Excel Parking / BW Legal - N1 Claim Form

Coupon-mad

As well as reading the NEWBIES thread, read WS already written by people like:

Matthew87

infernouk

Lamilad

which will show you what's what, and you will learn about a skeleton argument and what sort of evidence to attach to the WS, or your later skeleton, as well.

Ironman1354

Thanks. I've just spent over two hours searching this forum and reading threads for a suitable witness statement but am unable to find one that I can use. The search engine is not very helpful either. Can anyone provide me with a link to a witness statement template or good example to save me some valuable time?

Coupon-mad

Look up the three people I mentioned (members list) and simply click on their username.

waamo

Go on, I'm in a kind mood today

http://forums.moneysavingexpert.com/showpost.php?p=71546336&postcount=60

Ironman1354

OK. Here's my first stab at the WS

IN THE COUNTY COURT - Claim No.:!

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-!

*********** (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, XXXXXXXXX of XXXXXXXXX am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

1. Within the required ten minutes of arriving in the car park, my wife purchased a ticket and I placed it in the car and left. The claimant’s operative observed this sequence of events as he had offered to assist me by raising the height restriction barrier in order for me to drive into the car park with a number of bicycles on the roof of my vehicle. On returning to the vehicle, I was shocked to discover a parking charge notice. I looked for the ticket which was lying upside down on the dashboard. Unfortunately it had been a windy day and the ticket must have blown over after the door was shut.

The ticket!did not have a sticky back and there was no way of keeping it securely on the dashboard.
It was clearly unfit for purpose in this seaside location car park.

As members of the British Parking Association, you will also be aware that adjudicators cancel council tickets for such a failure.

The only reason the ticket did not remain in place was the Claimant’s poor choice of stationery


2. I assert that reasonable actions were taken to comply with the terms and conditions. A valid ticket was purchased for the period of stay and, to my best knowledge, was visible when the Claimant's operative inspected the vehicle.!

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

To this end, I 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. I deny that the original terms and conditions were breached. Even if they were breached, 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 me, by stating unequivocally, that if proof of the ticket was sent to the email address provided, the parking charge notice would be cancelled. I am therefore bound by that contract variation or new contract.!

4. 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.

5. I assert 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.

6. 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.

7. I have 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. Indeed, the Claimant initially agreed to cancel the ticket but imposed a £10 charge for doing so which was contrary to what their operative told me at the time the ticket was issued. If the Claimant agreed to cancel the ticket at that stage, I assert that they believed that the terms and conditions of parking had not been breached and they only decided to pursue the claim because of my unwillingness to pay the £10 cancellation charge

8. The Claimant’s operative, despite knowing that a valid ticket had been purchased, continued to issue PCN when the vehicle was left unattended. Therefore, I argue 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 vehicle door.!

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

10. 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. I reasonably belief that the sum is simply a number made up out of thin air, and an attempt at inflated cost 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.

11. 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.

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

13. A valid ticket was paid for and displayed in good faith according to the terms of the car park. I had no desire whatsoever to be forced to spend the necessary time and energy combatting this case in court – but I have been forced to.

14. 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.

15. I deny 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.

16. 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 representative’s costs". These cannot be recovered in the Small Claims Court.

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

Coupon-mad

Looks good to me (although you haven't listed your evidence, what are you relying on as attachments and to take with you?).

I saw some repetition about the Beavis case you could weed out or amalgamate.

Just a suggestion here:

The only reason the ticket did not remain in place was the Claimant’s poor choice of stationery and the prevailing weather conditions at this windy car park, both issues outside of our control. If anything the contract was frustrated by the weather and we had made every effort to comply with the requirements. We reasonably relied upon the conversations with the operative on site and we know that he watched us pay and display, and we are horrified that he seized an opportunity to 'fine' us in a predatory way, contrary to the IPC Code, then lied about how to resolve it.

Equally shocking is that Excel are using a generic BW Legal Witness Statement from a person who has no knowledge of the event, and have not even asked the parking operative to give his recollection in any statement. Obviously I reasonably conclude from this that the Claimant must therefore be considered to accept our version, which is the truth, and are not sending the real witness to the hearing, to avoid him being questioned in open court.

Ironman1354

Thanks. That's fantastic. I will certainly incorporate that wording into my WS.

In terms of supporting evidence, I have:

Exhibit A: The photograph of the parking ticket which was emailed to Excel after the PCN was issued.

Exhibit B: Photographs of the signage at the entrance to the car park.

Coupon-mad

Not really liking this sentence, which isn't right:

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.

Lamilad

Minor wording change here which is a bit more 'court-esque'

"2. I assert that all reasonable [strike]actions[/strike] endeavours were [strike]taken[/strike] made to comply with the terms and conditions.

Agree with CM, def remove the above para

Ironman1354

Yesterday I was taken to the small claims court by Excel Parking and I won!!!!

The main point in the case came down to the signage in the car park. Whilst it stated in the terms and conditions that a ticket should be displayed with the date and time visible, it did not state that a PCN could be issued for failure to display a ticket correctly. Therefore, I won the case.

I hardly had to say anything in Court. Instead the judge grilled the Legal rep for Excel. I got the impression that the judge was sick of having his time wasted by these pathetic claims.

I would like to thank everyone on this forum who has contributed to this thread and my defence. Yesterday was extremely satisfying and I'm very grateful for your input. I could not have won this without you. Thanks!