Excel/BW Legal Claim – paid before leaving

Dominique1967

Hi,

I am now being taken to the small claims court for non-payment of a PCN I refute I should pay. I have written a defense statement for the hearing on 25th May but have been advised by a friend to seek help from your forum.
Any advice gratefully received. Does it seem that I have a chance? Any threads I should read up on?




Dear Sir/Madam,
1. I refute Excel Parking Services’ claim that I should pay a Parking Charge Notice (and ensuing costs) for parking in The Square in Chorlton on 26 April 2012

2. I parked my car and, being late for a medical appointment for my (then) baby, I decided to attend the appointment first and pay later. After my appointment I went to the machine, entered my car registration number and paid the fee that was due, i.e. £1 (valid for 2 hours of parking time). I then drove off.

[FONT=&quot]3. [/FONT][FONT=&quot]After I received a PCN from Excel Parking Services, I emailed back by return to appeal the charge (copy of e-mail below), explaining that I had paid and there was therefore no unpaid charge. I included a scanned copy of the ticket I had purchased, showing my car registration number. [/FONT]

[FONT=&quot]4. [/FONT][FONT=&quot]I then ignored further demands for payment from debt collectors.[/FONT]

[FONT=&quot]5. [/FONT][FONT=&quot]BW Legal’s letter (dated 19 July 2016) states that I failed to “raise an appeal within 28 days from the date of the PCN”. This is incorrect. I appealed straight away as as my e-mail below shows.[/FONT]

6. [FONT=&quot]The claim (Claim Form N1SDT, issue date 13 Dec 2016) states the PCN was issued at 16:33 on 26/04/2012 – the parking ticket I purchased shows 17:59 as the time “valid until”; the validity being 2 hours, the ticket was valid at the time the PCN was issued. [/FONT]

[FONT=&quot]7. [/FONT][FONT=&quot]I acted in good faith; I never intended to cheat Excel Parking Services, as is obvious from my actions: I paid before leaving the car park. I genuinely thought this would be acceptable to them as they received the fee they were entitled to from me before I left. [/FONT]

[FONT=&quot]8. [/FONT][FONT=&quot]The description of the contravention “parking without displaying a valid ticket” is irrelevant for a carpark which is unmanned and managed with a camera system – there is no need to display the ticket once purchased. [/FONT]

[FONT=&quot]9. [/FONT][FONT=&quot]Excel Parking Services is using a technicality, that is to say the letter rather than the spirit of it. The spirit of the contract is that users pay for the service that Excel Parking Services provide – I did pay for the service they provided me with on the day in question.[/FONT]

[FONT=&quot]10. [/FONT][FONT=&quot]My situation may be unusual, as people who do not pay on arrival typically do not intend to pay at all. However, when I e-mailed Excel Parking Services explaining what had happened – and that I had indeed paid – human intervention should have stopped the automated process of chasing unpaid PCNs. [/FONT]

[FONT=&quot]11. [/FONT][FONT=&quot]There is no unpaid charge and no loss of earnings for Excel Parking Services. [/FONT]

[FONT=&quot]12. [/FONT][FONT=&quot]The claim is unreasonable and I do not see any grounds for Excel Parking Services to receive compensation for a financial loss which did not occur.[/FONT]

[FONT=&quot]13. [/FONT][FONT=&quot]I believe that the facts stated in this witness statement are true.[/FONT]

[FONT=&quot]Signed and dated by me.[/FONT]

Redx

that does not look anything like a defence

it DOES look like a witness statement

as you have a court date set, then you will have already submitted a defence, so you might as well copy and paste it on here , for further help

yes, there are plenty of court case threads on here and over on pepipoo forums you should read up on

Dominique1967

The notice of allocation to the Small Claims Track requires a statement (as well as all other relevant documents) so that's what I have just written. I guess the defense will be the short piece I wrote in the claim form, section 3 Defence (copy below). I feel utterly stupid now to have underestimated how far this claim could go. The whole thing seemed so ludicrous that I never thought it would go as far as actually going to court. With hindsight, the defense I sent seems utterly inadequate. I hope I can make up for it to a certain extent by having a more robust witness statement.



Defence I sent: I deny Excel Parking’s allegation that I did not pay the parking fee due on 26 April 2012. Therefore, the parking charge notice (PCN) was issued in error, as I had paid the appropriate parking fee of £1 before driving away from the car park. Their camera records will show this, if such records are kept.
I have kept the parking ticket (shown below) displaying clearly that I was allowed to park in The Square, after having paid £1. I informed Excel Parking Services of this as soon as I was notified of the PCN, i.e. on 8 May 2012. This can be seen from the e-mail copied below. I sent them the scanned copy of the ticket I had bought in jpg format.


