, as follows:

 

a) Lack of Standing by Claimant: The Claimant is not the landowner of the car park, and has no proprietary interest in it. This means that the Claimant, as a matter of law, has no locus standi to litigate in their own name. Any consideration is provided by the landholder, and only they can sue for damages or trespass.

b) No Loss Suffered by Claimant: Their claim is based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on my part. Any losses are due to the landholder, not the Claimant. I further submit that the loss to the landholder is zero or negligible.

c) No contract with the claimant. Any contract must have offer, acceptance and consideration both ways. There is no consideration from ParkingEye to motorist; the gift of parking is the landowner’s, not ParkingEye’s. The car park is free. Therefore there is no consideration from motorist to ParkingEye.

 

2. Case Law Relied Upon:

 

a) With regard to point 1a, there are two Court of Appeal judgments of note, ParkingEye v Somerfield [2012 EWCA Civ 1338] and HMRC v VCS [2013 EWCA Civ 186]. In the first, the court ruled that the parking company could not take legal action in their own name. In the second the court ruled they could. The nature of the relationship between landowner and car park operator, and the wording of the contract between them, is key to distinguishing these two cases. It is instructive therefore to compare the current relationship between ParkingEye and landowner, and the wording of the contract, to see whether this more closely resembles ParkingEye v Somerfield or HMRC v VCS. The defendant submits that it is obvious the relationship is more like the ParkingEye v Somerfield case.

 

In 3JD04329 ParkingEye v Martin (12/05/2014 St Albans) District Judge Cross found ParkingEye’s contract to be more like the Somerfield case than VCS v HMRC, and dismissed the claim. No transcript is currently available.

A sample landowner contract, which is believed to be similar to the landowner contract in this current case (if one existed at the time) is appended at Appendix A. Attention is draw to clause 3.11 which shows that all damages for breach of contract are passed to the landowner (and then reclaimed as a service charge incurring VAT) and to clause 23, which shows there is no landlord and tenant relationship. A sample VAT only invoice is appended at Appendix B.

b) With regard to point 1b, I rely upon the following cases and evidence:

OBServices v Thurlow (Worcester County Court, 2011) (Appeal hearing before Circuit Judge).

ParkingEye have lost the following cases recently on this point.

 

3JD00517 ParkingEye v Clarke (Barrow-in-Furness, 19/12/2013) Deputy District Judge Buckley ruled that the amount charged was not a genuine pre-estimate of loss as any loss was to the landowner and not the Claimant. “The problem which the present Claimants have, however, in making this assessment is that on any view, any loss is not theirs but that of the land owners or store owners”

 

3JD02555 ParkingEye v Pearce (Barrow-in-Furness, 19/12/2013) This case followed on from the previous case and Deputy District Judge Buckley ruled the same way. (No transcript is available)

 

3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). The judge ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss as the loss for a four minute overstay was negligible.

 

3JD03769 ParkingEye v Baddeley (Birmingham 11/02/2014) District Judge Bull. The judge found that the defendant's calculation of ParkingEye’s pre-estimate of loss of around £5 was persuasive. As ParkingEye could not explain how their alternate calculation of £53 was arrived at, he accepted the defendant's calculations. The transcript is not yet available. However, as ParkingEye attended, they will be able to confirm this.

 

The British Parking Association (BPA) have ruled the normal maximum charge for breach of contract should be £100. (Appendix C, clause 19). However, they also ruled that the charge must be a genuine pre-estimate of loss – the parking company cannot just charge an arbitrary amount. The Office of fair Trading agreed with this, pointing out that all costs must be directly attributable to the breach, that day to day running costs could not be included and that the charge cannot be used to create a loss where none exists.(Appendix D). Taking this into account, the BPA’s independent appeals body POPLA has refused to authorise ParkingEye’s charges and has published a special 17 page report (Appendix E) detailing why ParkingEye’s charges are not valid. POPLA have made over 100 judgements that ParkingEye’s charges are not a true pre-estimate of loss and no known judgements that they are (Appendix F). This number has stopped rising, but only because ParkingEye have stopped contesting POPLA appeals when the motorist raises the issue of charges. ParkingEye have filed a number of conflicting attempts to explain their charges, both to the court and to POPLA. They are currently on their 5th significantly different version. (Appendix G,H,I,J,K). Their current explanation can be seen as a filibuster attempting to deflect attention from the fact that it is the landowner loss which is significant, not the charges incurred by ParkingEye. It contains a large number of incorrect facts and unsubstantiated statements, together with snippets of text from small claim cases. The number of different explanations establishes that ParkingEye do not have a true calculation for pre-estimate of loss, but are continually trying different versions in an attempt to get one accepted.

 

ParkingEye's accounts to 31-Aug-2013 (Appendix L) shows profits for 2011/12 were over 30%. Profits for 2012/13 dipped to 7%, presumably reflecting takeover costs as they were purchased by Capita. Capita’s press release (Appendix M) confirms that in 2014 profits are expected to return to more than 30%. Such a large profit margin is inconsistent with a business whose main income is charges intended to negate the loss to the landowner.

