Court papers received

Kayleighb1

He has depression and anxiety, especially around strangers and public speaking. So while this wouldn't have affected the alleged offence, it does affect his coping abilities when it comes to dealing with it.


The reason I mentioned breastfeeding earlier is that the peel centre do give 15 minutes free. So could it be argued that this protected characteristic needed a reasonable adjustment of more time?

Kayleighb1

I've never been to a county court but I'm not scared or intimidated by that. The court papers seem to imply that I can speak for the defendant.

Kayleighb1

I am going to formulate the initial defence over the next day or 2 - as I am off work on Tuesday - and then contact prankster and bmpa with that so far.

Redx

Kayleighb1 wrote: »

The reason I mentioned breastfeeding earlier is that the peel centre do give 15 minutes free.

So could it be argued that this protected characteristic needed a reasonable adjustment of more time?

firstly , that is not true , 0 to 3 hours parking time is £1.30p

http://parking-prankster.blogspot.co.uk/2016/01/new-popla-staying-cases-to-consider.html

note the sign above , its from ZERO hours to 3 hours , so actual parking has to be paid for - period !! (no free period)

the 15 minutes "free" extra grace time is in the red bays near KFC for KFC only and only for patrons of K.F.C. (I assume they have cameras that extend grace times there and only there but you stilll pay if you park , stay , eat)

there is no free 15 minutes parking time for anyone else

however , the sign does state that vehicles have 15 minutes to purchase a ticket from a pay and display machine and your posts have stated that this was not done and they are claiming for maybe 33 minutes which is more than double the grace time they allow, plus at no time have you stated that a ticket was purchased at any point at all so they will claim that there was never any intention to pay the required £1.30p as stated on the sign

so the sign does not say or give 15 minutes free parking time , merely 15 minutes grace "time" to purchase a ticket , which is totally different (most signs dont tell you this grace time before a parking event occurs and its generally accepted to be 10 minutes or less as far as any CoP is concerned anyway)

plus "he" was not breast feeding a baby , so "he" should have got out of the car and purchased a ticket for £1.30p within the allowed 15 minutes , same as any other pay and display car park

I also doubt that "he" is covered under the EA2010

in my opinion , all irrelevant to this case

I agree with halfway that this matter he brings up needs to be tackled by someone prepared to counter sue and go all the way , but that someone needs to have a good case under the EA2010 , which in this particular thread I do not believe to be the case

I hope that kayleigh becomes the exception to the rule and gets it cancelled by the Peel Centre or a retail store there , I really do, but I fear this will go all the way and this "vulnerable person" will need to be in court and may have to speak up for themselves regardless

definitely contact prankster and the BMPA (not BPA)

Coupon-mad

Kayleighb1 wrote: »

He has depression and anxiety, especially around strangers and public speaking. So while this wouldn't have affected the alleged offence, it does affect his coping abilities when it comes to dealing with it.

The reason I mentioned breastfeeding earlier is that the peel centre do give 15 minutes free. So could it be argued that this protected characteristic needed a reasonable adjustment of more time?

Not as such, because there is no reasonable adjustment provision under the sexual discrimination section of the EA. As I mentioned before:

The protection offered to breastfeeding Mums falls only under the sexual discrimination part of the Equality Act 2010 and is not as useful as the disability discrimination provisions. No 'reasonable adjustment' provision exists, just a requirement not to treat breastfeeding Mums adversely compared to other people at large. Worth a mention though as you never know what a Judge will make of it and service providers are required to take steps to avoid indirect discrimination. i.e. where they are unaware of the characteristics of the individual concerned they still have to take steps in advance to ensure that any policy considers the needs of the population generally and act fairly/justify their actions and remove barriers to equality/equity.

Re the hearing, if the claim is not discontinued earlier, you would not be a McKenzie friend (they can't speak for the defendant). You would be their 'lay rep' and should take to any hearing - in case the Judge tries to tell you that you are a McKenzie friend and can't speak for the defendant - a printed out copy of The Lay Representatives (Rights of Audience) Order 1999:

http://www.legislation.gov.uk/uksi/1999/1225/pdfs/uksi_19991225_en.pdf

I've never been to a county court but I'm not scared or intimidated by that. The court papers seem to imply that I can speak for the defendant.

