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  • FIRST POST
    • traceynob
    • By traceynob 19th Aug 15, 3:44 PM
    • 57Posts
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    traceynob
    Excel signage in Prestwich impossible to read, IAS thinks not....!
    • #1
    • 19th Aug 15, 3:44 PM
    Excel signage in Prestwich impossible to read, IAS thinks not....! 19th Aug 15 at 3:44 PM
    Long story but bear with me.....The driver of a car parked in a car park in Prestwich village after midnight. The car park was dark and poorly lit, all the surrounding shops and restaurants were closed, the car park was virtually empty, and they genuinely did not notice any signs telling them to pay. There are five other local car parks which are free to park in, day and night, and the driver (perhaps naively) thought this one was too.
    On returning to car next morning, there was a £100 PCN on windscreen. Apparently the driver should have paid £1.00! On closer inspection, the signs were spotted, but were almost impossible to read. Usual Excel stuff, tiny writing, font very close, capital letters, blue and yellow etc. Two signs were on posts at least 6 feet high, the others are low down on walls and easily hidden by obstacles such as bins or other cars. There were 7 signs in all, only one sign showed the parking tariff, this sign was hidden in a corner that was not visible from over half of the car park spaces. Hidden next to it was the one and only ticket machine, painted dark blue. Wrote to Excel and complained about the signage, but surprisingly they were unsympathetic. So had to make decision about whether to appeal to IAS, after all the warnings about being a kangaroo court. However the signage was so poor we thought we had a watertight case.

    Appeal was based on the following factors;
    1 Inadequate signage due to lack of illumination at night and writing pretty much illegible even in day time
    2 Most signs do not inform motorist of the tariff, so without knowing what is expected of them, in terms of how much to pay, they cannot fully agree to the contract
    3 On GPEOL, as the loss to parking company/landowner was only £1.00 so how can £100.00 be justified
    4 Excel did not provide evidence that they had authority of landowner

    IAS ignored points 2 and 4 totally and dismissed appeal as they said that even though we provided evidence that showed the signs were difficult to read at night, Excel provided evidence that the signs are visible and prominent....! We never said the signs weren't visible or prominent, we said they were not possible to read. IAS also said the onus was on the appellant to prove our claims were more likely than not!! We thought we had, photo's clearly show poor lighting, signs cannot be read and no tariff displayed.
    They also said GPEOL didn't apply as was a contractual charge., and quoted Beavis Vs PE, which is totally irrelevant in this case. However, Excel have now told us the charge was for breach of contract.

    I am enraged by the lack of fairness and abuse of the law, but even more enraged that there is no-one to turn to, as everyone with any authority has a vested interest, including DVLA. I have complained to DVLA and IPC and my local MP but none of them have bothered to respond yet. This is why these boards and people like Parking Cowboys and Parking Prankster are so useful, they let people know there is someone out there fighting their corner.

    Now the IAS appeal has been dismissed, we're sitting ducks waiting for the harassment letters. I'll update post with documents/photos soon.
Page 4
    • traceynob
    • By traceynob 7th Mar 16, 1:18 PM
    • 57 Posts
    • 144 Thanks
    traceynob
    Worrying and annoying development......someone from Excel has today telephoned the mobile phone of the registered keeper to further harass and demand payment. This is despite us never contacting them by phone or giving details of any personal phone numbers. How have they managed to get this information? Why is this even allowed?
    I despair......! How difficult can it be for the government to put regulation in place to stop this massive scam affecting hundreds of thousands of people every year?
    • dazster
    • By dazster 7th Mar 16, 1:28 PM
    • 487 Posts
    • 823 Thanks
    dazster
    The 'phone owner can block their number, exactly how to do it depends on what kind of 'phone it is.
    • Coupon-mad
    • By Coupon-mad 7th Mar 16, 1:39 PM
    • 40,460 Posts
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    Coupon-mad
    Worrying and annoying development......someone from Excel has today telephoned the mobile phone of the registered keeper to further harass and demand payment. This is despite us never contacting them by phone or giving details of any personal phone numbers. How have they managed to get this information? Why is this even allowed?
    I despair......! How difficult can it be for the government to put regulation in place to stop this massive scam affecting hundreds of thousands of people every year?
    Originally posted by traceynob
    Are you sure this wasn't a debt collector 'for' Excel?