 

ParkingEye’s true pre-estimate of loss can be calculated as follows. The accounts show that the entire cost of running the business is £9,439,343 (2012) and £12,637,764 (2013). Although not all these costs are allowable against parking charges, this can be used as a useful upper limit. The number of keeper requests made to the DVLA (Appendix N) during these periods are 629,181 and 720,090. The maximum cost per ticket issued is therefore total cost/number of tickets, or £15 (2012) and £17 (2013). Not all keeper requests will result in a ticket issued. An allowance of 10% is generous. However this only raises the maximum cost to around £17 and £19. This is a maximum. Many costs to the company will not be allowable heads of loss. For instance, the entire ParkingEye infrastructure is used to provide management information to customers as well as for enforcement purposes, and costs must therefore be apportioned. In addition ParkingEye issues many tickets incorrectly which they are forced to cancel (over 55% on appeal) and these costs cannot be passed on as they do not result from breach of contract. ParkingEye also run pay and display machines to generate profit for landowners, and this is not enforcement-related but a normal cost of doing business.

 

Appendix O contains the minutes of the British Parking Association meeting where parking charge levels were decided, showing that there was no consideration whatsoever given to pre-estimate of loss, and that at least one factor was to set the charges the same as council penalties. The minutes also show there is no financial basis for the 40% discount but that it is needed to ‘prevent frivolous appeals. Any charge set to deter is a penalty. A charge set to the level of a penalty is a penalty.

 

c) With regard to point c, this is trite law. I rely on the following cases

 

3JD09409 ParkingEye v Green. (08/05/2014 High Wycombe). Judge Jones ruled there could be no contract in a free car park as there was no consideration from the motorist. “"If you give me your coffee mug as a gift, and it then cracked five minutes later, I couldn’t sue you." There is no transcript available for this case. However, as ParkingEye attended, they will be able to confirm this.

 

3. Conclusion

I deny that I am liable to the Claimant for the sums claimed, or any amount at all. I invite the Court to strike out the claim as being without merit, and with no realistic prospect of success.

All evidence and transcripts referred to will be provided at least 14 days before any hearing date.

Edited October 16, 2014 by hsbcfiddled
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[ericsbrother]

You can suggest that any signage placed on the site by PE is an invitation to treat and therefore no contractual relationship exists between PE and the driver or keeper of the vehicle.

You will have to provide copies of the transcripts or the decisions of the cases you are quoting.

If PE quote PE v Beavis and Wardley as being their precedent you should remind the judge that this is being considered in the court of appeal in feb 2015 and request an adjournment until after that date if PE are saying that their claim is for liquidated damages. Your case is very different from Beavis as that was a pay and display so the offer and consideration is more defined, PE do suffer a loss (albeit not £100).

Also, the costs you have attributed are a consequential loss (ie paying the DVLA to get your details) and are not as a result of the act of parking so that points back to your first argument. I would make this clear.

 

Dont forget to get copies of the contract between PE and the landowner and make surwe that it is the landowner, PE have a habit of making contracts with agents or lessees of the site who are not legally entitled to enter such contracts in their own name. Again examples are available on the Parking Prankster's site (not blogspot)

Whilst you are asking for the contract ask for a copy of the planning application and subsequent permission for the signs they rely on to offer/invite with and suggest that a lack of PP makes the signage a false instrument to make a pecuniary advantage. Not sure how this would be seen as occupier invited signage to be placed there but PP still needed so any gain by PE is theoretically fraudulent but would the lack of PP be de minimis?.

[hsbcfiddled]

You can suggest that any signage placed on the site by PE is an invitation to treat and therefore no contractual relationship exists between PE and the driver or keeper of the vehicle.

You will have to provide copies of the transcripts or the decisions of the cases you are quoting.

If PE quote PE v Beavis and Wardley as being their precedent you should remind the judge that this is being considered in the court of appeal in feb 2015 and request an adjournment until after that date if PE are saying that their claim is for liquidated damages. Your case is very different from Beavis as that was a pay and display so the offer and consideration is more defined, PE do suffer a loss (albeit not £100).

Also, the costs you have attributed are a consequential loss (ie paying the DVLA to get your details) and are not as a result of the act of parking so that points back to your first argument. I would make this clear.

 

Dont forget to get copies of the contract between PE and the landowner and make surwe that it is the landowner, PE have a habit of making contracts with agents or lessees of the site who are not legally entitled to enter such contracts in their own name. Again examples are available on the Parking Prankster's site (not blogspot)

Whilst you are asking for the contract ask for a copy of the planning application and subsequent permission for the signs they rely on to offer/invite with and suggest that a lack of PP makes the signage a false instrument to make a pecuniary advantage. Not sure how this would be seen as occupier invited signage to be placed there but PP still needed so any gain by PE is theoretically fraudulent but would the lack of PP be de minimis?.

 

 

Transcripts will only be needed if it goes to court yes?

We arent at that stage yet because I am only about to lodge a defence.

[DragonFly1967]

Transcripts will only be needed if it goes to court yes?

We arent at that stage yet because I am only about to lodge a defence.

 

Yes, but start doing your homework now. The more you can find before you actually need them, the better your defence bundle will be.

[ericsbrother]

quoting pervious cases will come into your skeleton defence and it all takes time so do your trawling now, whilst you have time.

[hsbcfiddled]

ok thank you all for your input.