County Court Defence Advice - failure to park in a 'marked' bay

keep_calm_and_carry_on

Hello,

Excel Parking have kindly decided to issue a claim against me. I'd really appreciate some help in what I should do next. I have applied for the Acknowledgment of Service and have until 20/11 to submit my defence. The Particulars of Claim just states I've failed to settle my outstanding liability relating to a contravention.

THE 'CRIME': I parked in a space that apparently wasn't a parking bay - it was marked out with cobbles instead of painted lines. I paid to park (and have proof of this). When I came back and found the ticket, I took photos of my car. The sign does not define what a 'marked bay' is. This was a genuine error on my part - the place where I parked my car looked like a parking space to me! Definitely wasn't blocking anyone/anything either. I am pretty sure there are other bays demarcated by cobbles rather than paint. I will go back to the car park and check this.

I think I disputed the ticket on excel's online portal, but this was rejected and then I just ignored their letters.

I've had a look through some of the threads and this is my first go at a defence:


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

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay and had paid the correct fee to park via Ring Go.

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

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within a marked parking bay, giving no definition of the term 'marked'.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Claimant is put to strict proof that it has sufficient prorpietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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

I believe the facts contained in this Defence are true.

Name
Signature
Date


Would someone who knows what they're doing mind giving me some pointers?

Coupon-mad

Send a SAR to Excel today (find their DPO email by looking on their PRIVACY webpage).

Ask for all photos and data held including appeal letters exchanged, and ask for their evidence as to who was driving and the contravention.

Do the above right NOW by email, as it is important to know whether your appeal blabbed about who was driving, IMHO, and what was said, so your defence is honest and consistent.

Attach a copy of your V5C and tell Excel they already hold sufficient data to identify you as the Defendant in claim xxxxxx, therefore they must not delay the disclosure under the GDPR of all the data, photos and letters.

KeithP

What is the Date of Issue on your Claim Form?

keep_calm_and_carry_on

I'm pretty confident I did not state who was driving the car in my appeal (I remember looking on here first to check what to do). I will get onto Excel immediately.

My Court letter is dated 18/10/18.

Thank you!

KeithP

keep_calm_and_carry_on wrote: »

My Court letter is dated 18/10/18.

Yes, as you say, with a Claim Issue Date of 18th October, and having done the AoS in a timely manner, you have until until 4pm on Tuesday 20th November 2018 to file your Defence.

Just over two weeks to produce a perfect Defence, but don't leave it to the very last minute.


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

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

Coupon-mad

An early SAR is good anyway, to see their hand nice and early. No surprises.

keep_calm_and_carry_on

Hello,

Apologies for starting a new thread.

Here is my witness statement:


I, XXXXXXXXX, of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, will say as follows:

I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked XX1 to which I will refer.

The Claimant asserts that I entered into a contract with it, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. It claims that my vehicle was parked outside of an authorised marked bay.

Before I describe what happened on the day my vehicle was parked in the Derby Street car park (“the car park”), I confirm that the essence of my defence to this claim is that:
A. I did not breach the terms and conditions of parking
B. The Claimant’s signage could not be read from a passing vehicle in the dark / poor light conditions
C. The Claimant's signage did not make it clear what constituted an authorised marked bay.

1. At page X of XX1 is a google earth aerial photograph of the car park. I have marked it in red where my car was parked and the approximate location of the sign nearest to the car. I have marked the entrance/exit to the cark park onto Derby Street.

2. It is my understanding that there are three elements to a contract: offer, acceptance and consideration. An offer must be communicated to an offeree. There was no offer communicated at the entrance to the car park, but only inside it - the Claimant’s signage setting out the terms and conditions were dotted around the site and could not be seen immediately on entry, and could not be read from a car. Photo XX at page XX shows the Claimant’s signage nearest to the entry to the car park. This sign is located in position YY on the aerial photograph. It is located in a position that would not be obvious to a driver as it would be in the far right hand side of their field of vision as they turned into the access road. It was also obstructed by a taxi office sign, as seen in photo xx. It would not be possible to stop and read this sign without obstructing the junction to Derby Street, causing a significant hazard to the driver and other road users.

