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barnet hospital parkingEye parking charge court case, i never parked - only waited inside the car park
chawal2
post Tue, 12 Jun 2018 - 15:02
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please can you review and comment on the final defence i prepared and shared below? should i add, edit or remove something? thanks,
---------------------

parking eye (PE) manages barnet hospital car park. car park has no barriers. on 8 feb 2017, i waited in car park for 46 minutes to get a parking space desperately - as were several other drivers. i never parked nor i got out of the car. then i left car park to park somewhere else as i was getting late for my hospital appointment. PE sent me the parking ticket which i appealed against but both PE and POPLA rejected my appeal. then i got letter before action and now court letter. i have sent AOS online. i need your help to know if my defence is robust or can i add or remove something.

PE signage:

I have got the terms and conditions of PE from POPLA Appeal document: I have typed relevant text below from PE terms and conditions signage:

*PE is authorized by landowner to operate the private car park for and on its behalf. We are not responsible for car park surface, damage or loss to and from motor vehicles or general site safety. Parking is subject to the terms and conditions that apply are set within this notice (The Parking Contract). By parking, waiting, or otherwise remaining within this private car park, you agree to comply with these terms and conditions (the Parking Contract) and are authorized to park only if you follow these correctly, including making payment where directed... and so on. If you fail to comply, you accept liability to pay the fee for unauthorised parking (the Parking Charge)
This Parking Contract shall form the entire agreement between the parties.
...more text but irrelevant to our case...

By entering this private car park, you consent, for the purpose of car park management to: capturing of photographs of vehicle and registration by APNR cameras and/or by the attendant and for sub-contractor to check compliance with the Parking Contract.
Furthermore, you consent to the processing of this data to request registered keeper details from DVLA, where the Parking Contract is not adhered to and a) enforcement is undertaken remotely via ANPR; or ...;

Parking charges incurred: a) will be notified to the registered keeper by post, where ANPR system identifies non-compliance with the Parking Contract,...;

------------------------------------
based on above, my defence is:

Background:

Defendant took his 13 year old son to Barnet Hospital for Phototherapy appointment with the nurse. Defendant entered car park and saw that many other cars were waiting to get a vacant parking bay to park car. Defendant too waited in the car park hoping to eventually find a vacant parking bay to park car and visit the hospital dermatology nurse. Defendant desperately waited inside the car along with his son but when in 46 minutes no parking bay became available, then rushed out of the car park to avoid losing the hospital appointment slot. Defendant then found a parking bay in a street and ran with his son to visit hospital nurse. Defendant did not leave car or get any parking bay to park so there was no contract formed to pay to land owner of car park or claimant.

Defence:

1. This claim should be rejected by court as no parking took place due to absence of a vacant parking spot. No contract formed between Claimant and Driver/Defendant
1. signage does not talk about grace period so waiting or grace period does not form part of contract with driver
2. signage does not mention any contract for waiting so waiting does not form terms and conditions or contract.
3. parking charge - as mentioned in signage is for parking and since no parking took place for lack of space, no contract formed or got violated so this charge is unlawful
4. PE has violated consumer contract regulations: consumer-contract-regulations-2013

In this case, a parking charge for breach of the terms and conditions (i.e. the charges of £100) would be.

The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.

The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

2© – Requirement to provide a geographical address. The Claimant’s address is given as a PO Box number.
2(k) – Requirement to provide a complaint handling policy. This is not described on the signage.
2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.
2® – Requirement to provide information about Codes of Conduct. This does not appear on the signage.
2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.]


5. Claimant has failed to provide any evidence that Defendant parked in the parking area. The APNR images showing the time car entered and exited car park do not prove if i parked so this parking penalty is unlawful.
6. The signage has very small letters and cannot be read unless driver comes out of the car. Without getting opportunity to park the car, it is not possible to read the signage so no contact can be formed until car was parked and since in this case car was not parked, no contract was formed.
7. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.


Due to these significant breaches of the Regulations, it is submitted that Defendant cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”.

8. Defendant is yet to have knowledge of all documents provided to the court in support of the application, despite sending an email request to the claimant's website contact form in first week of June.
9. In the pre court stage the Claimant refused to provide defendant with the necessary information requested in order for defence by Defendant against the alleged debt.
They did not send following to defendant:
9a. evidence that the occupants of car left the car.
9b. the car was parked in the Private Eye Car Park
9c. there was any vacant parking bay during the time of alleged use of car park.

10. no parking space was provided by claimant and no service was used by defendant so no contract applies in this case.

