Appeal dismissed by IAS

Snakes_Belly

I have just posted my amended Defence. It the numbering has gone a bit haywire when posted however it's ok on my word copy. I have included the Vine Case, the Martin Cutts article, the lack of compliance of the MyParkingCharge notice and a mention of the alteration of evidence in the Skipton case.


I was unsure whether to include Prendi because Prendi claimed that the nearest meter was one mile away. The lead adjudicator of Popla decided this case and made some relevant points. In my case it was not the distance but the fact that the other meters were not visible or signed. They were also in the corporate colour of the Travelodge. The lead adjudicator stated that Prendi should not have to tramp around looking for another meter which may have different tariffs and terms and conditions. The meter that was visible belonged to the Lower Station Car Park and did have a different tariff and was subject to byelaws.

Coupon-mad

In my case it was not the distance but the fact that the other meters were not visible or signed. They were also in the corporate colour of the Travelodge.

Did you say this clearly in the defence? We need to read this tomorrow.

Snakes_Belly

Thanks for your reply CM. I was going to bring this in with the Prendi case which although a Popla decision was made by the lead adjudicator.


The set up at the Derby Street Car park is complex. It appears that Excel pay the franchisee of the Travelodge a fixed amount for a set period. The franchisee of the Travelodge does not own the land.


The car park at the front and sides of the Travelodge serves the Travelodge and the general public (mainly rail travellers). It's a long stay car park. The visitors to the Travelodge have a permit which is from 6pm until 8am. Then they have to pay so have to nip out and put money on their car. As you can imagine this creates a lot of problems and there are numerous complaints on Trip Advisor but that is another issue.


So at 8am in the morning you have a situation where the visitors to the Travelodge and the rail users are using the machines. Given that there is only one machine that is clearly visible this must have filled up with coins and gone out of service when I arrived.


There are two other machines which I only became aware of when I saw a layout of the car park that Excel used in the IAS appeal. I went to Burton to see for myself as I could not understand how I could have possibly missed the machine at the front of the building.


The reason that I did not see this machine is that it is has no 'Pay Here' or board or anything other than the metal box which is painted in the same blue as the Travelodge's corporate signs. The ticket machine is attached to the wall next too a fire door. Either side of the ticket machine are two blue rubbish bins painted in the same blue colour as the ticket machine. The fire door is sometimes open and staff stand outside having a cigarette break. Deliveries are taking place and on the day I took the photographs there was a laundry van parked by the ticket machine.


At the back of the building is the Lower Station car park. Excel have a few spaces at the back. I was not aware of this. There is another ticket machine attached to a wall at the back of the Travelodge but this is obscured by the protrusions that form part of the building (It's a listed building which was an old grain store). On the day in question I walked around part of the building and only other ticket machine I saw belonged to the Lower Station Car Park. By the time I had faffed about trying to find a working machine time was running out for me to catch the train otherwise I would have moved the car.

Snakes_Belly

Further to the above I thought that most of it would be more relevant to my WS but I wanted to try and bring in the Prendi case as the adjudicator said that Mr Prendi should not have to be tramping the streets to find a working meter. He indicated that each case should be judged on it's merits. I felt like I was on a treasure hunt that morning, chasing around and asking people.

I had also been out for around two hours and had drunk quite a lot of water when I had to stop because of the migraine.

Snakes_Belly

https://imgur.com/a/rKuqKhd

This is not the actual sign but similar to the main sign by the machine that was not working. The ticket machine by the fire door is just like the blue metal box but with no signage at all. Either side are two blue rubbish bins which are in the same blue colour. You could take the machine for a cigarette butt receptacle without any signage and especially as there are people taking a cigarette break outside.

On Excel's plan of the car park they say that all machines have 'Pay Here' signs but they don't. I have photographs showing the date and time on the machine in question. Even if they have put a sign up since I have this covered.

Coupon-mad

The reason that I did not see this machine is that it is has no 'Pay Here' or board or anything other than the metal box which is painted in the same blue as the Travelodge's corporate signs. The ticket machine is attached to the wall next too a fire door. Either side of the ticket machine are two blue rubbish bins painted in the same blue colour as the ticket machine. The fire door is sometimes open and staff stand outside having a cigarette break. Deliveries are taking place and on the day I took the photographs there was a laundry van parked by the ticket machine.

