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Excel Parking - Letter Before Action

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  • zzzLazyDaisy
    zzzLazyDaisy Posts: 12,497 Forumite
    Part of the Furniture Combo Breaker
    They ARE cowboys and bullies. They also think they are above the law, and will push the envelope until they get slapped down. Then they'll get up, dust themselves down, and push the envelope some more. Why? Because their experience shows that statistically, people are more likely to fold and pay up, when faced with their bullying tactics, than to stand up to them. Its just a numbers game to them.

    Don't make the mistake of expecting them to show any morals, ethics, or honesty...

    Dx
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
  • zzzLazyDaisy
    zzzLazyDaisy Posts: 12,497 Forumite
    Part of the Furniture Combo Breaker
    Hi pilch,

    Sorry for my late response, but this is the first opportunity I have had to give full attention to the letter you received from Excel. However, I have still decided to comment because it may help other (and indeed it may help you should you have further correspondence with these people).

    The letter you received said that the PD did not apply to your case, and referred you to Annex A, which they quote as saying:

    pilch1984 wrote: »

    'Annex A sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol applies and where the claimant does not follow any other statutory or other formal procedure'.

    In fact what Annex A actually says is...

    "This Annex sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol or other formal pre-action procedure applies. It is intended as a guide for parties, particularly those without legal representation, in straightforward claims that are likely to be disputed. It is not intended to apply to debt claims where it is not disputed that the money is owed and where the claimant follows a statutory or other formal pre-action procedure."

    Spot the deliberate omission....

    In other words -

    1 the claim must relate to a debt action (ie NOT an action for trespass, or breach of contract

    2 the debt must not be disputed

    AND

    3 the claimant is following some other statutory or pre-action procedure

    ('pre-action meaning some procedure that sets out how the parties should seek to resolve the issue without resorting to court action, which usually involves some form of ADR or industry accepted mediation/arbitration).

    Given that this is a threatened breach of contract action (at least we are assuming this, as they have not yet spelled it out) AND the alleged charge is disputed (whether or not they call it a debt), any exemption that *might* have applied, certainly does not apply to this case.

    However... who knows... perhaps they will redeem themselves by offering a POPLA Code and allowing this to go to 'independent ADR'.

    (oink flap oink flap)

    Daisy
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
  • nigelbb
    nigelbb Posts: 3,819 Forumite
    Part of the Furniture 1,000 Posts Name Dropper
    In fact what Annex A actually says is...

    "This Annex sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol or other formal pre-action procedure applies. It is intended as a guide for parties, particularly those without legal representation, in straightforward claims that are likely to be disputed. It is not intended to apply to debt claims where it is not disputed that the money is owed and where the claimant follows a statutory or other formal pre-action procedure."

    Spot the deliberate omission....
    It's deceitful in the extreme for their letter to omit this passage. You should definitely rebut their contention in order to draw the attention of the court (should this ever get that far) to this skullduggery.
  • Hello,

    So, it's taken them a while but they've replied to my letter. I'm a little bit out of my depth so as ever, your advice is appreciated :)


    We write further to your correspondence received on the 3 September 2013, in connection to the above Parking Charge Notices.

    We have noted your comments and would like to respond as follows :

    1) The basis of our claim is non payment of three Parking Charge Notices issued to the above vehicle, namely a … with the registration mark… .

    2) All three Notices were all issued for parking in breach of the terms and conditions in operation at the on the dates listed above. The retail park operates with a maximum stay of 3 hours. On each occasion a Notice was issued,your vehicle was parked for longer than 3 hours. Please see the attached schedule, this details the date/time of each contravention.

    3) Due to technical issues at present we are unable to provide a copy of the Notice to Owner or other correspondence that was generated at the time the Notices were issued. Once this technical issue has been resolved we will send you a copies of all previous correspondence.

    4) As the vehicle is registered to yourself and all correspondence was sent to you at your address (as registered with the Driving and Vehicle Licensing Agency (DVLA)) and we have not received any previous correspondence. We therefore feel on the balance of probabilities as the keeper of the vehicle you were most likely the driver .

    5) The amount of the Notice is a genuine pre-estimate of loss. We incur significant costs in ensuring compliance to the stated Terms and Conditions, as well as follow ing up on any breaches that have occurred . The sum is within the recommendations set out within Clause 19 of the BPA Code of Practice and is clearly laid out on the signage at the parking location wh ich offers the parking contract to the motorist. By remaining on site, we contend that the driver has accepted all of the prevailing Terms and Conditions of that contract including the charges for breach of the contract, and furthermore accepts that they are reasonable.

    6) A full list of documents will be provided at the court disclosure stage.

    7) In relation to the DVLA enquiry an enquiry was made for each Notice issued. Please see attached schedule for the dates of each enquiry. A request was made to the DVLA on the basis of having "reasonable cause" that a contravention occurred through a breach of the terms and conditions since we did not have a name or address for the driver of the vehicle. Our signs in situ at … state that the keeper details would be requested from the DVLA in the event a breach of the terms and conditions occurred.

    8) We do not have to be the landowner to issue court proceedings, we provide, manage and enforce the car park on behalf of the land owner . A copy of our contract will not be provided at this stage due to this information been of a commercially sensitive nature.

    Please note we will place the account on hold for a further 14 days in order for payment to be made or for a response to be received.

    Schedule of PCNs

    Entry - 12:07 Exit - 15:26 Duration of stay - 3 hrs 19 mins

    Entry - 13:22 Exit - 16:51 Duration of stay - 3 hrs 29 mins

    Entry - 11:37 Exit - 15:28 Duration of stay - 3 hrs 51 mins


    Clearly, the stays were over 3 hours but we genuinely weren't aware of the 3 hour limit at the time. However, as this was 4 years ago, I have no way of proving that the signage was inadequate. I also think (I need to double check) that Excel no longer operate the car park in question anymore so I can't even look at the signs that are there at the moment. I also fail to see how £100 each time is a reasonable cost!

    Thanks,
    Pilch
  • pilch1984
    pilch1984 Posts: 19 Forumite
    As an aside, I've been reading some more of the posts on here about Excel. I have noticed that Excel Parking were banned from accessing the DVLA records earlier this year due to non-compliant signage in the same car park that I have been used. I don't know if this is something that could be used as i can't prove that it was the same signage that was present 4 years ago (although it does give me some reassurance that I wasn't completely mad to not realise there was a 3 hour limit)???
  • Coupon-mad
    Coupon-mad Posts: 151,607 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 3 October 2013 at 11:04PM
    Just keep replying and rebut every point, every time, blow by blow. For example (unless you have said who was driving - DON'T!!) this point is laughable:

    ''4) As the vehicle is registered to yourself and all correspondence was sent to you at your address (as registered with the Driving and Vehicle Licensing Agency (DVLA)) and we have not received any previous correspondence. We therefore feel on the balance of probabilities as the keeper of the vehicle you were most likely the driver.''

    The first part of the sentence does NOT lead to the conclusion at the end at all! You can say this is far too long ago to expect anyone to know who was driving on 3 random occasions in a local car park 4 years ago, and their conclusion is wholly flawed.

    A registered keeper's reasons for ignoring spurious letters from a third party like Excel are, obviously, that these came from a random third party who have been previously exposed on TV's Watchdog and known to have been beaten in a small claim attempted against Martin Cutts (re flawed signs in the Peel Centre Car Park, Stockport).

    And there's no obligation on you to make their case nor find the driver for them. They should have established any contract at the outset with clearer signs, instead of relying on threatening letters to the registered keeper who was not liable pre POFA. Say that you are aware they were banned by the DVLA and will draw this to the attention of the judge since it was regarding non-compliant signs in this specific car park. Say that this fact, and the Martin Cutts case, proves that Excel have a history of flawed signs - an example of which Deputy District Judge Lateef of the Stockport County Court, personally inspected and roundly criticised. It is in the public domain that the lady judge was then publicly derided in a national paper by Simon Renshaw-Smith (Excel's owner) and so you will include that evidence for your own judge if Excel push this to a hearing.

    http://s3-eu-west-1.amazonaws.com/plcdev/files/126/original/DVLA-BPA-Cutts22Apr2012_1b_mf.pdf

    Do that sort of rebuttal to EVERY point. Doesn't matter if they are not at this car park any more; concentrate instead on rebutting these points without implying who the driver was.

