Excel Court Claim

Redx

bear in mind that they have changed the signage TWICE since the 2011 court case, last year being the last time it was changed so most people would say its much better than 2011 and excel are likely to say so and prove so

your contravention would be under the signage at the time of the pcn being issued , not the 2011 signage that was disputed in court previously

horace_zontal

Thanks,

I can amend / remove that point.

Any other feedback on what I have drafted so far?

Coupon-mad

Well I have had a go at writing a more full defence for you, although as you need to submit this electronically via MCOL you MAY need to remove some of the 'padding' within some points (such as quotes from Lord Dunedin & the OFT) and keep those bits under your hat ready for the defence bundle you'd need to submit prior to a hearing, if Excel proceed!

As an aside, to give you confidence, have you read the cases from the Newbies thread post #5 about cases won by defendants. These below are amusing as they show how VCS and Excel (same owner, Simon Renshaw-Smith) struggle in court?! Some are laughable!:

VCS v Ibbotson (also here and here) 1SE09849 16.5.2012
Excel v Martin Cutts & here & here (Stockport, 15/9/2011, 1SE02795, Judgment in Appendix B here: http://s3-eu-west-1.amazonaws.com/plcdev/files/124/original/DVLA-BPA-Cutts19Apr2012.pdf).
Excel v Hetherington-Jakeman 18/03/2008 transcript here: http://forums.pepipoo.com/index.php?act=attach&type=post&id=4984
Excel lose again = the farce of the Bawtry Council car park.




So after you've had a laugh reading those, here's the fuller defence I wrote as I was a bit bored this afternoon. Feel free to change it so you have a handle on all the points you wish to make as it's imperative you understand your own defence:


_____________________________________________________________________


Claim Number ............ Excel Parking Services - vs - Defendant's name (your name)!

Defence Argument

I am [NAME] of [ADDRESS], [POSTCODE], defendant in this matter and registered keeper (but not the driver) of the car in question.

It is denied that the Claimant is entitled to the relief claimed or any relief at all and it is requested that the claim be stayed, pending POPLA as the most suitable ADR.

This is my statement of truth and defence which relies mainly on the following points:

1. Lack of Standing by Claimant: The Claimant is not the landowner and has no proprietary interest in this site. The business model run by this agent is similar to case number 3JD00517 ParkingEye v Clarke 19/12/2013 where the Judge said: ''the Claimants are the wrong Claimants.'' Transcript will be provided prior to any hearing.

2. This Claimant is incapable of forming a contract in their own name with a driver at this site. I believe their contract from 2012 at the Peel Centre conveys no assignment of rights beyond their bare licence as a 'paid contractor' with no other remit beyond acting in a commercial capacity for the landholder, receiving an annual fee to maintain signage and ANPR cameras and machines.

3. There was no trespass alleged nor capable of being pursued by this contractor so Vine v Waltham Forest and Arthur v Anker are irrelevant, as is VCS v HMRC 2013 where the business model was wholly different. In this regard I adduce the appeal decision in OBServices v Thurlow (Worcester County Court, 2011) (Appeal) 0QT34807. Transcript will be provided.

4. The signs in this car park were declared wholly misleading and unclear by DDJ Lateef who personally inspected them on site before her decision in Excel Parking Services v Cutts, 1SE02795 Stockport Court, 15/09/2011. Transcript will be provided. The signs were slightly changed in 2013, long after the events in this claim.

5. The covert camera operation is/was not transparent in terms of specific extra ICO-required warning signs re ANPR data use/storage. This set up is/was not compliant with the BPA Code of Practice in terms of ANPR signage rules. Failure to comply with a Code which a service provider is signed up to follow is a breach of the CPUTRs 2008. Since the charges depend upon the ANPR system they are void.

6. The charge is for alleged breach but there has been no genuine pre-estimate of loss. If any liquidated damages were to be sought, that would be a matter for the Peel Centre.

7. Parking charges of any amount are neither authorised nor automatically accepted by the BPA nor the Office of Fair Trading, which stated to the BPA in 2012 that a 'parking charge is not automatically recoverable simply because it is stated to be a parking charge.' The BPA Code of Practice from 2012 applies and was not followed in full.

