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  • FIRST POST
    • Swanseaparker
    • By Swanseaparker 18th Jun 17, 10:27 AM
    • 10Posts
    • 7Thanks
    Swanseaparker
    County Court Claim Form Received
    • #1
    • 18th Jun 17, 10:27 AM
    County Court Claim Form Received 18th Jun 17 at 10:27 AM
    Hi all,

    Having read through the newbies thread I'm following the advice of starting my own thread. Before I proceed with writing my defence, I wanted some advice please. It is similar to the case Loadsofchildren123 posted here (sorry as i'm a new user I'm unable to post the html link):

    forums.moneysavingexpert.com/showthread.php?t=5638268&highlight=admiral

    The PPC in question is Excel and have instructed BW Legal to act on their behalf. The PCN was issued in January 2012 (pre-POFA) and from what I recall, it was a similar issue where a permit had fallen off the windscreen after who ever was driving left the vehicle. This was not the only time this happened but was surprised to get a PCN for this. The advice I read at the time was to ignore all correspondence from Excel and whichever debt collector (Roxburgh, Graham White etc.) so again was surprised to find myself now receiving a county claim form 5.5 years after the incident. The total amount on the claim form is £268.34, broken down as:

    Principle debt - £100
    8% interest per annum - £39.34
    Contractual costs - £54

    Court fees - £25
    Legal rep costs - £50

    Essentially the advice I'm looking for is how I should approach this and I see 2 options:

    1) It is pre-POFA and I don't believe they have proof of who the driver is (the only catch here is if they have CCTV footage) so prepare my defence using templates using the pre-POFA example from the newbie thread
    2) As with Loadsofchildren123's post above, suggest that my contract was with Admiral and not Excel. I'm slightly concerned about this approach as if it did end up going as far as court, would I have to get Admiral involved at the cost suggested in the thread (£255). My other concern is, as they've issues the claim form, am I too late to be pursuing the course in the thread as this will definitely extend over the 33 day period given to submit a defence?

    I'm aware I need to request all documentation/photographs from BW Legal, citing CPR 31.14 and plan to do this once I have advice on which approach to take. The list above isn't extensive and if anyone has any other suggestions on ways to approach this I would greatly appreciate it. Also, if you require any more information from me, please ask. I didn't think to take any photos at the time given the general consensus within Admiral to "ignore them and they will go away". I almost made it to the 6 year mark too!

    Thanks in advance,
    SP
    Last edited by Swanseaparker; 18-06-2017 at 2:25 PM.
Page 1
    • Fruitcake
    • By Fruitcake 18th Jun 17, 10:46 AM
    • 39,702 Posts
    • 79,455 Thanks
    Fruitcake
    • #2
    • 18th Jun 17, 10:46 AM
    • #2
    • 18th Jun 17, 10:46 AM
    I suggest you edit slightly the paragraph about the permit falling down after someone left the vehicle. This cold be interpreted as revealing the driver's identity.

    Have you read the link by Bargepole in the NEWBIES thread to the step by step court process. It tells you what to do and when, and help with some of the form filling.

    To start with you must acknowledge the claim and state you are going to defend, but do not put anything in the defence box, not even a full stop.

    I don't think you need to contact Admiral or include them in the claim, but in your defence you state that the scammer trying to scam you is the wrong one.

    I don't suppose you have the original PCN.
    Last edited by Fruitcake; 18-06-2017 at 10:50 AM.
    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
    • beamerguy
    • By beamerguy 18th Jun 17, 10:48 AM
    • 5,512 Posts
    • 7,094 Thanks
    beamerguy
    • #3
    • 18th Jun 17, 10:48 AM
    • #3
    • 18th Jun 17, 10:48 AM
    "Principle debt - £100
    8% interest per annum - £39.34
    Contractual costs - £54

    Court fees - £25
    Legal rep costs - £50


    Seems that BWLegal are getting even more stupid than they have been.

    They used to claim £54 for legal costs and were told time and time again that they were wrong.
    Now they claim £54 as Contractual costs

    WHAT Contractual costs ???

