Excel and Count Court Business Centre

cathieb_58

Please help me.


The driver of my vehicle has recently received a claim from CCBC in relation to an unpaid parking charge notice from Excel / Vehicle Control Services Limited.


I have read through other threads but noting seems to match my specific circumstance.


I work for a company where excel rent out a certain amount of parking spaces in a designated car park. I hold a permit to park in this car park. Nobody other than permit holders within my company can use this car park and there are signs to show that it is designated for employees and permit holders of my company only. Excel patrol the car park to make sure all vehicles display the correct permit.
(I have read that on these threads it is best to refer to 'The Driver' only and not specify who was driving so that's what I will do) On the day in question, the driver of the vehicle parked the car as normal. The parking permit is always left loose on the dashboard and on this day, had slid across to the little side window next to the wing mirror. Still visible but from the side rather than the front window. The driver returned to the car to find a PCN.


The driver has their parking permit which was valid covering the date in question, a contact to show that the permit has be held since 2012 and confirming the monthly salary deductions and A copy of the payslip covering the date in question to show the monthly deduction for the parking.


I must admit that the driver never attempted to dispute the ticket or respond to any of the chasers they have just ignored them.


I don't see how the driver can be charged £100, now increased to £236 with court fees etc added on, when they pay a monthly fee for a permit. Even if the ticket was not on display correctly, Excel has not suffered any loss because the parking space is paid for in advance. They would not have made any extra money should my vehicle have not been parked there as the car park is not open to the general public - they could not have sold a ticket for the space.


I do not have a copy of the original ticket anymore, is there a way of obtaining this quickly? I do remember that the ticket did not specify which car park In particular the vehicle was parked in (there are 4 Excel car parks within a few hundred metres of each other)


Can anyone give me any advice on how to proceed with this? I have acknowledged service and stated that I am looking to defend in full.


Thank you in advance.

Coupon-mad

I have read through other threads but noting seems to match my specific circumstance.

Doesn't need to be similar, except for reading other court threads. Loads on here and on pepipoo.

I do not have a copy of the original ticket anymore, is there a way of obtaining this quickly?

No, and that is not needed, the parking firm will include it in their bundle of evidence and it isn't helpful to you anyway.

The driver has their parking permit which was valid covering the date in question, a contact to show that the permit has be held since 2012 and confirming the monthly salary deductions and A copy of the payslip covering the date in question to show the monthly deduction for the parking

Good. But the PCN was for NON DISPLAY, so the contract you are arguing against is not about whether they actually had a permit.

I don't see how the driver can be charged £100, now increased to £236 with court fees etc added on, when they pay a monthly fee for a permit.

That forms part of your defence - the fact that £100 has somehow become £236 which in itself is partly a penalty - additional costs never agreed/not able to be recovered/claimed.

Read bargepole's post in the NEWBIES thread linked under 'Small Claim?' to learn what to do in terms of a defence and the paperwork. And then search 'defence CEL' to find some fairly comparable cases we had in March with a pakring firm called CEL, where they also tried to add on 'legal fees' they had never incurred. You will see defences written out on several threads in March, you can base yours paryly on what you see in those threads but then adapt them to suit your case.

Then show us your draft defence.

Redx

post #1 court section of the NEWBIES sticky thread explains it

and look for other similar 2016 threads about EXCEL , BW LEGAL , UKPC and CEL court cases to see how to proceed

loads of info on here and pepipoo forums if you do some searching using the forum search box

cathieb_58

Hi Guys,


I have now put together my defence, please can you provide me with any advice / suggestions for change necessary?

• It is admitted that the defendant is the registered keeper of the vehicle in question.
• It is not admitted that the defendant was the driver of the vehicle on the date in question.
• The defendant cannot have liability as they are the Keeper of the vehicle and VCS have not complied with The Protection of Freedom Act 2012 to hold the Keeper liable, and have not adduced any evidence to show the Keeper and the Driver are the same person.
• It is denied that the vehicle was parked without displaying a valid permit. A valid permit was in fact on display in the front offside window, adjacent to the main front window.
• No witness statement from the ticketing officer has been provided to state that the vehicle was not displaying a valid permit.
• It is denied that the claimant has authority to bring this claim. The proper claimant is the landowner. The claimant is put to strict proof that there is a chain of contracts leading from the landowner to Vehicle Control Solutions Ltd.
• If the driver was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.
• The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:
  a) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the locations in question
  b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable; The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department for Transport Guidance on the Recovery of Parking Charges:
  Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.
  c) The penalty bears no relation to the circumstances because it remains the same no matter whether a motorist stays for ten seconds or ten years.
• Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) (Exhibit ….) regarding the Unfair Terms Directive :
  With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.
• This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and VCS have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
• Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
• Careful analysis of the Supreme Court judgment (ParkingEye v Beavis) Exhibit… is not as the Claimant may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.
• The vehicle is already subject to a contract and a valid permit confirming this contract was displayed in the vehicle at the time. The permit had been paid for and contract running from April 2015 – April 2016, in essence, this contact had already concluded. New terms of contact cannot be added after the contract is signed governing display or otherwise.

The Defendant invites the court to strike out the claim as having no prospect of success.

Coupon-mad

That's a good start, better than some weak template rubbish people have posted on forums sometimes.

As a start (this isn't ready yet) I would remove these parts, as follows; the first because calling any sneaky 'private ticketer' an 'officer' gives them a level of authority you don't want a Judge to have in mind and because you don't want to hint at the claimant to produce a witness statement to assist their side:

No witness statement from the ticketing officer has been provided to state that the vehicle was not displaying a valid permit.

...and remove this whole part below, because this avenue of protection was ripped away from consumers by the Supreme Court in their infinite wisdom in November (in National Consumers' week, no less) where only ONE Judge in the ParkingEye v Beavis case saw the PPC 'charge' as a penalty and took issue with the fact it was disproportionate to any loss. Apparently that doesn't matter any more, after the top Court in the land effectively re-shaped UK law to fit the lucrative model of fines created by PE (who knows why...it beggared belief for many here):

The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:
a) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the locations in question
b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable; The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department for Transport Guidance on the Recovery of Parking Charges:
Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.
c) The penalty bears no relation to the circumstances because it remains the same no matter whether a motorist stays for ten seconds or ten years.
Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) (Exhibit ….) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

You could add as a final point something about the signs not forming another contract every time the car is parked every day (because you really must have something about the signs being unclear). Can you show us a broken* link to a photo of one of the signs there, so we can see the wording?

And at the end you need a statement of truth (Google it).




*newbies can't post working links so post a non-working one. Host the photos in Dropbox or tinypic or something then change http to hxxp.

Marktheshark

If the signs say no parking except permit holders then there is no offer of parking to anyone but a permit holder and no consideration for a contract.
The signs are not offering a contract to anyone but a permit holder.
Take the permit evidence to court.

cathieb_58

Thank you for your responses. Here is a photo of the sign. Hopefully this will work I've used Tinypic...


[IMG]hxxp://i63.tinypic.com/dqowmh.jpg[/IMG] (broken link)

cathieb_58

I'm not sure if the above link is working, wasn't sure which to use. I will add the other types below...




hxxp://tinypic.com/r/dqowmh/9




hxxp://i63.tinypic.com/dqowmh.jpg

cathieb_58

One further thing...


The other point which I haven't mentioned in the defence (I'm not sure if or how its relevant)
The entrance to the car park has 2 signs as you enter. One on the left which is the sign I have posted above which is issued by VCS and gives notice of the £100 charge.
Another to the right which states '*company name* Permit Holders Only' and has the Excel logo.
The actual permits that all the vehicles hold are issued by Excel, not VCS. There is no reference to VCS on the permits themselves. Can VCS issue charges to vehicles when the permits are issues on behalf of Excel and these are the only permits permitted for use in the car park?

Coupon-mad

cathieb_58 wrote: »

One further thing...


The other point which I haven't mentioned in the defence (I'm not sure if or how its relevant)
The entrance to the car park has 2 signs as you enter. One on the left which is the sign I have posted above which is issued by VCS and gives notice of the £100 charge.
Another to the right which states '*company name* Permit Holders Only' and has the Excel logo.
The actual permits that all the vehicles hold are issued by Excel, not VCS. There is no reference to VCS on the permits themselves. Can VCS issue charges to vehicles when the permits are issues on behalf of Excel and these are the only permits permitted for use in the car park?

Yes that is very relevant. Could be the winning point. You MUST include that (keep any photos for later).

cathieb_58

Ok,

I have revised the defence with the suggested changes...

I dispute the full amount claimed as shown on the claim form.

1. It is admitted that the defendant is the registered keeper of the vehicle in question.

2. It is not admitted that the defendant was the driver of the vehicle on the date in question, other drivers had access to the vehicle and use the car park.

3. VCS have taken this action against myself as the registered keeper of the vehicle.
They have failed to invoke Keeper Liability under the Protection of Freedoms Act 2012 and have not adduced any evidence to show the Keeper and the Driver are the same person. Since they had an opportunity to invoke keeper liability but chose not to do so the liability of payment remains with the driver. There is no evidence of who that may have been and mere supposition is insufficient.

4. It is denied that the vehicle was parked without displaying a valid permit. A valid permit was in fact on display in the front offside window, adjacent to the main front window.

5. It is denied that the vehicle was parked without displaying a valid permit. The claimant has provided no evidence to assert their claim that a permit was not displayed. The driver has confirmed that a valid permit was in fact on display in the front offside window, adjacent to the main front window. It had slid over to the side window but was clearly visible to anyone inspecting the car.

6. Moreover the point that no permit was on display cannot be examined since the operator who placed the ticket is not present as a witness.

7. The car park has two signs, one placed by the claimant and the other by Excel parking Services.
The defendant's permit that was displayed was issued by Excel Parking Services not the claimant.
The car park is also patrolled by an Excel operative who issued the disputed parking notice that requested payment to Excel not the claimant.
The claimant has at no time been involved in the parking arrangement and admits in the Particulars of Claim that it did not issue the parking notice.
The defendant fails to understand what authority the claimant had to place its own sign and in what capacity the claimant has brought the claim
The defendant has never been informed that the disputed debt has been assigned to the claimant and the claimant is therefore a stranger to any contract

8. If the driver was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

9. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and VCS have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

10. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

11. Careful analysis of the Supreme Court judgment (ParkingEye v Beavis) Exhibit… is not as the Claimant may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

12. The vehicle is already subject to a contract and a valid permit confirming this contract was displayed in the vehicle at the time. The permit had been paid for and contract running from April 2015 – April 2016, in essence, this contact had already concluded. New terms of contact cannot be added after the contract is signed governing display or otherwise.
The Defendant invites the court to strike out the claim as having no prospect of success.

Statement of Truth
I believe that the facts stated in this form are true.