Appeal dismissed by IAS

Snakes_Belly

• 
  
  
  
  • IN THE COUNTY COURT CLAIM NO. XXXXXX
    
    BETWEEN:
    
    
    Excel Parking Services Limited Claimant
    and
    XXXXXXX XXXXXXX Defendant
    
    __________
    DEFENCE
    __________
    
    
    
    
  
  
  
  • The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
    
    
    
  • Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
    
    
    
  • It is believed that that claim relates to a purported debt as the result of the issue of a MyParkingCharge notice in relation to an alleged contravention by the driver of the vehicle XXXX XXX when it was parked at Derby Street Car Park, Burton on Trent, Staffordshire, DE14 2JJ on XXX.
    
    
    
  • The defendant suffers from chronic migraine and has a full medical history of this condition. Whilst this has not been tested as no benefit has ever been claimed, the condition does meet the definition of disability in the Equality Act 2010. This means that a service provider must make a reasonable adjustment to cater for people with protected characteristics whose condition causes them to take longer to go about daily life. On the day in question the Defendant developed a migraine with an aura whilst driving to Burton on Trent in order to catch the train to Nottingham. The Defendant had to pull over, take medication and wait until safe to continue the journey. When the Defendant arrived at the Derby Street car park they were still experiencing the effects of the migraine.
    
    
    
  • The facts are the defendant was unable to enter into a valid and binding contract as the defendant was unable to fulfill the consideration element of the contract due to the failure of the Claimant’s equipment and inadequate signage.
  • 
    
    
  • The Defendant was unable to make payment due to the machine being out of service and therefore making it impossible to fulfil the consideration element of the contract. The contract is therefore frustrated and void. 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.
  • 
    
    
  • The defendant believes that every effort in their power was made to comply with the contractual terms. After arriving still suffering the effects of the migraine the defendant found the parking meter out of service. The defendant did take a good walk around but there was not another machine visible. The defendant also enquired of people employed in the workshops and was directed to a machine that belonged to another operator. The defendant also noticed that a number of other cars were not displaying tickets. It was therefore reasonable to place a notice on the windscreen which advised the Claimant’s employee why payment had not taken place. There was never any intention on the Defendant’s part to avoid payment.
  
  
  
  • The Claimant stated in response to the Defendant’s appeal that payment should have been made by the Smartphone application RingGo. This assumption by the Claimant that everyone has access to a Smartphone is discrimination against older members of society. The assumption by the Claimant that everyone has the technical skills to set up an application, open an account and pay for parking within the grace period is also discrimination against older members of society.
    
    
    
  • The Claimant also stated in response the Defendant’s appeal that the Defendant should have left the car park upon being unable to make payment. The defendant had business to conduct in Nottingham that was time critical. Moving the car after spending time trying to pay for parking would have meant that the defendant would have missed the train. Moving the car was not an option unless the defendant took the hour drive back to their home.
    
    
    
  • The defendant cites the case Port Talbot: 19-10-2016: C1GF37H7: Link Parking v Mr N. The defendant (MrN.) was unable to purchase a ticket due to a faulty machine. The Claimant stated that Mr N should have moved his car. The judge ruled that frustration of contract applied and that Mr N had attempted to fulfil his contractual obligations but could not because of the broken machine. The claim was dismissed. Whilst the defendant is aware that this case has not set a precedent the case is relevant.
    
    
    
  • The Claimant did not respond to the Defendant’s multiple requests for further information as section 5 of the Protocol, Disclosure of Documents.
    
    
  • The defendant now puts the Claimant under strict proof to provide a copy of the contract with the landowner authorising Excel to offer contract for parking in their own name and to pursue unpaid parking charges through court proceedings on the material dates. A contract which allows the Claimant to issue charge notices is insufficient. The contract must contain authority for the Claimant to pursue the charge though the courts. The Defendant cites, PACE Recovery and Storage v Lengyel. C7GF6E3R. (Full transcript).
    
    
  • The signage at Derby Street Car Park is inadequate to form a contract with the motorist failing the 'large lettering' requirement and as such any contract denied. The signs contain a very large amount of detail and information in very small print. The brash colouring of the signs also makes the lettering difficult to read for a person suffering with light sensitivity and visual impairments. The bright blue and bright yellow does not conform to the IPC Code of Practice which states that.
  
  
  i.“The colours used on signage should be such that the contrast between the background and the text makes the wording on the sign clearly legible. Black text on a white background or white text on a black background will provide a suitable contrast. Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired”. The defendant was suffering from photophobia as a direct result of a migraine with aura that had occurred shortly before the alleged contravention.
  
  
  ii. There was a lack of signage over a ticket machine which is sited in a poor location making it extremely difficult to locate an alternative means of payment in an ambiguous car park that is shared with another operator. The car park is shared with the Lower Station Car Park and there is no demarcation between the two sites. The Lower Station Car Park is subject to railway bylaws, and differing tariffs and terms./
  
  
  iii. It is certain that the Defendant would have exceeded the grace period in attempting to pay.
  
