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Parking Eye, Court papers recieved from Northampton.

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  • #16
    Re: Parking Eye, Court papers recieved from Northampton.

    Yes Mystery The correspondence I got from Parking eye is very similar to the one you publish.
    I am not sure what you mean about the paper from Threadneedle which is exactly like the one you showed to me its just signed by a different person.
    Sorry I took a while to reply but life got in the way (Shopping)

    Comment


    • #17
      Re: Parking Eye, Court papers recieved from Northampton.

      http://www.justice.gov.uk/courts/pro...l/rules/part22

      Documents to be verified by a statement of truth

      22.1
      (1) The following documents must be verified by a statement of truth –
      (c) a witness statement;


      Failure to verify a witness statement

      22.3 If the maker of a witness statement fails to verify the witness statement by a statement of truth the court may direct that it shall not be admissible as evidence.

      http://www.justice.gov.uk/courts/pro...rt22/pd_part22


      Form of the statement of truth

      2.2 The form of the statement of truth verifying a witness statement should be as follows:
      ‘I believe that the facts stated in this witness statement are true.’


      M1

      Comment


      • #18
        Parking Eye, Court papers recieved from Northampton.

        I am now at this stage with my wife's legal battle. Got the same detailed case history letter and the parking charge amount document just says a lot and has no substance

        The covering letter just says that "parking eye wishes to proceed with this County Court Claim" with a reply to the defence

        Kind regards

        Legal Department
        Parking Eye


        What now? I'd personally like to throw a few hundred pounds at this and push it as far as I can but my wife is not so wound up as me. I wouldn't mind but she did spend 4 hours in a 3 hour parking area but actually spent all the time there with her friend. Perhaps I need to get her friend to act as a witness. She got the same letters but gave in and paid !!
        Originally posted by mystery1 View Post
        Like this ?


        Reply to Defence

        1 ParkingEye agrees with the defendant on this point.


        2 ParkingEye does not dispute this.


        3 ParkingEye's Parking Charges are issued on the basis of a contract with the motorist, set out
        via the signage at the site. The signage sets out the terms and conditions under which a
        motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by
        parking within a limited stay period or similar, and that a Parking Charge will be payable if
        the conditions are not met. We ensure signage is ample, clear and visible in line with the
        British Parking Association (BPA) code of practice to ensure that the motorist is bound by
        them when they enter and remain at a client site, so that all users of the site are obliged to
        follow these rules. This is a matter of contract law. In ParkingEye v Kevin Shelley (2013),
        Circuit Judge Dodd stated that a contract can be formed by conduct, not just in writing He
        further stated that the contract, as set out on the signage, is clear and certain enough, and that
        the terms were clear and easy to understand. He stated that it was not common for the
        courts to find penalty terms within a contract. It was further found that, on private land, the
        landholder is entitled to set out terms and conditions, subject to law, and that these are fully
        enforceable.

        3.1 The case of Vine v London Borough of Waltham Forest (2000) proves
        particularly useful in respect to the creation of a contract with the driver. It was found
        by Lord Justice Waller that:

        “Normally the presence of notices which are posted where they are bound to be seen, for
        example the entrance to a private car park, which are of a type which the car driver would
        be bound to have read, will lead to a finding that the car driver had knowledge of an
        appreciated the warning.”

        3.2 The driver is not coerced into using the car park. If the driver was not prepared
        to agree to the terms and conditions set out on the signage, they should not have used the
        car park. However by driving into the car park and parking their vehicle the driver
        agrees to the parking terms detailed on the signage. In ParkingEye Ltd v Kevin Shelley
        (2013), Circuit Judge Dodd found that, on private land, the landholder is entitled to set
        out terms and conditions, subject to law, and that these are fully enforceable.
        Furthermore it should be noted that Section 7.1 of the Department of Transport's
        guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012 states
        that a:






        “car park on private land will normally have signs setting out the terms and conditions
        upon which parking is offered”.

