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

grumpyawldwifey

Ah, good thinking Umkomaas, thank you

grumpyawldwifey

So here's the final draft of my WS. Please critique. Each para is numbered on the original but these didn't paste across. I'm also exhibiting using my initials and sequential numbering.

I also have WSs from my brother and sis-in-law which are fairly straightforward stating they drove my car on numerous occasions during the period etc and exhibiting their insurance to drive it. I also have my mother's WS.

I'm just pulling together my skeleton argument with all of the points of law. Do I submit that with my WS and evidence bundle or can I wait until I see what they've got to offer evidence and statement-wise?

I have just under a week to submit this.

IN THE COUNTY COURT AT XXXXXXXX

Claim No.: XXXXXXX

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

XXXXXXXXX (Defendant)

Witness Statement

I am XXXXXX, of XXXXXXX, the Defendant in this matter. I will say as follows:

I am the Defendant in this matter, I am unrepresented. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse me for this.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

Before I describe the events leading up to the Claimant’s charges made upon me, I confirm that the essence of my defence to this claim is that:
My vehicle was not parked it was being used to facilitate the collection and dropping off of a disabled patron of facilities accessed through the car park.
Despite the above, attempts were made to pay parking charges but the Claimant’s payment facility was not working and there was no quick solution to find an alternative payment method

Between XX February 2017 and XX October 2017, I was the registered keeper of a XXXX XXXX index number XXXXXXX.

On XX February 2017, my mother, the witness XXXXXXX, a disabled, wheelchair user, moved into the HOTEL, XXXXXX, XXXXXXX whilst our new house was adapted to make it accessible for her.

The situation of the XXXXX complex and the HOTEL is on a busy, dual carriageway ring road, the AXX. It is also adjacent to a large roundabout. The ring road and roundabout have double yellow lines along their full length apart from close to the HOTEL entrance where there is a pedestrian light controlled crossing; the approach to and immediately after which is marked with zig-zags. There is nowhere to legally or safely stop a vehicle in order to allow a passenger to alight in order to access this entrance. I have provided photographs of the area in question including a Google Earth aerial photograph with the main entrance to the hotel marked in red. I exhibit these as XX1 To XX5

In order to gain disabled access to the HOTEL, one has no choice but to drive through the car park run by the claimant. This is the only vehicular access to an entrance. There is an area in front of the hotel entrance that is not designated as a parking area - it is not marked as such. It was our belief at the time that the area was used for deliveries and for the dropping off and collecting of customers of both the HOTEL and the XXX Public House which also has an entrance in this area. I have provided a video recording from a dash-camera which shows a vehicle being driven into and stopping at this location which I exhibit as XX6.

On XX February 2017, I believed the car park was a ‘pay and display’ car park which, common with other car parks I have visited, also had the facility to pay by the mobile phone application, ‘PayGo’. There are/were signs around the car park asking ‘have you paid and displayed?’ which supports this belief. The ‘PayGo’ facility was advertised on the side of the ticket machines. My understanding was that, if a car wasn’t displaying a valid parking ticket, a car park attendant could tell if the driver had paid via the application because their registration number would be entered on the website and the attendant would be able to contact the website there and then to check whether the parking fee had been paid. It was also my belief that the reason one had to enter one’s registration number into the ticket machine when purchasing a pay and display ticket was to prevent people transferring tickets between vehicles. I was not aware that the XXXX Car Park used Automatic Number Plate Recognition (ANPR). None of the signage in the car park that I saw indicated that ANPR cameras were in operation. The Claimant has sent me a copy of the sign located adjacent to the entrance to the car park. This sign states “Parking Compliance Cameras operate in this car park”. From my previous experience, this has consisted of a parking attendant with a camera. I have also produced photographs of the other signs on site as XX7 - XX10 and of the advertised ‘PayGo’ facility as XX11. I have also produced still photographs of the area in front of the hotel entrance which support the video in exhibit XX6. I exhibit these as exhibits XX12 to XX15.

On XX February 2017, my mother moved into the hotel as previously stated. She made her own way to the hotel on her electric powered wheelchair. My brother, his wife and I were back and forth bringing items that mother needed including suitcases, her manual wheelchair, a small fridge and other items knowing that she may have to stay for a number of weeks.