8. The requirements of the Protection of Freedoms Act 2012 (POFA) Schedule 4 Paragraph 9 were not met, so there is no keeper liability. As the vehicle’s registered keeper I certainly have not used this car park during the period specified. Some of the dates referred to pre-date POFA, so in law only a driver can be held liable. Even for any post-POFA charge, keeper liability cannot be established without a 'relevant contract' and/or 'relevant obligation' with a landholder. There was an absence of any compliant and time-bound Notice to Keeper letters for any charges.

9. The claim is unreasonable to bring against a registered keeper two years later, especially as this Claimant has mixed pre-POFA and post-POFA parking events and omitted full particulars. This claim is contrary to the principle of good faith and it causes a significant imbalance in my rights to defend the matter as registered keeper. Breaches of the Unfair Contract Terms Act 1977 and UTCCR 1999 have occurred:

Unfair Contract Terms Act 1977: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’
UTCCR 1999:
''5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

10. Terms that are found unfair under the European Directive 93/13/EEC European Unfair Contract Terms are not binding for consumers. This claim fails to meet the 'test of fairness' under the Directive. As a consumer I am not a party of equal bargaining power to this Claimant and the terms were not individually negotiated. Further, I was not party to any such bargain in the first place.

11. Terms that are found not to be 'transparent' under the European Directive 93/13/EEC European Unfair Contract Terms are not binding for consumers. The principle of transparency applies to the signage wording which was unclear and to the Notice to Keeper letters (if any were issued relating to any post-POFA charge) which were not POFA-compliant in wording. The entire claim is neither fair nor transparent.

12. These charges are penalties, contrary to the Unfair Contract Terms Act 1977 and the UTCCRs 1999. In Dunlop Pneumatic Tyre Co. Ltd. Vs. New Garage & Motor Co. Ltd., House of Lords, 1914 Lord Dunedin set out the following guidelines:
''(a) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. (b) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid.''

This view was confirmed by the Judge in Excel Parking Services v Hetherington-Jakeman, Mansfield,18/03/2008 where this Claimant's misapplication of Vine v Waltham Forest failed to adduce any authority to support their proposition that their charges were reasonable. Indeed the Judge found this Claimant's series of letters pursuing their charges were designed to 'frighten and intimidate' and the charges were predominantly deterrents, being a payment of money in terrorem and therefore amounting to unenforceable penalties. Transcript will be provided for any hearing.

13. The charges cannot be commercially justified. In the event that this Claimant tries to rely upon ParkingEye v Beavis 3JD05152 at Cambridge County Court, this Judgment is neither binding nor persuasive and can be distinguished from the instant case - and almost any other private car park - because, unusually, ParkingEye paid the landowner a large weekly sum for an alleged right to charge motorists as the principal. Even more unusually, the Judge found that the charges were penalties and allowed them despite no case law to support such a decision and despite the extant European Directive on Unfair Terms, and despite ParkingEye's witness admitting that the predominant aim was a deterrent. This case is recent and the defendant has the option to appeal - nevertheless it is merely a county court decision among hundreds of others regarding private car park 'charges' this past year, many of which have found the opposite and defendants have won.

14. No recognisable 'Letter before Claim' was served so no exchange of information has taken place. The Claimant's 'Notice of Intended Court Proceedings' letter was not compliant with the Practice Direction, being merely the latest template in a series of threatening, unsolicited letters honestly held by me to be junk mail, in accordance with Watchdog consumer advice.

15. To resolve this matter without a further waste of the courts' time I intend to request an Order from the Court to resolve the dispute via Parking on Private Land Appeals (POPLA), the bespoke independent ADR for the parking industry. Similar Orders were made by DJ Mayor, Croydon 13/9/13 (3JD00719, ParkingEye v Mr O), and by DDJ Bridger, Southampton, 21/1/2014 (3JD05448, ParkingEye v Gilmartin). There is no deadline imposed by POPLA and they have determined pre- and post-POFA cases before. The use of POPLA is encouraged by the BPA as the most suitable ADR and it has 100% prospect of success since an adjudication either way is made in every case.

16. I hereby agree to abide by a POPLA decision if the court should order a direction to resolve the matter via this ADR. This Claimant would be bound by a POPLA decision anyway.

This concludes my defence. The opinions given are honestly held by me and the facts are a statement of truth, and my offer to abide by a POPLA decision is genuine.