11. The Claimant has at no time provided an explanation how the parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from £60 to £100. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
11.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
11.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
11.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking Eye and no proof has been provided.


12. The contract displayed on the signage by Claimant was actually discharged by frustration. The contract into which Driver (defendant) may have been willing to enter with the Claimant while entering the car park, was frustrated immediately upon entering car park - by the Claimant's lack of a parking space in the car park for the whole of the time when Defendant was there. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.
This proves that this claim is unlawful.


13. Claimant has failed to provide following details in the claim:
a) Full particulars of the parking charges
b) Who the party was that contracted with Claimant
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that Claimant had their authority.
e) If the charges were based on damages for breach of contract and if so to provide justification of this sum.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

14. the claimant is not trading responsibly and has clearly failed to secure its parking area by allowing every car to enter its premises - irrespective of whether any parking bay is vacant or not. Claimant should be forced to put barriers in its parking are and allow a car inside only if there is a vacant parking bay. the parking contract is frustrated as soon as claimant allows a car inside when no parking bay is available.

15. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.



16. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.


17. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

18. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer made nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.

19. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

20. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Hayes County Court on 17
th March 2014 Case No: 3JD08399 where a similar claim by the Claimant failed, as the Defendent was not parked (she only waited in car park like Defendent in this case) and therefore Claimant could not prove that any parking took place.

21. Claimant has failed to comply with the following documentation which specifically addresses hospital parking and are at least as authoritative as the Code of Practice: '07-03 Health Service Technical Memorandum - NHS Parking and the British Parking Association Charter for Hospital Parking'.
This failure disqualifies ParkingEye from relying on the Beavis decision

22. Appeal Court, considering Beavis, stated that the penalty could never be disengaged for a pay car park



Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
Signature and Date

This post has been edited by chawal2: Sun, 17 Jun 2018 - 19:47
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post Tue, 12 Jun 2018 - 15:02
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ostell
post Sun, 14 Oct 2018 - 12:50
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Here is a link to a case that was decided that waing to park is not parking. Perhaps quote this? And take the transcript.
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chawal2
post Sun, 14 Oct 2018 - 13:58
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QUOTE (ostell @ Sun, 14 Oct 2018 - 13:50) *

Dear Ostell... thanks...

this case was referenced in my original defence as well and appears as point 12 in new defence pasted above.
Should i highlight this in upper part of defence?**
I considered adding contents of point 12 to point 1 itself but thought it would take judge's focus away from the fact that we waited in first place.
Any thoughts?
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nosferatu1001
post Mon, 15 Oct 2018 - 08:45
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I dont really like that defence, still

It is very wordy, and you really drag the focus away from the core.

The FIRST point of defence shoudl be that for the entire time the car was in the car park, the car was WAITING, and was never PARKED.
Dont do, as youve done, and question the accuracy of ANPR too early - because it doesnt matter. If the court accepts you were never parked, there cannot be a breach of contract for parking.

Your defence needs to flow and make sense. Think of it as a series of " if not X, then Y" statements:
- The Defendant (DO NOT drop the "the" at the start - its horrible to read) is not liable because the vehicle was waiting the entire time and at no point parked, and therefore no contract to park was accepted, either by intention or by performance;
- If the court finds that a contract was offered and accepted, then this contract was immediately frustrated as the Claimant as a parking management company failed to provide a parking space for the Defendant. While waiting in a vehicle it is not possible for the Defendant to pay for the benefit of parking that they have not received.

and so on

You need to make sure the Judge can actually understand your defence, else you risk them kicking it out again and YOU WILL LOSE if they do that.
Have you read the example defences on MSE Forum, NEWBIES thread? Yes or no.
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chawal2
post Mon, 15 Oct 2018 - 09:51
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QUOTE (nosferatu1001 @ Mon, 15 Oct 2018 - 09:45) *
I dont really like that defence, still

It is very wordy, and you really drag the focus away from the core.

The FIRST point of defence shoudl be that for the entire time the car was in the car park, the car was WAITING, and was never PARKED.
Dont do, as youve done, and question the accuracy of ANPR too early - because it doesnt matter. If the court accepts you were never parked, there cannot be a breach of contract for parking.

