Excel PCN NTK

MistyZ

hineyb wrote: »

but it would prob be easier for my friend to just pay the fine and get it out the way, as a court date would mean time off work etc and would end up costing a lot more than the original £50 he owes them currently?

A lot of assumptions there ....

I'd recommend that you and your friend read more Excel threads before deciding that fighting their PCN would end up costing a lot more.

Everyone has a choice about how they proceed but it'd be downright weird if regular members of this forum advised paying up in the absence of really complicated / unusual circumstances.

You do need to start a new thread if you & your friend decide to tackle this, so best to delete this one which will only sidetrack from the OPs' thread.

poundofcarrots

Ok, so a second claim has been received from Excel. AOS has been completed and the defence which is broadly similar is pasted below.

For a summary of the case, please read the following:

My wife borrowed my car after hers had broken down. She absentmindedly input her own car's registration number into the PDT machine instead of my own. She did this on two consecutive weeks. For the first week (see case no.1) she did not retain the ticket as proof of purchased but a SAR request showed a ticket had been purchased for the VRM of her vehicle at the time of the alleged contravention.

For this second case, we have the ticket to show that parking was paid for at the time of the alleged contravention. Contrary to the first incident however, Excel's SAR did not show this ticket as having been purchased, putting their record keeping at question. Their lack of honesty is obvious regardless.

My evidence is broadly similar to Case 1 but includes the the information from Bargepole, suggested by Couponmad about abuse of process with two near identical cases in points 1-3. It also includes the points about retaining the ticket as proof of purchase in points 14-17, that is slightly different from just having SAR records of proof of purchase.

I'd be very grateful for any feedback as the evidence is due by Tuesday 7th.

________________________________________________________________________________

1. The Court is invited to take note that the Claimant has issued two current claims, numbers ******** and ******** against the Defendant with substantially identical particulars.

2. The facts of these cases are duplicated in every respect (Claimant, Defendant, location, parking charge breach allegation, and added unrecoverable 'debt collection' costs for each case, that the Claimant did not in fact ever incur). It is submitted that this constitutes an abuse of process, making the Defendant potentially liable for two instances of issue fees, solicitor costs, and hearing fees, as well as the unrecoverable costs bolted on, over and above the sum of the parking charges.

3. This runs contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and vacate the other hearing, and the Defendants asks that these two cases be put before a Judge at the earliest opportunity - before allocation - to apply appropriate sanctions against the Claimant for a gross abuse of process.

4. The Defendant is the registered keeper but was not the driver of the car at the time of the alleged infringement and denies any liability in this claim.

5. The particulars of the claim supplied by the Claimant state that they are claiming “monies due from the Defendant in respect of a Charge Notice for a contravention on 6/8//2018” but they have not stated what the contravention is, making it difficult to defend accurately. Court Practice Directions state that a statement of facts should be made on which the Claimant relies.

6. The Claimant has been informed that the Defendant was not the driver.

7. The Defendant cannot be held liable under any applicable law. The 'Notice to Keeper' sent by the claimant does not establish keeper liability, but incorrectly presumes the keeper as being the driver.

8. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. The Claimant has written to the Defendant stating, “we have not cited POFA2012 nor stated that you are liable for the charge as the vehicle keeper”.

9. Given that the Defendant was not the driver, this confirms that this Claimant is knowingly pursuing the wrong party, who cannot be liable under any applicable rule of law, for the actions of another driver on private land. Excel already know that without the POFA to rely upon, this is a meritless claim. This matter has been tested by HHJ Smith in the Manchester Court, on appeal, in Excel v Anthony Smith C0DP9C4E as well as in the County Courts far too many times (Excel v Lamoureux at Skipton being another case already decided that was on all fours with this case).

10. It is submitted that this Claimant is wasting the court's time again and the Defendant is being put to unjustified cost in terms of time and money, causing severe distress and curtailing normal enjoyment of free/family time, over the many months this has threatened the Defendant's peace of mind. The matter of keeper liability is already dealt with in the POFA 2012 Schedule 4, and was within their gift, had the Claimant bothered to use it.

