Excel Parking County Court Claim form

borap69

Coupon-mad wrote: »

LOL, yes, all PPCs do this, they think if they throw it all into the mix it might work! They end up annoying Judges and using template drivel, badly edited.

Why, it's hilarious once you start picking it apart.

Yes, or in a separate skeleton argument for the legal issues adn case law - see my replies and the posts by Johnersh in Lop5's thread from this week to see how easy it is to pull apart a template WS.

No, you have the advantage. Use it!

Okay great, thanks very much. This is what I have for my witness statement so far, what do you think? Thanks for referencing the lop5 thread, the parking company witness statement is HIGHLY similar to mine so I believe the legal opposition to that will be very helpful for the skeleton argument here.


Between

Excel Parking Services Ltd. (Claimant)

and

MR XXXXXX (Defendant)


WITNESS STATEMENT


I, NAME, of ADDRESS WILL SAY AS FOLLOWS:

I am the Defendant in this matter. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. I intend to put forward my case with the following witness statement and a skeleton legal argument also filed with the court. Attached to this statement is a paginated bundle of documents marked RS1 [Ab = my initials] to which I will refer.

1. Prior to explaining my actions on the day I parked in the Lower Loveday Street P & D car park (“the car park”), I confirm that the summary of my defence to this claim is that:
A: To the best of my understanding I had paid appropriately for my use of the car park.
B: The signage was complicated and inadequate to the point that I cannot have been understood to have entered into a contract to pay anymore than the parking tariff.
C: All charges, beyond the parking tariff, set out by Excel Parking Services Ltd. are an attempt to punish the driver (me), rather than serve the ‘legitimate interest’ of the car park or company.

2. On 9/03/2018 I arrived in Birmingham around 2 AM, and parked in the car park. I Stayed at friends residence that night. Then on 10/3/2018 continued the day in Birmingham. At the next available opportunity and before I had returned to the vehicle, I used my phone to pay for 24 hours parking. Using the RingGo cashless system and site code I had taken on my way out of the car park the night prior. On arrival back at the car park I discovered the PCN; to the best of my understanding 24 hours of parking had been paid for, adequately covering my stay, so no further action was taken. I left shortly after, around 6pm.

I will now describe the above events in further detail:

3. RS1 shows Google Street View photography of the entrance to the car park. The Claimant's evidence pack AA1 shows very close up photos of the entrance sign. However, I maintain that from an entering car it was extremely difficult, if not impossible to make out all the stipulations on the sign, especially when considering I entered at night and in wet conditions.

4. RS2 shows a Google Earth overhead image of the car park. On it I have marked the route I took and the location I parked, this is backed by AA2 page 29 and 30. Inside the eastern portion of the car park there are no signs giving any information to drivers, as seen in RS3. I would also like to note from RS1 and RS3, that contrary to AA1 page 21, there is no Pay and Display machine in the South West Corner of the car park, by the vehicle entrance. I could not see any information about the site from my car at the time of parking.

5. In fact, there was only one entrance board and one information board on the site in contrast to the Claimant's witness statement point 14. This is actually confirmed by the Claimant’s evidence pack AA1 page 21, which shows only two signs marked on the overhead photo.

6. As I was in an unfamiliar area, late at night I wanted to leave the area promptly and get to a friend’s residence where I was staying that night. I walked to the Western side of the car park and took a photo of the information given on the Pay & Display machine which detailed how to pay using the RingGo service, which is shown in RS4. The time of day and weather conditions can be made out from the photo.

7. From AA1 page 25 it can be seen that the main signage is overcrowded and unclear, even from up close as in the pictures, with particularly small print regarding the terms and conditions. What was clear is the required tariff, which I therefore submit that this was all I agreed to pay.

8. On the 10/3/2018, before returning to the car park and at the next available opportunity that I had; I used the RingGo mobile payment service and site code I had taken a picture of the night prior, to pay the tariff for 24 hours parking. The receipt is shown in RS5 and an online bank statement proving the transaction is shown in RS6.

9. I then returned to my car intending to drive home at approximately 6pm. I discovered the PCN or ‘card’ placed on my windscreen. However, as I had paid for 24 hours parking and had stayed at the car park for approximately 16 hours, I understood to have paid the tariff appropriately. I removed the PCN/ ‘card’ and left the car park to drive home, taking no further action.

10. I would like to note that I wasn’t able to take any photos of the signage at night as the car park has changed hands since the case was raised against me, with Excel no longer operating and the signage removed, as shown in RS7. This is also contrary to the ‘Leaseholder witness statement’ in AA1 page 20.