    You tell them to cease and desist and they are harassing a registered keeper, who cannot be liable because Excel do not invoke keeper liability. Tell them the alleged debt is denied and the driver will not be divulged. Do not get drawn on that or about what happened.

    Phone down once you've said the above.

    Rinse and repeat if they try again, or block their number but keep a note of any texts and phone calls as this can certainly/easily become a crime of harassment.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • traceynob
    • By traceynob 2nd Apr 16, 1:56 PM
    • 57 Posts
    • 144 Thanks
    traceynob
    Changed phone number for other reasons (changed contract)....but hopefully that will also stop the phone calls.....


    Just wanted to share a couple of the more outrageous paragraphs in the latest letter received from BW Legal;


    'We wish to bring to your attention the case of Parking Eye vs Beavis (2015).......
    This case eliminates the main defence that you will have should the matter go to court and this case will be relied on by our client in any County Court proceedings.'

    I'm quite happy to let the numpties rely on it then as it has nothing to do with the defence in this case.




    'You should note that if your claim has already been processed through an Independent Appeal Service (IAS) and an IAS has dismissed your appeal, then it is likely that a County Court will come to a similar conclusion and your defence will be unsuccessful'.


    Really....? Does anyone know of a case dismissed by IAS that then won in court?


    Before anyone asks, I've already complained to SRA about the use of these spurious and downright incorrect statements, but they claim that BW Legal are not breaking any Code of Practice!!

    I really do despair that these companies are allowed to operate unchecked and basically can say whatever they want and totally get away with it because no-one who could stop it actually cares....
    • hoohoo
    • By hoohoo 2nd Apr 16, 9:16 PM
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    hoohoo
    Before anyone asks, I've already complained to SRA about the use of these spurious and downright incorrect statements, but they claim that BW Legal are not breaking any Code of Practice!!
    Originally posted by traceynob
    As per post #59, probably the correct people to complain to are the CSA. Unlike the SRA, these people will take action.

    Get their code of practice here:
    http://www.csa-uk.com/

    Then make a formal complaint to BS*** Legal about all the failures to obey the code of practice. One of these is their use of telephone. First you need to formally request they stop using the phone to contact you. If they do it again, they are in breach.

    When they fail to handle it correctly, escalate to the CSA. They then *have* to follow a painful procedure which will probably make them shy clear from any further contact.

    Other BS reasons are the lies in their letter. I have helped with huge numbers of court cases. Beavis is a red herring. Even before Beavis I don't remember winning many on the GPEOL angle; most court cases are won on other points, such as signage, standing, POFA 2012 etc etc.

    Also, the IAS are a jumped-up kangaroo court with delusions of grandeur. Their findings are rarely if ever upheld by real judges. Just search the parking prankster blog for 'gladstones' to find plenty of examples where gladstones try on arguments which the IAS allow, but real judges laugh out of court.
    Last edited by hoohoo; 02-04-2016 at 9:23 PM.
    Dedicated to driving up standards in parking
    • traceynob
    • By traceynob 12th Aug 16, 1:40 PM
    • 57 Posts
    • 144 Thanks
    traceynob
    Update on Excel, Bury New Road, Prestwich
    I said I would keep this thread updated so here goes!
    It's now 18 months since the whole debacle started. I haven't had any further threatening letters since around May 2016. I don't appear to have been taken to court yet.
    I am hoping that this is because all along I have vigorously denied owing any money, and clearly and consistently stated that there was no contract due to the poor signage in the car-park in question.
    I have also said in writing that if Excel take me to court and lose, then I will be claiming my costs of around £625 from them over and above any court costs awarded (as these tend to be capped) based on a fully-itemised and genuine pre-estimate of loss of the time, stationary, postage etc I will have spent in defending my claim.

