Excel Parking - County Court Letter

n4im

Thank you everyone. We are at the final version. Thought id throw in point 11 as I was curious.

IN THE COUNTY COURT
CLAIM No:

BETWEEN:
Excel Parking Services Ltd (Claimant)
-and-
(Defendant)

Statement of Defence


1. The Defendant denies any liability to the Claimant as a valid ticket was purchased but an incorrect number plate was entered at the ticket machine. A new contract was formed by acceptance of the parking ticket at the time (with wrong vehicle registration plate).
The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success as a valid ticket was purchased and subsequently evidence of purchase was sent to the claimant to prove the purchase and subsequently point out that the claimant did not lose out financially.

2. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the Landholder. Strict proof is required that there is a chain of contracts leading from the Landholder to Excel Parking Services Ltd.
(a) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

3. (a) A BBC Watchdog programme about Excel parking showed Excel pursuing a victim driver for miskeying a number plate, and on public record to the BBC, their spokesperson stated that they 'understand' that there might be human error in typing in a VRN and that they have 'robust checks' in place, to ensure that fines are not issued unfairly. After sending my paid ticket to Excel to prove a ticket was bought but it had the incorrect number plate due to human error, Excel had many opportunities and resources to confirm the number plate on the ticket was not in the car park at the given time? Instead of cancelling the charge straight away, Excel continued to pursue a £100 fine plus charges by using different debt collection companies.

(b) Having purchased a parking ticket and still being chased for payment due to human error infers that Excel are not at a financial loss in this case. A human error cannot lead to a £100 penalty because that causes an imbalance against the consumer; this is a case of unfairness and breaches the Consumer Rights Act 2015. In this case, to pursue the charge is disproportionate, unfair and not saved by the Beavis case at all, because the car was not taking up a valuable space the driver was not entitled to use, and the payment was made in full.

4. (a) During a Parliamentary debate on 2nd February 2018, Sir Greg Knight brought the current bill to the house.

''...it is important that those parking on private land who receive a private parking notice are treated fairly and consistently. Motorists should have the certainty that when they enter a car park on private land, they are entering into a contract that is reasonable, transparent and involves a consistent process. Poor signage, unreasonable terms, exorbitant fines, aggressive demands for payment and an opaque appeals process, together with some motorists being hit with a fine for just driving in and out of a car park without stopping, have no place in 21st-century Britain.!!!8221;
(b) There was unanimous agreement with Sir Greg Knight and a bill was read and the will of Parliament is seeking to stamp out rogue ticketing and the unethical methods adopted by profit driven parking companies who try to lure payment through threats and intimidation. !!!8220;The changes in the bill will reassure drivers that private car park operators will in future treat them in a fair and proportionate manner!!!8221;.!!!8195;


5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the Landholder. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

6. The signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore, no contract has been formed with driver to pay the principal debt, or any additional fee charged if unpaid in 28 days.


7. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.


8. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the Landholder and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

9. (a) The Defendant has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative!!!8217;s costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

(b)The amount claimed is £100 + £60 Contractual costs + £9.12 interest + £25 Court Fee + £50 Legal representative costs, a total of £244.12. There were no visible notices to mention the £60 contractual costs above the amount claimed. The claimant regularly sends out letter templates hassling and pressurising individuals without understanding situations on a case-by-case basis, the costs of these automated templates would not match the aforementioned costs.

(c) After the initial PCN from Excel, I responded to Excel with the valid parking ticket, but since then have been subsequently bombarded with threatening letters from Excel. I have also received numerous letters from Zenith Collections, Debt Recovery Plus Limited as well as BW Legal. This constant hassling is an inconvenience no-one needs and is further evidence of the frustrations of the public shared in the parliamentary debate (mentioned in point 4).

10. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the Landholder can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the Landholder themselves claiming for a nominal sum.

11. Excel Parking is not in the List of organisations that are accredited to use the DVLA service according to the document who-dvla-shares-data-with-2015-2017-volumes-q3-2017-v1.pdf. Were the vehicle ownership details obtained by Excel Parking or via a different organisation?

12. (a) Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all. The Particulars of Claim provided on claim form was very vague. There were no direct mentions of the contraventions and which rules were breached. None of the correspondence between myself and Excel was mentioned in the POC.