Coupon-mad

Just to add as well, as Excel haven't even bothered to send you full particulars of claim you should now - immediately - send Excel or whoever the signatory is on the claim form, a 'Part 18 request'. It's also a chance to 'ask for POPLA' so you can later show the Judge that you did already ask.

So, AIUI even though I must state I am no lawyer (except an armchair one!), a Part 18 request should be sent to ask for ''further particulars'' so that "you can assess your legal position" and that you look forward to their co-operation in the matter:

http://www.pinsentmasons.com/PDF/Requestsf...Information.pdf

The further particulars you require include copies of the NTK letters which they allege were sent for each charge so you can see basic details such as the wording and the dates of the charges. And a breakdown of their alleged loss. And how they consider as keeper you can be liable for a mix of pre- and post-POFA charges. And a copy of their unredacted contract which applied to that car park in those months in 2012 as you believe they are paid contractors with no standing and the contract would be the particulars which will prove the matter one way or the other. State that there can be no justification in hiding such important particulars from you. And finish by stating that you were not the driver on any occasion in the Peel Centre in those months in 2012 and you invite them to reconsider their position and discontinue the claim or offer a POPLA code since there is no deadline imposed by POPLA on this option.

Tell them you are ''about to robustly defend the matter'' and you ask them to ''mitigate any loss by providing a POPLA code so the merits of the case can be referred to the bespoke Alternative Dispute Resolution for the parking industry, as encouraged by the BPA Ltd.''




The idea is always to make your case the 'hot potato' that they would rather drop!

horace_zontal

Coupon-mad. I can't thank you enough for this. I'll get this off over the weekend. Brilliant stuff.

horace_zontal

Dear MrRenshaw-Smith,



I am writingto you in relation to this court claim.



Considerthis as a Prelimary Part 18 Request for Further Information. I require thisinformation as a reply to this letter by Monday 16th June, which Iconsider to be a fair amount of time for you to respond.



The claimrelates to some historic alleged ‘multiple breaches of contract’ with nospecific dates given pertaining to each alleged breach in question. Therefore Irequire copies of the Notice to Keeper letters which you allege were sent foreach charge, and a breakdown of your alleged loss.



Also youshould provide me with detail on how you consider me as keeper to be liable fora mix of pre- and post-POFA charges.



Also Irequire a copy of your unredacted contract which applied to the specified carpark in the timescale in question.



There can beno justification in hiding such important particulars from me.



I was not thedriver on any occasion in the Peel Centre in the timescale specified. I inviteyou to reconsider your position and discontinue the claim or offer a POPLA codesince there is no deadline imposed by POPLA on this option.



Rest assuredthat I absolutely intend to defend this matter robustly. Please mitigate anyloss by providing a POPLA code so the merits of the case can be referred to thebespoke Alternative Dispute Resolution for the parking industry, as encouragedby the BPA Ltd.

da_rule

I would perhaps remove the bit about POPLA from this letter as a part 18 has to deal exclusively with disclosure.

You could always send the POPLA part as a separate letter.

Something else that works well in these types of letters is to put a summary at the bottom, with bullet points (like a list) outlining exactly what you are asking for.

horace_zontal

This is Excel's response to my letter below in Red. My letter remains in black text and my supplementary comments in blue. I requested this first back on 1st June and had to write again when nothing was forthcoming. I then had a letter sent as copy dated 5th June on 17th July. Some of the documents they say should be enclosed are in fact missing.

I have a court date of 29th September with a date for submission of my bundle by 20th August.

I am writingto you in relation to this court claim.



Considerthis as a Prelimary Part 18 Request for Further Information. I require thisinformation as a reply to this letter by Monday 16th June, which Iconsider to be a fair amount of time for you to respond.



The claimrelates to some historic alleged ‘multiple breaches of contract’ with nospecific dates given pertaining to each alleged breach in question. Therefore Irequire copies of the Notice to Keeper letters which you allege were sent foreach charge, and a breakdown of your alleged loss.

Please find enclosed copies of the Notices to Keeper sent to you for the above three charges. Please find further enclosed a statement of loss.

Only 2 Notices to Keeper were enclosed with the reply letter. No statement of loss was enclosed.

Also youshould provide me with detail on how you consider me as keeper to be liable fora mix of pre- and post-POFA charges.

With regard to pre-POFA charges, we will allege that, on the balance of probability, you were the driver of the vehicle. For post-POFA charges we will rely on schedule 4 of the Act.

I know for a fact that I was not the driver of the vehicle on any of the 2 offences for which they have supplied the notices.

Also Irequire a copy of your unredacted contract which applied to the specified carpark in the timescale in question.



There can beno justification in hiding such important particulars from me.

There is commercial justification for sending a redacted contract as the contract contains commercially sensitive information. Please find enclosed our redacted contract. If you believe you are entitled to an unredacted copy you will have to apply for a Part 18 order from the court which we will defend.


I was not thedriver on any occasion in the Peel Centre in the timescale specified. I inviteyou to reconsider your position and discontinue the claim or offer a POPLA codesince there is no deadline imposed by POPLA on this option.

We will not discontinue the claim as you were liable as the keeper (regardless of being the driver) for the post 2012 contravention. There appears to be just one of these, and I am assuming from their response that the missing Notice is therefore pre 2012. As stated we will allege that, on the balance of probability, you were also driving for the other contraventions. With regard to mitigating loss, an appeal to POPLA would not mitigate our loss, in fact our loss would increase it. Had you appealed to the post 2012 Parking Charge Notice, you would have been given the opportunity to appeal to POPLA had we rejected your appeal. As we have already incurred the issue fee, and issued proceedings, and especially when considering POPLA could only adjudicate on 1 of the 3 tickets, it would be more sensible for the court to adjudicate on all 3.



Rest assuredthat I absolutely intend to defend this matter robustly. Please mitigate anyloss by providing a POPLA code so the merits of the case can be referred to the bespoke Alternative Dispute Resolution for the parking industry, as encouragedby the BPA Ltd.

We have provided all the information you have requested (they haven't as previously stated) , or if we are unable to do so, we have provided explanations as to why.

We will wait from the court regarding your reply to the claim form.

horace_zontal

Also, none of the Notices have photographic proof of the vehicle contravening parking regulations in any way, and there is (as I stated) one missing. I am going to write back pointing both these things out but with the date for court submission approaching I do need to cover everything outstanding in my next letter.

Coupon-mad

And point out that in fact POPLA has historically, and still would, consider pre-POFA cases if a POPLA code was issued (even one code for all 3 notices would be acceptable to POPLA if clearly stated to relate to all 3). There is nothing to stop Excel issuing a POPLA code to open the door to the bespoke ADR for the industry, to resolve the matter. And nothing to stop POPLA considering all the alleged charges, even prior to October 2012. And you will be asking the Court to use its discretion to grant just such an Order, if Excel refuse.*


* this doesn't work every time with Courts so don't get your hopes up but IMHO it's worth asking, especially as you are about to file your bundle. You say you are at this stage:

I have a court date of 29th September with a date for submission of my bundle by 20th August.

So you could include a covering letter on the top of your nice neat/numbered defence file and witness statement, asking the Court to consider using its discretion to refer the case to the bespoke ADR of POPLA, to spare court time and because POPLA has 100% prospects of successfully resolving the dispute (template letter in post #5 of the NEWBIES thread).

Which court please? Stockport by any chance? Not being nosy; sometimes someone local enough can help. Also we know more about the Excel contract than they've shown you and it's in the public domain they are paid £30K pa by the Peel Centre which covers the ANPR and signs and ticketing - so you can argue that these charges double up on matters they already receive payment for from the Peel Centre - and so the PCNs for 'breach' are a penalty clause in terrorem and represent no loss at all.

Recently (last week I think) at Stockport court there was a case like yours forced by the gutsy defendant to a preliminary hearing which went against Excel - read this:

http://parking-prankster.blogspot.co.uk/2014/08/excel-parking-pay-for-failure-to.html

Useful for you? Same Court? The Parking Prankster will know the claim number if you want to cite it and see if DJ Lettall will take a similar view. Do you fancy trying to follow suit and see if you can get a preliminary hearing instead as your case seems very like that one (costs have increased from £80 I think, but it worked for that defendant who reclaimed her costs - and would be an option if your court is the same court or in DJ Lettall's area...). The issues seem to mirror yours.