        3.3 In accordance with this ParkingEye's car parks have ample and clear signage that
        outlines these terms and conditions. Section 7.1 further states that:

        “Drivers can then decide whether or not to accept those terms and conditions. In most
        cases a driver who parks in a car park with clear signage setting out the terms and
        conditions will be deemed to have accepted the terms and conditions and therefore entered
        into a contract to park with the landholder.”

        3.4 In this location, as the images attached show, there is clear and ample signage at
        the entrance to and throughout the car park. ParkingEye firmly believes that the
        defendant entered into a legally enforceable contract.


        3.5 In the case, Vehicle Control Systems Ltd v HM Revenue & Customs 2012, the
        Upper Tribunal found that:

        “On the facts of this case we do not consider that any offer was made by VCS that was
        capable of forming the basis for a contract between it and the motorist. VCS was not in a
        position, by virtue of its limited licence, to make any offer of a right to park. The ability to
        offer such a right was not conferred by the contract with the client, either expressly or by
        virtue of the interest in the car park conferred on VCS. That interest did not amount to a
        licence to occupy, or give VCS any right to possession. It merely conferred a right of entry
        to perform VCS's obligations under the contract.”

        3.6 VCS did not have the authority to take legal action in their own name, 'by virtue
        of its limited licence”. This does not apply to ParkingEye as our contract with our client
        clearly expresses that we can take legal action to recover any unpaid Parking Charges, in
        line with the British Parking Association Code of Practice.


        3.7 We include a witness statement signed by the landholder confirming that [stet]
        had the written authority to issue Parking Charges at this time of this Parking event and
        that this authority is contained in a contract. The contract itself contains much
        commercial information which is not related to this case and therefore we are disinclined
        to divulge it. However, a copy will be made available to the court if requested by the
        court.

        4 In relation to the value of the Parking Charge, ParkingEye maintains that its charges are fair
        and reasonable. Furthermore ParkingEye firmly believes that its Parking Charges are not
        punitive or a penalty. A charge of £75 pounds was found by HHJ Hegarty QC in the case of
        ParkingEye v Somerfield Stores (2011) to be a reasonable charge and not a penalty, by
        which the motorist would be contractually bound.


        “I conclude that any motorist using the car park would be contractually bound to pay the
        charge of £75 if he exceeded the specified time limit and a demand for payment was made
        up on him. Whilst he might argue that the charge in question amounted to a penalty and
        was therefore irrecoverable, I think he would probably fail in that contention.” (HHJ
        Hegarty QC ParkingEye v Somerfield Stores (2011).

        4.1 The case of Combined Parking Solutions v Mr Stephen James Thomas (2008)
        provides further evidence that a Parking Charge of a certain value – in this case one that
        begins at £60 and rises to £85 and £135 respectively – can be considered fair and
        reasonable. District Judge Ackroyd found that these amounts could not be considered as






        a penalty. Nor could he find that it was a disproportionately high sum in compensation.
        This was upheld by Judge John Robins who ruled that a Parking Charge of £135 was not
        unreasonable, being in line with the BPA Code of Practice. Instead he found that it
        escalated in accordance with the warnings given and constituted a reasonable charge.
        (Combined Parking Solutions v Blackburn [October 2007]).


        4.2 Furthermore the figure of £100 has been endorsed as a reasonable upper level of
        charging across the industry and both the Parking Charge amounts and the reduction of
        40% for early payment within 14 days were prescribed and approved by the British
        Parking Association in consultation with the Department for Transport in 2012.


        4.3 In Combined Parking Solutions v Dorrington (2012), the Judge stated

        “The defendant said to me that there was no loss at all the to client in him parking there. I
        do not agree with that because if people keep parking on land over some period of time, the
        rights over that land can accrue and it is very important for owners of land to make sure
        that those rights do not accrue, as they could lose interest in their land. That alone is a
        good and valid reason to stop someone from parking on that lad because, quite simply, if he
        had parked there loss could at some point have accrued to the owner.”

        4.4 ParkingEye does not believe that the terms, set out by ParkingEye in conjunction
        with the landholder, are unfair. However, if the defendant believed them to be, he or she
        should not have parked in the car park.