    I've noticed that all the Excel signage and the ticket machine has now completely disappeared from the site in question. I wrote a number of increasingly rude and irate letters to the landowner which they completely ignored, but maybe hopefully they had an effect and the landowners have finally thrown Excel off the site/failed to renew the contract. In which case, ha ha ha!!
    • Umkomaas
    • By Umkomaas 12th Aug 16, 1:47 PM
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    Umkomaas
    More power to your elbow Tracey. Wish others would show the same fighting spirit as you by taking it to the bully, rather than timidly hiding in the corner until something further and nastier drops through their letterbox, then expect already overstretched regulars to dig them out of their next hole.
    NEWBIES - wise up - DO NOT IGNORE A PARKING CHARGE NOTICE - you have been warned!

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Please note: I am NOT involved in any 'paid for' appeals service.
    • The Deep
    • By The Deep 12th Aug 16, 2:59 PM
    • 5,561 Posts
    • 4,271 Thanks
    The Deep
    Give the pot a stir, send them an invoice, but do not charge more than £19 an hour for time, 45ppm for travel, £5 to receive a letter and £7.50 to reply.
    • traceynob
    • By traceynob 27th Sep 16, 9:06 PM
    • 57 Posts
    • 144 Thanks
    traceynob
    Oh bum, spoke too soon, got a Northampton County Court Claim in post today....

    I understand that the first step is to return an Acknowledgement of Service (AOS) form within 14 days stating my intention to defend the claim in full. I then send an initial brief defence statement within 28 days. I will then receive a Directions Questionaire to complete where I can choose to have the hearing in a local court and to not have mediation.

    I know all the regulars are busy people but I'd appreciate some quick responses to the following questions to make sure I'm not missing anything major.

    1) Excel/BW Legal have not complied with pre-court protocol, they did send a letter before action ages ago which didn't comply with Practice Direction and I asked them in writing to provide me with further evidence/information but they didn't respond. As they haven't complied, does this mean the court claim is invalid (wishful thinking but worth a try)?

    2) The claim is in my sons name as he is the registered keeper but Excel have never established who was the driver on the night in question and have been happily corresponding with me all the way through this debacle. Do they have to state whether they are making the claim against my son as driver or keeper? It's not mentioned in their Particulars of Claim?

    3) At what point do I get to ask Excel to show me their evidence e.g proof of authority from landowner, evidence of lighting in car park on night in question etc. Do I put this in my initial defence?

    Thanks
    • Coupon-mad
    • By Coupon-mad 27th Sep 16, 9:16 PM
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    Coupon-mad
    As they haven't complied, does this mean the court claim is invalid (wishful thinking but worth a try)?
    No. Sorry! Your son can state in his defence that they have not complied and the Particulars of Claim are incoherent and show no cause of action, nor even on what basis they are holding a registered keeper liable bearing in mind they cannot rely on the POFA Schedule 4, by their own woeful choice of PCN wording.

    Do they have to state whether they are making the claim against my son as driver or keeper? It's not mentioned in their Particulars of Claim?
    They should do, but we know anyway that Excel never comply with the POFA so can only say that they are trying to hold the keeper liable on the assumption he was driving (they cannot do anything else). So your son's defence should plagiarise the other ones on here over the Summer where people have mentioned Henry Greenslade's wording that no parking firm should suggest that a keeper can be assumed to be the driver because there is no such presumption in law.

    At what point do I get to ask Excel to show me their evidence e.g proof of authority from landowner, evidence of lighting in car park on night in question etc. Do I put this in my initial defence?
    Your son could ask, in a Part 18 request now, this week, to BW Legal (I assume the claim is via them?).

    Otherwise your son will only get to see more, much nearer the hearing time when they show their hand in their court evidence.