(b) In my opinion, there is a better alternative than legal proceedings, namely that we utilise the services of a completely independent ADR service suited to parking charges. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

Therefore, I ask the court to respectfully strike out this claim with immediate effect.
I believe that to the best of my knowledge the facts stated in this Statement of defence, 06/02/2018 are true."


Signed

n4im

Good afternoon all,

I am at the stage where I am submitting my final defence this week (as the court case is in 2 weeks) thanks to all of you.

Since my last post ive discovered 2 new things;

(1) In July 2017 Excel parking have left Cavendish street Keighley car park and are replaced by Smartpark who use different machines - it verifies your car registration and an alert comes up if the registration you typed hasnt been recognised.

(2) i discovered the Excel v Burgess. Stockport. C3DP33CZ. 03/07/2017 case on http://parking-prankster.blogspot.com/2017/07/excel-lose-in-court.html which is exactly the same cicumstances as mine. However, other than on news websites i cannot find official transcript / information regarding the case. Please can someone advise how I can get hold of this to add to my list of appendices.

Any other advice is greatly appreciated.

Thank you in advance

Kind regards

KeithP

n4im wrote: »

I am at the stage where I am submitting my final defence this week (as the court case is in 2 weeks) thanks to all of you.

Are you sure?

Didn't you file a Defence back in February?

Is it perhaps a Witness Statement you need to create?

When exactly is your Witness Statement due?
Your Notice of Allocation will tell you that.

n4im

Sorry, please excuse my poor application of terminology.

I submitted my defence previously (Feb). Court case is in just over 2 weeks, so I am elaborating on the defence and including evidences, im assuming that is called the witness statement.

The witness statement needs to be posted Tomorrow.

n4im

Hi everyone,

We have received bwlegals schedule of costs for the court. This is on top of the balance due.

£460+VAT. Is this expected or just scaremongering?

System

Is this expected or just scaremongering?

Scaremongering. It is also the approach they use when they know they are in for a stuffing. So get your costs into the court and to them.

n4im

Good evening,

DATE OF HEARING: The date of the hearing had finally arrived. The hearing was at 11am in Skipton. We (me and my better half) arrived at 10:35am intrinsically feeling nervous but externally trying to portray an element of confidence. A part of us was hoping the Excel representative would not show up and the case would get thrown out.

At around 10:45am a tall-ish, smart gentleman entered the waiting area. My first thoughts were "oh !!!!!!!". I instantly remembered a post from the forum which explained that don't engage with the claimants representatives. The gentleman came over to us and said hello, I smiled and replied with a hi and tried not to engage much. The gentleman introduced himself using his full name, then said "I am also known as *Lamilad* on MSE and many other forums". I was gobsmacked, Wow, the legend. One of the people whose own defence I plagiarised and sought a lot of help from has actually shown up to sit in as an observer at the hearing. This was a game changer!

The usher informed us that the hearing had been delayed by 15 minutes. The tide was turning as this gave us a bit more time for Lamilad to read through the witness statements and advise. We had a discussion as to what role Lamilad would play and it was agreed 3 minutes before entering the court that Lamilad would be the Lay representative. Surely, the last 45 minutes could not have been predicted by anyone.

THE CASE: We entered the room and greeted the Judge who welcomed us all in. It felt formal, however it was nothing like a court I had seen on TV. The judge was on one side of the room and there was a square table with 4 chairs around it which had Excels solicitor, Lamilad, my better half and me.

In a nutshell, the judge initially talked about her understanding that a car entered the car park and a ticket was purchased but the incorrect registration mark was entered. The claimant then sent a PCN to the defendant to which the defendant replied with a copy of the purchased ticket and explained that the registration mark is of another car in the household and this was accidental. The claimant then wanted proof of ownership of the other car.

The judge also mentioned that there are a few points in my witness statement about signage, however she is dismissing this as there was another point in my defence where I mentioned about agreeing to the conditions in the signs. (Lesson learnt).

Excels solicitor then commented that the claimant gave ample notice and sent many letters to me which were all ignored and I did not send proof of ownership which caused more work for them. The judge then destroyed his argument by saying the ticket was purchased to park in that car park and both parties accept a ticket was purchased and was valid (i.e. it is a genuine ticket and it covered the time the vehicle was in the car park). The purpose of entering a registration plate on a ticket is to link a payment against a car, the fact a wrong registration was entered and subsequently the matter was clarified when the defendant sent the parking ticket. The claimant still wanted the defendant to prove ownership (to prove that other vehicle wasnt in the car park and this is not a borrowed ticket) yet the judge highlighted that the gift is with the claimant to make the necessary checks. The claimant has access to all the tickets purchased that day as well as all the cars that were captured on the ANPR camera. The claimant can easily verify if a ticket has been used twice and onus shouldnt be on the defendant to provide this.