        4.5 ParkingEye does not believe that its Parking Charges are extravagant and
        unconscionable. Furthermore the finding of Lord Justice Colman in Lordsvale Finance v
        Bank of Zambia (1996) has since been found to be more instructive. Lord Justice Manse
        in the case of Cine Bes Filmcilik Ve Yapimcilik & Anor. V United International Pictures
        & Ors (2003) stated,

        “I have also found valuable Colman J's further observation in Lordsvale at pp. 763G –
        764a, which indicate that a dichotomy between a genuine pre-estimate of damages and a
        penalty does not necessarily cover all the possibilities. There are clauses which may
        operate on breach, but which fall into neither category, and they may be commercially
        perfectly justifiable.”

        4.6 In ParkingEye Ltd. V Kevin Shelley, Circuit Judge Dodd found, on a balance of
        probabilities, it was more likely that the dominant purpose of the Parking Charge was to
        provide for regulation of the car park area.


        4.7 ParkingEye have instructed Barrister Johnathan Kirk QC to give his opinion on
        the matter of pre-estimate of loss. He has stated that, “the burden of proving that the
        fixed charge amounted to a penalty would be upon the motorist,” that ParkingEye
        should, “document clearly an attempt to pre-estimate the loss occasioned”, and that,
        “the Courts have recognised that this can be 'rough and ready' and will not be defeated
        because it is not absolutely accurate. It may be possible to achieve a global figure
        across the business.” This then is what we provide here.


        4.8 This was supported in Mayhook v National Car Parks and Fuller (2012). Here
        the Judge stated “I do not find that this is a penalty. I think it is NCP doing its best in a
        very difficult field genuinely to pre-estimate loss.”


        4.9 It must therefore be noted that this is a very difficult industry in which to
        determine a completely accurate pre-estimate of loss. This will depend both on losses to



        ParkingEye, and on the potential losses to the landholder, which will vary depending on
        the time of day, the day of the week and even upon the weather.


        4.10 We have calculated the outstanding Parking Charge amount as a genuine pre-
        estimate of loss as we incur significant costs in managing this car park to ensure
        motorists comply with the stated terms and conditions and to follow up any breaches of
        these. These costs include (but are not restricted to);


        4.11 Erection and maintenance of the site signage, installation, monitoring and
        maintenance of the Automatic Number Plate Recognition systems, employment of
        office-based administrative staff, membership and other fees required to manage the
        business effectively including those paid to the BPA, DVLA and ICO, general costs
        including stationery, postage etc.


        4.12 This sum, and the calculations which have been made in setting it, has been
        approved and agreed by the landholder. This sum was also clearly laid out on the
        signage at the site and, by remaining on site, we contend that the motorist has accepted
        all of the prevailing terms and conditions of that contract, including the charges for
        breach of contract. Furthermore, there is commercial justification for the charges, and
        the charges were approved and prescribed by the British Parking Association and the
        Department for Transport in 2012.


        4.13 Here, ParkingEye has focused on its losses, although, as noted above, there are
        also significant losses incurred by the landholder.


        4.14 The average payment by motorists who have been issued with a Parking Charge
        by ParkingEye is circa £63. Circa 84% of this payment (circa £53) covers ParkingEye's
        costs. This information has been taken from ParkingEye's company accounts and these
        can be provided to the court if requested.


        4.15 ParkingEye is required to offer a 40% reduction to motorists for early payment
        within 14 days. Therefore, this reduced amount needs to be greater than or equal to £53
        in order for ParkingEye to operate as a business. Therefore, the upper amount of the
        charge needs to be at the level outlined below. Furthermore, the amount of £100 was
        approved and prescribed by the British Parking Association in consultation with the
        Department of Transport in 2012. Therefore, the full amount of the Parking Charge,
        which is an enforceable charge levied for breach of contract, is £100. The reduced
        amount for early payment is £60.