    Anyway you will find all these points are covered in pretty much any BW legal defence you find when you search. Make sure you read more than one, then show us your son's adapted version This is still worth the fight, not least because the claim is lacking in detail (because BW Legal have not looked at any detail yet) and because the keeper can't be held liable.

    And because even if a case is lost, the amount your son would need to then pay would be under £200 for a single PCN, a fair bit less than the scare tactic claim currently made up to a higher sum. No CCJ, no repercussions, as long as he knows to pay if he loses.
    Last edited by Coupon-mad; 17-10-2016 at 1:06 AM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • traceynob
    • By traceynob 16th Oct 16, 1:38 AM
    • 57 Posts
    • 144 Thanks
    traceynob
    I found it hard to summon up the enthusiasm to prepare my initial defence, as I've reached such a stage of disillusionment that I was beginning to think it would be easier to just pay than get my hopes up yet again that there is any kind of justice or fairness in the world. However I've given myself a good talking to and am going to fight to the (probably bitter) end. I don't know how you regulars keep going, with so few glimmers of light out there.....


    Anyway here's my initial defence, please advise if anyone sees any glaring errors.

    Statement of Defence

    1. The claim arises from the Claimant issuing an invoice or ‘Parking Charge Notice’ for £100 to the Defendant’s vehicle xxxxxx on xx/xx/xx. The defendant has from the outset denied any liability in respect of the claim and has repeatedly requested that the Claimant provides evidence of the legal basis to their claim which the Claimant has to date failed to do.
    2. The Claimant has issued Particulars of Claim which are insufficient in detail and fail to disclose the head or heads of action on which proceedings are based. Through not describing the facts upon which the claim is based, and not describing how the amount claimed is calculated, the Claimant has not complied with Practice Direction on Pre-Action Conduct, and as such, the court is invited to dismiss the claim.
    3. The Claimant has, since February 2015, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refusing to respond to reasonable requests to provide the evidence necessary to support their claims. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee into a demand for £240.88.
    4. The Claimant has additionally failed to comply with Practice Direction by refusing to respond to the Defendants request to use an independent form of dispute resolution.
    5. As a member of the Independent Parking Committee (IPC), Excel Parking are able to access
      registered keeper details from DVLA. However, IPC membership requires Excel to comply with
      their Code of Practice which they have failed to do with respect to their signage in this case.
      Excel have previously been suspended by the DVLA from accessing registered keeper details
      due to failure to comply with the Code of Practice.
    6. It is denied that the Claimant is the landowner of the land in question or that they have any other
      right or proprietary interest in the land.
    7. The Claimant is therefore put to strict proof that they were at the time of the alleged event in
      possession of sufficient authority to issue parking charges and issue enforcement proceedings in
      their own name and can demonstrate a clear chain of authority from the landowner.
    8. In the absence of strict proof, I submit that the Claimant has no case and invite the court to strike
      the matter out.
    9. If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the IPC Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following;

    • Lack of illumination of signage (and the car park) during the hours of darkness
    • Lack of clarity and prominence of terms and conditions
    • Illegible text due to font size, density, colour and complexity
    • Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
    • Lack of relevant terms and conditions, such as the fees for parking
    • Inadequate positioning of signs, for example, at unsuitable heights
    10. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that
    anyone entering the car park was immediately aware of, and agreed, the terms and conditions.
    The Claimant is put to strict proof that the Defendant saw, read and agreed the terms on the night
    in question.
    11. In the absence of any signage that contractually bound the Defendant then there can have been no
    contract and the Claimant has no case, and as such, the court is invited to dismiss the claim.

    12. Even had the terms and conditions been sufficiently prominent, terms which are unfair are not
    legally binding. Terms which are considered unfair include requiring any consumer who fails to
    fulfill his obligation to pay a disproportionately high sum in compensation. It is also unfair to
    impose disproportionate sanctions for breach of contract. A charge of £100.00 for failing to pay a
    sum of £1.00 which was not prominently displayed in the first place can be considered a
    disproportionate sum.

    13. It is anticipated that the Claimant may seek to rely on the Supreme Court ruling in the case of
    Parking Eye v Beavis. This case can be easily distinguished from ParkingEye v Beavis which the
    Judges held was 'entirely different' from most ordinary economic contract disputes and Excel
    Parking have not demonstrated any commercial justification for such a disproportionate amount
    being charged.

    14. The Claimant is attempting to claim additional charges such as debt collection costs of £54.00 and
    legal costs of £50.00. The Protection of Freedoms Act does not permit the Claimant to recover a
    sum greater than the parking charge on the day before a Notice to Keeper was issued. The
    Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the
    Claimant has not incurred the stated additional costs and it is put to strict proof that they have
    actually been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and
    should be struck out as unrecoverable.

    15. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The keeper can only
    be held liable if the claimant has fully complied with the strict requirements. The Claimant has not
    established whether the Defendant was the driver on the night in question and have not clarified
    whether they are pursuing the Defendant as Keeper or as Driver.

    16. The Claimant is put to strict proof of all his assertions

    17. Considering all the above circumstances, I respectfully ask that the court dismiss the claim.
    • Half_way
    • By Half_way 16th Oct 16, 9:24 AM
    • 2,945 Posts
    • 3,941 Thanks
    Half_way
    If they are still bleating about Beavis then the Supreme court tweeted this
    [img]
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
    • hoohoo
    • By hoohoo 16th Oct 16, 10:19 AM
    • 1,581 Posts
    • 2,845 Thanks
    hoohoo
    At the beginning...

    1. The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings.
    2. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct
    4. Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’.
    5. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.

    https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part22/pd_part22
    https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16
    Dedicated to driving up standards in parking
    • Fruitcake
    • By Fruitcake 16th Oct 16, 10:19 AM
    • 36,455 Posts
    • 73,278 Thanks
    Fruitcake
    The Parking Prankster has just blogged about a case where the initial claim is "lacking" enough information to make a claim and has been dismissed before court. Look for You've been Gladstoned.

    Compare yours to that one, and the other one the court threw out not long ago also mentioned by the Prankster because the claim was incoherent.

    I believe you need a statement of truth at the end of your defence.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 17th Oct 16, 1:22 AM
    • 40,460 Posts
    • 52,359 Thanks
    Coupon-mad
    Show us the next draft once you've added the above comments.

    This is certainly worth defending, not least because we have noticed that no cases where we've assisted with a defence in BW Legal cases, appear to have got out of the starting blocks. Don't want to speak too soon but they seem to be dropping them. And there is an absolute defence for a keeper v Excel or VCS because they only pursue people as if they were the driver.

    With no evidence, they are stuffed if a person never names the driver and defends as keeper. Maybe that's why so many cases here are not proceeding (it seems). We've certainly never seen one go to a hearing yet on here, even though we know BW Legal have tried at least one (case won by bargepole, as blogged by the Parking Prankster). So it's not as if no BW Legal cases have gone to a hearing in England at all, but I think I'm right that no defended MSE forum cases have.

    It seems BW Legal are looking for weak defences, or people who will pay up, or ignorers to get a CCJ by default. They are not looking for a well-defended case, so call their bluff!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • traceynob
    • By traceynob 17th Oct 16, 8:19 PM
    • 57 Posts
    • 144 Thanks
    traceynob
    Statement of Defence

    1 The claim arises from the Claimant issuing an invoice or ‘Parking Charge Notice’ for £100 to the Defendant’s vehicle xxxxxx on xx/xx/2015. The defendant has from the outset denied any liability in respect of the claim and has repeatedly requested that the Claimant provide evidence of any legal basis to their claim which the Claimant has to date failed to do.

    2 The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct. The particulars also fail to describe how the amount claimed has been calculated.

    3 Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.

    4 The Claimant has, since February 2015, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refusing to respond to reasonable requests to provide the evidence necessary to support their claims. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee into a demand for £240.88.