    It's pre-POFA and they need to know who was the driver.

    This will be yet another case of BWLegal being whooped in court yet again

    Lamilad is the person here who will guide you through this.
    Lamilad can chew up BWLegal and spit them out in the sewer
    where they belong
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Redx
    • By Redx 18th Jun 17, 10:48 AM
    • 14,758 Posts
    • 18,555 Thanks
    Redx
    • #4
    • 18th Jun 17, 10:48 AM
    • #4
    • 18th Jun 17, 10:48 AM
    the initial defence is submitted before the 28 to 33 day deadline , regardless of if you have received all the additional paperwork etc

    evidence and photos and witness statements are submitted a few weeks before the hearing date , so plenty of time to expand on the submitted defence but ensure you have covered yourself with a lack of "POC" etc , so that you can alter any further defence accordingly due to having a paragraph complaining about the sparse details and lack of evidence etc

    make sure you have acknowledged the claim to extend the deadline by 14 days (to 28 days from 14 days)

    post #2 of that NEWBIES thread will assist with the basics
    Last edited by Redx; 18-06-2017 at 10:50 AM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Swanseaparker
    • By Swanseaparker 19th Jun 17, 1:03 PM
    • 10 Posts
    • 7 Thanks
    Swanseaparker
    • #5
    • 19th Jun 17, 1:03 PM
    • #5
    • 19th Jun 17, 1:03 PM
    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.
    • Coupon-mad
    • By Coupon-mad 19th Jun 17, 7:33 PM
    • 48,190 Posts
    • 61,655 Thanks
    Coupon-mad
    • #6
    • 19th Jun 17, 7:33 PM
    • #6
    • 19th Jun 17, 7:33 PM
    I think send the longer letter as you have shown, not a shorter one that they are more likely to ignore.

    I agree with Loadsofchildren123 that these cases should be fought in detail and robustly threatening counter-claims, because that's the only language these scammers understand.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Swanseaparker
    • By Swanseaparker 20th Jun 17, 10:27 AM
    • 10 Posts
    • 7 Thanks
    Swanseaparker
    • #7
    • 20th Jun 17, 10:27 AM
    • #7
    • 20th Jun 17, 10:27 AM
    I've sent the email above to BW Legal and acknowledged the claim (on MCOL), will spend the next week or so putting my defence together and post here for any further advice. Thanks again for your help so far, very much appreciated!
    • Swanseaparker
    • By Swanseaparker 26th Jun 17, 2:12 PM
    • 10 Posts
    • 7 Thanks
    Swanseaparker
    • #8
    • 26th Jun 17, 2:12 PM
    Letter received
    • #8
    • 26th Jun 17, 2:12 PM
    Hi,

    I'm having trouble uploading pictures at the moment. I managed to dig out my original PCN and should be able to upload pictures later today if required (Fruitcake asked about whether I had this in an earlier post).

    I received a letter today from BW Legal in response to my mail above. I will try to upload this later, but in the meantime the letter essentially contains:

    "Whilst we note your comments within your recent correspondence, a Claim Form has now been issued through the Northampton County Court (CCBC).

    The Response Pack attached to the Claim Form will therefore need to be completed and returned to us." (That's assuming I am not defending the claim, which I made very clear in my email to them? Cut & paste scare tactic job I'm guessing?)

    "...your request for documents should not have an effect on you filling your defence" (Again this is an issue because they haven't complied with the relevant Practice Direction mentioned in the thread above which was my email to them)

    "Please note, should you wish to defend the Claim on the Claim Form, the documents you have requested to confirm your liability towards the Balance will be referred to Our Client. Accordingly, the documents will be forwarded to you upon receipt from our client." (I have not accepted any liability and have made it very clear I am defending and disputing in full, again guessing this is just scare tactics on their part)

    Do I need to push back at all here? Should i also forward this email to Excel as I initially only sent it to BW Legal, assuming they are the representative of the claimant and would deal with all documentation, as the claim form suggests. I notice from Loadsofchildren123's post here forums.moneysavingexpert.com/showthread.php?t=5659244&highlight=pictures&page=2 #topofpage that the LBC above seems to be working in some cases and the claims are being withdrawn, but they don't appear to have taken that approach in my case.

