Excel Parking fines

System

How do you make such a check?

Since (non-domestic) rates are paid to the local council, you ask the local council.

Money...MATTERS

Good afternoon all!

As the title suggests the claim has been received and I would really appreciate assistance with my defence. (Apologies in advance for numbering and paragraphs)

Claim issued: 30/10/2018
POC received: 30/10/2018
AOS completed: 02/11/2018

IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

Vehicle Control Services (Claimant)

-and-

(Defendant)



DEFENCE

________________________________________


Preliminary

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at PPPP on DATES.

3. The Parking Charge Notice (PCN) stated the contravention as 'Parked without payment' and this contravention is denied.


Background


4. The facts are that the vehicle, registration XXXXXX has a season ticket which allows the vehicle to be parked at PPPP Street Pay and Display Car Park without having to purchase a ticket from the machines. The car park operator Excel Parking Services Limited uses predatory tactics to ensnare unsuspecting motorists to the car park by having signs with the title “PPPP Street Pay and Display car park” however it is now apparent due to a thorough examination and research of the car park that the operator’s car park is located at the same site and location of an already existing car park baring the same name. (Is this paragraph needed?)

5. In contradiction to The Consumer Protection from Unfair Trading Regulations 2008 paragraph 5.2.5. The misleading omissions/action of the trader and/or their agent (in this case the Claimant) caused the drivers of the vehicle to be forced into a transactional decision (the parking charges) that would not otherwise have been taken. Had the name of the car park been distinguishable and distinct from the adjoining car park the drivers would have taken the option not to act; by not parking.



Denial of contract and denial of any breach, or liability

6. The Particulars of Claim (POC) state that the Defendant was the registered keeper and or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paragraphs. 7.3 to 7.5.


6.1 Further based upon the scant and deficient details contained in the POC and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant DATES.
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

6.2 It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

7. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

7.1 Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

7.2 The Defendant avers that the signage was inadequate to form a contract with the driver. The claim is for parking without purchasing a valid ticket but this has never been evidenced and mere ANPR images of a car at the entrance and exit, is nothing to do with the separate Pay & Display ticket machine system. Given the fact that these machine keypads do fail to record VRN properly or fully (through no fault of victim drivers) the Claimant is put to strict proof of its claim, including evidence of all payments made at all machines onsite, around the material time.

8. The Claimant does not cite or ascribe to the Protection of Freedoms Act 2012 (POFA) therefore the Claimant never acquired the right to chase the Registered Keeper and has failed to provide proof of the driver’s identity; which cannot be assumed to be the keeper.

No standing or authority to form contracts and/or litigate

9. It is denied that the Claimant has authority to bring this claim. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that Vehicle Control Services Limited (VCS) has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation in the Claimant’s own name.

9.2 Neither the claim form, nor the signage state who the owner of the land is. According to Greenwich Council, the business rates are paid by Excel Parking Services, which is a different legal entity from this Claimant.

9.3 The signage at PPPP pay and display car park indicates that the car park is operated by Excel Parking and therefore any contract within this car park is with Excel Parking. The Defendant has not received any demand for payment from Excel Parking, nor has the claimant, Vehicle Control Services Limited, ever indicated that a contract has been transferred to them. The driver made no contract with the claimant and, as a registered keeper of the car, the Defendant has no liability to the claimant.

9.4 The signage states that Excel Parking Services LTD manage and control this car park. Excel parking services LTD are therefore acting as an agent on behalf of the landowner. As an agent, Excel Parking Services LTD has no legal right to bring such a claim in their name or on behalf of Vehicle Control Services Limited who would also being acting as an agent.

9.5 If Vehicle Control Services LTD deny acting as an agent , they are put to strict proof by disclosing the appropriate part of their contract with the landowner.

9.6 RingGO is the official cashless payment provider for PPPP pay and display car park.

9.7 According to RingGo the official operator of the car park mentioned above is Excel Parking Services.

9.8 The entity any driver would believe they are contracting with is Excel Parking Services, not VCS, and so VCS are a stranger. It is at best ambiguous to use both companies - in which case under the Consumer Rights Act 2015 the interpretation most favourable to the consumer has to be used, which is the obvious one that the driver could not be sure who they were contracting with, therefore there is uncertainty of contract and thus no contract can be formed. At worst, their conduct is misleading.

Data Protection concerns

10. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.