The legend (Lamilad) had been answering points throughout the session and when it was his turn to talk, he made a few sweet and succinct points about the Beavis case, the consumer act 2015, unproportionate charges and so forth.

The judge then made her decision and said based on the fact the gift is with the claimant (to check vehicles entering and leaving) and the de minimis limit (the charges are disproportionate considering a ticket was purchased which was at the value other customers of the car park paid), the case is dismissed
The judge awarded us with the costs that we had submitted in our schedule of costs, however we had about £20 deducted.

Lessons learnt
1) This has been a long ride. We had often wanted to give up and make a payment as I thought I dont need the hassle nor have I got the time. Other times I had thought this is too technical for me. Many times reading threads online and interacting with some amazing individuals, encouraged us to keep going out of principle. As a minimum we would rather lose and make Excel work for their £260.

2) After the hearing, Lamilad mentioned that parking companies have a business model which is that 9 out of every 10 people who get court summons give up at some point before the court date. Parking companies expect the odd one to reach court and are willing to take the loss on that as long as theyre making money from the other 9. Just like we have been helped by others, it is our duty to help those 9 individuals through their journey and encourage them not to give up before the court date. This is the only way we can beat these cowboys.

3) There are some diamonds out there. My faith in humanity has increased once again. Many people have advised me and gone out of their way to help where they didnt have to. Lamilad showed up at the hearing without us giving any information other than what was available on this thread. We are absolutely humbled by his selflessness and his compassion towards others. Lamilads knowledge was excellent and brought comfort and ease.

4) We were very lucky to have Lamilad, however others may not be as fortunate. There is a lot of help and encouragement online, please do not go to court overconfident, unprepared or without any research. You need to know your defence points, the claimants defences and the relevant laws. The parking companies are beatable, however preparation is an absolute must.

5) Ensure a clear defence and witness statement is submitted to the county court. This was very beneficial in our case as the judge had the facts available in advance and didnt need to prod either party for much more facts. Take all documents with you to the court and familiarise yourself with these before hand.

6) This post is not a boast, but just written as an encouragement for others who may not be sure about their next steps.

CONCLUSION: Thank you to every single person who has helped in any way big or small. I intend to visit the forum more often and try help with my amateur-ish knowledge where possible and relevant.

Lamilad, if there is anything beneficial I may have missed please do feel free to add.

[Deleted User]

:beer:Nice. Well done.

Coupon-mad

At around 10:45am a tall-ish, smart gentleman entered the waiting area. My first thoughts were "oh !!!!!!!". I instantly remembered a post from the forum which explained that don't engage with the claimants representatives.

The gentleman came over to us and said hello, I smiled and replied with a hi and tried not to engage much. The gentleman introduced himself using his full name, then said "I am also known as *Lamilad* on MSE and many other forums". I was gobsmacked, Wow, the legend.

We had a discussion as to what role Lamilad would play and it was agreed 3 minutes before entering the court that Lamilad would be the Lay representative. Surely, the last 45 minutes could not have been predicted by anyone.

Lamilad showed up at the hearing without us giving any information other than what was available on this thread. We are absolutely humbled by his selflessness and his compassion towards others. Lamilads knowledge was excellent and brought comfort and ease.

VERY well done to you and well done to Lamilad (legend)! Another one bites the dust!

Just like we have been helped by others, it is our duty to help those 9 individuals through their journey and encourage them 9 not to give up. This is the only way we can beat these cowboys.

We are very glad to have you here, and please do chip in with advice for newbies.

Lamilad started the same way you did, with Excel claims at Skipton that he learnt how to win, then he stuck around and decided to help people against these fat cat bullies.


:T

beamerguy

n4im

OH wow, what a win and how wonderful that Lamilad
came to the court, top chap :T:T

I have added this to the BWLegal/Excel thread for all to
see, if they get involved with this scraggy wild bunch

https://forums.moneysavingexpert.com/discussion/5672664/bwlegal-the-list-of-failures-growing&highlight=bwlegal+the+list

Nice one Mr Renshaw-Smith for losing again.:rotfl::rotfl::rotfl: