Appeal dismissed by IAS

Snakes_Belly

Thanks and amended.

Snakes_Belly

It's Stafford Brown Trout.

Snakes_Belly

In the County Court at Stafford, Victoria Square, Stafford, Staffordshire, ST16 2QQ



Between
Excel Parking Services Ltd. (Claimant)

and

xxxxxx

WITNESS STATEMENT



I, xxxx of xxxx 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 Heath Hayes around 8.45 am 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 about half an hour 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 has 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. Commercial vehicles use this car park which can block vision. 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 board contained a huge amount 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.

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. 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 a 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 cites 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 Excel should not be claiming for this. It 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. Neither is the landowner/leaseholder Travelodge. 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. I cite 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 and maintenance on all machines on the day that the incident took place.

15. With regard to the signage at the Derby Street 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. I knew that the car park was a pay and display from the sign which said £3.00 per day on the bridge that connects the Travelodge to the railway bridge. There are also other non-parking related signs in similar colours which is confusing. The main board by the ticket machine contains a large amount of information some in a very small font. I have seen less information in a mortgage document that a person would read through carefully before signing.

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 therefore I would not have specific knowledge of the terms and conditions of private parking companies.

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 especially on the yellow background. 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.

23. 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.

24. 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.

25. 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.

26. 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’.

27. 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.

28. 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. Excel Parking Services Limited 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 also cite Excel Parking Services v Cutts (2011). In the judgment, with regard to the signage, DDJ Lateef states that “To my mind that suggests that perhaps the Claimant’s real interest lies in a failure to comply”.

29. With regard to paragraphs 33 the Claimant cites Parking Eye v Beavis (2015) UKSC 67. In the Beavis case the penalty charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge. On the notice board adjacent to the ticket machine that was not operational, reference to a charge for breach of terms and conditions is at the bottom of the board in very tiny white font.

30. With regard to paragraphs 77 the Claimant cites Parking Eye v Beavis (2015) UKSC 67. Commercial justification does not apply because the car park generates substantial revenue and therefore it is not necessary to charge large amounts for minor transgressions to make management commercially viable. The cost of parking per day at the Derby Street car park is £3.00. I cite Parking Eye v Cargius. 2014, Wrexham County Court.

31. 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 I 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 at Excel. I will however email a copy of the Defence to the Claimant.

Snakes_Belly

In the post above I have pasted my current draft of the WS. As I am in possession of Excel's 80 page tome my WS has included some responses to their comments and the cases they have cited. I think that I have managed to respond robustly to the cases that they have cited with perhaps the exception of Beavis in relation to commercial justification.

I don't know what the judge will think to Excel's 80 pages. Much of it is irrelevant. They have gone into the POFA and I have admitted that I was the driver.

I just have to do the bibliography. The font is Times New Roman 11. Thanks for all the help everyone and I hope that I can win after all the help that I have been given. That would be the best thanks that I could give, winning.

Coupon-mad

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.

You need to get that letter NOW, and attach it as evidence. You can't add it later.

Snakes_Belly

Will do CM.
Thanks for all your help.

beamerguy

Snakes_Belly wrote: »

In the post above I have pasted my current draft of the WS. As I am in possession of Excel's 80 page tome my WS has included some responses to their comments and the cases they have cited. I think that I have managed to respond robustly to the cases that they have cited with perhaps the exception of Beavis in relation to commercial justification.

I just have to do the bibliography. The font is Times New Roman 11. Thanks for all the help everyone.

Excel sent you 80 pages ???? All over £100 ???

Whether they win or lose now, they have already lost money ?

We know Simon Renshaw-Smith hates to lose but being this stupid, well, he has been pulling the wrong xmas crackers.
EXCEL have been reading this forum just as they did with lamilad who thrashed them in court, infact between him and the judge Excel were given a right royal spanking.

Everything Excel claim they will rely upon ends up in the bin with the courts ..... they have a reputation

Will a judge really read 80 pages, this is not Crown court, it's just a simple county court which is over run with scammers like Excel.

For your defence as an example .... bullet points

* The Beavis Case. Irrelevant in my case as Beavis questioned whether the charge was fair

Plain simple talking is best for a judge, not the verbal diarrhea used by Excel

Snakes_Belly

Beamer, I am not legally qualified but I cannot see the relevance of the cases that they have cited. To use the Beavis case to illustrate the point that a contract is formed by signage when the font on the Beavis signage regarding the charge is about 20 times bigger and prominent than on their signs must be like shooting themselves in the foot.

I had to respond to Beavis as they had included it in their witness statement twice. Once with regard to contract formation re. signage and again with regard to amount of the charge for breach of contract.

Whilst Beavis was bad news in many ways it does clarify what signage should look like to be able to form any legal relations with the driver. I have a copy of the Beavis sign to compare with the 'War and Peace' Excel sign.

Regarding the tome, of the 80 pages there are 23 colour pages which must have cost quite a bit to print.

I have no idea how it will go because judges can be very random but I can only do my best.

Thank you all for your help.

beamerguy

I am not a legal but just use common sense

The purpose of them using other cases is to boggle your mind and it works unless you are a member of this forum

BWLegal went through a phase of trying to scare people with ....
Elliott v Loake and CPS v AJH Films

The courts kept trashing them until they stopped that rubbish.

A judge is as human as you and whilst there are a few that clearly don't understand the scam, more and more judges now realise it is a scam.

Therefore your job is to put doubt in the judge's mind how flawed their claim is .

County courts do not expect you to use legal jargon, they work on facts and you can simply dismiss all their wild claims of other cases in just a few words

The_Deep

Elliot v Loake, which they frequently quote, was a criminal case where a hit and run diver was convicted when flakes of paint found on his car were forensically linked to paint on another vehicle with he had collided.

Why they think that this is pertinent to PCNs only they know.