BW Legal Court Notice ANOTHER

maxtag

Draft First Defence
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Statement of Defence

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 the driver of the vehicle on the dates in question.

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.


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

(a) This case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage (see Appendix F IPC Code of Practice) 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 F, IPA COP) is a mass of confusing and contradictory words/symbols. 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 White with Black lettering, but the important information regarding Pay and Display is blue on yellow, a combination warned against by the Independent 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.

(f) DJ Lateef's damning findings about the Peel Centre signs in 2010 in 'Excel v Cutts' and state that the signs, whilst slightly changed in the years between, have not improved.
She said “The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park”.
She also stated: “The lettering about failure to comply is about four times larger than the lettering saying it is a pay and display car park, which tells me the real interest is in failure to comply.”
Data provided by Excel showed that 11,498 penalty notices had been issued in the three years leading up to March 2010, all for failure to display a ticket.


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 is merely an agent acting ‘on behalf of’ the landowner, the penalty is out of all proportion with the £1.20 tariff.
In fact, the claim of £239.96 appears to a figure plucked out of the air and appears to be an attempt at double recovery.

(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.

(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. It was February when I entered the carpark, so it was dark around 16:45.
There was no chance of seeing the signs let alone the ticket machines painted dark blue, in the darkness.
There is no illumination near the said “ticket machines”.
Neither are there any parking signs on or in the unit I was working in.
10. I would also ask you to note that the reason for the unintentional stay was that the defendant had been requested to work in the Toys R Us Retail Outlet actually on the Peel Centre, twice within a 3-day period. The Defendant works all over the UK and has to observe and respect many varied parking charges/restrictions in his daily routine. He has done this for 27 years in total. For the last 11 years He has been Self-Employed and therefore can provide detailed accounts of monthly spend in relation to parking expenses. Why would the Defendant omit to pay the £1.20 and risk a £100 fine?
In the IPC, COP they talk about “Fair enforcement of parking terms and conditions” with “Continuous improvement”. How can this be when the Peel Centre parking issues have rumbled on for many years with massive exposure in the Press and Tv Media (Watchdog program).

11. The IPC, COP again state “Clear and Comprehensive Parking Information.” How can this when there is no signage on the walls of the Retail units themselves regarding the parking restrictions, Terms and conditions, nor are there any inside the retail units advising again of the parking requirements.

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

various errors

numbering incorrect (4 is missing)

sometimes it says IPA , not IPC

if they were BPA members at the time , you should use references to the BPA CoP that was in force at the time

if not , its the IPC CoP

as its IPC , they wont entertain ADR by popla

as for the part about "not a gpeol" this wont wash since the Beavis case

any issues over Beavis will be about the differences , in that the Peel Centre has no free parking whereas the Chelmsford car park did , plus maybe other issues too

checkout recent popla appeal wordings and any court case drafts about the Beavis arguments

and the fact that they may have had BPA signage when in fact they had moved to the IPC may be of help to you , due to conflicts over the different CoP`s

no statement of truth at the end either

and post #41 warned you about talking about LOSS, due to Beavis , including LOSS and not a gpeol

maxtag

Ok thanks changed that Redx

It's IPC Cop

And re-numbered

Draft 3 done.

Anything else ??

Redx

check my previous reply as the more I read, the worse I see it

are you sure you understand that the IPC prevailed at the time ?

a holding defence will detail what will be relied on when the full defence goes in , so are you sure you checked the kayleigh thread and the HO87 template defence for this site ?

I also noticed on the page 1 that you entered a date in the future for the signage , I assume it was a typo ? (had to read the thread again to get my head around the issues , we deal with many threads, you are only dealing with one)

maxtag

Sorry what is the ADR for IPC members relating to ???
As my letter says ADR for BPA members

maxtag

Yes with the typo re the date.
My info says that Excel changed over 01/01/15
My "offence was feb 2015

Redx

in that case , due to them moving to the IPC from the BPA , their letters send mixed messages as they offered ADR by the wrong option, so this should be an additional appeal point

in other words, signage and letters indicate BPA CoP , BPA signage , BPA ADR by popla , yet they were in the IPC so misled you, so highlight all the confusing issues

Redx

maxtag wrote: »

Looking at the Parking Prankster site re: Excel Peel Ctr signage their current sign isn't much clearer as of 18/9/16.
It still looks like signage for the retail park.
In my case as it was dark there are no lights on the signs and in truth you will only "see" 1 sign(with a hell of a lot of info on it, as you turn into the outlet if you are looking in the wrong direction turning left.
You have to be able to read a sign at 15mph as you turn into the Peel Ctr (DVLA recommendations used by all parking companies)

Interestingly enough there are 3 different parking companies on private land with 3 very different types of signage and regulations
Could this be used in any way ??

Cheers

I am talking about this date above in red on page 1

Coupon-mad

I like parts of that defence now, the quotes about the Cutts case help even though it was in 2010. You could add here:

Data provided by Excel showed that 11,498 penalty notices had been issued in the three years leading up to March 2010, all for failure to display a ticket. It is known from data more recently provided by the British Motorists' Protection Association (BMPA):

http://www.bmpa.eu/companydata/Excel_Parking_Services.html

...that in 2014, this Claimant issued a total of over 150,000 PCNs and in 2015 (the same year as the PCN in question) they issued almost 130,000 (believed to be temporarily less, merely due to the uncertainty of the Beavis case). It is asserted that a high percentage of these hugely increased figures since 2010 relate to the Peel Centre. The Claimant is put to strict proof otherwise and should explain how they assert that they have in any way 'improved' the unclear signs, given that the figures of PCNs issued at the Peel Centre have undoubtedly significantly increased.

maxtag

Sorry thought you were talking about my defence letter !! Redx

With you now.
I haven't used this in my letter.