11. This claim can only be viewed as an abuse of process by the Claimant, whose conduct throughout has crossed the threshold of CPR 27.14(2)(g) and when it comes to the matter of costs the Defendant will seek these on the indemnity basis, based on the hours of time wasted at 2/3rds of a solicitor’s rate (CPR 46.5) as well as the full costs of attending a hearing.

12. Liability can not be transferred to the Registered Keeper and the Claimant can only pursue the driver. As the driver has not been identified there are no lawful grounds to pursue the Defendant as the Registered Keeper.

13. 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).

14. A member of the Defendant’s family paid for parking but entered her own registration number in error, instead of the registration number of the Defendant's car which she was driving. The ticket, which shows the correct amount paid for the entire duration of the stay at the time of the alleged contravention, has been retained as proof. Despite this fact, the Claimant failed to show that this ticket registered in their records in a SAR request sent to the Defendant. There is no evidence that the Defendant’s relative’s vehicle entered or left the car park. It is requested that this be considered as evidence that the Defendant was not the driver at this time.

15. The Claimant’s record keeping cannot be trusted as they showed no record of this ticket being purchased, despite the ticket being retained as evidence that parking was paid for.

16. Any alleged breach of contract was de minimis. Parking was paid for for the entire duration of the stay by the defendant’s relative and the ticket has been retained as proof. The Claimant has been made aware of this and evidence has been provided but the Claimant has chosen to ignore it to pursue an unnecessary and inflated claim.

17. The PCN sent by the Claimant stated that the contravention as 'Parked without payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because the retained ticket shows the tariff had already been paid.

18. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.

19. The Protection of Freedoms Act Para 4(5) does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also 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 expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

20. The Claimant has added £60 to the original Parking Charge Notice for ‘debt collection costs’. No communication has been sent or received about debt collection. Considering the parking charge was fully paid for in the first place, this attempt to inflate the claim further is cynical and has no legal justification.

21. As the Defendant was not the driver of the vehicle, it cannot be accepted that any contract was entered into with the Claimant. The Consumer Rights Act 2015 states 5.—
(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

18. The amount claimed by the Claimant is unfair. It is unfair because the parking charge has already been paid but the Claimant is requiring the Defendant to fulfil an obligation to pay a disproportionately high sum in compensation.

19. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

20. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

21. The Defendant wishes the Court to take note of the serious distress and alarm caused to the Defendant and their family, as a direct result of the unwarranted and aggressive harassment by letter after letter from Excel Parking, despite the fact there can be no 'keeper liability' out with the POFA 2012, and the Claimant is already aware from the appeal that the Defendant keeper was not the driver.

22. The Court is invited to dismiss the Claim

Coupon-mad

I would just remove #20 as the PCN was not illegal at the point of contract, but the rest is very good IMHO.

poundofcarrots

Thanks Coupon. Really appreciate your input as always. That's what I'll do.

poundofcarrots

Update to say that Claim 1 has been given a hearing date at the beginning of July. Claim 2 evidence has been logged as received on MCOL and the DQ has been sent to me.

I requested that the two claims be given the same hearing when sending my defence for Claim 2 and will do so again when sending the DQ in.

Coupon-mad

OK, so what you must do now is reply to the Order from the local Judge setting that date and thank them for the Directions, and ask that they also order the following:

(repeat the 'please consolidate two claims' wording from post #99 above, again, this time citing the new claim number and maybe attaching a copy of that claim form to show the Judge that the facts are the same).

And send a copy to the Claimant as well.

Have Excel filed both claims themselves, no solicitor, out of interest?

poundofcarrots

Thank you Coupon. Yes, both claims have come from Excel directly.

Just to clarify; I should send exactly what I send to the District Judge to Excel?

Coupon-mad

Yes by email, as this stage is all about being open with every communication.

poundofcarrots

I sent my last DQ off via email two weeks ago (and have received auto acknowledgement) but it's still not registering as 'filed' on MCOL. Its due date is tomorrow.

Should I be concerned? I sent a follow up email last Friday and again received auto acknowledgement.

In the meantime, I have (as advised above) emailed the judge at my local court about the abuse of process regarding the two claims. I don't know whether this would have influenced whether my latest DQ is filed or not?

Le_Kirk

It is quite well known that the CCBC is struggling to keep up with demand (and several bank holidays in a row won't have helped) and another one coming up on Monday!