[FONT=&quot]There is therefore no “unpaid charge” and hence no loss of earnings for Excel Parking Services: the company received the money to which it was entitled before I left the car park[/FONT]

Redx

I agree , that defence is totally inadequate , but you cannot change it without paying exorbitant charges , which is why you should have come here sooner and drafted a much stronger defence in the first place

so your initial post was misleading (as I suspected) , because you had already put in a defence (the one you posted in post #2)

so I suppose we should be asking you what type of help you now require seeing as its too late to put in a robust defence ?

ps:- let us hope that the judge believes your honest account and you are successful

Dominique1967

I also wish I'd seen this forum sooner!

Now, if possible, I would like help on the type of arguments I can use: Will the fact that there is no unpaid fee carry any weight with the judge in your opinion? Can I claim that the contract terms are unreasonable - paying immediately; that contract terms should allow the user to put things right before leaving (if overstaying for example).

Lamilad

You've not left yourself with many options. You've admitted being the driver so 'pre-pofa' is a no go. and you haven't mentioned anything about signage or their right to issue tickets on that land in your 'defence' which would have been the other strong arguments.

You can try 'variation of contract' in that by accepting your payment at the time you offered it they have accepted a different version of the contract that was initially offered (I take it they haven't refunded the money you paid for the ticket?)

You're gonna have to run a little 'fast and loose' with your witness statement/ skeleton argument and get some good points in there even if they weren't in your defence. As an unrepresented litigant in person you should be allowed some leeway by the court - just how much depends on which judge you get.

Read post #2 (small claim) of the newbies sticky thread at the top of page 1, it tells you what to expect and what you need to do and the links give you examples of 'what good looks like'

Redx

good point

variation of contract was discussed in this thread

https://forums.moneysavingexpert.com/discussion/comment/71812721#Comment_71812721

so by accepting the coins during or at the end of the parking event they are deemed to have accepted a different contract by acceptance of the correct parking fee BEFORE the customer left the car park

Coupon-mad

I don't think this is irretrievable; the defence could have added a lot more and should not have admitted the driver but it did, so you are where you are. This is worth fighting, especially as you still have the P&D ticket from 2012.

I would submit that witness statement and a copy of the ticket as evidence. I think you are saying you made the payment for two hours before leaving (rather than on arrival) which seems reasonable. Especially if, on arrival, it was not clear how/where to pay and display or even of it was a P&D car park at all and this was only seen when returning to the car, because the signs are sparse and the odd P&D machine hidden behind cars in a corner with no prominent arrow to point you to it.

Lord Denning's 'red hand rule' applies if the terms weren't seen when parking; Google it and use it if this was the case for you.

yotmon

They will argue that yes, you have paid for a period of parking but not for the period you were parked ! It sounds ridiculous, but that's how they operate.

Back in 2012, their ANPR system wouldn't have been sophisticated enough to calculate a late payment so a charge was automatically issued. They could have cancelled the charge when you appealed but then they wouldn't make any money out of it. You gave them what they wanted - the name of the driver (pre-pofa) and so they are now going for the jugular !

Are you a regular user of this car park and have you previously made a late payment that didn't result in a parking charge ? If so, then it could be used as part of your defence. I'm assuming that you were aware that the car park was unmanned, otherwise you would have expected to find a parking ticket on your vehicle. You need to point out that you knew (prior to parking) that anpr controlled the car park and that payment could not be avoided, rather than allowing BW to make out that you made a conscious decision not to make payment but 'chickened out' and made a late payment once you realised that anpr was in situ.

As other posters have quoted, Excel accepted your payment at the time (which has not been returned to you), so you should argue that a new or a variation of contract was formed.

I do hope that you get a judge with common sense, (if they in fact exist) who can see this for the scam it is and that it is a waste of the court's time to be used in this way. Expect that the Judge will ask questions on why you left car park without first making payment so you need to build upon this. Your answers needs to be credible and acceptable without having any hint of dishonesty.

Dominique1967

I like the "variation of contract". I will look into all the suggestions.
Thanks all for your input. I'll keep you posted.

Dominique1967

Update: I won the case this morning


Common sense prevailed (as I see it!) and the judge decided in my favour.

Summary: The claimant went for breach of contract as I didn’t pay on entry.

The judge stated that she found me to be honest. She would have expected the claim to be waived at the appeal stage. Technical breach. Parking fee and PCN would be double punishement. The claim is to be dismissed. My request for expenses was turned down as there was a technical breach of contract.

I went for variation of contract, as suggested above in the thread: if parking company only accepts payment within the first 10 mins, they shouldn’t accept payment later. They took my money. I had no reasons to believe this would not be satisfactory to them. She also noted Jolley v Carmel: a party who makes reasonable endeavours to comply should not be penalised when unable to fully comply.


