Excel Parking / BW Legal - N1 Claim Form

Ironman1354

I received a Parking Charge Notice from Excel Parking in July 2015. Even though I bought a parking ticket to cover the period of stay, it flipped over on the dashboard so the time and date was not visible. Despite the fact that the parking attendant observed as the the ticket was purchased and engaged in conversation, he still put a charge notice on the car whilst it was unattended. When I returned, I challenged him with the charge notice and he said it wouldn't be a problem He advised me to email the address on the notice with a photograph of the ticket and it would be cancelled.

This is what I did. After a few letters, Excel Parking offered me a "gesture of goodwill" to settle the notice and asked me to pay a £10 admin charge to settle it or I could appeal. But if I appealed and lost, I would be liable for the £70 charge. Having bought a ticket, and proved that I bought a ticket, I couldn't see that I had done anything wrong and saw this response from Excel as nothing short of blackmail. I was loathed to give them a penny because if they did this to all motorists who parked in their car parks and they paid up, they'd be receiving a lot of "£10 admin" charges. So, out of principle I appealed via IAS, which I now know having read on these forums, is nothing more than a kangaroo court.

Not surprisingly, I lost on the grounds that I didn't display the ticket properly. Less than 24 hours later, I received a demand for £100 from Rossendales Collect - £70 charge + £30 administration costs.

After reading numerous threads on here I ignored the Rossendale Letter and subsequent letters from BW Legal.

Today, I received an N1 Claim Form from the County Court Business Centre, Northampton claiming that I owe Excel Parking £211.20.

Do i have grounds to contest this? Can I claim that Excel failed to mitigate their losses when they were informed that I had bought a ticket?

Redx

there are many legal grounds to contest it, just read other EXCEL / VCS + B W LEGAL threads , especially ones like the lamilad thread

but start by reading post #2 of the NEWBIES sticky thread

one of those grounds that you should have read about is where the ticket isnt of "merchantable quality" or "fit for purpose"

ie:- it should be sticky and/or printed on both sides

Coupon-mad

Do i have grounds to contest this?

Of course, it's an utterly greedy scam and it's defendable.

Can I claim that Excel failed to mitigate their losses when they were informed that I had bought a ticket?

Not really, they will say it was part of the contract. And 'non-sticky ticket' isn't very strong as an argument either. However, other arguments are strong, as you will see on the hundreds of other BW Legal court threads, after you have read post #2 of the NEWBIES thread and acknowledged service on MCOL.

Almost every person wins at their hearing here, I can recall one loss in 2016. We have assisted free, with hundreds of defences since 2016 when BW Legal started mucking them up (as you will see when you look further).

Ironman1354

Thanks very much. I will look into preparing my defence

Fruitcake

There is also a link by bargepole in the NEWBIES to a guide that tells you how to reply to the court and when and how to fill in some of the forms.

You start by acknowledging the claim and stating you will defend it, but you do not put anything in the defence box, not even a full stop.

Ironman1354

OK, after a few days of research, here's my first draft defence:

Statement of Defence

I am xxxxxxx xxxxx , defendant in this matter and deny liability for the entirety of the claim.

1. The Defendant asserts that the driver had paid to be in the car park and displayed a valid ticket that had not expired and was visible when the Claimant's operative inspected the vehicle.

Indeed, the Claimant’s operative verbally informed the Defendant that the PCN would be cancelled if a phot of the valid ticket was sent to the email address on the ticket. The Defandant did this at the earliest opportunity.

The driver fully met the terms and conditions of parking. The failure to clearly display a parking ticket is the only breach of a term or condition that the Claimant has ever mentioned.

2. The Defendant has shown a copy of the ticket to the Claimant. The valid ticket was not disputed by the Claimant or the Claimant’s operative at the time of parking.

3. The claimant is not providing responsible parking management, but instead is trying to engineer as many charges as possible. This is a prime example of a predatory operation which is banned by the IPC Code of Practice. If the Claimant produced tickets that were designed in such a way as to be fit for purpose, false claims such as this could not be made. It was a windy day which necessitated the ticket to be positioned in such a way on the dashboard in order to secure it enough to be able to close the door.

4. The Claimants charges are unlawful as in breach of the Consumer Rights Act 2015 specifically section 62(1) Schedule 2.

5. The claimant has produced a figure of £XXX. This is a completely unsubstantiated and inflated three-figure sum, incoherently adduced by the claimant's solicitors. The Defendant has the reasonable belief that the sum is simply a number made up out of thin air, and an attempt at double recovery by the Claimant. Any time and resources allegedly spent by the Claimant are staff employed performing their normal duties for the express purpose of operating its business model and whose cost would have been incurred if the ticket had been displayed or not.