11. This claim is an attempt by Excel Parking Services Ltd. to punish people unfamiliar with the area and car park procedure, such as myself. I paid for the duration of my stay in the car park, with time to spare, therefore any charges beyond the paid tariff are unconscionable and unrecoverable.


12. This unwanted harassment by Excel Parking has caused me significant stress and taken up valuable time from studying for my Masters Degree at Aberystwyth University. To the extent that I intend to report the conduct of Excel Parking to Trading Standards and make my MP aware of this issue.

The Court is invited to dismiss the claim and to award my costs of 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:
Date:

borap69

Witness statement which I intend to send off if no objections is in the post above.

Evidence to go with the witness statement here: drive.google.com/open?id=1dVBzmDIFhlk5sFkviD1uFjYZfUuuwl7H

That is the evidence to go with the witness statement, I want to file the legal evidence alongside the skeleton argument as I need more time to collate that. Will that be okay do you think?

Thanks

KeithP

borap69 wrote: »

I want to file the legal evidence alongside the skeleton argument as I need more time to collate that. Will that be okay do you think?

No I don't think that's a good idea.

Don't you have a notice from the court giving you a date by which all documents you intend to rely on must be filed with the court and served on the other party?

Witness Statement and evidence fall into that category.

borap69

KeithP wrote: »

No I don't think that's a good idea.

Don't you have a notice from the court giving you a date by which all documents you intend to rely on must be filed with the court and served on the other party?

Witness Statement and evidence fall into that category.

Okay, yes 12th April. I will crack on with collecting the legal basis then, Thanks.

Gunner84

Don't fret about a long winded and cumbersome bundle from the PPC.

My case was last week. and we won easily with common sense. In fact, when you first receive it, the unjust feeling may overwhelm you, as you mentioned in your case, they "go to town".

The reality is usually these huge walls of text can be mined for errors, poor logic and sheer stupidity. In my case, the claimant literally referred to a contract that permitted them to make the claim in their own name in their second paragraph of the WS. That contract didn't exist in their bundle. As soon as I highlighted it, for the rest of the hearing they were just clutching at straws. Examine their WS thoroughly, and listen to the experienced posters in here. Coupon-mads advice for example can win it for you. The hearing isn't scary at all.

Coupon-mad

That WS looks good to me, especially if then supported by a skeleton argument.

Re the small print/cluttered signage, as a relevant case you could use Excel v Cutts (transcript is hosted by the Parking Prankster) and also the article Martin Cutts of the Plain Language Commission (and the Defendant in that case) wrote about the signage:

https://irp-cdn.multiscreensite.com/aaf9e928/files/uploaded/DVLA-BPA-Cutts12June2012_v2_mf.pdf

borap69

Coupon-mad wrote: »

That WS looks good to me, especially if then supported by a skeleton argument.

Re the small print/cluttered signage, as a relevant case you could use Excel v Cutts (transcript is hosted by the Parking Prankster) and also the article Martin Cutts of the Plain Language Commission (and the Defendant in that case) wrote about the signage:

https://irp-cdn.multiscreensite.com/aaf9e928/files/uploaded/DVLA-BPA-Cutts12June2012_v2_mf.pdf

Excellent thanks very much for the help. Great, yes have been reading up on those two documents over the past couple of days. In terms of referencing/ exhibiting these documents and others; for each court case, I want to reference the judgement transcript is that correct? and would you suggest including the whole of that article in the evidence pack?

Its not the main point but something I'm going to try and raise with the Judge, is this 'Leaseholder witness statement' Excel have included (photos.app.goo.gl/PaCZV4CwiV3FfBKUA). I'm really struggling to see how a letter signed by someone from within the company - just saying that they lease the land, with no mention of the actual landowner, gives any legal right to them operating parking or giving charges for that site. As well as this the leaseholder statement is factually incorrect as photos of 2018 show the car park is run by Euro car parks.

Thanks for everyones help so far.

Umkomaas

https://photos.google.com/share/AF1QipPgSsubFbmjx4RU_v5yp9iX9PeSTMRH6tABOTrbvW11xUfEX2ctMcP7uMBkDS5_Sg?key=QnJnUDJMenlSNDRscVFRN2JLZ2lsb21nU3V5ajlB

We’ve seen these before. I can’t recall any serious questioning of it by a Judge, but that’s definitely not to say that it’s ‘right’ or that you should not bring it up and assertively challenge it.

As a minimum you should be demanding they produce evidence of the legal document conveying the land to them under leasehold agreement. Otherwise, anyone could write anything if they’re not challenged.

