County Court defence needed, Excel, BW Legal.

Baileybumpkin

Having parked at one of Excel's notorious car parks I was unable to pay the requisite 50p as all three machines were not working. Subsequently I received a demand for £60. I appealed explaining that I couldn't pay as none of the machines were working and of course this was rejected citing that they had no reports of machines not working and that I should have contacted the number displayed on the sign by the machine. Difficult as I didn't have my phone with me. Of course I didn't expect to receive a PCN so didn't gather any evidence to prove that the machines were not working.
It appears I am now going to have to appear at County Court, and need some advice on how to proceed. I believe that as I was unable to fulfil any contract I should not be held liable and that any expectation of me to report faulty machines is unreasonable as it assumes anyone entering the car park is carrying a mobile phone.

Redx

you need to start by reading the COURT section of the NEWBIES sticky thread , especiallly any links like the BARGEPOLE thread linked in there

also read the parking pranksters court guide as well (kindle)

and search the forum for EXCEL and BW LEGAL threads where others are further down the road than you , on here and over on pepipoo forums

then look for their draft defences , copy and paste into notepad and then adapt it to suit your own case

once done , post it on here , or pepipoo , or both sites , for critique , minus personal info and references of course

when signing up at pepipoo, do not use a hotmail or outlook address , use gmail instead

nobody will do this for you , but you will get help when you have done all of the above

it would help if we knew when the incident happened and also the site in question too , plus if any appeals were made or if you have totally ignored them all until now ?

The_Deep

In my view, it is unlikely that they will go as far as court. In recent court cases involving defective machines, judges have found for the motorist. Read up on "frustration of contract".


http://parking-prankster.blogspot.co.uk/2016/10/link-parking-youve-been-gladstoned.html

Coupon-mad

Baileybumpkin wrote: »

Having parked at one of Excel's notorious car parks I was unable to pay the requisite 50p as all three machines were not working. Subsequently I received a demand for £60.

I appealed explaining that I couldn't pay as none of the machines were working and of course this was rejected citing that they had no reports of machines not working and that I should have contacted the number displayed on the sign by the machine. Difficult as I didn't have my phone with me. Of course I didn't expect to receive a PCN so didn't gather any evidence to prove that the machines were not working.

It appears I am now going to have to appear at County Court, and need some advice on how to proceed. I believe that as I was unable to fulfil any contract I should not be held liable and that any expectation of me to report faulty machines is unreasonable as it assumes anyone entering the car park is carrying a mobile phone.

They would say that. Is it the Peel Centre? Their machines are prone to faults.

Firstly - IMPORTANT - KNOW WHAT YOU MUST DO AND BY WHEN!

Here's a summary from bargepole of what happens when, what you MUST do in time, re the paperwork & deadlines:

https://forums.moneysavingexpert.com/discussion/5546325

Here is his advice about how to set out your defence, with heading s and 1.5 line spaced in Times New Roman font size 12, which bargepole recommends is best posted (but can also be emailed if time is of the essence):

https://forums.moneysavingexpert.com/discussion/comment/71228944#Comment_71228944

Do not think putting in the defence is your only job. Once allocated to your local court, you will be given a clear date by which YOU MUST file the evidence (your documents, photos and cases you intend to rely upon) and any Witness Statement (i.e. yours, as bargepole says in the above link!).


I would defend it stating the facts - how about this version, written for your case (from what you have said) where I have continued by admitting you were the driver because you already appealed that way:





CLAIM NUMBER XXXXXXXXX

Excel Parking Services Ltd v (your name)

DEFENCE STATEMENT


I am xxxxx xxxxxxx, the Defendant in this matter. It is admitted that I was the driver on the material date but I assert that I am not liable to Excel Parking Services Ltd (Excel) for any 'debt' for the following reasons:

1. All three P&D machines were not working that day, which I have discovered is not uncommon with Excel machines. There is evidence in the public domain of Excel pay points all being broken and/or covered up, with reports of unfair PCNs in this situation, as far back as 2012 right through to 2016. I submit it is an inherent problem.

2. I appealed and explained that the machines were not working so no drivers could pay that day, at that time, yet as it is a large retail park there was a need for customers to park to use the shops, so people were parking but leaving a note on their windscreen. It was clear that Excel had made it impossible for drivers to accept any contract unless they had a phone with them. I did not, so Excel had made it impossible for drivers like me to enter into any contract with them and the failure was their burden, not mine.

3. Following an unsuccessful appeal to this Claimant and having subsequently received unwarranted and punitive demands, followed by this claim, I have researched the matter and discovered that it was never likely that my appeal would have been successful.

4. The private parking industry is being actively investigated by the Government in 2016/2017 who have vowed to stamp out poor practices. Excel - clampers whose chosen practice became a criminal offence in 2012 - have been notorious before and since the clamping ban, for unfair ticketing, unclear signs, unreliable machines and setting out to 'frighten and intimidate' drivers (those words from the Judge in Excel v Hetherington-Jakeman in 2008).

5. It is common knowledge that there is no fair ‘appeal’ available so this unfair charge would never have been cancelled. The same ‘controlling minds’ run this Claimant’s Trade Body as run the notorious IPC ‘Appeals Service’ in direct competition with the British Parking Association’s version. This is widely seen as a ‘race to the bottom’ which the Department of Communities and Local Government has pledged to end, as part of their response to last year’s consultation, designed to curtail the rogue practices of some IPC and BPA member firms. Such a set-up is incapable of providing any fair means for motorists to challenge parking charges on private land so it is contended that the Claimant and BW Legal - who have filed a robo-claim with no evidence nor scrutiny of any facts nor cause of action - do not come to this matter with clean hands.

6. Excel have shown no evidence that the machines were working at that time, so they have not shown any breach of contract occurred when the car was parked (such an allegation being specifically denied). I am in no position to prove broken machines and never expected any 'PCN' to arise from their own failure, so I put the Claimant to strict proof of the machines' data and records that day/in the hours either side of my arrival.

7. No consideration flowed between both parties and any offer of paying at the machine did not exist at that time. The elements of a contract: offer, consideration and acceptance of terms - including an obligation to pay any defined 'parking charge' or defined additional costs - were conspicuous by their absence.

8. I submit that the signs do not provide for a parking charge to be payable to this Claimant as a result of a 'failure to pay' and any alternative (paying by phone, contacting a helpline) were not prominent and in any case, were not available to drivers without a phone. I put Excel to strict proof of the terms on the signs in place at this location on that day.

9. This Claimant is known for incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' £53.50 costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park. I will include in my evidence, Mr Cutts' own published article '‘Phoney fines and dodgy signs take drivers for a ride'' which is specifically about Excel's signs:
http://s3-eu-west-1.amazonaws.com/plcdev/files/126/original/DVLA-BPA-Cutts22Apr2012_1b_mf.pdf

10. It is expected that this Claimant may try to counter that article about their signs but it is worth noting that the Judge agreed with Mr Cutts, who is something of an expert on clear terms as he manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

11. It is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel, is in the public domain as having attacked the Judge’s integrity in the Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: ‘The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts.’

12. I submit that the alleged contract is voidable in any case under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126, for the reason that it was impossible for me to use their machines, through no fault of mine. It was an event over which I had no control even though I had change with me and fully intended to pay the requisite 50p. In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154, it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

13. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually clear, prominent signage forming an unambiguous offer with the parking charge itself in 'large lettering'. That case also turned on unique facts regarding the location and the interests of the landowner. Indeed, in the Judges' findings at the Court of Appeal stage it was clear that pay and display car parks operate under a far less 'complex' area of law where the tariff due is a tangible financial contract and, as with any other 'ordinary' case with an identifiable sum argued as not having been paid, however small that sum might be, Lord Dunedin's four tests for a penalty would still have application.

14. I submit that this charge is an unenforceable penalty with no commercial justification. The Beavis case confirmed that the 'penalty rule' is certainly 'engaged' in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this unreasonable claim. The Beavis case is not a silver bullet allowing any parking charges in any circumstances and the Supreme Court confirmed it related only to that unique car park 'free parking licence/no tariff' arrangement.

15. If the court believes there was a contract - which is denied - this is just the sort of 'simple financial contract' identified at the Court of Appeal stage in Beavis (and not rebutted at the Supreme Court) as one with an easily quantifiable loss (the 50p tariff) where any sum pursued for breach must not be disproportionate. The Consumer Rights Act 2015 further supports this view, insofar as to seek damages by escalating a claim to an extent which is disproportionate to a quantified small sum 'in debt' is defined as an unfair term, and therefore, unrecoverable.

16. I have seen no evidence that Excel either own or have title in this private land or have authorisation from the landowner to pursue parking charges in the courts in their own name. I put the Claimant to strict proof of same.

17. This Claimant has added unrecoverable sums to the original parking charge and these were not stated on the signage so cannot be incorporated into any alleged contract after the event. It appears that they have plucked a figure out of thin air in an aim for double recovery: '£54 contractual costs pursuant to PCN terms and conditions' means nothing at all because even if that sum was clearly stated on the 'PCN' that was posted weeks later and could only be read too late. In fact it is submitted that the sum on the PCN - if deemed by the court to be recoverable as 'damages' for a 50p tariff due - was £60, certainly not over £200.

18. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under CPR 27.14.


I believe the facts stated in this Defence Statement are true.

YOUR NAME

DATE

Baileybumpkin

Many thanks, encourages me to go forward. Just a quick question: at what point will I be able to submit this defence?

Coupon-mad

Baileybumpkin wrote: »

Many thanks, encourages me to go forward. Just a quick question: at what point will I be able to submit this defence?

Now, if you have had a claim form from Northampton (MCOL). But you need to check it, not me, it's your defence and you need to understand it and check it is all relevant.

You need to read the 'what happens when' information in the NEWBIES thread under 'Small Claim?'.

Do you have a claim yet?

Is it the Peel Centre?

If not, where, Cavendish Retail Park is another cash-cow.

beamerguy

The link you have provided above .....
http://s3-eu-west-1.amazonaws.com/plcdev/files/126/original/DVLA-BPA-Cutts22Apr2012_1b_mf.pdf

is a must read by everyone.
As it's a PDF file, you can save it your computer.

This damning report does not remotely cover what is happening today with these rogue traders and blatant thieves.
Lessor thieves in the UK get a spell in prison.
This is the place that the Director of Excel and BWLegal should be sent you for a few years.
Let's face it, they are far worse than the "Great Train Robbery" gangsters who were given long prison terms and they only stole £2.6 million ?

As that was government money, the government made certain, the robbers were locked up.

When it comes to theft from the public, the government p*ssy foot around and despite claims from Mrs May that she wants a "fair society", that is a fabricated joke.

Like all criminals, those who operate in the parking industry and that includes the dodgy solicitors they use, should made answerable to the way they conduct their money grabbing scam

The_Deep

It is not just parking companies, what about payday loan companies who charge 4,000+ percent interest. Sell your gold for a pittance companies, Brighthouse. shops who sell tee shirts which cost less than a pound each in Thailand for £20-30 each, razor blade companies with astronomical mark ups.

http://www.thisismoney.co.uk/money/bills/article-1677114/Great-razor-rip-off-Gillettes-4750-mark-up.html

Welcome to rip off Britain.

beamerguy

The_Deep wrote: »

It is not just parking companies, what about payday loan companies who charge 4,000+ percent interest. Sell your gold for a pittance companies, shops who sell tee shirts which cost less than a pound each in Thailand for £20-30 each, razor blade companies with 1,000% mark ups. Welcome to rip off Britain.

OF COURSE, but one at a time Deep, people knowingly enter into agreements with payday firms etc but with the parking scam is more often not known until a charge arrives in the post from dodgy ANPR cameras

Baileybumpkin

It is The Cavendish Retail Park. Took a look at their signs yesterday and I am sure they have installed new ones with updated add ons re penalties, costs and other 'contractual issues'.
It would take 10 minutes to read em.

Coupon-mad

Join the Facebook group dealing with this location and Excel. And read Lamilad's thread - he won v Excel regarding that retail park and they don't even bother to provide data from the P&D machines - and their/BW Legal's Witness Statements are pants, with mistakes left in from a previous case...v lazy.