    5 The Claimant has further failed to comply with Practice Direction by refusing to respond to the Defendants request to use an independent form of dispute resolution.

    6 As a member of the Independent Parking Committee (IPC), Excel Parking are able to access registered keeper details from DVLA. However, IPC membership requires Excel to comply with their Code of Practice which they have failed to do with respect to their signage in this case. Excel have previously been suspended by the DVLA from accessing registered keeper details due to failure to comply with the Code of Practice.

    7 It is denied that the Claimant is the landowner of the land in question or that they have any other right or proprietary interest in the land.

    8 The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

    9 In the absence of strict proof, I submit that the Claimant has no case and invite the court to strike the matter out.

    10 If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the IPC Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following;
    • Lack of illumination of signage (and the car park) during the hours of darkness
    • Lack of clarity and prominence of terms and conditions
    • Illegible text due to font size, density, colour and complexity
    • Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
    • Lack of relevant terms and conditions, such as the fees for parking
    • Inadequate positioning of signs, for example, at unsuitable heights

    11 As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.

    12 In the absence of any signage that contractually bound the Defendant then there can have been no contract, the Claimant has no case, and as such, the court is invited to dismiss the claim.

    13 Even had the terms and conditions been sufficiently prominent, terms which are unfair are not legally binding. Terms which are considered unfair include requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation. It is also unfair to impose disproportionate sanctions for breach of contract. A charge of £100.00 for failing to pay a sum of £1.00 which was not prominently displayed in the first place can be considered a disproportionate sum.

    14 It is anticipated that the Claimant may seek to rely on the Supreme Court ruling in the case of Parking Eye v Beavis. This case can be easily distinguished from ParkingEye v Beavis as Excel Parking have not demonstrated any commercial justification for the amount being charged and the wording of the notices was not clear.

    15 The Claimant is attempting to claim additional charges such as debt collection costs of £54.00 and legal costs of £50.00. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

    16 The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The keeper can only be held liable if the claimant has fully complied with the strict requirements. The Claimant has not established whether the Defendant was the driver on the night in question and have not clarified whether they are pursuing the Defendant as Keeper or as Driver.

    17 The Claimant is put to strict proof of all his assertions

    18 Considering all the above circumstances, I respectfully ask that the court dismiss the claim.

    I believe the facts stated in this defence are true.
    Last edited by traceynob; 18-10-2016 at 12:19 PM.
    • The Deep
    • By The Deep 17th Oct 16, 8:29 PM
    • 5,561 Posts
    • 4,271 Thanks
    The Deep
    I would say that they haven't a snowball's chance. Surely they will not contest that.

    I hope that you have prepared a schedule of costs to hand to the judge when you prevail. See CPR14.27.(2)(g) for costs with unreasonable behaviour.
    • Coupon-mad
    • By Coupon-mad 18th Oct 16, 12:32 AM
    • 40,460 Posts
    • 52,359 Thanks
    Coupon-mad
    Looks like you have covered all the bases, good stuff!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • DoaM
    • By DoaM 18th Oct 16, 8:42 AM
    • 997 Posts
    • 911 Thanks
    DoaM
    Please edit post #76 to remove identifiable info (e.g. vehicle reg).

    Were Excel barred/suspended from accessing keeper data? (I know UKPC have been, but have Excel?)
    Last edited by DoaM; 18-10-2016 at 8:48 AM.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Umkomaas
    • By Umkomaas 18th Oct 16, 8:54 AM
    • 10,979 Posts
    • 16,384 Thanks
    Umkomaas
    Have a read of this latest Prankster blog. Two court cases on Peel Centre parking.

    http://parking-prankster.blogspot.co.uk/2016/10/bw-legal-how-to-winlose-claim.html

    'Preparation, preparation, preparation'.
    NEWBIES - wise up - DO NOT IGNORE A PARKING CHARGE NOTICE - you have been warned!

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Please note: I am NOT involved in any 'paid for' appeals service.
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