        4.16 ParkingEye accepts payment of the reduced amount at many stages of its appeal
        process, including when a motorist who has appealed to ParkingEye is given the
        opportunity of appealing to the Parking On Private Land Appeals (POPLA) service. It is
        only if a defendant ignores all ParkingEye correspondence, or loses an appeal at
        POPLA, that the charge will be increased to the higher amount. At this stage,
        ParkingEye will have incurred further costs, and this increase is in line with BPA
        regulations and the terms and conditions set out on the signage. If legal proceedings are
        entered into, this amount will rise accordingly.


        4.17 In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd adhered to the
        finding of Lord Justice Colman in Lordsvale Finance v Bank of Zambia (1996) QB 752,
        which states,




        “whether a provision is to be treated as a penalty is matter of construction to be resolved by
        asking whether at the time the contract was entered into the predominant contractual
        function of the provision was to deter a party from breaking the contract or to compensate
        the innocent party for breach . . . deduced by comparing the amount that would be payable
        on breach with the loss that might be sustained if breach occurred”.

        4.18 This follows the traditional definition of Lord Dunedin in the case of Dunlop in
        1915. However, at 763g and following it continues,

        “the jurisdiction in relation to penalty clauses is concerned not primarily with the
        enforcement of inoffensive liquidated damages clauses but rather with protection against the
        effect of penalty clauses. There would therefore seem to be no reason in principle why a
        contractual provision the effect of which was to increase the consideration payable under an
        executory contract upon the happening of a default should be struck down as a penalty if the
        increase could in the circumstances be explained as commercially justifiable, provided
        always that its dominant purpose was not to deter the other party from breach.”

        4.19 This description was approved by Lord Justice Manse in the case of Cine Bes
        Filmcilik Ve Yapimcilik & Anor. V United International Pictures & Ors (2003) EWCA
        Civ 1669 in which he stated,


        “I have also found valuable Colman J's further observation in Lordsvale at pp. 763G –
        764a, which indicate that a dichotomy between a genuine pre-estimate of damages and a
        penalty does not necessarily cover all the possibilities. There are clauses which may
        operate on breach, but which fall into neither category, and they may be commercially
        perfectly justifiable.”

        4.20 Circuit Judge Dodd found that the key issue was not whether or not the charge
        was a pre-estimate of loss; but whether the purpose of the Parking Charge is to deter
        breach, or if the dominant purpose is commercially justified. We strongly argue that
        there is commercial justification for the charges. The Judge found that, on the balance of
        probabilities, it was more likely that the dominant purpose was to provide for regulation
        of the car park area. He also stated that it was not common for the courts to find a
        penalty within a contract. He stated that a breakdown of loss was not required, as the
        contract was formed on its own terms.


        4.21 In Cavendish Square Holdings v El Makdessi (2012) it was stated,

        “I am not persuaded that Clause 5.6 is a penalty clause, the onus being upon the Defendant:

        i) it serves a commercial purpose.

        ii) I am not satisfied that it's purpose is to deter.

        However, the reality is that, in the modern approach to the concept of penalty
        discussed above, there is no longer the need for the dichotomy between liquidated
        damages and genuine pre-estimate of loss, and so the relevant questions seem to me
        to be simply:-

        i) was there a commercial justification?

        4.22 ParkingEye firmly believes that its charges are fair and reasonable. There is
        commercial justification for the charges, which means that the charges cannot be
        considered penalties (see E-Nik v Dept for Communities (2012) and Cadogan Petroleum
        Holdings Ltd v Global Process Systems LLC (2013)). Private management of car parks
        is commercially necessary for landholders. They have a right to manage their private





        land as they see fit and allow motorists to use this land for parking under certain terms
        and conditions. The contracts, and its clauses, are necessary to prevent abuse of private
        land. This is commercially necessary as the landholder needs to manage their land in
        order to ensure that their business can run successfully. The terms and conditions of
        parking on private land are set out in consultation and conjunction with the landholder,
        and it is the obligation of the motorist to comply with these when they park in the car
        park. ParkingEye does not believe that the terms, set out by the landholder, are unfair.
        However, if the defendant believed them to be, they should not have parked in the car
        park.

