9 months after alleged parking contravention I get a Final Reminder from Excel!

grumpyawldwifey

Here is the first draft of my defence. Please be gentle with me lol.
All constructive criticism is welcomed and any ideas as to points of law/cases law that I can add to strengthen my defence would be appreciated.

1. I am the Defendant having been the registered keeper of the vehicle in question. The claim relates to an alleged debt arising from said vehicle breaching the Terms and Conditions situated in XXXXXXXXX Car Park on four separate occasions between X XXX 2017 and XX XXX 2017.

2. I prepare these submissions at this stage to assist the Court but please note, I have not been provided with all of the documentation from the claimant and therefore, I reserve the right to amend the submissions subject to any further documentation being presented to the court.

3. Despite requests, and contrary to Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) the Claimant has refused to provide me with a copy of their written contract with the landowner. No indication is given as to the Claimant’s contractual authority to operate on this land as required by both ATAs the British Parking Association (BPA) and the Independent Parking Community (IPC) of which the claimant is a member. The IPC’s code of practice explicitly states “If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.” The BPA’s code of practice requires similar.


4. The Claimant has provided evidence of my vehicle being driven into and out of the car park on the occasions in questions but not by whom and not that the vehicle was parked and unattended in the car park during the periods in question, in fact it is this point that I contend: that the Terms and Conditions were not breached as the vehicle did not park on the dates but was forced to drive through the car park in order to facilitate the collection and dropping off of a disabled patron of the XXXX XXX hotel.


Background

5. My mother, currently aged 77 years, has extremely restricted mobility and is wheelchair dependant having amongst others, severe arthritis which has caused her hip and femur to fuse.
5.1 On X XXX 2017, my mother moved into the HOTEL, ADDRESS whilst our new house was being adapted for her use. She stayed there until X XXX 2017.
5.2 The HOTEL is located within a leisure complex containing a cinema, a pub and a number of restaurants. The complex is situated on a busy dual-carriageway road and roundabout. There are two entrances to the hotel, one faces the busy dual carriageway and is not accessible by vehicle due to pedestrian barriers. The second entrance is accessed through the XXXX XXXXX car park which is controlled by the Claimant. This is the only way to gain vehicular access to the hotel.
5.3 On an almost daily basis, members of my family visited my mother, if, however, she had, for example, medical appointments or needed larger amounts of shopping than she could carry on her electric wheelchair, a family member would be take her out by car.
5.4 Due to my mother's disabilities, she is incapable of getting into vehicles that are high from the ground and this meant that the only family vehicle she could get into was mine, the vehicle in question. My brother and his wife both had SUV type vehicles that my mother was unable to get into so we would swap cars if they were looking after her needs whilst I was otherwise engaged. Both had insurance policies that allow them to drive any vehicle with the owner's permission and they both had permission to drive my car.

Defence

I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

6. On the dates in question, the car was not parked or using a space, it was near to the Hotel entrance for the sole purpose of disability access to the premises, at an area which is beyond the bays.
6.1 I have photographed the area around the hotel entrance beyond the parking area as illustration and will provide these to the Court. They clearly show a large unmarked area in front of the hotel entrance that, I believe, is used for deliveries but is not a designated parking area.

7. On the four occasions in question, due to my mother being particularly slow getting out of the vehicle and into her chair and then having to be pushed to her room, the drivers HAD attempted to pay, despite not actually being parked. They realised that the insufficient 10 mins 'grace' would likely be exceeded but were given no advice by the Hotel or any offer of exemption or an extension of time.
7.1 Feeling intimidated (due to their knowledge of the poor working practices of private parking companies such as the Claimant) into paying for the time they spent in the area, they tried to pay by phone, only to find that the advertised 'Pay Go' app did not recognise the location.
7.2 Attempts were made to contact the number advertised on the Claimant's payment machine but these were not answered in a timely manner.
7.3 The failure of the payment service to accept payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
7.4 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.

