BW Legal Court Notice ANOTHER

maxtag

I like that too.
And have added it in to expand point 5f.

maxtag

Draft 3rd Defence

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.


4. 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, IPC 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 Yellow lettering on a Blue background, 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.
It is known from data more recently provided by the British Motorists' Protection Association (BMPA): 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.


5. The provision is a penalty and the terms of that contract cannot be enforced 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.

6. 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.


7. 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.

8. 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.
9. 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).

10. 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 IPC 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.

Statement of Truth
“II believe that the facts stated in this Defence letter dated XX/XX/XXXX are True”
Signed
XXXXX

Coupon-mad

Remove this, as previously suggested, as POPLA is and was not an option:

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 IPC 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.

maxtag

Thanks Coupon -mad,
That has been done.
Is it time to submit my defence ??

I also intend to use the pictures and video(not ready yet) of the Peel Ctr.
Does it go in with Defence ??

Thanks

Coupon-mad

I also intend to use the pictures and video(not ready yet) of the Peel Ctr.
Does it go in with Defence ??

I reckon you submit that defence now unless anyone else adds anything tonight.

No, you do not submit any attachments/evidence yet. That's much later, for the hearing 'court bundle'. There are steps in between, paperwork to do and serve on the court and the claimant in due course (read Bargepole's summary of what happens when, in the link I've put under 'Small Claim?' in the NEWBIES FAQS thread. He explains what paperwork arrives and when and how to complete it.

Redx

this is why it needs to be a short holding defence a skeleton defence , to be "fleshed out" later

the judge needs to see what the subsequent court bundle defence will be based on , not the explanations

try to cut it down to bullet points and leave the meat for later

for example , 9) is far too wordy for a bullet point , containing "waffle" that the initial judge wont care about , the explanation and waffle can be in the full defence later

ps:- some more info and advice from bargepole in this thread on post #35

https://forums.moneysavingexpert.com/discussion/5517061

Coupon-mad

Do as bargepole says in that post; he is the oracle!

maxtag

Ok thanks all

bargepole

Just to add to that advice regarding formatting of the Defence Statement:

Use Times Roman 12 point with 1.5 line spacing (it looks old fashioned, but so are most judges)

Number all pages and paragraphs

Keep the paragraphs of a readable length, split them if necessary.

Any case citations, eg Parking Eye v Beavis, use italics

Also use italics and indent any quoted text.

maxtag

Evening All,
Had the letter back from the Court.
We now wait to see if it is to be resolved in or out of Court
28 days and counting down......
Watch this space I suppose !!!