Parking Eye Claimform - opps ignored it!! help!!

[SwanG]

I'm hoping you guys can help as you have done in the past.

 

I received a parking ticket after falling asleep in a motorway services station from ParkingEye.

 

 

I followed general advice and ignored the ticket (the car is actually registered in my wife's name).

They are now pursuing me (my wife) via the courts and I'd like to ask a few questions.

 

I had initially intended to file a defence as many threads suggested that these cases are often thrown out with a robust defence.

 

 

I received the service on March 28.

The letter said that the date of service was deemed to be 5 days after the 28th.

 

 

On April 10 I filed an acknowledgement of service.

 

 

can someone check my maths?

I have 28 days from April 2nd to file my defence - which would be May 1??

Is that right and if so, how does the bank holiday affect it?

 

I've now decided that as much as I would love to file a defence

- because these guys are the spawn of satin

- I don't have the time or the energy to file anything near as robust as it would appear I need to.

 

 

I'm thinking it would be better to just write off the £175 and chalk it up to a bad experience.

 

But when I click on the Admission instructions using MCOL it says:

 

If you are admitting all of the claim and wish to pay it now you should take or send the money, including any interest and costs, to the claimant.

 

You should act quickly to ensure that the claimant receives the money within 14 days of the date you received the claim (the date of service).

 

 

If payment does not reach the claimant within this time they may ask for judgment to be entered against you and this may affect your future ability to get credit.

 

This implies that because it is now past 14 days,

if I DON"T file a defence and instead make the payment in full,

a judgement could still be made against my wife??

 

 

Being so close to the deadline,

and beyond the 14 days,

am I better off filing a weak defence?

 

Any prompt help would be greatly appreciated

[dx100uk]

sorry but I don't know where you've read you should ignore these tickets

that went out the window in 2012!! and has been widely published on cag

even to the fact that the word ignore advises you otherwise by a click link.

 

 

and there are literally 100's of private parking claimform threads that tell you what to do.

 

 

your defence was due by 4pm Friday as day 33 falls on a Saturday....

 

 

however all might not by lost

there is lee-way given to litigant in person

so

pop off and use our search CAG box of the top red toolbar

type in

 

 

claimform parking eye.

 

 

or Claimform BW VCS EXCEL

 

 

there you will find the simple 2 line defence [AND THAT IS ALL YOU NEED TO FILE AAT THIS STAGE]

 

 

log in to MCOL and go file it NOW.

 

 

when you've done that

you need to fill this in please:

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?465231-Received-a-Court-Claim-From-A-Private-parking-Speculative-invoice-How-To-Deal-With-It-HERE***Updated-Aug-2016***(1-Viewing)-nbsp

 

 

then on Monday you need to send PE solicitors this:

 

 

to the solicitors

[Your address]

.

[Their address [solicitors]

.

[Date]

.

Dear Sir or Madam,

.

Re: (Claimant's name) v (Your name) Case No:

.

CPR 31.14 Request

.

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

.

1. the contract between [parking company name] and the landowner that assigns the right to enter into contracts with the public and make claims in their own name,.

.

2.proof of planning permission granted for signage etc under the Town and Country Planning Act 2007

.

3.copies of the notice to driver, notice to keeper and any other correspondence from [insert Claimant Name] & [insert Solicitors Name} to the defendant that they intend to rely upon in court.

.

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are disclosed at your earliest convenience..

.

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

.

Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

.

If you are unable to comply with this request within 14 days and believe that you will never be able to comply with this request please confirm in your response.

.

You are reminded that as this case is yet to be allocated to a track, CPR31:14 does apply, a refusal to comply because you 'think' at this stage you dont have too will be used against you in any filed defence.

.

Yours faithfully

.

TYPE YOUR NAME DO NOT SIGN IT

 

......

 

 

dx

[SwanG]

Thanks so much (and bugger). When I search as suggested, all I can find is a full defence rather than a 2 line defence. See below. Is this what I should be filing?

 

1. It is admitted that Defendant is the owner of [motor vehicle].

 

2. It is admitted that the Defendant parked in [carpark] at the times mentioned in the Particulars OR the Defendant is unable to admit or deny the precise times he was parked in [carpark] as he has no recollection of this. The Claimant is put to proof of the same.

 

3. It is denied that the Claimant has complied with Schedule 4, Protection of Freedoms Act 2012 [set out the specific ways in which the requirements of the paragraphs mentioned above have not been met].

 

Only include this paragraph if you have checked to POFA and can refer to the specific paragraphs which have not been complied with. Otherwise delete.

 

4. 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.

 

5. If there was a contract, it is denied that the 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 [explain].

Only include if you have a good reason for saying that the signage was unclear, or that the signage could only be viewed after parking your car. If the signage was clear then delete this paragraph.

 

6. Alternatively, even if there was a contract, the provision requiring payment of [amount] 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; © the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and (d) the clause is specifically expressed to be a penalty on the Claimant's signs.

 

7. Further and alternatively, the provision requiring payment of [amount] 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 carpark 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."

[dx100uk]

please don't use that

 

 

post 18 here

http://www.consumeractiongroup.co.uk/forum/showthread.php?468039-VCS-BW-Claimform-Excel-PCN-March-2012

 

 

as I said search for vcs bw excel

 

 

defence is the same no matter who the PPC is at this stage

[renegadeimp]

that defence is junk. Follow dx's advice

[SwanG]

This just goes from bad to worse. I freaked out with the initial urgency of the message from you DX. I couldn't find what I was looking for (post 18) and I filed the 'junk defence'. Why on earth is it s sticky if it's junk?

 

I really just wanted to pay the £175 and be done with it. I've got another court case in which I'm the claimant (see other thread) which is consuming enough of my mental well being. So exactly what makes the defence I've filed poor and does it have a bearing on whether I should send the request made under CPR 31.14.

[DragonFly1967]

OK, it is what it is.

 

So, based on the post at #3 what exactly have you filed as a defence? Let's see what can be done to rescue this.

[dx100uk]

well all you've done is mention 1000's of things that you shouldn't

or not really at this stage

 

 

just gives them loads of arrows to fire back at you.

[SwanG]

Sorry for late response. Driving home. Defence is pasted below (redacted). So should I send off the CPR letter today or has my defence negated any such line of enquiries?

 

1. It is admitted that Defendant is the owner of XXX.

 

2. It is admitted that the Defendant's husband parked in the

Welcome Break Warwick South m40 Jct 12/13 services station at the times mentioned in the

Particulars.

 

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.

 

5.If there was a contract, it is denied that the 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 the signage was not clearly

visible to my husband, who had driven a long distance and was in

need of rest.

 

6. Further and alternatively, the provision requiring payment of

£100 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 carpark for its designated purpose.

 

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.

[ericsbrother]

OK,

the wrong arguments have been used but that doesn't limit you to them as you can expand upon the Lack of contract in almost any direction such as

no Planning permission for signage,

no contract with landowner etc.

it just stops you arguing about other matters.

 

The really bad news for PE is that they have failed to identify the driver so rely on keeper liability.

 

This means they can sue you and once starting this enterprise they are not obliged to consider who was driving.

 

However,

their claim is damaged

because now they know who was driving

it alters the nature of the contract

and what obligations are there due to the keeper liability

 

so they should be showing a schedule of loss as the fixed fee is no longer really applicable

 

At worst any added on fees

(not usually a PE speciality, unlike IAS members who add all sorts of stupid fees)

and costs cant be claimed as the breach is limited to the advertised fee.

 

If it looks like you are onto a loser on the day it will be worth raising this point.

 

Hopefully everything else you dig up regarding signage, lighting, planning consent ect will see you OK anyway

[SwanG]

Thanks. should I send the letter mentioned by DX or not?

 

I really don't want this to go to court.

My wife suffers anxiety and there is no way she will go,

and if I am allowed to speak on her behalf,

the amount of money I'd lose by taking a day off work far outweighs paying the fee.

 

But if there is any chance of getting it struck out before a hearing,

well then I suppose that is worth pursuing.

 

Can I ask the court to make a decision without my/our presence?

 

As I keep saying,

I've resigned myself to paying the fee.

 

If I had more time,

I'd love to stick it to the man, but I don't.

 

I just don't want my wife to get a CCJ

because I fell asleep for a few hours!

[dx100uk]

Yes send the CPR today!!!

[renegadeimp]

Follow dx's advice. Be aware that PE will normally go to court anyway. They think if they can scare you then youll back down. Just be prepared, and do your homework

[SwanG]

I'm not scared, but I want to back down if it goes to court!! DX, should I indicate that the defence has been filed or just copy the letter verbatim?

[renegadeimp]

Why would you want to back down when its a guaranteed win for you and youll get costs if you defend properly?

[dx100uk]

you don't change template

you've missed the post today now too

[SwanG]

As I said before, because it is not really worth the effort.

I work as a freelancer and time is money.

 

 

When I way up the cost of defending myself (or my wife)

- ie. time off, hours of reading, and taking screen grabs of parking signs in google earth etc.

it doesn't make any sense financially. It sounds kinda fun, but it's a waste of mental resources.

 

I'll send the letter now,

because it looks as though that presents an opportunity to get the case thrown out before a hearing (?),

but I have no intention of going to court over this matter.

[dx100uk]

doubt if you'll have to go anywhere

but you can sue for costs anyway.

 

 

as long as you plant the seed first

[renegadeimp]

Of course its worth the effort. You are willing to pay them money for absolutely no reason to whatsoever. They have no right or reason for anything from you, but because they threaten court, youre bending over and saying "come get it" Sorry for the description, but thats exactly what youre doing.

 

Infact, in court, PE get very desperate and try to beg you outside the courtroom to come to an agreement, so they can try and extort something out of you, or they just go in and tell a bunch of lies. Lies that you can counter easily with a good defence.

 

You say time is money.... exactly. It takes less than half an hr, you will win, keep your money, and get costs paid by them as well.

 

 

It very well likely wont go to court at all, but it doesnt hurt to be prepared. Your issue is youre not reading around to get educated on it, and youre failling into their trap.

[SwanG]

Okay, okay. I thought I'd buggered it up with my botched defence, but if you guys think it's still worth it. What kind of costs are we talking? I'll send it recorded delivery tomorrow AM. Is the idea that this needs to reach them before the case is allocated to a track? How long does that usually take?

[dx100uk]

its a request they can ignore it

but atleast you've asked for the stuff.

[DragonFly1967]

What kind of costs are we talking?

 

This is where it gets good. When you win, you ask for ALL of your provable costs, plus your allowances as a LiP, travel expenses, expenses for parking (oh, the irony ), and probably a few more things that I've not thought of.

 

LiP allowance is (if memory serves) 5 hours (minimum) @ £19 per hour. Travel & Parking at cost, obviously.

 

Now, lost earnings is slightly more complicated as your effectively self employed, but because you're freelance, you're probably booked up several weeks in advance. This will mean that when you get a court date, you'll have to forego not only a days wage, but it may be down to you to pay someone else to undertake your workload for that day.

 

As long as you can prove to the court that your (forced) day off has cost you £XYZ, if you win, the court will order ParkingLie to pay you £XYZ plus all of your other expenses.

 

As a rough idea...

 

LiP allowance 5 hours @ £19 = £95

Travel. £10

Parking. £5

Lost Earnings. £200

Expenses (your having to pay someone else to do your work for you) £200.

 

You win, ParkingLie pay you £510, you pay them £0 and they'll have lost a load more money besides.

[dx100uk]

small claims court remember..

[DragonFly1967]

small claims court remember..

 

Indeed, ordinarily. But I'm thinking along the lines of being able to show the judge that ParkingLie have acted unreasonably, as per usual. In that way, costs awarded are up to the judge on the day, and if you can prove what it's cost to defend yourself against their groundless claim...

 

CPR 45.13 I think it is.

[lookinforinfo]

Don't forget that every time PE take someone to Court they lose money. If all else fails then you could negotiate a deal prior to Court with PE . According to The Prankster some have beaten them down to £50.