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Excel 3rd claim against me Help !
stranger93
Posts: 29 Forumite
Hi Guys,
Excel have issued a 3rd court case against me this time claiming for numerous unpaid PCNs between 2 dates.
It seems they are really trying their hardest to intimidate me into paying money I do not owe.
I requested information in line with pre action protocol for debt claims. They completely ignored my request even though they responded to various emails I sent them after the letter before claim so I know they 100% have received my email.
The letter notifying me was signed by VCS and not excel aswell as the particulars of claim they sent me which I found weird.
If anyone could give me a few pointers on what to change/ add to my defence i would really appreciate it !
Thankyou in advance.
___________________________________________________________________________
DEFENCE STATEMENT
___________________________________________________________________________
The Defendant denies any money owed to The Claimant in respect of this claim.
The Claimant has no cause of action against the Defendant on the following grounds:-
1.The claimant has failed to adhere with Pre action protocol for debt claims.
a) The claimant has failed to disclose relevant information to help clarify or resolve any issues in dispute after requested for by the defendant.
b) The claimant has failed to give the defendant at least 14 days notice of their intention to start court proceedings.
2. The Particulars of Claim lack specificity, therefore the Defendant is unable to prepare a full and complete Defence. Listed is 4 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.
3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
4. The Protection of Freedom Act 2012 Schedule 4 has not being complied with.
a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.
b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.
c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).
5. 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.
6. 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.
7. 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 landowner. 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.
8. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (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 £100, or any additional fee charged if unpaid in 28 days.
The signage is inadequate in terms of the following:
• Lack of illumination of signage (and the car park), poor visibility
• Lack of clarity and prominence of terms and conditions
• Illegible text due to font size, density, colour and complexity
• Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
• Lack of relevant terms and conditions, such as the fees for parking
• Inadequate positioning of signs, at unsuitable heights
• Inadequate number of signs
9. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.
10. No evidence has been provided that valid tickets were not purchased. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.
11. 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) Excel Parking Services Ltd is not the lawful occupier of the land
b) 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.
12. 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.
13. The claimant has yet to respond to part 18 Request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the (date).
a) A request to explain if Excel Parking Services Ltd are making a claim as an agent of the landowner or making the claim as occupier in their own right.
b) A request to explain if the amount claimed by Excel Parking Services Ltd is for a genuine pre estimate of loss for a breach of contract or a contractual sum?
c) A request to provide copies of the signs on which Excel Parking Services Ltd rely and confirm the signs were in situ on the date of the event. Also to provide the date the signs were installed.
d) A request to confirm that the signs were at the entrance to the site on the date in question. Also to confirm that the signs meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1.
14. 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 landowner 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.
15. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued.
16. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner 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 landowner themselves claiming for a nominal sum.
17. 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.
Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence are true.
I believe the facts stated in this Defence Statement are true.
………………………………………………………. ………………………
(Defendant) (Date)
Excel have issued a 3rd court case against me this time claiming for numerous unpaid PCNs between 2 dates.
It seems they are really trying their hardest to intimidate me into paying money I do not owe.
I requested information in line with pre action protocol for debt claims. They completely ignored my request even though they responded to various emails I sent them after the letter before claim so I know they 100% have received my email.
The letter notifying me was signed by VCS and not excel aswell as the particulars of claim they sent me which I found weird.
If anyone could give me a few pointers on what to change/ add to my defence i would really appreciate it !
Thankyou in advance.
___________________________________________________________________________
DEFENCE STATEMENT
___________________________________________________________________________
The Defendant denies any money owed to The Claimant in respect of this claim.
The Claimant has no cause of action against the Defendant on the following grounds:-
1.The claimant has failed to adhere with Pre action protocol for debt claims.
a) The claimant has failed to disclose relevant information to help clarify or resolve any issues in dispute after requested for by the defendant.
b) The claimant has failed to give the defendant at least 14 days notice of their intention to start court proceedings.
2. The Particulars of Claim lack specificity, therefore the Defendant is unable to prepare a full and complete Defence. Listed is 4 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.
3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
4. The Protection of Freedom Act 2012 Schedule 4 has not being complied with.
a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.
b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.
c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).