At the back of the building is the Lower Station car park. Excel have a few spaces at the back. I was not aware of this. There is another ticket machine attached to a wall at the back of the Travelodge but this is obscured by the protrusions that form part of the building (It's a listed building which was an old grain store).

On the day in question I walked around part of the building and only other ticket machine I saw belonged to the Lower Station Car Park. By the time I had faffed about trying to find a working machine time was running out for me to catch the train otherwise I would have moved the car.

On Excel's plan of the car park they say that all machines have 'Pay Here' signs but they don't. I have photographs showing the date and time on the machine in question. Even if they have put a sign up since I have this covered.

Sounds like you do have that covered. And you can expand on it all, at WS and evidence stage.

Your defence needs numbering from the very start, every paragraph, like this (I have moved the paragraphs about the 'facts are' up higher so the Judge sees the facts sooner, and have removed mention of the 'document' being called 'MyParkingCharge' because it isn't one, so IMHO, don't use their term):

DEFENCE

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

2. 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.

3. It is believed that that claim relates to a purported debt [STRIKE]as the result of the issue of a MyParkingCharge notice[/STRIKE] 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.

4. The facts are that the Defendant was rendered (by fault of the Claimant) 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.

5. The Defendant was unable to make payment due to the Pay & Display Ticket ('PDT') machine being out of service. [STRIKE]and therefore making it impossible to fulfil the consideration element of the contract.[/strike] No signs were seen for any other pay machines and despite illness, the Defendant made a concerted effort to find an alternative which simply was not 'there to be seen'. 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.

6. A misleading yellow envelope, impersonating authority but stating [STRIKE]MyParkingCharge notice was left on the windscreen of the Defendant’s car on the day of the alleged contravention. The document states that[/STRIKE] ''this is NOT a parking charge notice'' was left on the Defendant's vehicle windscreen that day.

6.1. No PCN was served. [STRIKE]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.[/STRIKE]Clearly, a piece of paper telling a driver ''this is NOT a Parking Charge Notice'' cannot be later relied upon by the Claimant, as if it was a PCN.

6.2. The [STRIKE]MyParkingCharge[/STRIKE] document left in the yellow envelope is not compliant with POF Act Schedule 4 which sets out what a notice to [STRIKE]the[/STRIKE] driver (i.e. a 'NTD' or 'PCN') must say, at the point where the driver is the only person present.

6.2.1. As a minimum the notice MUST state: [STRIKE]has to say[/STRIKE]:
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.
A privacy notice regarding how data will be used.

Later in your defence, I would remove this (no need to talk about the situation being 'tested' and the right to reasonable adjustments is not contingent upon receiving disability benefits at all, nor having a Blue Badge - nothing else is required, except the medical need):

Whilst this has not been tested as no benefit has ever been claimed,

The Plain Language Commission needs capital initials!

And here, add the case details:

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, this same Claimant - Excel Parking Services Ltd - were reportedly held to have altered/tampered with PDT machine evidence, in the decision made by a Skipton Court Judge, and then afterwards the facts were restated in the order by HHJ Gosnell declining Excel's appeal (ref: Excel v Ambler, case no. E1DP2061). [STRIKE]was found to have materially altered evidence. [/STRIKE] The Defendant does not believe that any such records in this case would have any credence and has therefore not requested them, as the Defendant has no confidence in the conduct of this Claimant.

Snakes_Belly

Thank you very much CM. I will get it altered and sent.

onlyfoolsandparking

Having read ALL of this thread now (PHEW!! good job I'm not working for next 2 days lol) I just want to say I think your doing fantastic Snakes Belly and although I'm not experienced enough to offer advice, I fully support what you are doing I too am dealing with Excellent parking and I look forward to reading how you SMASHED EM!!!!! in court.

Snakes_Belly

Thanks, but I could not have got this far without the help of the great people on this forum.

onlyfoolsandparking

Snakes_Belly wrote: »

Thanks, but I could not have got this far without the help of the great people on this forum.

Well yes goes without saying (and I meant to mention the great help everybody get from the experienced posters in my post to you)