At some point during that day, my mother was taken to get some shopping. She needed quite a lot so it was impractical for her to try to carry it on her chair. I took her in my in my car and, when we returned, I pulled up in the loading area, my brother and his wife helped my mother and some of her shopping out of the car and to her room while I attempted to pay for parking. My mother had been advised by hotel staff that there was a 10 minute ‘grace’ period in the car park but that a number of staff members had had issues with parking tickets being issued at the car park if they were there over 10 minutes, even in the loading area. I expected it to take a bit longer than 10 minutes to get my mother to the room and get back and forth to get all of her shopping and this is why I attempted to pay. I was not parked in a parking space. As far as I was aware, I was in the loading bay and we were ‘unloading’ a wheelchair user with her shopping. I had no cash so I attempted to pay a parking fee using the ‘PayGo’ application. I already had my car’s details registered with this application. When the location code as advertised on the signage, was quoted the application responded that “The parking location does not exist”. I attempted to re-enter the code three or four times and also to use the phone number associated with the application but found this to be an automated service and I got the same response. I took the helpline number advertised on the signage and returned to get the rest of my mother’s shopping to her room. I rang the helpline number once I got into the hotel room but it was not answered after what seemed like a long time so I gave up. All of this took around 20 minutes and I left the area as soon as I could.

It was not until some considerable time later, I received a ‘Notice to Keeper’(NTK) from the Claimant which, as I had already moved house, was redirected to my new address. This was the first time that I became aware that the ‘Parking Compliance Cameras’ were, in fact ANPR cameras. The same day as I received the NTK, I visited the car park and attempted to use the ‘PayGo’ application again but received the same message as I had on DATE so I took a screenshot of this which I exhibit as XX?. I also took the photographs of the car park’s signage as previously mentioned. Whilst I was there, I took the time, approximately 8 minutes, to read the whole of the main, large sign next to the ticket machine. This sign (exhibit XX?) was very complicated to read, it had a lot of print and I eventually found the detail regarding the £100 charge and ANPR in the bottom right-hand section of the sign, the last area of the sign that would be read by an English reader/writer. I also noted that nowhere on the Claimant’s signage was the information which the Information Commissioner’s Office requires as per their Codes of Practice relating to the use of ANPR. (I have visited the car park recently and note that, since GDPR came into force, the Claimant has now added an addendum to its signage).

Within a few days, I had received three further NTKs, again redirected to my new address. By this time I was unable to say who had been driving my car on each of the other occasions. I spoke to my brother and sister-in-law who had both borrowed my car in order to transport my mother to appointments for her diabetes and blood tests because she was on Warfarin. My sister-in-law stated she had attempted to pay on one occasion using the ‘PayGo’ application and had experienced the same issue as I faced. She could not remember which day it was nor whether she was using my car at the time.

Following the instructions on the NTKs, on XX March 2017, I appealed via the Claimant’s website quoting the reference numbers for all four of the NTKs. I also advised the claimant of my new address. I was unable to name the driver for each occasion and, because the circumstances of this incident are not covered by s172(2) of the Road Traffic Act 1988 and there is no legal requirement to do so, I withheld the fact that I may have been driving on the first occasion as is my right. I submitted the screenshot of the issue with the PayGo application as evidence that the facility was not working.

I received a, presumably automated, acknowledgement of my appeal within minutes of submitting it. This acknowledgement stated I would receive a decision within 28 days. I expected to receive this decision by post but heard nothing more.

Some nine months later, circa XX December 2017, I received a Final Reminder letter for an NTK with the contravention date of XX February 2017 demanding £100 which I exhibit as XX?. The PCN reference number quoted on the reminder related to the last of the original NTKs that I had received and from this, I assumed that the claimant had accepted the appeal for the other three. I checked the original email acknowledgement as mentioned in para 12 and it was then that I discovered an email from the Claimant dated XX March 2017 whereby the Claimant had refused to consider the appeal unless I named the driver(s). I have exhibited the Claimant’s response as SW12.

On XX December 2017, I emailed the claimant requesting various details in order to make an informed decision as to whether or not to name the driver and to support an appeal. The specifics of my query are detailed in the email which I exhibit as XX?. The Claimant did not respond to this email.

On XX February 2018, I received a ‘Letter Before Claim’ from the Claimant and, I realised, it was now demanding £400 and also included the other three charges. I had not received any further correspondence with regards these three changes since I received the NTKs in March 2017.