To twist an oft-used quote by Excel from their sister outfit’s (VCS) case versus HMRC, anyone could say ‘We are the leaseholders of Buckingham Palace .......’!

borap69

Skeleton argument below, it is lengthy I realise but I'm trying to separate legal points from my witness statement. Also have put the "in response to" in brackets as I'm not sure if its needed, but I think its helpful to point out to which of their points I'm disputing.

As I have used the Beavis case a lot is it relavent to include the whole case judgement in my evidence or only parts of it do you think?


Skeleton argument on behalf of Mr Robert J Smith (Defendant)

(In response to Paragraphs 15, 16, 33) The Judge’s attention is brought to DJ Lateef's findings about Excel Parking Services signage in 2011. Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) included these observations from her visit in person: “The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park”. The signs were found inadequate and the claim was thrown out. It is contended that the signs in this case were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design. Included as evidence in RS8 is Excel v Cutts 2011.

In order to provide proof that the Claimant has the authority to enforce parking tariffs and charges, the claimant is asked to provide evidence of the legal document conveying the land to them under leasehold agreement. The claimant has supplied a ‘Leaseholder witness statement’ but the effectiveness of this document is questioned. The document is written and signed by a member of the claimant's own company and contains no form of proof of any connection with the landowner. It is also noted that the document contains factual inaccuracies; in that, the car park is now managed by Euro Car Parks, who have no connection to Excel Parking Services. This can be seen in RS7, which is dated August 2018.

The Claimant places reliance on its provision of signage at the site. However, there is only one entrance board and one information board at the site. There are two P & D machines but these are both in exactly the same place within the site. There is a discrepancy in the Claimant’s evidence pack between Paragraph 14 and the overhead map in AA1.

(In response to Paragraph 29) It is contended that Thornton v Shoe Lane Parking 1971 is not relevant as this case only shows that a person who bought a ticket can only be bound by terms known at that time, and that terms can't be added later.

(In response to Paragraph 31) The claimant cannot rely on Vine v Waltham Forest LBC 2002 as this case has been misquoted and is out of context. In this case the court goes on to note that the signage was insufficient and that the case was fact specific. It was judged that in that situation Ms Vine could not have read and understood the terms. The judgement of Roch LJ was in favour of Miss Vine. Paragraph 19 of that judgement is included:

“To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning”

(In response to Paragraphs 34, 45) My case is distinguished from ParkingEye vs Beavis (2015) as the Beavis case makes it clear that each case is fact specific and parking charges are unconscionable and unrecoverable if they are set to punish a driver, which it is contended that this case is.

(In response to Paragraph 54) The Judge is referred to the Cutts case judgment Paragraph 6, in RS8, where it was ruled that Mr Cutts had not entered into a contract simply by entering the car park.

(In response to Paragraph 57) It is contended that the site code and phone number required to pay are presented very clearly, as per RS7 and AA2 page 31. In contrast the rest of the terms are displayed very poorly and incoherently.

(In response to Paragraph 58) The Claimant is put to proof of the process of ‘audit and approval’ to make their signs capable of forming a legally binding contract.

(In response to Paragraphs 60, 67) The Claimant cannot add extra, made up, charges to what is already and inflated penalty. In the Beavis case a maximum of £85 was allowed and it was stated that a parking firm cannot seek damages. It is contended that there are no damages in this case and the charges are all profit over the minimal cost of sending letters.

(In response to Paragraph 64) Thornton vs Shoe Lane identifies that only terms known before the payment was made are enforceable. Therefore the idea that “the Defendant could not have been in any doubt, at worst, after the issue of the first PCN” is not applicable.

(In response to Paragraph 65) Again, this case is distinguished from the facts in the Beavis case. It is contended that the Beavis case supports the defense based on the fact this sort of ticket is a punishment of a paying driver, and not an 'understandable ingredient of a scheme serving legitimate interests'. In addition the maximum amount permitted in the Beavis case was £85, which was deemed to be reasonable, whereas the amount claimed in this case is almost double that at £160.

(In response to Paragraph 67) Chaplair v Kumari is distinguished. Far from supporting this attempt at double recovery, Chaplair was a decision about contractual fees set in lease terms. Whereas parking charges are capped by the POFA/the will of Parliament, at the sum on any Notice to Keeper, and not higher.

Umkomaas

A Skeleton Argument should be a basic aide memoir of bullet-points that you would like to cover should the Judge provide you the opportunity.

It should look more like a list of ingredients rather than a whole recipe. It isn’t an extra chance to add to/embellish the Defence and WS already submitted.

It should be forwarded to the court and claimant’s solicitors a few days before the hearing, probably best when/if submitting your cost schedule.