5. 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.
6. 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.
7. 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 landowner. 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.
8. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (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 £100, or any additional fee charged if unpaid in 28 days.
The signage is inadequate in terms of the following:
• Lack of illumination of signage (and the car park), poor visibility
• Lack of clarity and prominence of terms and conditions
• Illegible text due to font size, density, colour and complexity
• Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
• Lack of relevant terms and conditions, such as the fees for parking
• Inadequate positioning of signs, at unsuitable heights
• Inadequate number of signs
9. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.
10. No evidence has been provided that valid tickets were not purchased. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.
11. 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) Excel Parking Services Ltd is not the lawful occupier of the land
b) 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.
12. 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.
13. The claimant has yet to respond to part 18 Request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the (date).
a) A request to explain if Excel Parking Services Ltd are making a claim as an agent of the landowner or making the claim as occupier in their own right.
b) A request to explain if the amount claimed by Excel Parking Services Ltd is for a genuine pre estimate of loss for a breach of contract or a contractual sum?
c) A request to provide copies of the signs on which Excel Parking Services Ltd rely and confirm the signs were in situ on the date of the event. Also to provide the date the signs were installed.
d) A request to confirm that the signs were at the entrance to the site on the date in question. Also to confirm that the signs meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1.
14. 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 landowner 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.
15. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued.
16. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner 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 landowner themselves claiming for a nominal sum.
17. 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.
Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence are true.
I believe the facts stated in this Defence Statement are true.
………………………………………………………. ………………………
(Defendant) (Date)
0
Comments
-
Sounds like the 3 claims they tried against lamilad!Excel have issued a 3rd court case against me this time claiming for numerous unpaid PCNs between 2 dates.
It seems they are really trying their hardest to intimidate me into paying money I do not owe.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
You should ask the court under its Case management powers to "consolidate" the claims into one hearing IF the issues are the same. The rule is CPR 3.1 (2)(g) and (h).
Link is here https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0 -
This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.
Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct
Hospital car parks and residential complex tickets have been especially mentioned.
The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.
http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41
and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.You never know how far you can go until you go too far.0 -
I fail to see what actual points you are making about the actual parking.
1 Yes, you have asked to see the contract.
2. You say they have not met POFA for keeper liability but offered zero evidence as to why.
3. You will need to establish that the contract to park was with Excel and not VCS who are bringing the case. Picture of sign, maybe?
The pre action protocol is all good stuff, but at the heart is Excel/VCS are doing you for the driver not following the contract terms and I can see very little in your response as to why the keeper should not be liable.0 -
remove the word STATEMENT from the header and footer
its DEFENCE , as shown in the BARGEPOLE example in post #2 of the NEWBIES FAQ sticky thread
as mentioned above , beef up the fact that there are 2 different entities involved (sister companies under the same owner) - plus beef up POFA2012 etc too0 -
Who signed the claim form? VCS? For an Excel site?
If so then you ask the court to strike the claim as VCS are a stranger to you and Excel....0 -
I fail to see what actual points you are making about the actual parking.
1 Yes, you have asked to see the contract.
2. You say they have not met POFA for keeper liability but offered zero evidence as to why.
3. You will need to establish that the contract to park was with Excel and not VCS who are bringing the case. Picture of sign, maybe?
The pre action protocol is all good stuff, but at the heart is Excel/VCS are doing you for the driver not following the contract terms and I can see very little in your response as to why the keeper should not be liable.
Thankyou ! I will beef up my section about Pofa with evidence from schedule 4 to make my argument stronger.nosferatu1001 wrote: »Who signed the claim form? VCS? For an Excel site?
If so then you ask the court to strike the claim as VCS are a stranger to you and Excel....
The letter informing me that the case has been filed at court has been signed by VCS even though its got an excel logo at the top.
The CCBC form shows Excel Parking Services LTD as the claimant which is signed by Simon Renshaw Smith.
But the detailed particulars of claim they have sent me it says VCS vs Myself and is signed by Jake burgess with no mention of which company he is representing.
is there anything I can mention about this in my defence ? it feels as if they are trying to mislead me in some sort of way.0 -
WEll yes, of course
VCS have no grounds (standing) to file a claim against you. Any alleged debt is oweed to a different company, Excel.