Good. You do not need another lay rep then.

Kayleighb1

ok i have been doing some work on this

firstly - I don't think I had a valid 'letter before court' - how would I know for certain? BMPA site leads me to believe not.

secondly, I don't think I had a letter to keeper. again how wold I know for certain.

please see below my drafts for a part 18 request and a skeleton defence. which I will probably reduce down to just headings.

any feedback would be fab. thanks.

Kayleighb1

REGARDING THE XXXXXXXXX COUNTY COURT CLAIM NO:
BETWEEN:
Excel Parking Services Ltd.
and XXXXXXXXXXX

_________________________________________________________________________________
PART 18 REQUEST FOR FURTHER INFORMATION
_________________________________________________________________________________

To Excel Parking Services Ltd. and BW Legal, please answer the following questions and provide the additional requested evidence:

1. What is the basis of the claim. Is Excel Parking, making a claim as an agent of the landowner or is Excel Parking making the claim as occupier in their own right?

2. If as an agent of the landowner, please give contact details of the landowner and details of their full legal identity.

3. As you are not the landowner, please provide a contemporaneous and unredacted copy of your contract with the landowner that demonstrates that you have their authority to both issue parking charges, and litigate in your own name.

4. Is the charge based on damages for breach of contract, or is it alleged to be the price payable for parking under contract?

(a). If the charge is for damages for breach of contract, please provide your justification of this sum.
(b). If the charge is the price payable for parking under contract, please provide a valid VAT invoice for this ‘service’.

5. If the alleged contract has been conveyed by the use of signage on site, please provide copies of the signs on which you rely and confirm these are the signs in situ on the date in question. Please also provide the date these signs were installed, for example, a works schedule, maintenance record or invoice for the work.

6. Were there signs at the entrance to the site on the date in question? Did these meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1 (Please indicate).

7. Please provide evidence of the location on the site on the date in question that the car in question was allegedly parked.

8. Please provide all images you have of the car in question.

9. Please provide evidence of the car and the signs together.

10. Please provide evidence that the registered keeper of the car [The Defendant Craig Johnstone] was the driver of the car for this alleged incident.

11. Is the keeper being held liable under POFA? If so, please provide copies of all documents including the initial PCN and the Notice to Keeper.

12. Please provide evidence that a fully compliant ‘Letter before County Court Claim’ was sent to the defendant. I would also request that at this point, you remember the Court’s powers to apply sanctions for non-compliance with the Practice Direction under Para 4.

13. Evidence of the charges raised against Excel Parking for the £50 legal representatives costs and the £54 contractual costs.

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU. THE DAY OF SERVICE IS TAKEN AS 5 DAYS AFTER THE ISSUE DATE SHOWN OVERLEAF.

I also require that answers to these questions be verified by a Statement of Truth by an authorised signatory of BW Legal.

In my opinion, there is a better alternative than legal proceedings, namely that we utilise the services of a completely independent ADR service suited to parking charges. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

Kind regards,

Kayleighb1

Statement of Defense

I am XXXXX, defendant in this matter and deny liability for the entirety of the claim for each and every one of the following reasons;




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


2. The Defendant was not the driver of the vehicle on the dates in question.

(a) Excel Parking have chosen not to rely on POFA 2012 (Schedule 4) (see Appendix ?), and so have no redress against the registered keeper. The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time/with mandatory wording. This was not done by the Claimant. This means the registered keeper at the time is not liable.

(b) Additionally, Schedule 4 only allows for a keeper to be liable under statute for the sum of the parking charge, not additional costs.


3. Excel Parking are not the lawful occupier of the land.

(a) Excel Parking is not the lawful occupier of the land

(b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.


4. This Claimant has not complied with pre-court protocol:

(a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction

(b) The Claim Form Particulars were extremely spare and divulged no cause of action nor sufficient detail. It has not been specified why the charge arose, what the alleged contract was, what the PCN terms and conditions referred to are; nothing that could be considered a fair exchange of information.

(c) The claimant has yet to respond to Part 18 Request written and sent by the defendant and delivered to BW Legal and Excel Parking.


5. Inadequate signs incapable of binding the driver – this distinguishes this case from the Beavis case:

(a) This case can be easily distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage (see Appendix ?) forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes, and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

(b) The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”

Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable

Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

(c) The Peel Centre Parking sign (see appendix?) is a mass of confusing and contradictory words. The charge, in case you did not spot it, is £100 hidden in the small print at the bottom of the sign. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the British Parking Association code of practice as hard to read.

(d) The signage at the Peel Centre is sporadic and illegible (charge not prominent nor large lettering) – breach of the POFA 2012 schedule 4 and the BPA Code of Practice, which the signage also states it abides by. Therefore no contract is formed to pay any clearly stated sum.

(e) Binding case law from the Beavis case would therefore appear to support the assertion that the charge of £100 in the Peel Centre would be a penalty and therefore not enforceable.

6. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

(a) As the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking on the site in question;

(b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;

(c) The penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and

(d) The clause is specifically expressed to be a parking charge on the Claimant's signs.

7. In the Beavis case the £85 was deemed the 'quid pro quo' for the license granted to park free for two hours and there was no quantified loss. Not so in this case where it is believed the location is one with a small tariff after a grace period.


8. If the court believes there was a contract (which is denied, due to unlit signage) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.

9. I would also ask you to note that the reason for the alleged overstay was that an occupant of the car was breastfeeding her 4-month old baby. The defendant has been advised that in these circumstances, it would be appropriate to give the occupant and therefore defendant a reasonable adjustment under the Equality Act 2010 – specifically of the time taken to leave the carpark before purchasing a ticket. The signage states that a PCN will be issued if a ticket isn’t purchased within 15 minutes of entering the car park – meaning that a car can leave without penalty within that time.

In the circumstances, the Defendant invites the Court to strike out the claim as both being a vexatious claim by a serial litigant, and having no reasonable prospects of success.

In the alternative, the Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to £27, with no legal costs. This is the bespoke ADR for BPA members (which Excel Parking signage at the site in question stated they were at the time of the alleged offence), is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case.

The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim in its entirety.

Redx

Kayleighb1 wrote: »

firstly - I don't think I had a valid 'letter before court' - how would I know for certain? BMPA site leads me to believe not.

secondly, I don't think I had a letter to keeper. again how wold I know for certain.
.

1) in the main an LBC comes from BW LEGAL at the moment, so if you received a BW LEGAL letter in recent months (2016) then its likely to be an LBC

2) as it was a company car the first NTK went to the keeper, the hire co

they passed it to your husband to deal with apparently

you then sent an appeal which they rejected https://forums.moneysavingexpert.com/discussion/5182488

Excel should have sent your husband an NTK (or the keeper) but its possible they did not do so so it is possible they failed the POFA2012 test here (but excel tend to not follow pofa2012 anyway)

IN ANY CASE, REQUEST THESE IN YOUR PART 18

read posts on here by edna basher that talk about this transfer of NTK from owner to hirer/lessee and various docs , for POFA2012 to be valid as these should feature in your defence

also , you should have a statement of truth at the bottom of your defence (there are many examples of this on here and pepipoo)

Kayleighb1

The only thing which went to the hire company was the PCN - nothing else at all

There have been several documents from BW legal, but none called 'letter before court'

We have had 'first letter', 'final notice' and 'letter of claim' from BW legal. And none have the information that a compliant 'letter before court' should include.

Excel have stated "we do not seek to rely on pofa 2012"

I have requested those documents in my part 18 as posted above.

I will do the statement of truth and look up Edna as suggested. Is it ok otherwise? More or less complete?

I will send the part 18 Asap, but should I delay my sending of my initial defense? Which will not be as fleshed out as the above.