    Put your draft up here first if you would like more feedback.

    Oh, and have you complained (even this late!) to the landowner or shop Managers? Or CEO if it's a National chain? Even if Excel are no longer on site, you can still complain to the principal about the actions of their agent at that time:

    https://forums.moneysavingexpert.com/discussion/4766249

    HTH
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Umkomaas
    Umkomaas Posts: 43,347 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    And there's no obligation on you to make their case nor find the driver for them. They should have established any contract at the outset with clearer signs, instead of relying on threatening letters to the registered keeper who was not liable pre POFA. Say that you are aware they were banned by the DVLA and will draw this to the attention of the judge since it was regarding non-compliant signs in this specific car park. Say that this fact, and the Martin Cutts case, proves that Excel have a history of flawed signs - an example of which Deputy District Judge Lateef of the Stockport County Court, personally inspected and roundly criticised. It is in the public domain that the lady judge was then publicly derided in a national paper by Simon Renshaw-Smith (Excel's owner) and so you will include that evidence for your own judge if Excel push this to a hearing.

    Another Coupon-mad bazooka - OP, you've got the very best on your side here.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    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.

    Private Parking Firms - Killing the High Street
  • zzzLazyDaisy
    zzzLazyDaisy Posts: 12,497 Forumite
    Part of the Furniture Combo Breaker
    edited 4 October 2013 at 6:44AM
    pilch1984 wrote: »


    4) As the vehicle is registered to yourself and all correspondence was sent to you at your address (as registered with the Driving and Vehicle Licensing Agency (DVLA)) and we have not received any previous correspondence. We therefore feel on the balance of probabilities as the keeper of the vehicle you were most likely the driver .


    Pilch

    Also make a formal COMPLAINT to Steve Clark of BPA - mark it 'URGENT' - state that you are the registered keeper and Excel is seeking to enforce charges against you that were levied on [date] [date] and [date], and are holding you liable for the charges because the vehicle is registered to you - despite you pointing out that there was no keeper liability pre 1st October 2012 when POFA was introduced. Ask him to investigate as a matter of extreme urgency as they have already served a letter before action on you and are about to start court proceedings.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
  • Sorry for the delay in getting back on this. I appreciate the input and will also write to the BPA and the management of the retail park (if i can find them!). I've drafted the response below - I'm not entirely sure it makes sense so would appreciate your input. As always - THANK YOU!


    To Whom it May Concern,


    Further to your letter dated ..., I would like to respond to your comments as follows:

    1) Please could you send copies of the parking charge notices as soon as possible.
    2) I do not see how you have reached the conclusion of your argument raised in point 4. As the alleged offences were dated pre-POFA (2012), there was no liability for the registered keeper.
    3) You state that £100 is a genuine pre-estimate of loss. To park for an hour in alternative car parks in ... costs in the region of £1.50. Please could you explain how you conclude that £100 is a genuine pre-estimate of loss? You also state that this is clearly explained on signage in the car park. I noticed when I was last in ... that there were no longer Excel Parking signs on display. Please could you provide me with the location of your signs at the times of the alleged offences and a copy of the text displayed on the signs?
    4) You advise that the signage states that keeper details would be requested in the event of a breach in terms and conditions. I have done some research online and note that Excel Parking were banned from accessing DVLA information for the following reason:

    DVLA received a number of complaints where members of the British Parking Association’s (BPA) Approved Operator Scheme (AOS) were allegedly stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was. This behaviour is a significant breach of the AOS Code of Practice.