3. Turning to the day of the parking, on 16th January 2017, my car was parked at approximately 7:32am. A parking ticket was purchased via the Ringo phone payment system at 7:41am (page x of XX1). This ticket entitled the car to be parked for 24 hours.

4. As it was January, it was dark at 7:32am. Sunrise would occur after 8:11am.

5. The signage nearest to the car was illuminated by a sodium lamp, casting a yellow/orange light. The sign has a mid blue background and yellow font of varying sizes. The font is too small to read at a distance of more than about 50cm in clear daylight. See photo XX of pg XX, which was taken in the dark and from the roadside, at a distance of approximately 1.5m which would be representative of a driver’s distance from the sign. See also photo xx of xx, which shows the sign when viewed from inside a vehicle in the same light conditions. It is impossible to read most of the sign.

This car park is located in a historic former brewery yard. It has an irregular layout and features cobbled areas, old buildings and trees. The car park has a large former brewery building (now a hotel, see pg x of xx) in the middle of it. The car park in its entirety is operated by at least three different firms. There is one area of the car park that is clearly labelled as ‘Excel Parking Only’ – see photo xx of pg xx. This is marked on the aerial photo (pg xx of xx).

6. The parking bays are of irregular size and arrangement (see pgx of xx). A number of parking bays are demarcated by lines of cobbles (see pg x of XX1). Some bays are made entirely of cobbles and demarcated with paint. (see photo xx of pg xx). Some bays are marked with yellow paint, some with white. The bays are arranged in an irregular layout to make best use of the space – they are not simply arranged in parallel lines.


7. There is no reason to suspect that the marked bay my vehicle was parked in was not a parking bay available for use. There were no signs, paint, hatchings or other markings to suggest that vehicles could not park in this area.

8. Other areas of this car park operated by the Claimant are clearly marked with yellow painted hatching so that the motorist is made aware that they may not park there. See xx of xx.

9. Yellow markings are commonly used to demarcate restricted parking areas. All motorists will be familiar with this concept as it forms part of the highway code. An extract concerning the use of waiting and stopping restrictions is included – doc xx of pg. xx

10. The location of my parked vehicle posed no obstruction to other vehicles or pedestrians using the car park. It did not obstruct any of the Claimant’s signage or any other feature of the car park.

11. The Claimant’s sign simply states that a vehicle must be parked ‘inside and authorised marked bay’. This does not specify what constitutes an ‘authorised marked bay’. It does not state what a bay should be marked with and does not explain what it means by ‘authorised’.

12. The claimant’s signage provides an illustration of a vehicle inside a bay and an example of a vehicle parked across two bays with a cross against it. My vehicle was parked inside the lines marked on the roadway and would therefore conform to the illustration of acceptable parking. See xx of xx.

13. I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"). This does not provide detailed prescription for signage but, in the section dealing with it, starts by clearly stating that operators must use signs to make it easy for the motorist to find out what the terms and conditions are. At 18.3 it also states that operators should try to use plain and intelligible language in all their signs and information. See xx of xx

14. I do not consider the claimant’s signage to signs to make it easy for the motorist to find out what the terms and conditions are, nor do they use plain and intelligible language.

15. In the now infamous parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated: Paragraph 96: ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.'' Paragraph 111: “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.''


The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.


Signature of Defendant:


Name: XXXXXXX
Date:

I'll ensure the correct headers etc are added in in the 'real thing'.

I have already received their witness statement and can give you details if this helps.

Thanks!

Coupon-mad

Have a look at the VCS WS posted by Lop5 and the replies by me and Johnersh.

An Excel one will likely be the same drivel, we assume, and you can use the replies there, so you can add some points tearing into any citation of crappy court cases that make no sense or were misused/misquoted by them in their WS.

keep_calm_and_carry_on

OK thanks, will do. Their defence does seem pretty irrelevant. They've also helpfully used some photos that support my defence!

Coupon-mad

You don't mean their defence. YOU are the Defendant.

keep_calm_and_carry_on

Haha whoops yes, long day! In my head they're defending themselves from me, I am so mad at them for wasting my time over something so utterly stupid.