    Failing that, can I use this as part of my defence? They appear to have refused my request and are intentionally frustrating the claim.

    I have started writing my defence and hope to post here in the next few days for any further advice. I have copied a lot of JackBasta's thread forums.moneysavingexpert.com/showthread.php?t=5554723&highlight=jackbasta&page= 3#topofpage as it is pre-POFA and a lot of the points are relevant to my claim.

    In terms of timescale, it's almost 3 weeks from the date of issue, meaning I have roughly a week and a half left for the date of service + 28 days.

    Again any help is appreciated.

    Thanks,
    SP
    Last edited by Swanseaparker; 26-06-2017 at 2:39 PM.
    • Loadsofchildren123
    • By Loadsofchildren123 26th Jun 17, 2:34 PM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    • #9
    • 26th Jun 17, 2:34 PM
    • #9
    • 26th Jun 17, 2:34 PM
    OP, you absolutely must write my LBCs to Excel AND to Admiral. Another poster has just had the same success as me, using the same letters. It took just over a week. I'm sorry I haven't got time to look up the link, but if you search my recent posts, I posted on his thread a couple of hours ago.
    While you are waiting for a response to the LBCs you'll have to get on with your defence anyway. I drafted a defence which never got to see the light of day, I'll post it tomorrow - I'll need to spend a bit of time to anonymise it. If I forget please pm me.
    • Loadsofchildren123
    • By Loadsofchildren123 26th Jun 17, 2:37 PM
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    • 1,671 Thanks
    Loadsofchildren123
    Here is the link. Slightly different because the OP in that case was not the driver, but proceedings had also been issued against the driver for another ticket I think.


    I can email you the LBCs if you would find that easier - you'll have to pm me your email address. I won't respond until tomorrow though.


    http://forums.moneysavingexpert.com/showthread.php?t=5659244
    • Loadsofchildren123
    • By Loadsofchildren123 26th Jun 17, 2:39 PM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    I'm not sure there is any point in denying you were driving (if you were the driver) - you have a strong defence in showing that the contract to park had already been granted to you by your employer.


    You can't have it both ways - claim you were entitled to park and then say "prove I was driving". It makes you look evasive. Being open and saying "I was driving, and admit this even though I don't have to" makes you look honest. You then use the contractual argument which I can't see will fail.
    • Swanseaparker
    • By Swanseaparker 26th Jun 17, 2:40 PM
    • 10 Posts
    • 7 Thanks
    Swanseaparker
    Thanks, I'll send those off today and continue with my defence in the meantime.
    • Loadsofchildren123
    • By Loadsofchildren123 26th Jun 17, 2:41 PM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    BW/Excel won't withdraw. You have to target Admiral themselves. That's why you haven't had success so far, you've just been writing to BW/Excel.
    • Swanseaparker
    • By Swanseaparker 26th Jun 17, 2:47 PM
    • 10 Posts
    • 7 Thanks
    Swanseaparker
    Sorry, mind if I ask which email address you used for Admiral or did you post it? If so, was it directly to the Swansea SA1 Langdon Road address? Thanks again!

    EDIT: I have emailed Excel (using their email address on their website info@excelparking.co.uk) and used the reception email address I was provided for Admiral when I last called to confirm I was a permit holder. Marked as urgent in both cases and FAO Facilities Manager in Swansea for the Admiral email.
    Last edited by Swanseaparker; 26-06-2017 at 5:04 PM.
    • Loadsofchildren123
    • By Loadsofchildren123 27th Jun 17, 10:10 AM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    I just posted it
    • Loadsofchildren123
    • By Loadsofchildren123 27th Jun 17, 11:34 AM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    Here's the defence I drafted. The D was an ex-employee so you may need to tinker with bits of it if you are still employed (eg para 10 where she says she recalls what the signage said - although of course in your case the event was so long ago (so you'd still have to try to recall what it said), paras 11 and 20.6 re whether signage identified Excel or VCS, paras 15 and 20.7 where it is made clear that her permit had fallen but was still visible on the dashboard, not sure if this applies to you).


