Thanks a lot for your responses so far, I plan to acknowledge the claim later today, in the meantime I've adapted Loadsofchildren123's letter from the thread above, I'd appreciate comments on whether I should send this to BW Legal today please:
I have received the above claim from the County Court Business Centre.
I intend to defend the claim and I invite you to withdraw at this early stage, before costs are incurred by me in defending. I believe it is baseless and misconceived and is bound to fail.
At the time in question (XX XX 2012) I was employed by Admiral. As an employee I was entitled to apply for permission to park in the staff car park. Such permission was granted to me after my employment started, and in return I paid Admiral £50 per month for the parking, deducted at source from my salary. I had understood that as I was a permit-holder I would not be charged and that Admiral would speak to you to arrange for the PCN issued on XX XX 2012 to be cancelled.
It is therefore the case that I entered into a contract with Admiral in respect of the parking. The contract did not include any obligations, other than (on Admiral’s part) to provide me with a parking space and (on my part) to display the permit I was subsequently given (not in any specific, prescribed manner) and to pay £50 per month. There was no reference whatsoever in the agreement with Admiral that I would be penalised in any way, including the payment of any charges, for failing to comply with the terms of the agreement, and there was no reference whatsoever to complying with further terms and conditions imposed by your client.
After entering into the contract with Admiral, I was given a parking permit and a plastic pocket to use to display the permit in my windscreen (“the windscreen pocket”). The permit bore my car registration, which I had provided to Admiral.
On the rear of the windscreen pocket were what purported to be terms and conditions, in very small lettering, which referred to the parking and how the permit should be displayed, with a vague reference to “charges” for any breaches. They referred vaguely to further terms and conditions displayed in the car park. At the foot of the rear of the windscreen pocket is your client’s name, Excel Parking Services Ltd, and the company registration number, and a helpline telephone number. There was no reference anywhere in the wording to the creation of a contract between Excel and the holder of the permit. By the time I received the permit I had already entered into the contract with Admiral for it to provide me with a parking space in return for £50 per month.
As for the signs in the car park, these were clearly aimed at discouraging non-permit holders from parking there (the clear intention of your engagement by Admiral to manage the car park).
All of this clearly demonstrates that I cannot have entered into any contract with your client. I ask you to consider the above and respond to the following points:
• I had already been granted the right to park by the party in control and occupation of the land, namely Admiral Group Plc. Your client, a third party with no relationship to me, had no legal locus to amend, alter, add to or limit those rights by imposing new or further contractual terms on me.
• No contractual terms were ever “offered” to me by your client and I never accepted any contractual terms that may have been “offered”. No consideration flowed either from your client to me, or from me to your client. I already had the right to park granted to me by Admiral Group Plc. The three elements required for the formation of a contract (offer, acceptance, consideration) are therefore completely absent.
• In any event, the terms and conditions which you client seeks to impose upon me (set out on the back of the windscreen pocket) fail to define the “charge” that could be imposed for any failure to comply with them.
• To the extent that I was obliged to display the permit given to me by my employer (and it is denied that there were any such specific terms), the requirement must have been reasonable and capable of being complied with. The windscreen pocket was not fit for purpose because it fell off the windscreen while the car was unattended on several occasions. The driver used all reasonable endeavours to comply with it by displaying the permit in the windscreen pocket (if there was any such specific obligation, which I deny). When the driver left the vehicle, the windscreen pocket was in situ. The fact that it fell from the windscreen was completely out of their control and not because of any act or omission on their part, and they could not have done anything more than they did to comply with the obligation your client relies upon to bring its claim.
• Your client could easily have checked with Admiral to see if I was a valid permit holder: Admiral held my registration number which was recorded on my permit. The intention of any agreement between your client and Admiral was quite clearly to prevent unauthorised parking, not to penalise genuine permit holders for events which were out of their control.
• Your client has added in costs/administrative charges which are not defined in any contractual document: there is simply a vague reference to these on the signs in the car park. For any contractual term to be capable of acceptance, it must be certain and clear.
I invite your client to withdraw its claims before further costs are incurred by me in dealing with them.
If your client will not withdraw, then I ask for your response to the matters above and for the following documents:
• The contract (or chain of contracts) between your client and Admiral Group Plc giving your client authority to carry out parking management and on what terms;
• Any and all photographs taken of my car on XX XX 2012;
• A copy of any document your client asserts sets out the terms of the alleged contract between it and me (this may be the same as 4 below);
• A copy of the signs on display and a plan of where in the car park they were displayed on those dates;
These are core documents, central to your client’s claim. As such, they are documents which should have been produced at an early stage (regardless of whether or not I asked for them) in the pre-action phase, pursuant to paragraph 6 of the Practice Direction – Pre-Action Conduct. The contract requested under 3 above should have been appended to your client’s Claim Form according to Practice Direction 16 (which accompanies Rule 16 of the CPR) - if the contract is claimed to be written, the Claim Form must include a copy of the document constituting the agreement (paragraph 7.3(1)), or general conditions (paragraph 7.3(2)), or if the agreement is said to have been created through conduct the particulars must specify the conduct relied on, and by whom, when and where acts relied upon were done (paragraph 7.5). Your client’s Claim Form does neither.
I am requesting these documents because I clearly require them in order to be able to prepare a proper defence to the claim, as is my entitlement. The CPR clearly anticipate an early exchange of information, as per paragraph 6 of the Practice Direction – Pre-Action Conduct, Rule 16 and Practice Direction 16 – any failure to produce the information I have asked for will be nothing other than a deliberate attempt to frustrate my ability to defend the claim and will be drawn to the court’s attention as unreasonable conduct pursuant to Rule 27.14(2)(g) and as a failure to comply with pre-action obligations. You will have denied me the opportunity to “take stock” pursuant to paragraph 12 of the Practice Direction, or to enter into any meaningful discussions with you pursuant to paragraph 13. I will seek the sanctions provided for by paragraph 15 of the Practice Direction.
Since there is clear evidence that this claim have been wrongly brought, I am advised that your client has breached the terms of the Data Protection Act because your client has accessed my keeper details from the DVLA when it had no right to do so. Should this matter proceed then I put you on notice that I will make a counterclaim for damages in respect of such breaches (in respect of each PCN). I understand that there is case law which supports a damages award of £750 for each breach. In this case, I believe I am entitled to claim an award of aggravated damages because I understand that your client was admonished for wrongfully accessing and storing/using data in 2012 and suspended by the DVLA from accessing further data – all of which means that your client must have been aware of the provisions of, and its duties pursuant to, the Data Protection Act.
I have replaced the word "I" with "the driver" where necessary. I have also removed the various references to the "VCS signs" as I believe they were the blue and yellow Excel signs back in 2012 (again my memory from 5.5 years ago is a tad hazy). I left the Data Protection part in, although it is 2012 and likely after my PCN, I have moved houses since and Excel/BWL must have run some DVLA/electoral roll searches on me?
My question is, should I send this letter, or should I just send the section requesting the documentation/photographs and mention I will be defending in full as it is pre-POFA and they have failed to provide evidence of who the driver was? Sorry for the additional questions, but having read through the examples, my situation seems to be a mixture of a few (pre-POFA and permit owner) and I'm not sure which will be easier to defend in court or less likely to proceed in the first instance.
Fruitcake - as for the original PCN, I believe I have it somewhere but having moved houses a few times, not entirely sure where it is. I'll try to dig it out this evening, will it affect the writing of my defence in any way?
Thanks again,
SP
Last edited by Swanseaparker; 19-06-2017 at 1:14 PM.
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