6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence and no scrutiny of details. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

7. I suggest that parking companies such as Excel are using the small claims track is a form of aggressive, automated debt collection and is a waste of court time and resources.

8. The Defendant paid for and displayed a ticket in good faith according to the terms of the car park. The Defendant had no desire whatsoever to be forced to spend the necessary time and energy combating this case in court – but has been forced to.

9. The charge is a penalty and unfair consumer charge. The leading case law on this is ParkingEye v Beavis [2015] UKSC 67. Although Mr Beavis lost his case, I submit that in this particular situation the case law introduced by Beavis is more favorable to the motorist than the operator.

The supreme court ruled that the charge of £85 was not a genuine pre-estimate of loss and that ParkingEye had conceded that that was the case. The penalties law was therefore engaged.

10. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Ltd.

11. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

12. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representatives costs". These cannot be recovered in the Small Claims Court.

13. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.



I ask the court to respectfully strike out this claim with immediate effect.

I believe that the facts stated in this Statement of defence, (date) are true."

Lamilad

[STRIKE]I am xxxxxxx xxxxx , defendant in this matter and deny[/STRIKE] The defendant denies liability for the entirety of the claim.

Looks like a good defence but nothing about signage? I appreciate your main argument is that you bought a pdt and followed the T&Cs but you should not rely on only one or two defence points. You need to get as many in there as possible to show that no matter which way the judge looks at it, the claim is without merit.

See this blog on the Pranksters site:
http://parking-prankster.blogspot.co.uk/2017/02/vehicle-control-services-issue-charge.html

Also need something in there about authority from landowner for Excel to engage in enforcement in their own name (chain of contracts)

Research other defences and add some more points into your defence.

* Incoherent signage incapable of forming a contract
* Martin Cutts case
* Lord Denning 'red hand rule' (Vine vs Waltham Forest)
* Signage being ample, prominent, easy to read (Beavis Case)

Ironman1354

Here is the revised defence:

The Defendant denies liability in its entirety of the claim.

1. The Defendant asserts that the Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements

2. The Defendant asserts that a valid ticket was purchased for the period of stay and, to the best knowledge of the Defendant, was visible when the Claimant's operative inspected the vehicle.

Indeed, the Claimant’s operative verbally informed the Defendant that the PCN would be cancelled if a photo of the valid ticket was sent to the email address on the ticket. The Defendant did as advised at the earliest opportunity.

The Defendant fully met the terms and conditions of parking. The failure to clearly display a parking ticket is the only breach of a term or condition that the Claimant has ever mentioned.

3. This case can be distinguished from ParkingEye 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 landowner. Strict compliance with the BPA Code of Practice (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.

4. The Defendant asserts that the signage on site was confusing and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The statement of the penalty charges are in small print, at the bottom of the signage. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Indeed, Excel has been criticised for misleading signage as in Excel Parking Services v Hetherington-Jakeman. Therefore, the Defendant asserts that a contract is void and not enforceable.

5. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound. The Defendant asserts that clauses in the Terms and Conditions are unreasonable and the signage does not draw attention to such clauses in accordance with Lord Denning's "Red Hand Rule" from Spurling V Bradshaw. Moreover, the Defendant asserts that, as a result of the signage, the Claimant is unable to demonstrate that anyone parking a vehicle in that car park fully understood the risks and happily took them in accordance with Vine v London Borough of Waltham Forest.

6. The Defendant has shown a copy of the ticket to the Claimant. The valid ticket was not disputed by the Claimant or the Claimant’s operative at the time of parking.

7. The Claimant’s operative, despite knowing that a valid ticket had been purchased, continued to issue PCN when the vehicle was left unattended. Therefore, the Defendant argues that the claimant is not providing responsible parking management, but instead is trying to engineer as many charges as possible. This is a prime example of a predatory operation which is banned by the IPC Code of Practice. If the Claimant produced tickets that were designed in such a way as to be fit for purpose, false claims such as this could not be made. It was a windy day which necessitated the ticket to be positioned in such a way on the dashboard in order to secure it enough to be able to close the door.

8. The Claimants charges are unlawful as in breach of the Consumer Rights Act 2015 specifically section 62(1) Schedule 2.

9. The claimant has produced a figure of £211.20. This is a completely unsubstantiated and inflated three-figure sum, incoherently adduced by the claimant's solicitors. The Defendant has the reasonable belief that the sum is simply a number made up out of thin air, and an attempt at inflated recovery by the Claimant. Any time and resources allegedly spent by the Claimant are staff employed performing their normal duties for the express purpose of operating its business model and whose cost would have been incurred if the ticket had been displayed or not.

10. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence and no scrutiny of details. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

11. The Defendant asserts that parking companies such as Excel are using the small claims track is a form of aggressive, automated debt collection and is a waste of court time and resources.

12. A valid ticket was paid for and displayed ticket in good faith according to the terms of the car park. The Defendant had no desire whatsoever to be forced to spend the necessary time and energy combating this case in court – but has been forced to.

13. The charge is a penalty and unfair consumer charge. The leading case law on this is ParkingEye v Beavis [2015] UKSC 67. Although Mr Beavis lost his case, the Defendant submits that in this particular situation the case law introduced by Beavis is more favorable to the motorist than the operator.

The supreme court ruled that the charge of £85 was not a genuine pre-estimate of loss and that ParkingEye had conceded that that was the case. The penalties law was therefore engaged.

The court ruled that in this case the desire of the landowner was that the motorist had two hours free parking but then left to encourage turnover for other shoppers. The charge therefore needed to be large to ensure that it acted as a deterrent, and this was therefore commercially justified.
In this case the case concerns a ticket which the operator claims was not fully visible at the time. There is therefore no commercial justification for refusing to cancel a charge as it is perfectly possible via the appeals procedure to determine that a valid ticket was paid for.

Additionally, even if a ticket was not paid for, the Court of Appeal ruled in the Beavis case that a large charge was not justified in paid car parks. The CoA ruling (paras 46 and 47) can be taken as a judgment that in a rate per hour car park any charge must be related to the initial fee and the actual costs incurred, and the judgement of Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148 is referred to. As this was not overruled by the Supreme Court, the judgment stands and is binding on lower courts.

14. The Defendant denies that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Ltd.

15. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representatives costs". These cannot be recovered in the Small Claims Court.

16. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. The Defendant denies that the Claimant is entitled to the relief claimed or any relief at all.

Loadsofchildren123

Ironman1354 wrote: »

1. The Defendant asserts that the driver had paid to be in the car park and displayed a valid ticket that had not expired and was visible when the Claimant's operative inspected the vehicle.

Indeed, the Claimant’s operative verbally informed the Defendant that the PCN would be cancelled if a phot of the valid ticket was sent to the email address on the ticket. The Defandant did this at the earliest opportunity.

The driver fully met the terms and conditions of parking. The failure to clearly display a parking ticket is the only breach of a term or condition that the Claimant has ever mentioned.

2. The Defendant has shown a copy of the ticket to the Claimant. The valid ticket was not disputed by the Claimant or the Claimant’s operative at the time of parking.

12. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representatives costs". These cannot be recovered in the Small Claims Court.

Paras 1/2:
I would beef these up. I would argue this from a contractual point of view: the operative (acting as an employee/representative of the Claimant) agreed to vary the terms of whatever contract may have been reached by virtue of the signage, or alternatively entered into a new contract with the driver, by stating to the driver unequivocally/making an offer that if he sent in proof of the ticket the charge would be cancelled. The Claimant is bound by that variation/new contract.


Para 12:
There is a bit of confusion here and what you say isn't quite right. Para 4(5) of POFA actually says this:
" The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified)."


So it doesn't quite say what you are saying it does. HOWEVER, if you then go to the official Notes to the Schedule, the notes say this:


"The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5))." So that notes think the Act says what you think it says! But they are notes, not the Act itself....

Paragraph 8(2) of POFA helps you - it says that the NtK has to inform the keeper of the unpaid charge. So this is the provision to rely on in saying that the NtK is not POFA compliant because at that stage they added in the extra charge, without saying what the original charge was. Look at 8(2)(c) and (f)(i). Also, under 4(5) and 8(2)(d) they are supposed to credit whatever the driver has already paid against the charge and I doubt they've done this.


I'd amend the first sentence by deleting the last part of the sentence, so it ends with "parking charge" (because there is nothing in there about the day before), and at the end I'd add that the Claimant must give credit for the sum already paid by the driver (and what that was).

Loadsofchildren123

Of course the trouble with arguing that is that you are denying (or not admitting) that you are the driver, so how can you prove what the operative said/did?

Ironman1354

I could maintain that I was there without admitting that I was the driver? I was with my wife at the time.