    IN THE COUNTY COURT BUSINESS CENTRE CLAIM NO:



    B E T W E E N:-



    EXCEL PARKING SERVICES LTD
    Claimant
    and

    xxxxx
    Defendant

    _______________________________


    DEFENCE
    _______________________________

    1. The Defendant admits that [s]he was the driver of a xxxxx, registration number xxxx on the relevant date.

    2. The Defendant denies that [s]he is liable for the entirety of the Claim for the reasons set out below.

    3. No contract was entered into between the Claimant and the Defendant.

    4. The Defendant did enter into a contract for parking, but it was with [his/her] employer and not the Claimant, as follows:

    4.1 On xxxx the Claimant entered into an agreement with [his/her] employer Admiral Plc (“Admiral”) by which Admiral granted [him/her] the right to park in its staff car park in return for a payment of £50 per calendar month (“the Agreement");
    4.2 The terms of the Agreement were set out in a written document which the Defendant signed on the same date (“the Contract”)
    4.3 The Contract recorded and contained all of the terms of the Agreement. Inter alia, it contained “conditions of parking” which referred to a “car-parking card” which would be given to the Defendant. No terms other than those set out in the Contract formed part of the Agreement between the Defendant and Admiral

    5. The Defendant believes that at the relevant time the Claimant may have been a party to a contract with Admiral by which the Claimant agreed to provide car parking spaces for Admiral’s staff and to manage the use of those spaces in order to prevent unauthorized parking and by which Admiral agreed to pay the Claimant. However, the Defendant does not know whether it was the Claimant or another company which was a party to that contract, nor does [s]he know the terms of that contract and the rights granted to the Claimant by it. The Defendant puts the Claimant to full proof of the contract and its terms.

    6. The Defendant did not enter into any contract with the Claimant in relation to the exercise of [his/her] rights to park under the Agreement and the Contract, or in relation to any other matter, and the Claimant therefore has no cause of action against the Defendant.

    7. The Defendant cannot have entered into any contract with the Claimant, because the Claimant cannot have made any offer of parking to [him/her] – [s]he already had the right to park by virtue of the Agreement and Contract with Admiral. To the extent that any offer was made by the Claimant, the Defendant did not accept it. Furthermore, no consideration flowed between the Claimant and Defendant (the Defendant already having the parking rights, for which [s]he had agreed to, and did, pay Admiral.

    8. The Defendant admits that [s]he was given a piece of paper containing the Claimant’s “terms and conditions” for the use of Admiral’s staff car park, along with a permit (the “car-parking card” referred to in the Contract) and a permit disc holder. This was given to [him/her] by a member of Admiral's Facilities Department after [s]he had entered into the Agreement with Admiral and signed the Contract. When [s]he was given the Claimant’s terms and conditions, the Defendant had already acquired the right to park in the staff car park, subject only to the terms set out in the Contract. Therefore, the terms and conditions cannot have formed part of that Agreement/Contract. Neither can the Defendant have entered into any further contract with the Claimant because there was no offer made, no acceptance of any offer and no consideration flowed between the Claimant and the Defendant. The terms and conditions did not therefore bind the Defendant.

    9. The Claimant’s terms and conditions required the permit to be displayed in a highly prescribed manner on the windscreen of the car using a “permit disc holder” which was stated as provided with the terms and conditions. The Defendant was provided with this disc holder by Admiral at the same time as the terms and conditions (in other words, after the Agreement had been entered into and the Contract signed). It is admitted that the Defendant used the permit disc holder, but [s]he did so purely because it was a convenient method of displaying her permit and keeping it safe, and not because of any obligation to do so.

    10. It is admitted that the car park contained a sign or signs which the Defendant recalls stated that it was to be used only by permit-holders/authorized users and a warning that unauthorized users would be charged £100. It is denied that such signage made any offer to the Defendant, because its wording forbade parking for those not displaying a permit, rather than offering it, and those who had permits were already authorized by Admiral to park there. In the alternative, the signage did not make an offer which was capable of acceptance because it was cluttered, in small lettering (particularly the reference to the £100 charge) and the terms of any offer were unclear. The Claimant’s intention was not to make a genuine offer, the main purpose of the wording was to deter unauthorized parking by attempting to impose a penalty upon those who did not have a permit.

    11. To the extent that the signage made an offer, the Defendant did not accept it because [s]he was already entitled to park in the car park, and [s]he took the warning in the signage to apply only to unauthorized users – it was clear to [him/her] that the sign was intended as a deterrent. The Defendant also recalls that such signage was, however, not in the name of the Claimant, but another company (Vehicle Control Services Ltd) and puts the Claimant to full proof of the signage.

    12. It is denied that the Defendant was obliged by the Agreement or the Contract, nor by any contract with the Claimant, to display the permit in the manner prescribed in the Claimant’s terms and conditions, or its signage, or at all. Nor was the Defendant obliged to pay a charge for failing to display the permit (either to Admiral or to the Claimant or any other entity). At no time did the Defendant accept the Claimant’s terms and conditions or any offer made by the signage and, as stated above, [s]he used the permit disc holder to display the permit only for [his/her] own convenience

    13. To the extent that any offer was made by the Claimant, the Defendant did not accept it by parking, and no consideration flowed, because [s]he was already entitled to park in the staff car park.

    14. The Defendant was required by Admiral to provide [his/her] car registration number when [s]he signed the Contract, and therefore had a reasonable belief that if there was any issue over the authenticity of her permit, or the manner in which it was displayed, or if there was any other issue relating to [his/her] use of the staff car park, Admiral and/or the Claimant would be able to establish that [his/her] car belonged to a permit-holder authorized by Admiral to use the staff car park

    15. In the alternative, should it be determined that the Defendant did enter into a contract with the Claimant, the terms of which were set out in the Claimant’s terms and conditions, the Defendant denies that [s]he breached its terms because [s]he displayed the permit at all times and used reasonable endeavors to do so in the manner required by the Claimant’s terms and conditions (namely by using the permit disc holder). It was the Claimant which made it impossible for the Defendant to fully comply with those obligations because the permit disc holder it had supplied was not fit for purpose, therefore frustrating any contract (or this element of it). It must have been an implied term of any such contract that the permit disc holder, which the Defendant was required to use to display her permit, was fit for purpose and that the Defendant could rely on it to remain stuck to the windscreen when she was away from the vehicle. Alternatively, the court has the power to impute such a term to the contract in order to give it efficacy. The Claimant breached this implied term by providing a permit disc holder which came away from the windscreen, with no prior warning, when the car was parked and the Defendant was not in it. On the date in question, the Defendant left her vehicle parked with the permit disc holder affixed to the left hand side of the windscreen (with the permit in it). However, at some time after [s]he had left the vehicle, the permit disc holder fell off the windscreen and landed on the dashboard, where it remained until [s]he returned to the car at the end of the working day. Throughout the period of parking, the permit was, however, clearly visible through the windscreen because it could be seen in the permit disc holder lying face up on the dashboard. It would have been visible to the attendant who issued the parking charge notice.

    16. In the alternative, should it be determined that the Defendant entered into a contract with the Claimant and that s[]he did breach its terms, the Claimant’s terms and conditions failed to define what the amount of any “parking charge” would be, and this term must therefore be void for uncertainty. It is accepted that a “parking charge” of £100 was identified on the signage in the car park. However, the signage cannot have formed part of any contract which may have been created between the Claimant and the Defendant by the terms and conditions. The terms of the contract have to be clear at the time the contract is made. Terms cannot be added later, other than by way of a collateral or new contract – both contracts require an offer, acceptance and consideration. If a contract was formed, then it was formed when the terms and conditions and the permit were given to the Defendant, and not later when [s]he started to use the car park and read the signs.