On XX March 2017, I wrote to the Claimant asking for the same information that I had requested in December 2017. I also pointed out to the Claimant that it was my belief that they had breached their pre-action obligations as set out in the Practice Direction - Pre-Action Conduct by not responding to my request in December. I exhibit this letter as XX.

On XX March 2018, the Claimant responded with the letter exhibited as XX?. This letter did not answer my questions, provide sufficient information or meet the pre-action protocols. It mentioned contracts which I have continued to deny that I have ever entered into. The Claimant refused to provide a copy of its contract with the landowner. The Claimant also implied that it may not, as I had previously pointed out to them, have met the conditions of PoFA and would therefore rely on the law of Agency. They provided photographs of my vehicle’s registration plate and stated this was evidence that the driver of my vehicle had parked without paying and therefore breached the terms and conditions, however, these photographs were of the car being driven, not parked.

On XX March 2018, I wrote to the Claimant, again pointing out that the vehicle had not been parked, that the ‘PayGo’ facility was not working and that the Claimant was in breach of the Equality Act and its own trade association’s codes of practice and I asked that they cease and desist their harassing behaviour. My letter is exhibited as XXXX.

On XX March 2018, I received a copy of the Claimant’s Directions Questionnaire, I was of the belief that my letter, XX?, and this piece of correspondence may have crossed in the post and this was why I had received it.

On XX April 2018, I was shocked to receive the Particulars of Claim from the Claimant. I was surprised to see that they had chosen to ignore my letter of XX March 2018. They appeared to have ignored the fact which I had pointed out to them in my letter, that they were in breach of the Equalities Act 2010, that they were discriminating against my mother, against me and my family as her carers and against any other disabled person that requires access to premises through the car park that they administer. I emailed them back expressing my surprise and dismay, attaching a copy of the letter I had sent on XX March and offering them time to reconsider. I exhibit this email as XX?.

On XX April 2018, I received a letter dated XX April 2018 giving notice that the Claimant intended to start court proceedings quoting clause 8.2 of the Pre-Action Protocol. Considering I had already received the Particulars of Claim two weeks earlier, I was once again made aware that the Claimant had breached the very Pre Action Protocols that they had quoted in this letter. I exhibit the letter from the Claimant as XX? and a copy of the relevant section of the Pre Action Protocols as XX?.

I have contacted the DVLA and they have confirmed that the Claimant has requested my details on no less than six occasions for the four alleged incidents. This is in breach of the Data Protection Act. I exhibit the DVLA’s response to my Subject Access Request as XX?.

This whole affair has caused me and my family significant psychological distress. I have found myself unable to sleep, becoming short-tempered and having difficulty concentrating at work. It is adversely affecting my health and this has been more evident the closer it has come to the date of the Court Hearing.

The Court is invited to dismiss the claim and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this witness statement are true.

Coupon-mad

Several of your paragraphs are very long and need breaking up for ease of reading.

All paragraphs must be numbered, so if you break up one of your long paragraphs, split it like this:

9. On XX February 2017, I believed the car park...

9.1. My understanding was that, if a car wasn’t displaying...

9.2. I was not aware that the XXXX Car Park used Automatic Number Plate Recognition (ANPR)...

9.3. I have also produced photographs of the other signs on site...

grumpyawldwifey

I have done the above thank you CM
I got Excel's bundle today. I've posted links to their witness statements.
Sorry but they're individual pages!
Points given for all spelling and grammar errors lol.

There are a couple of glaring errors in their evidence that I'll be highlighting, one is that; an alleged copy of the big, confusing sign they've sent is not an image of the actual sign. It doesn't have the words that are omitted from the actual sign but they've sent a photograph of that too with the errors on it.
Another is that the photographs of the signs they have sent are date-stamped Aug 19 2016 and there are cars parked in the pictures, yet their contract as per both witness statements tells us they did not have the authority of the site until 16 November 2016!!

https://www.dropbox.com/sh/1ar3jp69j1giz2z/AADLokHCoKlhY0ARVcZl_jATa?dl=0

grumpyawldwifey

Mr Glasby, in his statement (link above), quotes Thornton V Shoe Lane Parking stating that "the sign was the offer and the act of parking the acceptance of the offer..."?
Would I be right in arguing that in Lord Denning's judgement when he held that 'the more onerous the clause, the better notice of it needed to be given' could apply to the fact that the signage at the entrance and the signage around the car park gives insufficient notice of the £100 parking charge due to its not being prominent enough on the signs (unlike Beavis?)