10.1 Under the General Data Protection Regulation (GDPR), the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via Automated Number Plate Recognition (ANPR) surveillance cameras at a car park where there are also parking wardens operating.

10.2 It is one thing to install Pay and Display Ticket (PDT) machines, but quite another to run a ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of unsuspecting but circumspect visitors, who are being caught out regularly by this trap. (Not sure if this applies to my case)

10.3 Collecting Vehicle Registration Numbers (VRN) data in order to inflate the 'parking charges' from a few pounds to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.


No 'legitimate interest' or commercial justification - Beavis is distinguished

11. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late with a 'parking charge' that bears no resemblance to the £0.60 (per hour) 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.


Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

12. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £Amount in total for all three parking events according to the entry and exit timings on the Notice to Keeper.

12.1 This Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends. Three 'parking charges' that totals in its entirety £Amount unexpectedly becomes an extortionate £bill (£xxx per charge) several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

12.2 At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

12.2.1 And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

12.3 The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

13. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be a total of £xxx and no more.

13.1 No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

13.2 In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking on the alleged three occasions equates to just £Amount and the Claimant is trying to claim damages of £xxx no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

14. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

15. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4..

I believe the facts contained in this Defence are true.

Signed by Defendant

Date

KeithP

Money...MATTERS wrote: »

Claim issued: 30/10/2018
POC received: 30/10/2018
AOS completed: 02/11/2018

With a Claim Issue Date of 30th October, and having done the AoS in a timely manner, you have until until 4pm on Monday 3rd December 2018 to file your Defence.

Almost four weeks away. Plenty of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Money...MATTERS

Hi just bumping to see if there are any comments on the defence. Thanks!

Coupon-mad

The Defendant was given opportunity to appeal, pay or transfer liability. Should I address the actions I have done?

No because a keeper has no obligation to do any of that.

4. The facts are that the vehicle, registration XXXXXX has a season ticket which allows the vehicle to be parked at PPPP Street Pay and Display Car Park without having to purchase a ticket from the machines. The car park operator Excel Parking Services Limited uses predatory tactics to ensnare unsuspecting motorists to the car park by having signs with the title “PPPP Street Pay and Display car park” however it is now apparent due to a thorough examination and research of the car park that the operator’s car park is located at the same site and location of an already existing car park baring the same name. (Is this paragraph needed?)

Yes, these facts are vital, IMHO.

10.2 It is one thing to install Pay and Display Ticket (PDT) machines, but quite another to run a ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of unsuspecting but circumspect visitors, who are being caught out regularly by this trap. (Not sure if this applies to my case)

I think delete that bit, as they would argue that the driver was non-payer and how else would they catch 'rogue parkers'(!) without ANPR...

Money...MATTERS

Thank you Coupon-mad for clarifying and assisting with this, I will make the suggested amendments. Is there anything else that needs to be factored in?

Coupon-mad

Looks OK to me except it's overly long and is based in an older version than you will see in 2018 posts, and I dislike this repetition of their case (not needed, the below is mainly waffle, except for the lines denying stuff):

6.1 Further based upon the scant and deficient details contained in the POC and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant DATES.
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

6.2 It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

Expect a hearing some time in the Spring, and be ready for each stage in between!

System

Expect a hearing some time in the Spring, and be ready for each stage in between!

I'd go for the early "drop hands" letter to VCS saying that it is clear they have no standing to issue the claim. Keep the letter simple with no threats, just facts. Get proof of posting and repeat until they drop out.

Keep copies and have a long list of costs if they insist on pursuing you.

Money...MATTERS

Coupon-mad wrote: »

Looks OK to me except it's overly long

I appreciate that but I didn't want to leave any stone unturned - We're not usually fighters but this left us incensed! I'm happy to shorten further if necessary.

Coupon-mad wrote: »

and is based in an older version than you will see in 2018 posts,

I have tried to use the newer version by way of headings and layout however I'm struggling with Word 2003 - the formatting is awful.

Coupon-mad wrote: »

and I dislike this repetition of their case (not needed, the below is mainly waffle, except for the lines denying stuff):

All waffle removed thank you so much.

Money...MATTERS

IamEmanresu wrote: »

I'd go for the early "drop hands" letter to VCS saying that it is clear they have no standing to issue the claim.

I will definitely be looking into this, are there any examples that I could be directed to? Please...