        5 ParkingEye does not believe that the contract is unfair. In Combined Parking Solutions v
        Dorrington (2012), it was found that the contract was fair. The Judge stated,


        “I am satisfied that this is a contract freely entered into by the defendant. An offer was
        made by the owners of the land that if someone to park there they could, subject to charge.
        That offer was accepted by the defendant when he parked there. There was consideration
        on both sides of parking by the defendant and the sum of money that the claimant was
        entitled to expect and, because of the way it was set up, because it was at arm's length,
        because there were formal legal notices there, there was clearly an intention to create legal
        relations, and the law simply holds the defendant to that contract.”

        5.1 The Judge also referred to the case of Lord Roskill Export Credits v UOP,

        “It is not and never has been for the court to relieve a party from the consequences of what
        may be in the event proved to be erroneous or possibly even a commercially imprudent
        bargain.”

        5.2 It is therefore ParkingEye's strong belief that this contract is not unfair. The
        driver was made aware of the terms and conditions of parking, in keeping with the
        British Parking Association regulations. Having entered the contract, the defendant
        cannot now decide that they do not wish to be bound by it. The contract was presented
        to the driver and was entered into freely. The contract did not cause a significant
        imbalance in the parties' rights and obligations. The landholder was obliged to provide
        managed parking space while the motorist was obliged not to break the terms and
        conditions of parking laid down by ParkingEye in conjunction with the landholder.
        ParkingEye does not believe that these terms are unfair. However, if the driver believed
        them to be, they should not have parked in the car park.


        5.3 In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd found that, on
        private land, the landholder is entitled to set out terms and conditions, subject to law, and
        that these are fully enforceable.


        5.4 All of our correspondence sent to the defendant has clearly outlined the reasons
        for the claim, being due to an overstay of the max stay time on site. All this information
        has subsequently been provided to the defendant in the particulars of claim, which also
        included an image of the sign, to evidence the terms and conditions that were broken.


        5.5 ParkingEye would also like to add that on the reverse of all correspondence sent
        to the defendant, ParkingEye has stated that all appeals should be put in writing and sent
        to ParkingEye within 28 days. ParkingEye believes that the defendant broke the terms
        and conditions of parking and that therefore they are required to pay the outstanding
        charge. However, had the defendant corresponded with us initially, as requested,
        ParkingEye believes it could have answered many of the defendant's points directly and
        resolved the matter without having to issue court proceedings. However, as we have had
        no correspondence whatsoever from the defendant, we have had no choice but to enter
        into legal proceedings, and have incurred further costs in pursuing this matter (see
        attached letter).


        5.6 Please note that, according to Civil Procedure Rules 1998, a document, other
        than a claim form, which is sent by First Class Post, shall be deemed to be served on the
        second day after it was posted, left with, delivered to or collected by the relevant service
        provider provided that day is a business day; or if not, the next business day after that.


        5.7 ParkingEye would also like to state that this defence is a standard, generic
        defence, distributed on online forums to motorists attempting to avoid paying Parking
        Charges and that we receive many near identical defences.


        M1

        Comment


        • #19
          Re: Parking Eye, Court papers recieved from Northampton.

          Originally posted by Big Pete View Post
          I am now at this stage with my wife's legal battle. Got the same detailed case history letter and the parking charge amount document just says a lot and has no substance

          The covering letter just says that "parking eye wishes to proceed with this County Court Claim" with a reply to the defence

          Kind regards

          Legal Department
          Parking Eye


          What now? I'd personally like to throw a few hundred pounds at this and push it as far as I can but my wife is not so wound up as me. I wouldn't mind but she did spend 4 hours in a 3 hour parking area but actually spent all the time there with her friend. Perhaps I need to get her friend to act as a witness. She got the same letters but gave in and paid !!

          Start a thread and put up everything without names and addresses etc.

          It takes time and a realisation that you might lose (you shouldn't but funny things happen in courts especially at the lowest level). Losing or employing a solicitor whose costs you will not get back are the only ways it'll cost hundreds,

          M1

          Comment

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