Appeal dismissed by IAS

Snakes_Belly

Thanks Beamer,


Yes the Doctor will give me a letter however there is a charge which if I win I can add to the costs. I was hoping to keep costs down.

I had a feeling that they have to prove that the machine was working. I have no confidence in any audit trail that they produce. They would fudge information as they did in Skipton.

beamerguy

Snakes_Belly wrote: »

Thanks Beamer,


Yes the Doctor will give me a letter however there is a charge which if I win I can add to the costs. I was hoping to keep costs down.

I had a feeling that they have to prove that the machine was working. I have no confidence in any audit trail that they produce. They would fudge information as they did in Skipton.

The doc's letter is worth it's weight in gold so go and get one.

Send them a copy advising them that you will show this to the judge and that you expect them to provide proof about the machine.

Let them chew it over and see how they reply.

Forget Skipton, judges are more savvy to the scam nowadays, especially where Excel are concerned

nosferatu1001

State that, as they have called youa liar over your medical condition, you expect to be reimbursed for the letter you only got at their insistence.

The_Deep

You never know, the experienced you have gained by fighting this may well become useful later on. I get the impression that you have enjoyed the battle.

Coupon-mad

They will get your medical evidence when you submit (to the court and the Claimant) your WS though, won't they, and surely the deadline is nearly up if they've sent theirs?

As I said 10 days ago:

Don't forget to show us your WS in good time.

Snakes_Belly

CM, I am working on the WS at the moment and will post it for you to see. Their witness statement arrived yesterday. I have just under four weeks so the WS needs to be sent by the end of the week.

Snakes_Belly

WITNESS STATEMENT



I, XXXXX, of XXXXXXXX, will say as follows:

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked to which I will refer.

Before I describe what happened on the day I parked in the Derby Street car park, I confirm that the essence of my defence to this claim is that:

a) I did not enter into contractual agreement with the Claimant whether by express, implied or by conduct.

b) That I was rendered (by the fault of the claimant) unable to enter into a valid and binding contract as I was unable to fulfill the consideration element of the contract due to the failure of the Claimant’s equipment and inadequate signage. The contract is therefore frustrated and void.

c) Given the very difficult circumstances that I found myself in on that day I consider that I did everything in my power to find an alternative means of payment and made reasonable endeavours to comply with the contractual terms.

1. On the 2nd August 2017 I left home in H just before 9.00am to drive to Burton on Trent in order to catch the train to Nottingham as I had some business to conduct which was time critical. During the journey to Burton on Trent I developed a migraine and had to pull over and take some medication. The migraine causes a visual disturbance called an aura and I had to wait for this to pass before I could resume my journey. I also drank some water as it is important to keep well hydrated during a migraine attack.

Many people assume that a migraine is a bad headache. It is in fact a neurological condition of which a headache can be a symptom. The Claimant has asked for evidence of my condition. I have already provided details of the medication that I am prescribed for prevention and for attacks. The regular medication for prevention is only used in chronic cases. My doctor is happy to issue a letter confirming my condition. There is a charge for this and I will be including this in my costs as Excel have requested this.


2. When I arrived at the Derby Street car park in Burton on Trent it was approximately 10.22 am and whilst I had missed the train that I intended to catch I was in time for the 10.48 am train to Nottingham. This train would have arrived in Nottingham with enough time for me to catch a tram out of Nottingham and conduct my business.

3. The car park that is managed by Excel serves mainly visitors to the Travelodge and travellers using the station. Excel’s parking bays are mainly at the front of the building and this area is interspersed with several workshops and a micro brewery/pub. There are some spaces skirting the building and some spaces in the Lower Station car park. I was unaware at the time of these spaces that were located in the Lower Station Car Park. I have used the Lower Station car park previously before Excel had some spaces marked out at the back of the building. The car park is ambiguous and confusing to a person who is not familiar with the car park.


4. I parked my car and attempted to buy a ticket however the coins fell through the machine. The same happened when I tried again. I noticed that there was a message on the display saying that the machine was not operational. I think that the machine was probably full and had not been emptied. The time was just before 10.25 am. The notice boards contained huge amounts of text in a small font however I remember seeing either on the machine or board that in the case of the machine not working to use another machine. There was no option to pay by credit or debit card and the only other option was by a smart phone application called RingGo. As I was not in possession of a smart phone/mobile phone cash was my only option.

5. The Travelodge issues evening permits to visitors which expire at 8.00am the following morning. This means that anyone staying in the Travelodge after 8.00 am must obtain a parking ticket. Coupled with the motorists that would be using the station at that time in the morning it is reasonable to believe that the machine at the front of the building with the ‘Pay Here’ sign would fill up with coins quickly. The Travelodge receives many adverse comments on Trip advisor with regard to this car park.

6. I did not just take a cursory glance around but had a good walk around the car park. I did not though walk all around the Travelodge as from my view I would have been entering another operator’s car park. I did walk across to the workshops in the railway arches and asked several people if there was another ticket machine and they pointed to another operator’s ticket machine. It was reasonable to assume that people that worked on the site would be more familiar with the car park. There were also a number of parked cars that were not displaying tickets.

7. I must have spent over 10 minutes trying to pay and find a ticket machine and had to make a decision as to whether to return home or leave a note on the car. I was still feeling the after effects of the migraine and desperately needed to use the ladies in the station so I left a note on my car and thought that common sense would prevail. It was never my intention to avoid payment and I strongly refute any suggestions made by the Claimant that this was the case.

8. I genuinely thought that I would be able to sort this matter out with the parking company as they surely should take some responsibility for the failure of their equipment. Excel commented that had I contacted them by telephone at the time they would have sorted something out. Why would it have been so difficult to sort something out a few hours later? Other organisations such as Merseyflow allow up to 11.59 pm on the day after crossing, to make payment for the crossing. Had Excel been more reasonable I may have been prepared to pay a small admin fee.

9. I travelled into Nottingham and conducted my business arriving back in Burton on Trent mid afternoon. I noticed that there was a yellow envelope on the windscreen which stated that it was not a parking charge. I did not really understand the purpose of this notice. When I arrived home I did try to telephone Excel. I logged onto the website stated on the notice placed on my car. A claim had already been initiated to which I appealed immediately.

10. During the appeals process I saw a layout of the car park and where the ticket machines were sited. I visited the car park again and took some photographs. The car park is very ambiguous particularly at the back of the Travelodge as it is shared by two operators. The ticket machine near the fire door at the front of the Travelodge is not signed with a ‘Pay Here’ sign and board. It is in fact a blue metal box between two bins of the same blue Travelodge corporate colour. I would not have expected to see a ticket machine attached to a listed building of historic importance. If this machine had been signed with a Pay Here’ sign it would have been more visible and I would have been able to obtain a ticket (assuming that it was operational). This machine is located near a fire door which may have been open on the day in question thus blocking my view. The photographs taken by Excel in their witness statement show the car park empty. On the day I took the photographs there was delivery van blocking the view. I cannot say what the situation was regarding the fire door or deliveries on the day in question but I looked for another ticket machine and the only other one visible to me belonged to the Lower Station car park (another operator).

11. After the appeals process I wrote to Excel and requested that my information was not passed to third parties. They ignored my request and I subsequently received a number of letters from several collection agents. I acknowledged the first letter and advised that the claim was disputed but they still persisted harassing me with letters. In their witness statement the claimant sites Chaplair Limited V Kumari (2015) EWCA 798 stating that the maximum amount that can be charged for debt recovery is £60.00. I made it quite clear to the Claimant that I would not engage with debt recovery agents as I disputed the claim. DWP work on no fee basis. As the collection agents did not collect any debt then this is abuse of process by the Claimant.

12. The conduct of the collection agents employed by Excel is totally unprofessional. They are unregulated and do not follow FCA rules. Letters are made to look menacing and suggest that the debt has been sold. I did complain to Citizen’s Advice about these letters and they forwarded the complaint to Trading Standards.

13. Ultimately I received a Letter before Claim from the Claimant. This letter did not comply with the Protocol. I made numerous requests for information and this was ignored by the Claimant. Specifically, I requested that the Claimant established themselves as the creditor by evidencing that they had the authority from the landowner to pursue claims for parking infringements through the courts. In their witness statement Excel have provided a document signed by an officer of the company. This is not authority from the landowner/leaseholder. There have been several POPLA cases recently that have been dismissed because of lack of evidence that the Parking Company has the authority from the landowner. Defendant cites VCS v Ronald Ibbotson. VCS is a sister company to the Claimant. There is no evidence that Excel is paying business rates on the car park as leaseholders. I therefore put Excel Parking Services on notice to provide this information.

14. The Claimant requests that I provide evidence that the machine was not working. It not a requirement of the defendant that they provide this evidence. It is down to the Claimant to evidence that their machine was operational at approximately 10.24 on the 2nd August 2017. I therefore put the Claimant on notice to provide records of the activity on all machines and maintenance records of when the machines were emptied.

15. With regard to the signage at the Derby Street Car Park there are a number of signs indicating that the car park is a pay and display car park. A motorist would have to enter the car park before they would see the signs indicating that it was a pay and display.

16. The Claimant sites Thornton V Shoe Lane Parking 1971 2QB163. I do not see this case as being relevant only relating to a car park with a barrier. The sign which forms part of the contract is visible at the point of entry whilst the car is stationery whilst waiting for the barrier to open. Reading signs whilst driving would amount to driving without due care and attention.

17. I do not dispute that the car park was a pay and display. What is in dispute is that a contract was formed between Excel Parking Ltd and myself. What was not clear by the signage is that I was entering into a contract that would require me to pay £100.00 if not displaying a valid ticket. The Claimant states that I should have been aware of this. I have never received a parking ticket from a private parking company before in all my years of driving. I rarely park on private land so I would not have knowledge of PPC's terms and conditions.

18. The signage at the Derby Street Car Park is inadequate to form a contract with the motorist failing the ‘large lettering’ requirement and as such any contract is denied. The signs contain a very large amount of detail and information in very small print.

I refer 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.’

19. 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.

20. The brash colouring of the signs also makes the lettering difficult to read for a person suffering from light sensitivity and visual impairments. The bright blue and bright yellow does not conform to the IPC Code of practice which states. “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”.

21. I was suffering from photophobia as a direct result of a migraine with visual disturbances that had occurred shortly before the alleged contravention. The effects of the migraine resulted in light sensitivity and eye strain and made the reading of small text quite difficult and painful. Whilst I was not in possession of a smart phone, to view screens in the aftermath of a migraine attack is likely to trigger off the visual disturbance again. Without the preventative medicine that I take regularly I would not be able to go about my everyday activities and tasks. I would be in a darkened room. Whilst driving I was wearing dark distance glasses. I also have glasses for glare at night.

22. Disability is a protected characteristic as defined by the Equality Act 2010. I would be able to establish my condition as a protected characteristic under the Equality Act 2010 as it meets the criteria. As I have not claimed any benefits it has not been necessary to do this.
In relation to paragraph 50 of the Claimant’s witness statement I do strongly object to the trivialisation of my condition by the ignorance of the Claimant.

23. I cite Marina Helen Vine -v- London Borough of Waltham Forest [2000] EWCA Civ 106; [2000] 1 WLR 2383 5 Apr 2000 The basic facts of this case are that Miss Vine had not seen the signs that wheel clamping was in operation. She had therefore not consented to the clamping of her car.

24. The Excel signs that related to the contract and charge for breach of the contract were part of a sign which contained a huge amount of text in small print and brash colours and as such I was not aware that I was entering into a contract with the Claimant. I did not either see any signage relating to an alternative ticket machine which would have enabled me to make payment.

25. I cite the decision made by POPLA lead adjudicator Henry Michael Greenslade in the case of Prendi V Camden Council 2010. Henry Greenslade states ‘Going too far away from the parking place may indeed involving entering a different parking zone where, restrictions and charges could differ.’ The Lower Station car park is subject to railway by-laws, has different terms and conditions and different charges. Henry Greenslade also states that with regard to faulty ticket machines, ‘each case will turn on its own facts’.

26. I cite the case Port Talbot: 19-10-2016: C1GF37H7: Link Parking v Mr N. The defendant (Mr N.) 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.

27. In relation to paragraph 59 of the Claimant’s witness statement the claimant refutes my allegations of poor customer service and equipment failure. These are not allegations but fact backed by case law. They are an ex clamping company who have a track record for not maintaining their equipment. In a recent case at Skipton (Excel v Ambler, case no. E1DP2061) they were found to have materially altered evidence.

I note that the Claimant seems to be missing page 4 of my defence that was sent on the 29th September 2018. I thoroughly checked this before posting and notice that page three has been duplicated during the scanning of the original document, I therefore assume that page four was lost during the scanning. I will however email a copy of the Defence to the Claimant.

Snakes_Belly

I have posted up my first draft WS. I need to do a bit more work on it yet and number the attachments etc. The tome that I received from Excel is taking some working through (80 pages). I refer to it as article 50. Much of it is repetition.

The main thrust of their argument is that I should have been aware that I was entering into a contract. They mention the Beavis case in relation to the formation of the contract.

Thank you.

BrownTrout

Snakes belly which county court is this going to be at please ?

Fruitcake

Just a couple of minor points.

Para 13 should read PoPLA or POPLA, not POPA.

Para 17, don't ask a question at the end. Make a statement that you would not have detailed prior knowledge of terms and conditions, or words to that effect.