  
  
  • The charge in the Beavis case was considered commercially justifiable as the business model relied on a regular turnover of customers. The car park situated in Derby Road is a long stay car park serving the Travelodge and the station. It is busiest in the morning and there are always spaces.
    
    
    15. The Claimant has artificially inflated the value of the Claim from £60 to £185. The Defendant submits the £60 of added costs has not actually been incurred by the Claimant and that these figures are regardless of facts. This is an abuse of process. The defendant actually wrote to the collection agent DRP requesting that they should refer back to the Claimant as the claim was in dispute. DRP ignored the request.
    
    
    16. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.
    
    
    17. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to court (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2) (g).
    
    
    18. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.
    
    
    19. I believe the facts stated in this Defence Statement are true.
    
    
    Updated version. Numbering is OK on word copy. In places has defaulted into italics when posting.
    
    
    
    
    
    
    
• • 
    

Snakes_Belly

Before I send this off should I send any transcripts of cases or do they form part of the bundle? I was thinking of including the Prendi case as there is a transcript to that and it was a decision by a lead adjudicator. In the Prendi case the adjudicator said that the defendant should not have to tramp around looking for another meter which may have different terms conditions. The Derby Street Car park is ambiguous having a few spaces in the Lower Station Car park at the back of the Travel Lodge. Thank you.

KeithP

Snakes_Belly wrote: »

Still OK for time as MCOL was issued on 31/8/2018.

With a Claim Issue Date of 31st August, and having done the AoS in a timely manner (if not, you still have until 19 Sept to do the AoS), you have until 4pm on Wednesday 3rd October 2018 to file your Defence.

Still over two weeks away, but please don't leave it until the last minute.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

Snakes_Belly

Should I send what transcripts I have with the defence or later with the bundle? To my knowledge there is not a transcript to Link Parking V Mr N. Thank you.

KeithP

Nothing gets sent with the Defence. Nothing at all.

Snakes_Belly

Thanks Keith.

Coupon-mad

You didn't mention in the defence, The Plain Language Commission's article that you want to adduce in evidence later? I would.

Here's an overly long 2017 defence that mentioned that article to rubbish Excel signs. You should also use it in defence and the Plain Language Commission article as a piece of evidence later with your WS...

Also, where you tell the Judge in the defence that you received a 'MyParkingCharge' notice, if you mean this was one of those windscreen pieces of paper from Excel/VCS that say ''this is NOT a parking charge notice'' then you should point this out to the Judge and call out the entire misleading operation.

I assume your defence has numbered paragraphs that just haven't shown here?

Snakes_Belly

Thanks CM for mentioning the 2017 defence.

I was fooled into giving my details by the 'Not a Parking Charge notice'. It gives the impression that you have got chance to sort it out with the PCC but really it's just a way of getting your details.

I have numbered the paragraphs but it changes the format when I paste on this site.

When I sent the rebuttal letter in response to their LBC I did not request any audit trail or machine maintenance records as from past cases they have been known to materially alter evidence. Should I mention why I have not requested this information in the WS? It's possible that they may present some maintenance records that record when the machine was emptied that morning. That would be fabricated but as we know they have form when it comes to altering evidence. I ought to pre-empt this by discrediting them first. I could possibly use the case from Skipton to show that they have materially altered evidence.


I think that their case could fall on lack of landowner authority. They seem to manage a number of Travelodge car parks and may have a blanket contract which covers them all. The one in question does not belong to Travelodge anymore it's now a franchise whereby they still maintain the name.

If they do pull this I shall be quite disappointed now.

Thanks for your help.

Coupon-mad

I was fooled into giving my details by the 'Not a Parking Charge notice'. It gives the impression that you have got chance to sort it out with the PCC but really it's just a way of getting your details.

I know, it's very common, but misleading and you can still tell the Judge that the thing was NOT a 'PCN' at all but a hybrid thing that's neither one thing nor another, so the operator never issued a PCN in fact, and has breached their CoP.