SO its item 1.0 -
Hi Guys,
Thankyou for all of your responses I really appreciate the guidance and help i have been given !
I have redrafted my defence and worked on the points mentioned by everyone who has commented.
I have been researching the comments from parliament on the parking industry is it worth mentioning this in my defence ?
If anyone could have a quick read over and see if there is anything else they pick up on that should be included or changed that would be great, my defence is due a week today so I am going to spend this last week getting my defence as strong as possible.
Once again thanks in advance !
___________________________________________________________________________
DEFENCE
___________________________________________________________________________
The Defendant denies any money owed to The Claimant in respect of this claim.
The Claimant has no cause of action against the Defendant on the following grounds:-
1.The claimant has failed to adhere with Pre action protocol for debt claims.
a) The claimant has failed to disclose relevant information to help clarify or resolve any issues in dispute after requested for by the defendant.
b) The claimant has failed to give the defendant at least 14 days notice of their intention to start court proceedings.
c) The letter received informing the defendant that court action has been started is signed by Vehicle Control Services not excel.
2. The Particulars of Claim lack specificity, therefore the Defendant is unable to prepare a full and complete Defence.
a) Listed is 4 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.
b) The particulars of claim fail to specify the times of each alleged breach.
c) The detailed particulars of claim received by the defendant is in the name of Vehicle Control Services and not Excel.
3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
4. The registered keeper is not liable for charges brought by the claimant as the Protection of Freedom Act 2012 Schedule 4 has not being complied with.
a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of charge and prescribed Notice to Keeper letters in time and with mandatory wording.
“6(1) The second condition is that the creditor (or a person acting for or on behalf of the creditor) - (a) Has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.”
c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability.
"There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).
5. 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.
6. 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.
7. 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 landowner. 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.
8. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (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 £100, or any additional fee charged if unpaid in 28 days.
The signage is inadequate in terms of the following:
• Lack of illumination of signage (and the car park), poor visibility
• Lack of clarity and prominence of terms and conditions
• Illegible text due to font size, density, colour and complexity
• Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
• Lack of relevant terms and conditions, such as the fees for parking
• Inadequate positioning of signs, at unsuitable heights
• Inadequate number of signs
9. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.
10. No evidence has been provided that valid tickets were not purchased the claimant is put to strict proof. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.
11. 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) Excel Parking Services Ltd is not the lawful occupier of the land
b) 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.
12. 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.
13. The claimant has yet to respond to request for information emailed by the defendant to Jake burgess Excel Parking Services Ltd on the (date).
a) The relevant documentation to explain how he claim has risen to £400 since we had been communicating.
b) The specific dates of the alleged PCN’s
c) The specific times of the alleged PCN’s
d) The specific car park that the alleged breaches were meant to have taken place.
e) A copy of the agreement that is set in place for the claimant to bring the alleged claims against the defendant.
14. 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 landowner 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.
15. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued.
16. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner 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 landowner themselves claiming for a nominal sum.
17. 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.
Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence are true.
I believe the facts stated in this Defence Statement are true.
………………………………………………………. ………………………
(Defendant) (Date)0 -
8. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (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 £100, or any additional fee charged if unpaid in 28 days.
The signage is inadequate in terms of the following:
Lack of illumination of signage (and the car park), poor visibility
Lack of clarity and prominence of terms and conditions
Illegible text due to font size, density, colour and complexity
; Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
Lack of relevant terms and conditions, such as the fees for parking
Inadequate positioning of signs, at unsuitable heights
Inadequate number of signs
Ok. If true, then you have an excellent appeal point.
So how do you intend to prove each of these points to a judge?? Just take one, for example. Inadequate positioning of signs at unsuitable heights. How high were they? What does the IPC CoP say they should be?
Same with Illegible text due to font size, density, colour and complexity. I don't disbelieve you but if the other side challenges it, what proof have you?
It is important that any actual claims are able to be backed up and you will need to do real homework and not just spout previous points found on here.
If the judge rules out your procedural points not carried out by solicitor re pre-action protocol, you will need to show why POFA was not complied with and back up all your various contentions.0
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