    17. Should it be determined that the Claimant’s signage was capable of making an offer, such offer was not accepted by the Defendant, and there can have been no consideration, because [s]he had already been granted parking rights in the staff car park by Admiral (for which [s]he was paying £50 per calendar month) and the Claimant was already obliged to provide car parking spaces pursuant to its contract with Admiral.

    18. Alternatively, should it be determined that the Defendant did enter into a contract with the Defendant, the terms of which were set out in the Claimant’s signage (as opposed to its terms and conditions), the Defendant denies that [s]he breached its terms because she displayed the permit at all times in the front windscreen of her car, as required by the signage. Furthermore, as an onerous contractual term, special attention should have been drawn to the requirement to pay £100, but it was not and, again, it is therefore void (Thornton v Shoe LaneParking Ltd [1970] EWCA Civ 2)).

    19. The Defendant believes that the Claimant has already been remunerated for providing and managing the spaces in the Admiral staff car park, and that the £100 charge (to which unspecified charges of £54 have been inexplicably added) is an unrecoverable penalty which is unenforceable and is an unfair term contrary to the Consumer Rights Act 2015. The Claim is distinguished from the facts in the case of ParkingEye Ltd v Beavis: in that case, it was agreed that there was a contract between the driver and the Claimant, formed by prominent signage at the entrance to a car park which made a clear offer; the case turned on a unique set of facts regarding the location and interest of the landowner; strict compliance with the Claimant’s Code of Practice was paramount; the site was a retail park and there was a free parking licence offered; there was a “legitimate interest” in the contract/parking charges being enforced so that visitors did not overstay the two hour free period in the retail park so as to ensure a turnover of visitors to the retail units; there was a complex contractual arrangement by which the Claimant was not paid by the landowner and therefore had to make an income out of the management of the car parking. All of this together disengaged the “penalty rule”. None of those facts apply in this case - the charges claimed are quite clearly a penalty and are not recoverable. In addition, the Claimant’s compliance with its binding ATA AOS Code of Practice was deemed to be paramount in the Beavis case, whereas in this case the Claimant has breached its Code of Practice in several important respects. Compliance with the Code of Practice is a mandatory term and a condition of membership.

    20. The Defendant puts the Claimant to full proof of all aspects of its claim, including:
    20.1 Its contractual right, granted by the landowner or lawful occupier of the land, to manage the car park where the Defendant was parked on the relevant date, to issue charges to vehicles and to pursue court proceedings in respect of such charges;
    20.2 Its contractual right, granted by the landowner or lawful occupier of the land, to issue charges to vehicles parked by permit-holders (and therefore authorized by the landowner/lawful occupier to park there) and to pursue court proceedings in respect of such charges
    20.3 The creation of a contract with the Defendant by either the terms and conditions or by the Claimant’s signage or by any other means, and the terms of such contract;
    20.4 The manner in which the Defendant has breached such contract;
    20.5 The loss suffered by the Claimant as a result of any breach(es);
    20.6 The signage displayed in the car park (the Defendant believes that the signage did not identify the Claimant, but another company known as Vehicle Control Services Limited – certainly this company is identified on the signage displayed in the adjoining Admiral car park), including the size of any signage, its location and height and any entrance signage;
    20.7 [His/Her] alleged failure to display [his/her] permit – the Defendant requires all photographs taken by the Claimant’s operative (some of which [s]he believes were taken from such an angle as to deliberately obscure the Permit on the dashboard of the vehicle);
    20.8 The unfit for purpose permit disc holder – the Defendant puts the Claimant to proof of how many of its charges have been defended or appealed by other drivers who were authorized users of the car park but whose permit disc holder had likewise fallen from the car windscreen.

    21. The Defendant also challenges the addition of [£54] in “contractual costs” and the interest of [£xxx]. The Claimant is put to full proof of the contractual term entitling it to add charges of [£54] to the sum claimed. In respect of the interest claimed, the court should not exercise its discretion to award interest where the Claimant has delayed by [x] years in bringing these proceedings.

    Data Protection Act breach and Trespass

    22. For the reasons set out above, the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use, process and retain them, and has breached the Defendant’s rights under the Data Protection Act by doing so. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) is authority that misuse of personal data is a tort. Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 is authority that a reasonable sum of compensation would be £750.

    23. The Claimant had no authority to place a parking charge notice on the Defendant’s vehicle and in doing so committed a trespass.

    23. The Defendant specifically reserves [his/her] rights in respect of these matters

    DATED THIS TH DAY OF 2017

    Statement of Truth

    I believe that the facts stated in this Defence are true

    Signed …………………………………….

    Dated .......................
    Last edited by Loadsofchildren123; 27-06-2017 at 11:45 AM.
    • Loadsofchildren123
    • By Loadsofchildren123 27th Jun 17, 11:44 AM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    The heading got a bit unformatted - "Claimant" and "Defendant" should be at the far right, not on the left, underneath the names of the C and the D.

    This Defence assumes that you are not joining Admiral and that you are not making a formal counterclaim against either Excel or Admiral.

    It reserves your position regarding Excel.

    As for Admiral, you have 2 choices - join Admiral to this claim and make a claim against them for damages in respect of your losses dealing with this claim, or wait and see what happens and reserve your position on issuing a separate claim against them later (this was specifically spelt out in the LBC).

    Option 1: the trouble joining Admiral and making a claim now requires you to issue an application. This is easy enough, but the fee is £255 (a bit galling when Excel has only had to pay a fee of £25 to issue their claim!).

    Option 2: waiting to see what happens and then issuing a new claim against Admiral for breach of its obligations in the parking contract you signed is a much cheaper option. After the proceedings with Excel are over you simply issue a new claim against Admiral (although by then you will probably just be glad it's over and so probably won't want to go to the trouble). This would again be for damages for breach of contract - the fee for that would be £25.

    If you decide to make a counterclaim against Excel, the last 3 paras of the Defence would have to be drafted slightly differently - you'd have to put in a heading "Counterclaim" and say that you are seeking damages for breach of the DPA and trespass. You would have to pay a fee, but it's only £25 if the counterclaim is for less than £500.
    • Umkomaas
    • By Umkomaas 27th Jun 17, 12:41 PM
    • 13,586 Posts
    • 21,308 Thanks
    Umkomaas
    A bit tricky suing Admiral if the OP is still in their employ. Won't do promotion chances much good, I'd hazard!

    @OP - do you have a union rep who can take this up, not only for you, but for the workforce as a whole, because this could become a company-wide problem in Swansea?

    Get it all bottomed-out.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • Loadsofchildren123
    • By Loadsofchildren123 27th Jun 17, 3:23 PM
    • 967 Posts
    • 1,671 Thanks
    Loadsofchildren123
    Absolutely. I hear that all current employees are just paying up and are being told to do so when they try to complain. I'm also told it's still a family run company and there is no union rep or anything like that. It's wrong. Excel is making £55 per month out of EACH parking space. Admiral is paying them that and taking £50 from the employee so more or less covering its costs (ignoring tax reliefs). it is making more than enough not to have to target employees.
    • Umkomaas
    • By Umkomaas 27th Jun 17, 3:40 PM
    • 13,586 Posts
    • 21,308 Thanks
    Umkomaas
    Admiral is paying them that and taking £50 from the employee so more or less covering its costs (ignoring tax reliefs). it is making more than enough not to have to target employees.
    A great HR model Admiral (not!).

    Any employee who has been stung by this won't forget it in a hurry. If job prospects improve in the area, it might be bye bye Admiral, in significant numbers.

    You don't buy staff loyalty by having them penalised by an outside agent in their place of employment.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
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