And tell the Judge, if you look at the POFA Schedule 4, it was clearly in the contemplation of Parliament when passing the 2012 legislation, that parking firms MUST either issue a Parking charge Notice - and that is described in the Schedule - or send a postal one if ANPR.

Not a hybrid piece of trash that tricks you into putting in your data and 'appealing'.

You are not at WS stage yet though, this is your defence isn't it?

You have not mentioned Vine in that draft defence either (my post #106). Like the Plain Language Commission article by Martin Cutts, both should be mentioned in your defence IMHO.

Snakes_Belly

• IN THE COUNTY COURT CLAIM NO. XXXXXX
  
  BETWEEN:
  
  
  Excel Parking Services Limited Claimant
  and
  XXXXXXX XXXXXXX Defendant
  
  __________
  DEFENCE
  __________
  
  

• The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
• 
  

• Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
• 
  

• It is believed that that claim relates to a purported debt as the result of the issue of a MyParkingCharge notice in relation to an alleged contravention by the driver of the vehicle XXXX XXX when it was parked at Derby Street Car Park, Burton on Trent, Staffordshire, DE14 2JJ on XXX.

i. A MyParkingCharge notice was left on the windscreen of the Defendant’s car on the
day of the alleged contravention. The document states that this is not a parking charge notice and the Defendant assumed that there was an opportunity to sort the matter out with the Claimant. When the Defendant returned home and logged onto the link a charge had already been recorded.


The MyParkingCharge is not compliant with POF Act Schedule 4 which sets out what a notice to the driver (i.e. a ‘ticket’) must say.

• As a minimum the notice has to say:
• When and how the parking offence took place;
• How much is due;
• What any discount is for prompt payment of the charge;
• How and to whom payment may be made;
• The time and date when the notice was issued; and
• What the arrangements are for the resolution of disputes or complaints - this includes any internal arrangements offered by the parking operator as well as any independent appeals process.
  
  

• The defendant suffers from chronic migraine and has a full medical history of this condition. Whilst this has not been tested as no benefit has ever been claimed, the condition does meet the definition of disability in the Equality Act 2010. This means that a service provider must make a reasonable adjustment to cater for people with protected characteristics whose condition causes them to take longer to go about daily life. On the day in question the Defendant developed a migraine with an aura whilst driving to Burton on Trent in order to catch the train to Nottingham. The Defendant had to pull over, take medication and wait until safe to continue the journey. When the Defendant arrived at the Derby Street car park they were still experiencing the effects of the migraine.
• 
  

• The Defendant’s situation at the time of the alleged contravention is comparable to the case Vine v Waltham Forest in that Miss Vine had found herself in a difficult situation, which resulted in her car being clamped. In both scenarios the signage was inadequate and obscured. As such consent was not given for the clamping of Miss Vine’s car or in the case of the defendant a £100.00 parking charge. Miss Vine won her case on appeal.

• The facts are the defendant was unable to enter into a valid and binding contract as the defendant was unable to fulfill the consideration element of the contract due to the failure of the Claimant’s equipment and inadequate signage.
• 
  

• The Defendant was unable to make payment due to the machine being out of service and therefore making it impossible to fulfil the consideration element of the contract. The contract is therefore frustrated and void. 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.
• 
  
• The defendant believes that every effort in their power was made to comply with the contractual terms. After arriving still suffering the effects of the migraine the defendant found the parking meter out of service. The defendant did take a good walk around but there was not another machine visible. The defendant also enquired of people employed in the workshops and was directed to a machine that belonged to another operator. It is reasonable to believe that people working in the railway arches by the Travelodge would be familiar with the car park. The defendant also noticed that a number of other cars were not displaying tickets. It was therefore reasonable to place a notice on the windscreen which advised the Claimant’s employee why payment had not taken place. There was never any intention on the Defendant’s part to avoid payment.
• 
  

• The Claimant stated in response to the Defendant’s appeal that payment should have been made by the Smartphone application RingGo. This assumption by the Claimant that everyone has access to a Smartphone is discrimination against older members of society. The assumption by the Claimant that everyone has the technical skills to set up an application, open an account and pay for parking within the grace period is also discrimination against older members of society.
• 
  

• The Claimant also stated in response the Defendant’s appeal that the Defendant should have left the car park upon being unable to make payment. The defendant had business to conduct in Nottingham that was time critical. Moving the car after spending time trying to pay for parking would have meant that the defendant would have missed the train. Moving the car was not an option unless the defendant took the hour drive back to their home.
• There are numerous cases in relation to car parks managed by the claimant whereby equipment has not been maintained or faulty. This has resulted in motorists receiving fines and at best is poor customer service and at worst entrapment.
• 
  

• The defendant cites the case Port Talbot: 19-10-2016: C1GF37H7: Link Parking v Mr N. The defendant (MrN.) was unable to purchase a ticket due to a faulty machine. The Claimant stated that Mr N. should have moved his car. The judge ruled that frustration of contract applied and that Mr N. had attempted to fulfil his contractual obligations but could not because of the broken machine. The claim was dismissed. Whilst the defendant is aware that this case has not set a precedent the case is relevant.
• The Claimant did not respond to the Defendant’s multiple requests for further information as section 5 of the Protocol, Disclosure of Documents.

13. The defendant has not requested evidence of the maintenance records at the time of the alleged contravention. The reason being is that during a recent hearing at Skipton County Court the Claimant was found to have materially altered evidence. The defendant does not believe that any such records in this case would have any credence and has therefore not requested them.


14. The defendant now puts the Claimant under strict proof to provide a copy of the contract with the landowner authorising Excel to offer contracts for parking in their own name and to pursue unpaid parking charges through court proceedings on the material dates. A contract which allows the Claimant to issue charge notices is insufficient. The contract must contain authority for the Claimant to pursue the charge though the courts. The Defendant cites, PACE Recovery and Storage v Lengyel. C7GF6E3R.


15. The signage at Derby Street Car Park is inadequate to form a contract with the motorist failing the 'large lettering' requirement and as such any contract denied. The signs contain a very large amount of detail and information in very small print. The brash colouring of the signs also makes the lettering difficult to read for a person suffering with light sensitivity and visual impairments. The bright blue and bright yellow does not conform to the IPC Code of Practice which states that.

i.“The colours used on signage should be such that the contrast between the background and the text makes the wording on the sign clearly legible. Black text on a white background or white text on a black background will provide a suitable contrast. Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired”. The defendant was suffering from photophobia as a direct result of a migraine with aura that had occurred shortly before the alleged contravention.

ii. There was a lack of signage over a ticket machine which is sited in a poor location making it extremely difficult to locate an alternative means of payment in an ambiguous car park that is shared with another operator. The car park is shared with the Lower Station Car Park and there is no demarcation between the two sites. The Lower Station Car Park is subject to railway bylaws, and differing tariffs and terms.

iii. The Defendant refers to the article written by Martin Cutts for the plain language commission in which the Claimant’s signage is discussed.

‘The signs at shopping-centre car parks managed by a leading private parking company, Excel Parking Services Ltd of Sheffield, have come under fire from TV programmes and the courts. While Excel says its signs are models of clarity, they use legalistic language and small print, meaning that many motorists don’t know the kind of contract they are accepting by parking’

‘The judge in a county-court case in September 2011 said signs that had led to thousands of drivers being penalized at Excel’s Peel Centre car-park at Stockport were unclear. She threw out Excel’s claim for loss against a motorist who hadn’t bought a ticket. His defence was that the car-park entrance and signs were set up to make it look as if parking was free (Manchester Evening News, 17 Sept 2011).

Also in the article by Martin Cutts is a comment from Angela Smith, MP for the Claimant’s home area, Sheffield who told the House of Commons:

‘Many of my constituents complain to me that companies such as Excel (no doubt I will get another nasty threatening letter from that company as a result of this speech) fleece customers. Such company’s signage is appalling and they ‘fine’ customers on the basis, sometimes, of parking slightly over a line in a parking space. The signage is so unclear that motorists do not know whether they have broken the rules or not, and the DVLA is passing on the information about these motorists to such companies.’

iv. The Defendant was aware that the Derby Street car park was
a Pay and Display. What was not clear by the signage is that the Defendant was entering into a contract that would require her to pay £100.00 if not displaying a valid ticket. The signs contained a huge amount of text in small lettering.

v. It is certain that the Defendant would have exceeded the grace period in attempting to pay.


16. The charge in the Beavis case was considered commercially justifiable as the business model relied on a regular turnover of customers. The car park situated in Derby Road is a long stay car park serving the Travelodge and the station. It is busiest in the morning and there are always spaces.


17. Defendant submits the £60 of added costs has not actually been incurred by the Claimant and that these figures are regardless of facts. This is an abuse of process. The defendant actually wrote to the collection agent DRP requesting that they should refer back to the Claimant as the claim was in dispute. DRP ignored the request.


18. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.



19. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to court (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2) (g).


20. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


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