Defence draft help please - Excel parking

behindblueeyes

!Excel Peel Centre - Court Claim

Hi,

Im after advice regarding a small court claim issued against me by Excel parking in regards to six separate 'Parking Charge Notices' issued at The Peel Centre car park - these span over a time period of 18 months (between July 2014 and Jan 2016).

The total amount claimed is £735 - £100 for each of the PCNs, £60 "Court fee" and the rest is interest - stated in Excels letter!
"The claimant is entitled to claim statutory interest at the rate of 8% persuant to s69 of the County Courts Act 1984 and Fixed costs persuant to CPR 27.14. This includes the fixed costs payable under part 45, namely the appropriate court fee or fees paid by the claimant"


I was not the driver of the car on any of these occasions, other people had access to my car. I am being persued as Keeper of the Vehicle.

I have received letters here and there over the past couple of years regarding the PCNs but I am ashamed to say I just ignored and binned them (followed incorrect advice) so I have no record of dates I received any NTKs etc, which I am aware may put my defence in a weak position.

I received a letter from Excel parking towards the end of August this year, simply stating "Please find enclosed detailed Particulars of Claim, a copy has been filed to The Court"

I was surprised as I had never received a letter prior to court action, where they informed me they would be taking me to court (?Notice of intention for court action)

So I responded to The Court by acknowledging the claim and deferring my defence by 28 days due to having a very busy work schedule.
It will be 28 days at the end of next week and so I urgently need to draft a defence.

Im unsure where I stand in regards to me ignoring the letters, as I dont have evidence of dates of letters etc to show the judge.

Could I ask Excel to provide evidence of these letters in court, with proof of postage/delivery? (Is there not an onus on them to prove I ever received letters - they were never signed for etc)

Looking at previous Court hearings, Excel do not seem to rely on POFA to persue their claim, is this still the case in any recent hearings? - if I am stating I was not the driver on any of these occasions, will the judge dismiss the case on the ruling of "no contract" ?

Thankyou in advance for any help at all

Redx

EXCEL failed to follow POFA2012 so that is one of your main defence points as keeper and yes a judge may well dismiss the claim or claims on that point alone

no they dont have to prove receipt of any paperwork, they can say they posted them and possibly prove it with proof of postage, the letters are deemed "delivered" 2 days later under the law

you can ask the claimant for the paperwork and they should also file copies etc after the DQ stage where you get to see their "evidence and claim" etc

so you will reserve the right to amend any defence based on receipt of the paperwork, so that you can defend yourself knowing what those details are later down the line

you havent deferred your defence by 28 days, you have doubled it from 14 days to 28 days from the action date on the claim form, typically 33 days after the claim was sent

read post #2 of the NEWBIES sticky thread too

and read the LAMILAD threads where he has beaten EXCEL or VCS on similar issues over the last 9 to 12 months

behindblueeyes

I have written a draft defence and would greatly appreciate any input.


IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

EXCEL PARKING (Claimant)

-and-

BEHINDBLUEEYES (Defendant)

________________________________________
I am the defendant and I deny any money owed to Excel Parking in respect of this claim.

I admit to being the Registered Keeper of the vehicle in question (xxxx) on the dates the Parking Charge Notices (PCNs) were issued; however, I deny that I was the driver on any of these occasions. This is relevant because the contract Excel Parking are relying on for the basis of the claim, exists between them and the driver of the car on those dates.

Barrister Michael Henry Greenslade, an experienced previous POPLA Lead Adjudicator, confirmed in 2015 that "It cannot be presumed that the Keeper of a vehicle is also the driver".

The case of Elliot v Loake (1983) is often cited by Excel Parking, however it is a criminal case with forensic evidence, whereby the keeper of the vehicle was also proved to be the driver at the time of an offence (road traffic accident) and thus has no basis upon this case or contract law. This is supported by the ruling of the Judge in Excel Parking v Mr C (Stockport) C8DP37F1, who deemed Elliot v Loake was not relevant in Keeper liability in relation to parking offences.

Another case, The Secretary of State for the Environment, Transport and The Regions v Holt RTR 309 (Divisional Court, 2000) ruled that the burden of proof was on The Secretary of State to prove that the defendant (Holt) was the driver on the date of the offence, and the burden was not discharged merely by showing that Holt was the keeper of the vehicle.

If Excel Parking wish to rely on ‘Keeper Liability’ and pursue myself as the Keeper for liability of the claim, they are required to adhere strictly to the Protection of Freedoms Act (‘POFA’) 2012, whereby "Notice To Keeper (‘NTK’)" letters must
1) Arrive within a certain timescale
2) Include mandatory information for The Keeper. If all the information is not present (As detailed in Schedule 4, Paragraphs 6, 8 and 9 of The POFA 2012) the NTK is invalid.


Upon researching, I have reason to believe Excel were none compliant with the POFA 2012 on the dates of the PCNs in question, therefore they cannot evoke Keeper liability upon myself as a means of claim. I wish to see copies of all documentation Excel claim to have sent to my address in respect to the aforementioned PCNs, with proof of postage.

The Particulars of Claim listed 6 separate dates in which the PCNs were issued, however it is not stated how there has been a breach of contract on any of these occasions, merely "The cause of action is a breach of contract for failing to adhere to the Terms and Conditions of entering private land".
This does not allow me sufficient information upon which to submit a defence to.

Further, Excel parking have not provided evidence to substantiate the claim of a breach of contract. For example, photographic evidence that the driver was parked outside marked bays, or photographic evidence the driver had failed to display a pay and display ticket etcetera.

Excel parking have a history of wrongly accusing drivers of not purchasing a ticket due to the Automatic Number Recognition Plate cameras (used to note of the times a car enters and exits the car park) are not linked to the Pay&Display machines themselves, thus if a machine is faulty and does not record a vehicle registration, when the records do not match the ANPR records then a PCN is wrongly issued to the driver on the wrongful accusation of failure to purchase a ticket.
This scenario has been illustrated in previous court cases with Excel Parking (Excel v Ms C, Stockport C8DP36F0) (Excel v Mrs S, Oldham C8DP11F9) and thus if the claim is brought about upon this particular accusation, proof of the ANPR and Pay&Display records for the dates in question should be evidenced, together with a photograph of failure to display a valid ticket on the car dashboard/windowscreen, as proof a technical error has not occured.

________________________________________



I believe the facts contained in this Defence Statement are true.

Signed
Behindblueeyes

Coupon-mad

I would change your first person ''I'' to 'the Defendant' each time, as that's the accepted style of a defence that a Judge might expect to read.

And I would use some of Johnersh's defence wording here (not the bits about primacy of contract, nor the part about the site not being of commercial value) but points like everything listed under 'Preliminary' and 'Background' (1 - 5):

https://forums.moneysavingexpert.com/discussion/comment/72977032#Comment_72977032


and in the 'Alternative claim' (@Johnersh should that read 'alternative defence'?) section you could use 8.1, 8.11, 8.12 -but alter that one, to point out that in fact, this Claimant changed Trade Bodies and changed ALL their signage, on 1.1.15, thus they will need to demonstrate both sets of signs in evidence.

And you could mention that Excel signage at the Peel Centre has long been held to be woefully inadequate, even stated more than once to be the 'worst run car park in England' by respected Blogger, the Parking Prankster, and featuring in a published article by the Plain Language Commission all about the dodgy signs at the Peel Centre, which were exposed by DJ Lateef at Stockport court as 'far too wordy' and hiding the parking charge in small print, therefore rendering any agreement on the charge impossible.

Any changes in the signage over recent years has failed to address the lack of prominent key terms and the abject failure to alert drivers to the parking charge, and in this respect, the ParkingEye Ltd v Beavis case can be fully distinguished.

Also you can use 8.1.3 and 9, 10 and 11.

Bung all that in, and re-number your version from start to finish, and change to third person: 'The Defendant contends...' etc., and include the headings that make sense for your case.






HTH

behindblueeyes

Great, thanks coupon-mad!

Is it better to email or post the defence?

Lamilad

Email is easier/ quicker/ cheaper.

CCBC email is easily found on this forum or a quick Google search.

behindblueeyes

Well, here is my final draft, I have sent it to CCBC email.

Do I need to do anything in terms of the MCOL webpage? where it says submit defence, am I meant to leave that blank as I have emailed it? I put in the subject and email itself the claim id number and my name.


IN THE COUNTY COURT

CLAIM No: CXXXX

BETWEEN:

EXCEL PARKING (Claimant)

-and-

(Defendant)

________________________________________

The Defendant denies any money owed to The Claimant in respect of this claim.
Preliminary matters
1. The Particulars of Claim lack specificity, therefore the Defendant is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particular.
1.1The Particulars of Claim listed 6 separate dates in which the PCNs were issued, however it is not stated how there has been a breach of contract on any of these occasions, merely "The cause of action is a breach of contract for failing to adhere to the Terms and Conditions of entering private land". This does not allow the Defendant sufficient information upon which to submit a defence to.

2. Further, The Claimant has not provided evidence to The Defendant to substantiate the claim of a breach of contract. For example, photographic evidence that the driver was parked outside marked bays, or photographic evidence the driver had failed to display a pay and display ticket etcetera.

2.1 The Defendant has a history of wrongly accusing drivers of not purchasing a ticket due to the Automatic Number Recognition Plate cameras (used to note of the times a car enters and exits the car park) not linking to the Pay&Display machines themselves, thus if a machine is faulty and does not record a vehicle registration, when the records do not match the ANPR records then a PCN is issued to the driver on the wrongful accusation of failure to purchase a ticket. .
This scenario has been illustrated in previous court cases with Excel Parking (Excel v Ms C, Stockport C8DP36F0) (Excel v Mrs S, Oldham C8DP11F9) and thus if the claim is brought about upon this particular accusation, proof of the ANPR and Pay&Display records for the dates in question should be evidenced, together with a photograph of failure to display a valid ticket on the car dashboard/windowscreen, as proof a technical error has not occured.

Background
3. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark XXXX which is the subject of these proceedings.
4. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
4.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
4.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
4.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
4.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

4.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

4.3.1 The case of Elliot v Loake (1983) is often cited by Excel Parking, however it is a criminal case with forensic evidence, whereby the keeper of the vehicle was also proved to be the driver at the time of an offence (road traffic accident) and thus has no basis upon this case or contract law. This is supported by the ruling of the Judge in Excel Parking v Mr C (Stockport) C8DP37F1, who deemed Elliot v Loake was not relevant in Keeper liability in relation to parking offences.

4.3.2 Another case, The Secretary of State for the Environment, Transport and The Regions v Holt RTR 309 (Divisional Court, 2000) ruled that the burden of proof was on The Secretary of State to prove that the defendant (Holt) was the driver on the date of the offence, and the burden was not discharged merely by showing that Holt was the keeper of the vehicle.


Alternative Defence – Claimant’s failure to clearly set out parking terms

8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Claimant is put to strict proof that the signage on the material dates in question clearly set out the onerous terns of a penalty charge notice, to sufficiently draw the attention of the visitor, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.
8.1.3 Further, Lord Denning’s ‘Red Hand Rule’ can be seen as applicable in this case, as the £100 charge for breach of contract (being ‘out of all proportion’ with expectations of drivers in this car park and thus being an onerous term) should have been effectively: “In red letters with a red hand pointing to it” i.e Very clear and prominent with terms in large lettering. Lord Denning stated this in the case of Spurling vs Bradshaw Ltd; “The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”.
8.1.4 The defendant notes that the Claimant changed Trade bodies from British Parking Association (‘BPA’) to International Parking Community (‘IPC’) on 01/01/2015 and thus evidence for signage must correspond to the material dates.
________________________________________



I believe the facts contained in this Defence Statement are true.

Signed
DEFENDANT

behindblueeyes

Ive already seen that my paragraph numbering is incorrect in the alternative defence section :doh:
Guessing I cant send an amended version now

Lamilad

behindblueeyes wrote: »

Ive already seen that my paragraph numbering is incorrect in the alternative defence section :doh:
Guessing I cant send an amended version now

Correct! It was rather gung-ho to submit the defence without asking the experienced and knowledgeable regulars on this forum to review it first.

That said the defence is good and the numbering won't be a major issue.

behindblueeyes

It was gung ho, Ill admit - Im very tired, the deadline is tomorrow and I was fairly confident with advice from elsewhere so I panicked and submitted!

Thanks, Im very glad you think its good! Now for the waiting..

Is the email address correct to your knowledge Lamilad? Do I need to do any more on the MCOL website, or is it ok to leave defence section blank if submitting via email?

behindblueeyes

sorry Lamilad I have seen your response other posting, Ill ring the court in the morning to be sure