    A complaint was made to DVLA in September 2012 about signage used by Excel at the... which apparently claimed that the vehicle keeper was liable in terms of charges imposed for parking contraventions. Following an investigation, and in line with guidance and communications issued by BPA, the Agency took the decision to
    suspend Excel’s access to keeper data for three months.

    On this basis I would question the validity of your actions considering that the alleged offences took place pre-POFA and you are continuing to pursue the registered keeper even though there was no keeper liability at the time.

    Yours sincerely,
  • zzzLazyDaisy
    zzzLazyDaisy Posts: 12,497 Forumite
    Part of the Furniture Combo Breaker
    edited 14 October 2013 at 11:49AM
    Hi, this is a good start, well done!

    I have made some suggested changes to your letter (see below).

    Also, have any of the letters come from a solicitor, or are they just from Excel?

    Daisy

    pilch1984 wrote: »


    Dear Sirs

    Impending County Court Action


    I refer to your letter dated ....

    First, please note that I do not accept your statement that the Practice Direction on Pre-action Conduct issued by the Ministry of Justice does not apply to your company, and I am frankly appalled at your attempt to mislead me as to the operation of law in this regard.

    In fact what Annex A actually says is...

    "This Annex sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol or other formal pre-action procedure applies. It is intended as a guide for parties, particularly those without legal representation, in straightforward claims that are likely to be disputed. It is not intended to apply to debt claims where it is not disputed that the money is owed and where the claimant follows a statutory or other formal pre-action procedure."

    For the avoidance of doubt I wish to make it clear that any debt claimed against me by your company is most vigorously disputed. I trust that this clarifies the matter and that you do now agree that the Practice Direction does apply to your company's proposed claim against me.

    You should also note that I will be making a serious complaint to the court concerning your company's abuse of process, should you proceed to court action against me.

    Secondly, I require clarification of the information contained in your letter as follows:


    1) Please provide copies of the parking charge notices to which your letter refers
    2) I do not understand the issues raised in point 4 of your letter. As the alleged parking breaches were dated pre-POFA (2012), there was no keeper liability at that time. Please provide your detailed explanation of this point
    3) You state that £100 is a genuine pre-estimate of loss. However you have not provided any calculation or details of how this sum has been arrive at, as required by the Practice Direction. Therefore please provide a statement showing full details of how the sum claimed has been calculated
    4) You also state that this is clearly explained on signage in the car park. I have since visited ..... to confirm this, however there were no longer any Excel Parking signs on display. Please therefore provide a map showing the location of your signs at the times of the alleged offences together with photographic evidence of the text displayed on the signs at the date of the alleged parking breach
    5) Given that your company is apparently no longer engaged to act as agent for the landowner, I dispute that you have authority from the landowner to pursue legal proceedings against me. Please therefore provide the name and address of the landowner together with a copy of the contract which you claim to be relying upon as evidence that you have authority to act as agent on behalf of the landlord in pursuing legal action against me through the courts
    6) You advise that the signage states that keeper details would be requested in the event of a breach in terms and conditions. I have done some research online and note that Excel Parking were banned from accessing DVLA information for the following reasons:

    DVLA received a number of complaints where members of the British Parking Association’s (BPA) Approved Operator Scheme (AOS) were allegedly stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was. This behaviour is a significant breach of the AOS Code of Practice.

    A complaint was made to DVLA in September 2012 about signage used by Excel at the... which apparently claimed that the vehicle keeper was liable in terms of charges imposed for parking contraventions. Following an investigation, and in line with guidance and communications issued by BPA, the Agency took the decision to suspend Excel’s access to keeper data for three months.

    On this basis I would question the validity of your actions considering that the alleged offences took place pre-POFA and you are continuing to pursue the registered keeper even though there was no keeper liability at the time.

    Finally I would remind you that the Practice Direction requires that the claimant complete all steps of the process before starting proceedings against the defendant and I refer you to the provisions of para 4 on non-compliance and sanctions in this regard.

    I look forward to receiving your detailed responses to the above points, and the issues raised in earlier correspondence, by return of post.

    Yours sincerely,

    PRINT NAME

    cc BPA; DVLA
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
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