Claim Number: xxxxxxx

BETWEEN:

ParkingEye Ltd (Claimant)

vs

xxxxxxxxxx ( Defendant)

___________________________________________________________________________

Defence Skeleton Argument

1. The Defendant relies principally on the following main points, as follows:

a.Lack of Standing by Claimant:

i) 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 landowner, and only they can sue for damages or trespass.

ii) The Claimant may rely on the recent Judgment given by HHJ Moloney in the ‘test case’ at Cambridge County Court (3JD05152 and 3JD05169). In that particular case, it was found that, since ParkingEye paid a bounty to the landowner to be able to issue penalty charges, they were acting as the Principal and not the Agent. In the instant case, it is clear that ParkingEye are acting as the Agent of Snowdon Mountain Railway, as evidenced by the signage in the car park which clearly discloses, in large font, Snowdon Mountain Railway, the Principal and even the Claimant’s own “Reply to Defence” refers to clause 3.7 of their contract with the landowner and that they were appointed as agent. This case can therefore easily be distinguished from the Cambridge case.

iii) There is no consideration from ParkingEye to the motorist. Any argument that the consideration is one of parking is fatally flawed. ParkingEye do not have a landlord and tenant arrangement , in fact their contract with the landowner implicitly denies such. The gift of parking therefore is the landowner’s and not the Claimant’s. The signage states that ParkingEye are ‘solely engaged to provide a traffic maximisation scheme’ and that ‘parking is at the absolute discretion of the site’. This presumably can be read to mean ‘the site’ is The Snowdon Mountain Railway , it is clear it is not ParkingEye.

iv) HHJ Moloney additionally considered the Claimant to be the Principal in the “test case” because the landowner had no knowledge of, or right to know of, the charges collected but in

this case it is believed the Claimant issues a VAT invoice to the Snowdon Mountain Railway for the VAT payable on such so this is not the situation in the present case.

v) The Defendant has requested an unredacted copy of the contract with Snowdon Mountain Railway that it is believed will clearly expose this relationship. The Claimant has refused to supply anything other than the heavily redacted and illegible contract in their original bundle which is unforgivable as their entire case relies on its contents. The Claimant has also refused to answer two very clear questions (see attached e mails, exhibit A ) that would reveal that they are acting as an Agent of the landowner. The Defendant has reason to believe that the initial parking tariff is paid to and retained by the Snowdon Mountain Railway who are consequently the Principal to this purported contract, providing the consideration to the motorist ie the parking space and receiving the consideration from the motorist, the parking tariff. At the point of payment the contract for parking is made between the motorist and the Snowdon Mountain Railway and not the Claimant.

vi) Any ambiguity in the contract (ie the signage ) should result in an outcome most favourable for the Defendant using the principle of Contra Proferentem and thus it should be adjudged that the Defendant believed he was contracting with The Snowdon Mountain Railway and not the Claimant .If the contract is between the Defendant and the Snowdon Mountain Railway, as Agent of a not only disclosed but named Principal the Claimant has no authority to attempt to enforce the contract and litigate in their own name.

vii) In addition it is believed that the redacted clause 3.11 of the aforementioned contract would reveal that the landowner is issued with an invoice for the VAT on the parking charges collected and that for the purposes of VAT the charges collected are being treated as consideration for Parking Eye’s services rather than damages due to the Claimant which would not attract VAT. . This is in direct contradiction to the judgment in VCS v HMRC [2013 EWCA Civ 186] on which the Claimant may rely. In this case VCS were considered to be an independent contractor and Principal in any contract because the charges could not be considered as consideration for their services ( the exact opposite of clause 3.11 ) and consequently VAT was not payable on the charges. This is clearly the reason that the Claimant is wishing to redact clause 3.11 and not even confirm the wording of clause 3.11 because it clearly identifies them as Agent. Their claim that this is commercially sensitive is patently nonsense as the wording of this clause is already in the public domain through Freedom of Information releases by their clients. A copy of such a contract is enclosed at Exhibit B and it is believed the terms and conditions, including clause 3.11, will be identical to those in the present case. The Defendant has a suspicion that the failure to provide a legible contract or answer the two questions asked via e mail (exhibit A) may be because it exposes the fragility of the Claimant’s case and has nothing to do with commercial sensitivity.

b.No Loss Suffered by Claimant:

i) This 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. The Defendant submits that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of the Defendant. Any losses are due to the landholder, not the Claimant. It is submitted that the loss to the landholder is clearly demonstrable at only £2-00, the inadvertently underpaid parking charge . The Defendant was never asked for this amount but rather an extravagant amount that the Claimant seeks to justify by the operational costs of managing the car park. These costs cannot be included in any genuine pre estimate of loss as they presumably are offset against tax by the Claimant and would have been incurred whether the Defendant paid the additional £2-00 or not.

ii) The Defendant additionally issued a cheque to the Snowdon Mountain Railway ,prior to proceedings , to more than cover any inadvertently unpaid parking which, as explained in his witness statement, was purely due to an injury whilst on the mountain.

iii) It is additionally the Defendant’s position that the Claimant is attempting to impose a penalty designed to deter breach of the Claimant’s terms. The signage is clearly the threat of a punitive sanction poorly dressed up as liquidated damages and is aimed to deter motorists from failing to pay for parking. It is consequently irrecoverable.

iv) The Claimant may seek to rely on the previously referred to Cambridge “test-case”. In his judgment HHJ Moloney conceded that the charges had the hallmarks of a penalty designed to deter breach but that there was a commercial justification. He also conceded however that this judgment, as it was breaking new ground in consumer law, could well be disagreed with by other judges and he thus facilitated a leapfrog appeal to the Court of Appeal to try and determine the penalty issue. As one of these cases has indeed now been appealed to the Court of Appeal the Defendant requests that in the unlikely event that his defence fails on all other points then this case should be adjourned pending the decision of the Court of Appeal regarding the issue of penalty.

v) Regarding the penalty issue it is also interesting to compare the charge levied by the local council on their car parks. These of course are statutory penalties intended to deter and councils have the legal basis to do this. A local council penalty notice for a similar infringement would cost £50 reduced to £25 if paid within 14 days. Clearly the local authority feels a charge of less than half the amount that the defendant was trying to levy has the required deterrent effect. It is therefore difficult to justify that even if the court follows HHJ Moloney’s reasoning (and allows a penalty due to commercial justification) that the initial charge is justifiable at over twice as much as a statutory parking penalty charge designed with the same intent

vi) The charge is clearly extravagant, unconscionable and disproportionate to any loss sustained and this requirement clearly falls foul of Unfair Terms in Contracts regulations.

c.Inadequate signage :

i)As can be seen from the signage plan and photographs there is only a small sign 3a (high on a pole above the payment machine) at the time of payment that indicates that the motorist should and could top up for any unpaid parking prior to leaving. The Defendant was unaware of this sign when making payment. As the Defendant did not intend to stay for longer than the period paid for he was never expecting to have to do so and was never aware of the ability to do this when making payment or at any time until and after leaving the car park.

ii) It would be far more sensible to place such a sign both on the payment machine and at the exit to the car park if the Claimant genuinely wished to ensure all motorists were aware that they should and could make any additional payment. It should however be borne in mind that this may reduce the income of the Claimant who only makes money by motorists breaching their terms.

iii) It is submitted that not only has inadequate notice been given to the motorist (it is unusual in a pay and display car park that extra payment can be made before leaving) but it is also frankly ridiculous to suggest that if the average motorist were aware they could easily pay the additional £2.00 prior to leaving that they would instead chose to pay £100.00. It is common ground that the Defendant did not try to avoid paying at all for parking purely that he failed to pay for the unexpected overstay.

iv) It is the Defendant’s position that he entered into a contract to park with the Snowdon Mountain Railway for the period he paid for. This contract was consequently frustrated by an injury through no fault of his own resulting in him returning to his car and leaving the car park later than expected and could not have been foreseen. Quite understandably he did not consider he had overstayed and was unaware he had overstayed of any requirement or ability to top up payment prior to leaving.

An analogy here can be made. Imagine the Defendant had ordered a main course in a restaurant and paid for it . Having eaten the main course he decided to order a sweet he had not previously expected to order. Having eaten the sweet he went to the lavatory , slipped on the wet floor and injured himself. He recovered , left the premises and drove home completely forgetting he had failed to pay for the sweet. If the restaurant had his address they would contact him and request he settled his bill . If they requested a sum of fifty times that bill reduced to thirty times the bill if paid promptly it would clearly be an irrecoverable penalty, even if they had a tiny sign behind the bar giving details of such terms and conditions. This situation is no different , anything in excess of the cost of the sweet would be irrecoverable. This doesn’t even address the ludicrous idea that a third party meal booking agency could make such a claim .

d.Background:

i)The defendant paid for the parking he expected to use, he used the car park for its intended purpose but unfortunately suffered a serious and unforeseen injury on the mountain delaying his return to the vehicle. After treating the injury he left the car park in a shaken state, quite naturally unaware that he had failed to pay for the additional parking time for it was the last thing on his mind.

ii) The first he heard of this matter was a demand from the Claimant for an extravagant and unreasonable sum of money. Thinking that the Claimant would fully understand his predicament he wrote to them explaining the situation but was perturbed to receive their unsympathetic refusal to consider waiving the charge.

iii) He subsequently appealed to POPLA but with hindsight realises that his appeal was naive believing that mitigating factors and a sense of fair play would see the ticket cancelled. Unfortunately he failed to realise that POPLA do not consider mitigating circumstances but only challenges on points of law and his appeal was unfortunately purely based on mitigation.

iv) Had he appealed to POPLA that the charge was not a genuine pre estimate of loss he would undoubtedly have had the ticket cancelled as it is common knowledge that the Claimant currently loses every single appeal when this point is challenged at POPLA.

v) As a member of the British Parking Association ,the code of practice to which the Claimant must adhere states at para 19.5 that any parking charge must represent a genuine pre estimate of loss. Their authority to operate onsite and issue charges is dependant on the Claimant adhering to this code as evidenced within the terms of the landowner contract. In his judgment HHJ Moloney indicated that in reality the Claimant suffered no loss. It would seem to be incongruous if a similar defence point that wins every time at POPLA were to prove unsuccessful in the County Court.

vi) The Court is however made aware that POPLA is not a statutory body , their assessment is not binding on the appellant and even the Lead Adjudicator makes plain in the Annual Report that the Court may take as much or as little notice of the POPLA adjudication as it sees fit.

vii) The Defendant contacted the Snowdon Mountain Railway and issued a cheque to the Snowdon Mountain Railway that more than covered the unpaid parking charge and was under the impression that they had cancelled the charge. The Claimant subsequently issued an offer to settle for £27-00.( Exhibit C ) The Defendant suspects that this demonstrates that the landowner instructed the Claimant to cancel the charge yet the Claimant persisted in trying to recover what is commonly known to be their cost of referring a case to POPLA, an appeal that is required to be free to the motorist . If this is the case the landowner was clearly not seeking to recover any losses so there can be no commercial justification for the charge yet the Claimant was still seeking to reclaim their costs of the POPLA appeal ( which should be free of charge to the motorist ) that they could have avoided by accepting the Defendant’s

initial appeal and cancelling the charge. This all reveals that the Claimant was simply trying to recover their cost of pursuing a baseless claim .

viii) Throughout the matter the Defendant has acted with complete honesty and has attempted to deal with this situation in a responsible manner.

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 VCS v HMRC [2013 EWCA Civ 186]. (Both cases reported and on Bailii). With regards to the ParkingEye v Somerfield appeal this is a persuasive case because it deals with ParkingEye’s contracts. Here, Sir Robin Jacob states;

11. This semi-literate letter was false in a number of respects

i) It said that the debt was due to Parking Eye. It was not , it was due to Somerfield

iii) It said “Parking Eye will issue proceedings”indicating that Parking Eye had authority to do so. It did not

In the second case the court ruled that VCS could enforce a contract in their own name but for the reason that VCS were considered an independent contractor and Principal to any contract as there was no indication of agency . They operated a permit scheme in their name, the landowner had no knowledge of or rights to know of any money received by VCS and the charge was considered damages for trespass and not as consideration for the services of VCS so no VAT was payable on them . The court is referred to paragraphs 28, 29 and 31 of the judgment. As already discussed Parking Eye’s own contract and VAT arrangements lay bare the fundamental difference in this case . They describe themselves in their “Reply to Defence” and were appointed by the landowner as Agent, the landowner does have such knowledge regarding parking charges collected as they pay the VAT on them when the Claimant provides them with a VAT invoice, the charge is for breach of contract not trespass, Parking Eye do not provide any consideration by way of a permit or any other means in their own name and they themselves account for collected parking charges for the purposes of VAT as consideration for their services rather than damages. This quite clearly demonstrates that the claimed damages due to breach are due to the landowner and not Parking Eye as VAT would not be payable on them otherwise.

To put it very simply, if the Claimant was the Principal in the purported contract seeking to claim damages then VAT would not be payable on those charges . The fact that the Claimant invoices the landowner for VAT reveals that they are not the Principal. This point alone is conclusive . As the true Principal is named on the sign , the Snowdon Mountain Railway , the Claimant has no authority , as Agent, to litigate in their name.

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 determine 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 and that Parking Eye do not have the authority to litigate in their name and any supposed loss is due to Snowdon Mountain Railway.

In 3JD04329 ParkingEye v Martin (12/05/2014 St Albans County Court) 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 is attached as Exhibit B. Attention is drawn to clauses 3.7 in which Parking Eye are appointed as agent and 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.

b. With regard to point 1b the following cases and evidence are relied upon:

Civil Enforcement Ltd v McAfferty ( Luton County Court ,2014) ( Appeal before Mr Recorder Gibson QC ). ( Attached as Exhibit D )

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

ParkingEye have also lost the following cases recently on this point :

3JD00517 ParkingEye v Clarke (Barrow-in-Furness County Court, 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”. Transcript attached as Exhibit F.

3JD04791 ParkingEye Ltd v Heggie (Barnsley County Court, 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. Attached as Exhibit G.

3.Conclusion

I am the Defendant and deny that I am liable to the Claimant for the sums claimed, or any amount at all. I invite the Court to dismiss the claim, and to award the Defendant’s costs for taking time off work to attend the hearing.

………………………………………… ……………………..

(Defendant) (Date)

List of Attached Exhibits:

A: e mail correspondence with the ClaimantB: Copy contract C: offer to settle for £27-00 D: Civil Enforcement Ltd v McAffertyE: OBServices v ThurlowF: ParkingEye v ClarkeG: ParkingEye v Heggie