8. When I received a 'Notice to Keeper' I contacted the Claimant immediately and offered to send photographic evidence of the issue with the 'PayGo' app. I will also provide this to the Court. I explained the circumstances. The Claimant's response was to reject my evidence unless I notified them of the name of the driver(s) who - apparently - could then submit the appeal and photographic evidence all over again.
8.1 I was told that the Claimant could not consider my appeal as keeper and that under Schedule 4 of the Protection of Freedoms Act 2012 (POFA), I 'must' name the driver.
8.2 Notwithstanding the above I again deny that the vehicle was parked but was being used solely to facilitate a disabled person's access to the hotel.
8.3 The Claimant has indicated that, if they are unable to rely upon POFA to pursue me, they will revert to the Law of Agency, however, this case does not involve employer/employee vicarious liability.
8.4 Whether the Claimant is in the BPA or the IPC, they must fairly consider appeals by registered keepers, and they must investigate any matters involving disability, to avoid discrimination.
8.5 The Claimant has failed to do this and, as a result has breached the Equality Act 2010 and has discriminated against my mother and indirectly against me and my family.
8.6 Service Providers, which includes Hotels and parking firms, have legal duties under statute, to ensure that:
- disabled people can access services/premises
- 'reasonable adjustments' are made to policies that would otherwise cause disadvantage
- no detriment is caused to the disabled person and their carers
- the disabled person/their carers are not harassed as a result of anything connected to the disability.
8.7 Charging for the time taken for the purpose of assisted boarding/alighting, as if it was 'parking' time, is without a doubt in breach of the Equality Act 2010.

9. I also submit that, in their failing to provide me with any details of the landowner which would allow me the opportunity to complain directly to them, the Claimant has prevented me from being able to get this charge cancelled by the hotel, a right that I believe existed as an exemption clause for patrons written into the landowner contract manual but a material fact which is withheld from motorists. If I had been informed that the hotel/landowner could deal with such complaints and cancel charges, I would have done so.

10. The claimant has raised a claim for four unpaid 'parking charges' yet, I was only sent a reminder for one of these charges leading me to believe at the time that the Claimant had accepted my appeal for the other three. It was not until my receipt of a letter claiming to be a 'Notice Before Claim' that it became apparent that this was not the case.
10.1 It is denied that the claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

11. It is denied that:
11.1 The vehicle was parked
11.2 A contract was formed
11.3 There was an agreement to pay a parking charge, this was a case of the Defendant's family being sufficiently intimidated into attempting to pay for parking, even though they were not parked due to their awareness of the poor practices demonstrated by private parking companies in general. This matter has been highlighted by Rt Hon Sir Greg Knight MP in the Parking (Code of Practice) Bill - 2nd reading on 2 February 2018 in the House of Commons. He describes these companies as ‘cowboy’ private parking companies.
11.4 The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

12. I would like the Court to take note that this whole process has adversely affected my mother, my family and me and has caused undue distress to us all.

13. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

Coupon-mad

4. The Claimant has provided evidence of [STRIKE]my[/STRIKE] the Defendant's vehicle being driven into and out of the car park on the occasions in question[STRIKE]s[/STRIKE]

Go through the defence and remove all 'I' 'me' and 'my' and change them all to 'the Defendant'. Thus, this section below becomes:

Background

5. [STRIKE]My[/STRIKE] The Defendant's mother, currently aged 77 years, has extremely restricted mobility and is wheelchair dependant having amongst others, severe arthritis which has caused her hip and femur to fuse.
5.1 On X XXX 2017, [STRIKE]my[/STRIKE] the Defendant's mother moved into the HOTEL, ADDRESS whilst our new house was being adapted for her use. She stayed there until X XXX 2017.
5.2 The HOTEL is located within a leisure complex containing a cinema, a pub and a number of restaurants. The complex is situated on a busy dual-carriageway road and roundabout. There are two entrances to the hotel, one faces the busy dual carriageway and is not accessible by vehicle due to pedestrian barriers. The second entrance is accessed through the XXXX XXXXX car park which is controlled by the Claimant. This is the only way to gain vehicular access to the hotel.
5.3 On an almost daily basis, members of [STRIKE]my[/STRIKE] the family visited [STRIKE]my[/STRIKE] the Defendant's mother, if, however, she had, for example, medical appointments or needed larger amounts of shopping than she could carry on her electric wheelchair, a family member would be required to take her out by car.
5.4 Due to [STRIKE]my[/STRIKE] the Defendant's mother's disabilities, she is incapable of getting into vehicles that are high from the ground and this meant that the only family vehicle she could get into was [STRIKE]mine, [/STRIKE]the vehicle in question. [STRIKE]My[/STRIKE] The Defendant's brother and his wife both had SUV type vehicles [STRIKE]that my mother was unable to get into[/STRIKE] so we would swap cars if they were looking after her needs. [STRIKE]whilst I was otherwise engaged[/STRIKE]. Both had fully comprehensive insurance policies that allow them to drive any vehicle with the owner's permission and they both had permission to drive [STRIKE]my[/STRIKE] the Defendant's car.

And you'll need to change all this sort of sentence to 'the Defendant's';

against my mother and indirectly against me and my family.

grumpyawldwifey

Thank you Coupon Mad.

I've changed it all to 3rd party and have restructured some of the sentences to make them make sense.

I've been having a mad hunt around the house because I can't find the 'safe place' where I put the original PCN letters! That's why I haven't gone down the PoFA route. I'm intending to submit a SAR once I've sorted this in order to get copies of all of the correspondence they allege to have sent me. I'm fairly sure a lot of it will be incorrectly addressed even though I did notify them of the change of address.
The other reason is that I want to submit a counter claim against them for the distress and anxiety they have caused.

Redx

add POFA2012 in anyway , even if you cannot find their paperwork, as they will be providing it at the evidence stage anyway so you will get to see this paperwork one way or another, sometime in the future

you have to pay a fee to counter claim and to ensure you have the evidence and details for the POC to back up any counterclaim

most people just want costs if they win , any counterclaim is usually about DPA breach once proven by getting dvla details and the ICO involved, and you have 6 years to do this

proving distress and anxiety is very difficult

Coupon-mad

I want to submit a counter claim against them for the distress and anxiety they have caused.

You have to do that at the same time as defending, and pay £25 fee to the court for a sum like £500. Distress and alarm must be evidenced. Read Ferguson v British Gas:

http://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html

and as you have the Equality Act angle you might be better to counter claim under the EA, but no-one will tell you that would be easy, and you'd have to read shedloads of stuff to know what you are arguing.

Immy_007

Hi Coupon Mad and other experts.. please can you reply back to my last post please..Sorry to post on here..did not know how else to grab your attention..sorry i know you may be really busy

KeithP

Immy_007 wrote: »

Hi Coupon Mad and other experts.. please can you reply back to my last post please..Sorry to post on here..did not know how else to grab your attention..sorry i know you may be really busy

Immy_007, have you noticed that whichever thread you post on, it gets bumped to the top of the thread list?

So if you are going to bump any thread, it might as well be your own thread. Otherwise people have to go searching for your thread.

So please, no more random posts on arbitrary threads. Thanks.

Immy_007

KeithP wrote: »

Immy_007, have you noticed that whichever thread you post on, it gets bumped to the top of the thread list?

So if you are going to bump any thread, it might as well be your own thread. Otherwise people have to go searching for your thread.

So please, no more random posts on arbitrary threads. Thanks.

Apologies..i in need of urgent advice Please

grumpyawldwifey

Thanks again Coupon Mad.
I might struggle with the gravity test and it appears that there's a strict limit of 6 months less one day from the act to lodge a claim. I'll research more about whether I could consider the refusal to cancel the charges as discrimination but am not hopeful.

grumpyawldwifey

Guess this answers this question:
https://www.dropbox.com/s/zjrp9m6dgnsx8qv/Excel%20letter%2024.4.18.jpg?dl=0

Have they got their order of service in a twist considering I've already had the POC? LOL :shocked:

grumpyawldwifey wrote: »

Dear Excel Parking Services Ltd

Thank you for your letter dated X XXXX 2018 which I received today.

Please confirm that you are proceeding with your claim despite having considered the letter that I sent to you on XX XXXXX 2018, a copy of which I have attached.

If you have not, then I am prepared to give you further time, until close of business on 18 April 2018 in which to reconsider your position.

If you would like to resolve the matter, please withdraw your claim, confirm that all charges have been withdrawn and ensure that my data as registered keeper is removed from all records held by you.

If I have not heard from you by 18 April 2018, I will proceed to make a counter claim against you as detailed in the attached letter.