Coupon-mad

grumpyawldwifey wrote: »

There are a couple of glaring errors in their evidence that I'll be highlighting, one is that; an alleged copy of the big, confusing sign they've sent is not an image of the actual sign. It doesn't have the words that are omitted from the actual sign but they've sent a photograph of that too with the errors on it.

Another is that the photographs of the signs they have sent are date-stamped Aug 19 2016 and there are cars parked in the pictures, yet their contract as per both witness statements tells us they did not have the authority of the site until 16 November 2016!!

https://www.dropbox.com/sh/1ar3jp69j1giz2z/AADLokHCoKlhY0ARVcZl_jATa?dl=0

Well spotted, and both worth raising for Excel to explain in court.

grumpyawldwifey wrote: »

Mr Glasby, in his statement (link above), quotes Thornton V Shoe Lane Parking stating that "the sign was the offer and the act of parking the acceptance of the offer..."?
Would I be right in arguing that in Lord Denning's judgement when he held that 'the more onerous the clause, the better notice of it needed to be given' could apply to the fact that the signage at the entrance and the signage around the car park gives insufficient notice of the £100 parking charge due to its not being prominent enough on the signs (unlike Beavis?)

Yes, that's what Lord Denning's Red Hand Rule (from Spurling v Bradshaw) is all about. Search the forum for Spurling as a keyword, as people have used that dozens of times at POPLA and in defences.

All well explained on threads.

Have you sussed that they are misleading you and the court with the so called 'quote' from Vine V Waltham Forest at #34:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

In reality, the court of appeal judgement found exactly the opposite of the way Excel are painting it; that a contract may not be formed if for instance the signage was not sufficiently prominent as to be visible from the parking spot, or there was a reason that the driver could not read the signage, such as being ill. The case was actually won by the motorist, Miss Vine.

Have you also read this by Martin Cutts of the Plain Language Commission, who beat Excel on the matter of blue/yellow wordy signs VERY similar to yours?

https://irp-cdn.multiscreensite.com/aaf9e928/files/uploaded/DVLA-BPA-Cutts12June2012_v2_mf.pdf

Also read this thread:

https://forums.moneysavingexpert.com/discussion/comment/74749607#Comment_74749607

... to further understand the issue Excel have sidestepped, which is INDIRECT discrimination, where service providers have a legal duty to make reasonable adjustments for disabled people at large (and it is no excuse or 'justification' for INdirect discrimination, to say that Excel didn't know about the disability) and certainly no excuse to just ignore the point in the defence and say ''it's fair because everyone - disabled or not - was allowed 10 minutes''.

Nope. Not fair, not a level playing field, as at least 2 Councils learned:

https://www.wake-smith.co.uk/news/council-car-park-case-settled-a-victory-for-blue-badge-holders/

System

May be a bit late for you as your case is Monday but here is the list of all Non-Domestic Rate payers in Darlington

https://www.whatdotheyknow.com/request/complete_non_residential_busines_937

If you search for the Feethams Car Park, is has Darlington Borough Council (Leisure Services) as the one that pays the Non-Domestic Rates and as such as the occupiers.

Excel are there too but Brunswick Street and not Feethams. If they were the occupiers at Feetham, their name would have come up against that car park.

If you then add in the Ambler case where Excel were found by a HHJ to have manipulated evidence, you should have a slam dunk win. However time is not on your side.

grumpyawldwifey

Thanks I'll look into that. There is a Council multi storey at Feethams area too, that's where I directed an old guy who was having issues with the RingGo facility.
My main arguments are their indirect discrimination of people with mobility type disabilities, the fact that the site wasn't recognised by the RingGo app (it had only been open a couple of months) and the PCNs weren't PoFA compliant. Oh their signs are not of Beavis standard either. My biggest concern at the moment is that the new printer (that I had to buy specifically for this so will be putting a claim in for) isn't playing ball and I want my copies of the cited cases in hard copy ��

Quentin

grumpyawldwifey wrote: »

My biggest concern at the moment is that the new printer (that I had to buy specifically for this so will be putting a claim in for) isn't playing ball .......

Don't get your hopes up about winning a claim against the ppc for a printer!


(Take it up with the supplier if it's faulty)

grumpyawldwifey

Quentin wrote: »

Don't get your hopes up about winning a claim against the ppc for a printer!


(Take it up with the supplier if it's faulty)

Haha but I feel like giving them the hardest time possible, even if I don't win :rotfl: