County Court

ainscom

Have now done draft Skeleton , not sure if I'm on the right track.

Defence Skeleton Argument

I am [NAME] of [ADDRESS], [POSTCODE], [DATE], defendant in this matter.


This is an appeal by the Defendant (“ ”) against the decision of Excel Parking Ltd who refuse to dismiss the action for want of prosecution. The claim is denied in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

• Valid ticket was purchased on the day
• The Unfair Terms in Consumer Contract Regulations 1999 applies
• The signage does not offer a contract with the motorist
• The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
• The Claimant has no standing to bring a case
• The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
• Rights under Data protection (Data protection Act 1999)
• Statement of witness.

• Valid ticket was purchased on the day

As far as I am aware Excel Parking’s entire case is based solely on the validity of the ticket issued from their machine. I put it to the court that the ticket must have been valid otherwise it would not have been issued by their machine and as such Excel Parking has no case. The required sum demanded by Excel Parking to form the contract was offered by the Defendant and accepted by Excel Parking this is seen by Excel Parking offering the Defendant a ticket to park as their contractual agreement. The Excel Parking has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. A witness statement will be provided by my colleague, Mr (.................) who was travelling with me on the day.

• The Unfair Terms in Consumer Contract Regulations 1999 applies

It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.





The European Court of Justice case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case as seen in (para 77).

• The signage does not offer a contract with the motorist
  The claim is for breach of contract. However, it is denied any contract existed.
  The Claimant states, in their Particulars of Claim, that the signage is ‘clearly displayed’ but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. Although the Excel Parking has not provided a signage map in many of their car parks signs are positioned in such a way as to create “entrapment zones” where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.
  
  The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

• The Consumer Contracts (Information, Cancellation and Additional
  Charges) Regulations 2013 applies
  
  This is clearly an organised service-provision scheme (for parking)
  The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer. There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded. This is therefore a distance contract and as such must adhere to:
• The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies

“Before the consumer is bound by a distance contract, the trader


must give or make available to the consumer the information listed in Schedule 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3. In so far as the information is provided on a durable medium, it must be legible. The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Schedule 3; and a trader who has supplied those instructions to the consumer, correctly filled in, is to be treated as having complied with paragraph (1) in respect of those paragraphs.”





“Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information— theinformation listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be provided on that means of communication in accordance with paragraphs (1) and (2), but the other information required by paragraph (1) may be provided in another appropriate way. If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.”





6. Solicitors Fees


The County Court Claim includes a sum of £50, described as ‘Solicitor’s costs’. However a letter/invoice BW Legal the debt collection agency representing Excel Parking, quoting legal cost as £104. The Claimant is known to be a serial litigant, issuing a large mass of claims on a weekly basis, using the bulk processing service and maybe generating up to £40,000 or more of income. Given a standard working week, BW Legal the claimant’s solicitor and debt collector can spend no more than a few minutes per claim, hardly justifying the £50 or £104. Since these are fully automated, no intervention is required by a solicitor, and Excel Parkng is put to strict proof to show how this cost has been incurred.








7. The charge is not a genuine pre-estimate of loss and is therefore an


unenforceable penalty


The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.


As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner’s behalf. The Claimant has suffered no actual or genuine pre-estimate of, loss as a result of any alleged misdemeanour. There is no initial loss to the Claimant, and they have no standing to bring any case.





Additionally the sum is roughly equivalent to a week’s pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.





7. Rights under Data protection (Data protection Act 1999)


Does Excel Parking have a legal right to criminalise the Defendant? By passing personal details on to third party (Debt Collection Agency) without first establishing in a court of law, whether these purported fines are actually owed.

Redx

read my signature

then check what a holding defence and part 18 should look like in this thread , https://forums.moneysavingexpert.com/discussion/5505546 posts #39 and #40

then compare yours and see which would be better , even if you adapt it

I am not even sure a defence statement should be asking questions

The_Deep

UTCCC is no more, google it.


What do you mean, "criminalise"?

ainscom

The point that I was intending to make is, as of this moment in time, it has not yet been proven beyond doubt that this money is actually owed to the Excel Parking. I am therefore underline that by passing my data to BW Legal, Excel Parking have infringed my rights under the data protection act 1999. Is this wrong or not relevant please let know what you think best to discard. Is the rest of defence ok, what needs changing?

Redx

and the point that I was intending to make is that you are unlikely to get legal advice on this forum and so I pointed you at what I think are the best recent examples you can crib from (from HO87), plus where to get legal advice

if that advice is not good enough , then neither I nor the vast majority of people on this MSE forum can help you (this isnt legal beagles, its a parking forum where the best advisors tend to get a PPR and few if any legal advisors reside anyway)

dauphin

I don't know where that draft came from, but I'm afraid it is such a complete muddle that you would be much better putting it aside and doing as Redx has suggested.
There are basic issues just in the first few lines, eg:
It is supposed to be your Defence, not a "defence skeleton argument" - a defence and a skeleton argument are quite different things.
Nor is it an "Appeal"
Dismissal for want of prosecution is something which can happen where a claimant delays for a very long time in progressing the litigation. I've no reason to think this applies here and, if it did, you wouldn't be asking Excel to dismiss it, but the Court. I can't imagine how this got into the draft.

That's as far as I got. You should either do as Redx has suggested or take this draft back to where you got it from and seek advice there, as it is way off beam.

System

1) I paid for and received a ticket but didn't see the instruction on the pay machine to enter Licence number due to someone standing at that side of the machine.


2) Money was not refunded.


3) Ticket should not have been issued if it was not valid


4) No signage on entry informing you that registration number is required to park.

Seems to me this is the core of your defence along with pics of any signs that back up what you are saying especially #4.

What you are doing is to lay out in a logical sequence what happened and why you are not liable. No need for all the extra nonsense about legal points you do not understand.

They will produce your appeal at a later stage, so dig that out and make sure what you say now is close to that plus any other information that has come to light since.

Major point: Acknowledge on time and get the defence in on time. If you don't you can presume you have lost on a technicality.

ainscom

Thank you very much Redx, you’re link for the Part18 and Defence Draft will prove very helpful to me. Well done!

Sorry but I am not too up on some of these abbreviations, UTCCC are you referring to the Unfair Terms in Customer Contract Regulations 1999?


Thanks dauphin! You've cleared up a few points re: Defence and "defence skeleton argument. I really am very new to this, not very clued up! The draft is mine using information gathered, I now realise that I used the wrong template. I am now looking at draft defence from Redx.


Thanks IamEmanre! I will focus on the points you've mentioned. This is just What I needed, now I have a better Idea and little bit more optimism. Cheers you guys!!!

ainscom

Hi guys, with regard to recent threads, new draft defence, left out the majority of legal jargon, what more do I need to add, take away or rehash any advice appreciated.
IN THE XXXXXXXXXX COUNTY COURT Case No: XXXXXX

EXCEL PARKING LTD Claimant
-v-
Xxx Xxxxx Xxxxx Defendant

DEFENCE




I am XXXXX, defendant in this matter.



1. It is admitted that Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.


2. As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

3. I deny any liability in respect of the claim.

3. In his Particulars of Claim the Claimant fails to disclose the head or heads of action in which these proceedings are based and in any event no cause is disclosed that has a realistic prospect of success. Furthermore the lack of detail prevents my being able to respond in more detail.


4. The Defendant paid for and received a ticket but did not see the instruction on the pay machine to enter Licence number due to someone standing at that side of the machine. Therefore the required sum demanded by Excel Parking (in their words to form the contract) was offered by the Defendant and accepted by Excel Parking.


5. This cannot be deemed a breach of contract as the correct fee was paid and accepted by Excel Parking without a refund.


6. I would argue that the ticket must have been valid otherwise it would not or should not have been issued by their ticket machine and as such Excel Parking has no case.


7. The claim is for breach of contract. However, it is denied any contract existed. The Claimant states, in their Particulars of Claim, that the signage is “clearly displayed” but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present e.g. the sign instructing users of the car park, to key in their own registration.
The Claimant’s notices do not create any contractual relationship between the Claimant and motorists using the car-park.




8. If there was a contract, it is denied that the penalty charge is incorporated into the contract. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, the relevant term must be made known before a contract was formed. Here, the charge was not incorporated into the contract because the signage was not clear, was not visible in many parts of the car park and could in any case only be viewed after parking the vehicle.


9. Additionally such scant Particulars leave Defendants to respond to what are at best vague details.


10. It is denied that the Claimant is the landowner of the property in question or that they have any other right or proprietary interest in the land or any demonstrable intention to occupy it sufficient to support this claim.


11.. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner


12. In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.


13. In the above circumstances I respectfully ask that the court dismiss the claim


I believe that the facts stated in this defence are true

ainscom

Incidentally, in Excel's reply to my appeal they stated that "You failed to purchase a valid ticket as you have entered the details, XXXXXXX; rather than the required, "5". It is important that you enter the full and accurate registration of your vehicle while purchasing a ticket" The registration number that they quoted as having been entered is actually the correct registration of the car in question. Would that have a bearing on the claim? Does anyone know what that "5" means?


They've also used the word, IMPORTANT (important that enter correct registration) should they have used, mandatory or prerequisite or a more binding word?