Excel BW again

Lamilad

The link above is from the at war thread. BWL were not involved in that case.

claretmad62

Cheers, thanks Lamilad....when you've a spare minute....if you could link their WS. I know it's Excel, but assume they are very similar in the way they are put together.

Lamilad

[Removed by Forum Team] states "I have conduct of this action" which invites you to challenge RoA of whichever rep turns up.

In P8 they say it was the RK and/or the driver who didn't purchase a PDT...

So, on one hand they're saying it was the RK OR the driver that breached the terms.... Err No! It can be ONLY the driver that was involved in any alleged 'breach'

On the other hand they say it was the RK AND the driver that breached the terms....
Hmmm, ok so they there are now TWO beaches are there? And the RK has somehow breached a contract that was only offered to the driver. - incoherent nonsense!

You will dispute 9 & 10. They claim the site benefitted from "highly prominent signs" yet can't prove it. NA states she is instructed that signs (which are from a different time) were the same at the material time. The fact she is "instructed" is not good enough, it is NOT proof. The claimant is being held to strict proof - that is their burden and they must discharge it with solid, relevant evidence.

P11 is disputed for the reasons you have already stated - the fact they claim the signs say one thing (£100/60 charge) whereas their NTK states another (£60/40). Both cannot be true and either one being wrong (which one definitely is) is fatal to their claim. The fact they have stated something in their WS which they know is not true, and signed it with a statement of truth means they are knowingly and deliberately giving false evidence to the court. So you need to mention 'contempt of court' and 'perverting the course of justice'

Lamilad

In p12 they state there was 'adequate signage for the T&Cs to have sufficiently been brought to the attention of any motorist using the car park'..... This is where you go all out attack on their woeful signage

Firstly you state that this point is irrelevant as you were not the driver, you were not there for any T&Cs to be 'brought to your attention, whether 'adequately proclaimed or not. You were not the driver, you did not see any T&Cs, you did not enter into any contract, and you are not liable for any charge.

You have viewed the pics of signs included in the claimant's bundle and notwithstanding you were not the driver and have no liability as the RK, and that the claimant has failed to prove that these were the signs on display at the material time - you have made the following observations which prove that, in any case, the claimant's signs are incapable of forming a contract:

The defence submits that the wording on the signs was so small, illegible and insignificant that it would not be noticed by a reasonable person.

It is established in law that a contract cannot be formed unless the terms are sufficiently brought to the attention of the person to whom the contract is being offered

In their bundle the claimant shows several pictures and photographs of the signs they claim “clearly and prominently” state the T&C’s for parking. It is plain to see that the text is tiny and illegible. Even in these ‘close up’ pictures the T&C’s are unreadable as is the PCN charge of £100.

The defence submits that the T&C’s for parking including the PCN charge of £100 would not have been sufficiently brought to the attention of the driver and therefore cannot be incorporated into any contract as a core term.

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.

Mr Cutts' own published article '‘Phoney fines and dodgy signs take drivers for a ride'' which is specifically about Excel's signs is Exhibit ?

It is worth noting that Mr Cutts manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

It is also worth noting that Simon Renshaw-Smith – previously known as 'Captain Clampit' (as evidenced by a simple google search) who runs Excel, attacked the Judge’s integrity. He 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.’

Mr Cutts encounter with Excel was discussed in the BBC television programme “Watchdog” which was heavily critical of Excel’s signage and tactics. I enclose the link here as Exhibit

https://www.youtube.com/watch?v=OBV5tlCsaFI

It is clear to see from the link above, and Exhibit ?, that the nature, style and design of the Excel signs is essentially the same in this case as it was then.

As well as the wording on signs in question being small, unclear and ‘not prominent’, it also did not comply with the British Parking Association (BPA) Code of Practice (“CoP”). The Claimant was a member of the BPA at the time and committed to follow its requirements – as referred to in paras 38-42 of their WS. The fact they did not follow those requirements means no contract was formed with driver

The defence refers to Exhibit ??, extracts from the BPA code of practice regarding signage, and specifically to paras 18.3 and 18.6.

Referring again the images of signs in the claimants bundle it is clear that the claimant does NOT comply with the BPA CoP

The Supreme Court Judges in the case of ParkingEye [PE] v Beavis [2015] (“Beavis case”) held that a CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.

The BPA CoP also states that there should be strong colour contrast between text and background. Black on white is recommended as a good example.

The dominant colours on Excel signs are blue and yellow against a background packed with confusing patterns and symbols. The defence refers to Exhibit ? which states that the colours used in Excel’s parking signs actually makes them very difficult to read.

Excel’s signs are a mass of confusing and contradictory words. The icon showing the PCN charge of £100 is hidden away at the bottom of the sign in the small print. It is not prominent nor obvious.

Lamilad

Now it's time for you to rely on the Beavis case - which, for once, they don't seem to be doing.....

The defence relies on the case of ParkingEye [PE] v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landholder. Strict compliance with the BPA CoP was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

There are many significant and crucial differences. In the Beavis case one of the key factors was the clear and prominent signage in the car park. The parking charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There could be no doubt of the £85 charge.

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 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.”

Regarding the sign referred to in the Beavis case, which I enclose as Exhibit ???. When this is compared to the excel car park signs in the claimants bundle, the defence submits that no reasonable person would agree that their terms are similarly “brief, clear and prominently proclaimed”.

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

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA CoP, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

Indeed in the Consumer Rights Act there is a 'Requirement for transparency':

1. A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

2. A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

As above the Beavis case signs are not similar to the signs in this appeal at all. I submit that the persuasive case law is in fact Exhibit E – 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently being found that they were not bound by them.

This judgment is binding case law from the Court of Appeal.

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established

Lamilad

I presume you already know how to rebut their reliance on EvL and AJH films for which you will be referring to the recent Daz Clayton case?

Umkomaas

I presume you already know how to rebut their reliance on EvL and AJH films

AJH Films here -

http://parking-prankster.blogspot.co.uk/2017/06/motorist-wins-appeal-cps-vs-ajh-films.html

Lamilad

You also need to point out (though it is glaringly obvious) that most of their WS is reliant on their assumption that the RK was the driver. This has already been denied and they have offered nothing in terms of proof or persuasive argument to suggest otherwise.

The have completely failed to discharge their burden of proof yet they constantly refer to the defendant as if they know she was the driver e.g. 'the defendant failed to purchase a PDT'...... 'The defendant breached the T&Cs.......'

This is a blatant attempt to mislead the court and the fact EvL cannot be relied upon renders most of their WS completely irrelevant.

claretmad62

Thanks Lamilad, Umkomaas, sorry didn't respond....early night.
Will go over everything tonight taking into account all your comments,

Lamilad

Some of the stuff above you may already have in your WS so it may be a case of cherry picking the points you need in your SA.

Keep in mind that the main crux of your defence is pre PoFA - no proof of driver - no keeper liability' Your bundle should focus on this more than anything else.

Everything else is secondary but still strong, valid arguments