Your defence needs to flow and make sense. Think of it as a series of " if not X, then Y" statements:
- The Defendant (DO NOT drop the "the" at the start - its horrible to read) is not liable because the vehicle was waiting the entire time and at no point parked, and therefore no contract to park was accepted, either by intention or by performance;
- If the court finds that a contract was offered and accepted, then this contract was immediately frustrated as the Claimant as a parking management company failed to provide a parking space for the Defendant. While waiting in a vehicle it is not possible for the Defendant to pay for the benefit of parking that they have not received.

and so on

You need to make sure the Judge can actually understand your defence, else you risk them kicking it out again and YOU WILL LOSE if they do that.
Have you read the example defences on MSE Forum, NEWBIES thread? Yes or no.



sad.gif sad.gif

Thanks a lot for your valuable feedback Nosferatu. Yes i referred to bargepole sample defence and pasted few of his points.
1. Should i give background of case or not? If yes then where should its location be?
2. Should i remove all points about the absence of contract and violation of rules and regulations and improper APNR?
3. Is it ok if i *only talk about 3 points:
3a. Point about that i only waited so no contract and if.... then frustrated...
3b. Waiting is not parking case reference of mrs x
3c. Claimant has failed to provide any evidence that defendent parked

I can then share the updated defence here if anyone is willing to review and advise

Point 1, 3, 4 and 12 of the shared defence will only stay based on the valuable feedback received from Nosferatu. Of course i will change wordings too as per feedback.

This post has been edited by chawal2: Mon, 15 Oct 2018 - 09:52
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Churchmouse
post Mon, 15 Oct 2018 - 10:15
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QUOTE (chawal2 @ Sun, 14 Oct 2018 - 13:29) *
1. The defendant is not liable for any sum claimed as there was no contract [formed with the Claimant,]on place because [the lack of any available parking space prevented the Defendant from parking [his/her] vehicle and, thus, reading and accepting the Claimant's offer of parking]claimant had failed to provide any parking space to defendant.

2. As per data shared by Claimant, its APNR cameras captured that both when entering and exiting barnet hospital grounds, the car took exactly 10 seconds to transit Barnet Hospital Main Entrance and Exit area. This cannot be true as traffic conditions were considerably different during defendant’s entry and exit. It seems that claimant’s APNR camera system is defaulted to this value. This could also mean that the time shown by APNR camera system for car park stay duration is also defaulted and not real. Claimant data is not reliable true or fit as an evidence for claim so court should dismiss this case.

3. [Accordingly, even if a contract could have been formed without the Defendant having had a reasonable opportunity to read and agree to its terms and conditions, the contractual offer expressed on the signage did]Signage does not mention any [contractual offer relating to] contract formation for waiting [in the car park without parking, so no contract in respect of waiting] so waiting does not form part of terms and conditions or contract. No contract was accepted by [the] driver’s conduct and[, therefore,] no charge for breach of contract is [payable by the Defendant]possible. Waiting cannot be classified as parking. [THIS is where the case citation mentioned in #12 goes.]

4. Claimant has failed to provide any evidence that Defendant parked in the parking area. The APNR images showing the time car entered and exited car park do not [show the vehicle parked at any time]prove if i parked so this parking penalty is not enforceable. [MOVE this to #2.]

5. The signage has very small letters and cannot be read unless driver comes out of the car. Without getting opportunity to park the car, it is not possible to read the signage so no contract can be formed until car was parked and since in this case car was not parked, no contract was formed. [MOVE this to #3.]

6. The Claimant is not the land-holder and, in the absence of written authority from the land-holder in accordance with the BPA Code of Practice Para 7.2, has no legal capacity to bring the claim. Inspite of requests from defendant to claimant and barnet hospital, none of them have shown any evidence of the above mentioned written authority.

7. Visitors to a hospital have a particular expectation of privacy that is jeopardised when the Claimant contacts the registered keeper.
The Claimant has failed to provide evidence that it conducted a privacy impact assessment that justifies its practice of 'continuous monitoring by ANPR is in use'.

The Defendant therefore submits that the Claimant's ANPR system is unlawful.

The Claimant is attempting to profit from its failure to comply with the basic principles of Data
Protection as advised by the Information Commissioners Office and 07-03 Health Technical Memorandum that parking notices must only be used when all other options have been considered. [MOVE this #7 down towards the end.]


8. The claimant failed to include a copy of their written contract as per Practice Direction 16
7.3(1) and Practice Direction 7C 1.4(3A).

No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;


If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the

Creditor; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges.

There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly.
This applies whether or not you intend to use the keeper liability provisions.


Due to these significant breaches of the Regulations, it is submitted that Defendant cannot be held contractually liable to pay any money claimed.

9. In the pre court stage the Claimant refused to provide defendant with the necessary information requested in order for defence by Defendant against the alleged debt. They did not send following [evidence] to defendant:

9a. evidence that the occupants of car left the car.


9b. [that ]the car was parked in the [car park operated by Parking]Private Eye Car Park.


9c. [that ]there was any vacant parking bay during the time of alleged use of car park.

Some comments above. Good luck.

--Churchmouse
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chawal2
post Mon, 15 Oct 2018 - 11:55
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Thanks Churchmouse i am now editing my defence.

This post has been edited by chawal2: Mon, 15 Oct 2018 - 11:56
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SchoolRunMum
post Tue, 16 Oct 2018 - 01:00
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Show us the final draft, and change 'APNR' to ANPR.
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chawal2
post Tue, 16 Oct 2018 - 02:13
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Final document:

This defence has been filed in response to District judge Ahmed’s order dated 4th october
2018; and this defence supersedes defence filed dated 26th june 2018.
---------
DEFENCE
---------
The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all - due to
following reasons:
1. The facts are as follows:
The Defendant took his 13 year old son to Barnet Hospital for Phototherapy appointment.
The Defendant entered car park and saw that many other cars were waiting to get a vacant
parking bay to park car.
The Defendant too waited desperately inside his car along with his son but when no parking
bay became available for a long time, the Defendant rushed out of the car park to avoid
losing the hospital appointment slot.
The Defendant then found a parking bay in a street and ran with his son to visit hospital
nurse. The Defendant did not leave car or get any parking bay to park in the Claimant’s
managed car park.
2. The Defendant is not liable for any sum claimed because the car was waiting for a
parking space for the entire duration inside car park and at no point parked, and
therefore no contract to park was accepted, either by intention or by performance.
3. Lack of any available parking space prevented the Defendant from parking the car
and, thus, prevented the Defendant from walking up to the signage and reading and
accepting the Claimant’s offer of parking. The signage has very small letters and cannot
be read unless driver comes out of the car.
4. Accordingly, even if a contract could have been formed without the Defendant having
had a reasonable opportunity to read and agree to its terms and conditions, the
contractual offer expressed on the signage did not mention any contractual offer
relating to waiting in the car park without parking, so no contract in respect of waiting
was accepted by the driver’s conduct and, therefore, no charge for breach of contract is payable by the Defendant.
5. Waiting is not parking. The defendant wants to cite the judgement of District Judge
Hayes County Court on 17th March 2014 in Case No: 3JD08399 wherein a similar
claim by this Claimant failed, as the Defendant was not parked (she only waited in
car park like Defendant in this case).
6. The claimant has failed to provide any evidence that Defendant parked in the car
park. The APNR images showing the time car entered and exited car park do not
show the car parked at any time.
7. If the court finds that a contract was offered by the Claimant and accepted by the
Defendant by entering the car park, then such contract was immediately frustrated
upon entering car park as the Claimant as a parking management company failed to
provide a parking space for the Defendant. While waiting in a vehicle it is not possible
for the Defendant to pay for the benefit of parking that they have not received.
8. The Claimant is not the land-holder and, in the absence of written authority from the
land-holder in accordance with the BPA Code of Practice Para 7.2, has no legal
capacity to bring the claim. Inspite of requests from the Defendant to the Claimant
and Barnet Hospital, none of them have shown any evidence of the above mentioned
written authority.
9. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is
brought, whether for breach of contract, contractual liability, or trespass. However, it is
denied that the Defendant, or any driver of the vehicle, entered into any contractual
agreement with the Claimant, whether express, implied, or by conduct.
10. The Claimant has failed to provide the Defendant with the following necessary
evidence requested in order for defence by the Defendant against the alleged debt:
10a. that the occupants of car left the car.
10b that the car was parked in the Private Eye Car Park
10c. that there was any vacant parking bay during the time of alleged use of car park.
11. The claimant has failed to comply with the following documentation which specifically
addresses hospital parking and are at least as authoritative as the Code of Practice:
'07-03 Health Service Technical Memorandum - NHS Parking and the British Parking Association Charter for Hospital Parking'.
The Claimant has failed to have regard to both 07-03 Health Technical Memorandum : NHS
Car Parking Management and the BPA Charter for Hospital Parking that are at least as
authoritative as its general Code of Practice.
Failure to comply with ICO basic guidelines (especially on hospital grounds) makes the
Claimant's claim non-enforceable.
12. In summary, it is the Defendant's position that the claim discloses no cause of action, is
without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out
the claim of its own initiative, using its case management powers pursuant to CPR 3.4.
Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

QUOTE (SchoolRunMum @ Tue, 16 Oct 2018 - 02:00) *
Show us the final draft, and change 'APNR' to ANPR.

Thanks SchoolRunMum. I shall make this change
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