Excel 3rd claim against me Help !

stranger93

Guys_Dad wrote: »

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.

Thankyou for your response in pointing that out to me very much appreciated !

I have a copy of the IPC Cop which I can quote multiple times where they haven't followed the protocol so i will include the relevant quotes for each point made in my defence.

I also have pictures , videos & a detailed map of the car park in question showing sign positions so i will include this in my witness statement if it gets that far to prove what i'm saying to the judge.

Guys_Dad

Excellent. Looks like you are getting prepared. Can't beat good preparation.

Coupon-mad

Excel have failed to file any POC, then.

Did the claim form say 'POC to follow'?

nosferatu1001

Ok I didn't see anywhere there that it is vcs trying to claim for an excel ticket!!!

Why isn't it there?

Coupon-mad

This needs to be one of your first points:

The Defendant avers that the Claim should be struck out since the Claimant has failed to identify itself as a legal entity capable of bring a claim in law, and it has failed to file Particulars of Claim that match the Claimant named in the claim form itself.

The letter informing the Defendant that the case was filed at court has been signed by 'VCS' even though its got an 'Excel Parking' 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, says the Claimant is VCS, and is signed by Jake Burgess with no mention of which company he is representing.

The two Limited companies are both owned by Mr Renshaw Smith but they are different legal entities and they cannot have both made a contract with the driver. This leaves the registered keeper Defendant at a loss to know who is alleging what, given the sparse wording on the actual claim form and the nullity of the arrival of POC in a different name.

Lamilad

Far far too long...

a) The claimant has failed to disclose relevant information to help clarify or resolve any issues in dispute [STRIKE]after[/STRIKE], despite these being requested [STRIKE]for[/STRIKE] 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 [STRIKE]is signed by Vehicle Control Services not excel. [/STRIKE] was not signed by Excel, but by another company called "Vehicle Control Services ("VCS") who are unknown to me and not party to this action. the detailed particulars of claim were also signed by VCS.

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 [STRIKE]submit[/STRIKE] base a defence [STRIKE]to.[/STRIKE]

[STRIKE]b) The particulars of claim fail to specify the times of each alleged breach.[/STRIKE]

[STRIKE]c) The detailed particulars of claim received by the defendant is in the name of Vehicle Control Services and not Excel. [/STRIKE]

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.”

Remove these. Suffice to say PoFA has not been complied with, you don't need to quote it.

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).

Remove this as it's covered in para 5.

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.

Not relevant at this stage but may become relevant later

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

Use the para about signage from the Johnersh defence linked in NEWBIES which is better and more concise.

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.

Did the alleged parking events occur during the hours of darkness?

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.

I wouldn't bother with this unless you intend to assert that a ticket was, or may have been, purchased

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.

Remove

13. The claimant has yet to respond to request for information [STRIKE]emailed by the defendant to Jake burgess Excel Parking Services Ltd on the (date).[/STRIKE] (as stated below) made in response to their Letter Before Claim, pursuant the Pre-action Protocol for Debt Claims

a) The relevant documentation to explain how he claim has risen to £400[STRIKE] since we had been communicating.[/STRIKE]

b) The specific dates and times of the alleged PCN’s

[STRIKE]c) The specific times of the alleged PCN’s[/STRIKE]

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.

Remove

17. Save as expressly mentioned above, the [STRIKE]Particulars of[/STRIKE] 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.

stranger93

Hi Guys,

Huge thankyou to Lamilad , Coupon-mad, Guys Dad , Nosferatu1001, The Deep & Redx for your continued support it is very much appreciated !

I have gone through and made the relevant changes.

My defence is due friday this week so if anyone has any final pointers before submission that would be great.

Thankyou in advance.


DEFENCE
_____________________________________________________________________



The Defendant avers that the Claim should be struck out since the Claimant has failed to identify itself as a legal entity capable of bring a claim in law, and it has failed to file Particulars of Claim that match the Claimant named in the claim form itself.

The letter informing the Defendant that the case was filed at court has been signed by 'VCS' even though its got an 'Excel Parking' 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, says the Claimant is VCS, and is signed by Jake Burgess with no mention of which company he is representing.

The two Limited companies are both owned by Mr Renshaw Smith but they are different legal entities and they cannot have both made a contract with the driver. This leaves the registered keeper Defendant at a loss to know who is alleging what, given the sparse wording on the actual claim form and the nullity of the arrival of POC in a different name.




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, despite these being requested 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 was not signed by Excel, but by another company called "Vehicle Control Services ("VCS") who are unknown to me and not party to this action. The detailed particulars of claim were also signed by VCS.

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 base a defence.

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:

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. 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.

7. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

a) The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.

b) At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

c) The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

d) The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor.

e) The Defendant avers that the site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

8. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, 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.

9. 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.

10. The claimant has yet to respond to request for information (as stated below) made in response to their Letter Before Claim, pursuant the Pre-action Protocol for Debt Claims.

a) The relevant documentation to explain how he claim has risen to £400

b) The specific dates and times of the alleged PCN’s

c) The specific car park that the alleged breaches were meant to have taken place.

d) A copy of the agreement that is set in place for the claimant to bring the alleged claims against the defendant.

11. Save as expressly mentioned above, the 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.

Lamilad

the Claimant has failed to identify itself as a legal entity capable of bring a claim in law,

This sounds a bit 'Freeman of the land" and will need to be reworded or removed.

Also, you can't describe who VCS are then further on say you don't know who they are. Just put a paragraph together that says the claimant has completely mismanaged the claim and has allowed to separate companies/ legal entities to present themselves as the claimant turning the claim into an incomprehensible farce, incapable of being dealt with the courts. As such the claim should be struck out as having no cause of action and no prospect of success, with full costs awarded to the defendant.

stranger93

Thankyou Lamilad for your help i've changed the first paragraph to what you recommended.

I'm sending my defence off tomorrow so if there are any last changes you pick up on please let me know.

Thanks in advance.

The Claimant has completely mismanaged the claim allowing two separate companies/legal entities present themselves as the claimant turning the claim into an incomprehensible farce. As such the defendant avers the claim should be struck out as having no cause of action and no prospect of success with full costs awarded to the defendant.

The letter informing the Defendant that the case was filed at court has been signed by Vehicle Control Services even though its got an 'Excel Parking' logo at the top. The CCBC form shows Excel Parking Services Ltd as the claimant signed by Simon Renshaw Smith. But the detailed particulars of claim say the Claimant is VCS signed by Jake Burgess with no mention of which company he is representing.

The two Limited companies are both owned by Mr Renshaw Smith but they are different legal entities and they cannot have both made a contract with the driver. This leaves the registered keeper Defendant at a loss to know who is alleging what, given the sparse wording on the actual claim form and the nullity of the arrival of POC in a different name.

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, despite these being requested 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 was not signed by Excel, but "Vehicle Control Services ("VCS") who are not party to this action, the detailed particulars of claim were also under VCS.

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 base a defence.

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:

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. 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.

7. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

a) The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.

b) At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

c) The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory.

d) The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor.

e) The Defendant avers that the site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

8. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, 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 dates in question.

9. 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.

10. The claimant has yet to respond to request for information (as stated below) made in response to their Letter Before Claim, pursuant the Pre-action Protocol for Debt Claims.

a) The relevant documentation to explain how he claim has risen to £400.

b) The specific dates and times of the alleged PCN’s.

c) The specific car park that the alleged breaches were meant to have taken place.

d) A copy of the agreement that is set in place for the claimant to bring the alleged claims against the defendant.

11. Save as expressly mentioned above, the 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.