I am very grateful to those who commented with advice. I was able to use that and gather a bit more from the forum. I doubt my defense would otherwise have been robust enough.

Thank you very much to all.

For information, this is the statement I filed:

1. I refute Excel Parking Services’ claim that I should pay a Parking Charge Notice (and ensuing costs) for parking in The Square in Chorlton on 26 April 2012

2. I parked on The Square, where I am a regular user. I know the car park is unmanned, that they have Automatic Number Plate Recognistion and that payment cannot be avoided.

3. I was late for a medical visit for my (then) baby, I feared losing my appoinment and having to wait a considerable length of time with a baby and a boisterous toddler to contend with in the busy surgery’s waiting room. Consequently, I decided to attend the appointment first and pay later.

4. After my appointment I went to the machine, entered my car registration number and paid the fee that was due, i.e. £1 (valid for 2 hours of parking time). I then drove off.

[FONT=&quot]5. [/FONT][FONT=&quot]I received a PCN from Excel Parking Services. I emailed back by return to appeal the PCN (copy of e-mail below), explaining that I had paid and there was therefore no unpaid charge. I included a scanned copy of the ticket I had purchased, showing my car registration number. [/FONT]

[FONT=&quot]6. [/FONT][FONT=&quot]I then ignored further demands for payment from debt collectors.[/FONT]

[FONT=&quot]Arguments:[/FONT]

[FONT=&quot]7. [/FONT][FONT=&quot]BW Legal’s letter (dated 19 July 2016) states that I failed to “raise an appeal within 28 days from the date of the PCN”. This is incorrect. I appealed straight away as my e-mail below shows.[/FONT]

8. [FONT=&quot]The claim (Claim Form N1SDT, issue date 13 Dec 2016) states the PCN was issued at 16:33 on 26/04/2012 – the parking ticket I purchased shows 17:59 as the time “valid until”; the validity being 2 hours, the ticket was valid at the time the PCN was issued. [/FONT]

[FONT=&quot]9. [/FONT][FONT=&quot]BW Legal’s Letter of Claim brings the case of ParkingEye Ldt v Beavis to my attention. This case does not apply [/FONT][FONT=&quot]since parking is paid for in The Square rather than free for a limited period. The judge reasoned that in Beavis, the charge was justifable as it was their only income, whereas in a paid for car park, only the hourly charge is being lost by non-payment or overstaying (e.g. £1); anything above that is a penalty.[/FONT]

[FONT=&quot]10. [/FONT][FONT=&quot]I acted in good faith; I never intended to cheat Excel Parking Services, as is obvious from my actions: I paid before leaving the car park. 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.[/FONT]

[FONT=&quot]11. [/FONT][FONT=&quot]There is a “variation of contract”. If immediate payment of the parking fee is the only condition Excel Parking Services accept, then the ticket machine should refuse payments related to cars that haven’t just driven in. By accepting my payment, at the time I made it, they have created and accepted a different version of the contract they initially offered. This is the parking equivalent of the "Battle of the forms". Butler Machine Tool Co Ltd v Ex-Cell-O Corp Ltd [1977] EWCA Civ 9 shows that in these circumstances the contract variation is deemed to be accepted.I had no reason to suspect that my payment just before leaving would not be satisfactory to Excel Parking Services.[/FONT]

[FONT=&quot]12. [/FONT][FONT=&quot]It would be reasonable to be allowed to put something right before leaving the car park by paying outstanding charges without being issued with a PCN. ICP Code of Practice Part B 14.1 is clear that the Operator must not use “predatory or misleading tactics to lure drivers into incurring parking charges”. [/FONT]

[FONT=&quot]13. [/FONT][FONT=&quot]In the case of ParkingEye vs Cargius, the car park contract allowed to pay outstanding charge before leaving. This seems like a reasonable term to have in a contract. Why is this not in the terms conditions of The Square in Chorlton? [/FONT]

[FONT=&quot]14. [/FONT][FONT=&quot]The description of the contravention “parking without displaying a valid ticket” is not relevant for a carpark which is unmanned and managed with a camera system – there is no justification for demanding that a ticket be displayed once purchased. [/FONT]

[FONT=&quot]15. [/FONT][FONT=&quot]Excel Parking Services is using a technicality, that is to say the letter rather than the spirit of the contract. The essence of the contract is that users pay for the service that Excel Parking Services provide, which is precisely what I did do on the day in question. [/FONT]

[FONT=&quot]16. [/FONT][FONT=&quot]There is no unpaid charge for Excel Parking Services and their claim is unreasonable.[/FONT]

[FONT=&quot]17. [/FONT][FONT=&quot]I believe that the facts stated in this witness statement are true.[/FONT]