Excel Parking Services- Appeal refused

Snakes_Belly

The problem with Link Parking V Mr N. is that there is no transcript available just notes from the Pranksters blog.

Coupon-mad

In your defence you should also state that:

- Penalising a driver when a PDT machine is broken offends against the mandatory test of fairness and the doctrines of open dealing, transparency and good faith, set out in the Consumer Rights Act 2015.

And separately you can say that:

- Given the fact that AOS member parking firms wish to make it appear that they are deserving of the same level of legitimacy as Council parking authorities, and already benefit from 'keeper liability' law and have a new (Secretary of State defined and operated) Private Parking Code of Practice coming in following the new Act being given assent this year, they should not operate in flagrant disregard for the rules as followed by local authorities, where the official Operational Guidance says:

Out of order parking devices
8.59 For the same reasons of fairness mentioned above, if an on-street parking meter or pay-and-display machine is out of order (and parking has not been suspended and clearly indicated as such to motorists), motorists should not be issued with a PCN unless alternative means of payment were available to the driver and clearly indicated.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695793/operational-guidance.pdf

Spencerdog123

Coupon-mad wrote: »

In your defence you should also state that:

- Penalising a driver when a PDT machine is broken offends against the mandatory test of fairness and the doctrines of open dealing, transparency and good faith, set out in the Consumer Rights Act 2015.

And separately you can say that:

- Given the fact that AOS member parking firms wish to make it appear that they are deserving of the same level of legitimacy as Council parking authorities, and already benefit from 'keeper liability' law and have a new (Secretary of State defined and operated) Private Parking Code of Practice coming in following the new Act being given assent this year, they should not operate in flagrant disregard for the rules as followed by local authorities, where the official Operational Guidance says:


https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695793/operational-guidance.pdf

Sounds like some excellent information.

In regards to the text in quotations. The alternative methods that were mentioned when my appeal was denied, were to call the line or pay online.....

Unable to pay online, no smart phone access, appointment was to get mine repaired.

Called them 2 times, pressed the faulty machine option, nothing went through.

Thank god I had a device that could take pictures.

Kind Regards

Spencerdog123

Hello everyone,

I am trying my best to come up with a defence. I don't have too much experience with using law-based language. I also have limited time to get one submitted, as I go on holiday next Thursday. This isn't the most ideal situation, but giving it my best shot. I have found 2 or 3 other cases on here that are very similar to mine.

Are there any plagiarism implications if I was to use one or two others as a guide and input my unique case pieces into it. I ask because of my limited time and demanding job I have.

Photo evidence, do I submit this into my defence?

Regarding a witness statement, I was the only person present. (if I still have to submit one, when would that need to be done at the same time as the defence?)

Appreciate your generous help and advice.

:-)

Redx

no evidence submissions go with the defence, leave them for the WS + EXHIBITS STAGE later in the process , usually in a few months time , after your local court tells you when to submit them

the defence is all you need for now, nothing more, no exhibits , no WS , no photos, nothing else whatsoever

no problem with plagiarism, we tell most people to do what you propose, to adapt a similar defence for your own use , even if its the BARGEPOLE examples

feel free to plagiarise


the BARGEPOLE posts tell you what happens and when , no need to speculate, he told us all several years ago, nothing has changed

Spencerdog123

Redx wrote: »

no evidence submissions go with the defence, leave them for the WS + EXHIBITS STAGE later in the process , usually in a few months time , after your local court tells you when to submit them

the defence is all you need for now, nothing more, no exhibits , no WS , no photos, nothing else whatsoever

no problem with plagiarism, we tell most people to do what you propose, to adapt a similar defence for your own use , even if its the BARGEPOLE examples

feel free to plagiarise


the BARGEPOLE posts tell you what happens and when , no need to speculate, he told us all several years ago, nothing has changed

Thank You for your quick and helpful reply :-)

I generated a 1st draft yesterday......

Shall hopefully get the job done.

Kind regards

Spencerdog123

Many thanks to Snakes Belly as I used his/hers defence as a template. Wouldnt have been able to do it without using the wording and adapting my case to the defence.

Here is my First draft I created yesterday:
Defence


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

2. 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, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. It is believed that that claim relates to a purported debt in relation to an alleged contravention by the driver of the vehicle XXXX XXX when it was parked at (car park and address) on XXX.

4. The facts are that the Defendant was rendered (by fault of the Claimant) unable to enter into a valid and binding contract as the defendant was unable to fulfill the consideration element of the contract due to the failure of the Claimant's equipment, and inadequate signage.

5. The Defendant was unable to make payment due to the Pay & Display Ticket ('PDT') machine being out of service. No signs were seen for any other pay machines and the Defendant made a concerted effort to find an alternative machine which was also out of order. The contract is therefore frustrated and void. In Jolley v Carmel Ltd[2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavors to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

6. A misleading yellow envelope, impersonating authority but stating ’'this is NOT a parking charge notice'' was left on the Defendant's vehicle windscreen that day.

6.1. No PCN was served. Clearly, a piece of paper telling a driver ''this is NOT a Parking Charge Notice'' cannot be later relied upon by the Claimant, as if it was a PCN.
6.2 The document left in the yellow envelope is not compliant with POF Act Schedule 4 which sets out what a notice to the driver (i.e. a 'NTD' or 'PCN') must say, at the point where the driver is the only person present.
6.2.1. As a minimum the notice MUST state:
When and how the parking offence took place;
How much is due;
What any discount is for prompt payment of the charge;
How and to whom payment may be made;
The time and date when the notice was issued; and
What the arrangements are for the resolution of disputes or complaints - this includes any internal arrangements offered by the parking operator as well as any independent appeals process.
A privacy notice regarding how data will be used.

7. The defendant believes that every effort in their power was made to comply with the contractual terms. After arriving the defendant found the parking meter out of service. The defendant took a good walk around the area to find another machine, 20 meters away another machine was also out of service. Both out of service machines are displayed in photographic evidence. The defendant also noticed that a number of other vehicles were not displaying tickets. Unable to make payment, the defendant had to leave to attend a telephone repair appointment. There was never any intention on the Defendant’s part to avoid payment.

8. The Claimant stated in response to the Defendant’s appeal that payment should have been made by the Smartphone application mentioned on signage. This assumption by the Claimant that everyone must have access to a Smartphone in order to park is unfair. The defendant’s reason to park on that day was to attend a mobile phone repair appointment. Damage to the defendant’s existing mobile phone required repair as it was inoperable. The defendant was using a ‘dumb mobile phone’ until the other handset was repaired. The substitute mobile phone was not smart and had no internet access. The defendant was unable to satisfy that method of payment.

9. The Claimant also stated in response the Defendant’s appeal that the Defendant should have left the car park upon being unable to make payment. The defendant had an appointment to attend in --- that was time critical. Moving the car after spending time trying to pay for parking would have meant that the defendant would have missed the appointment. Moving the car was not an option unless the defendant took the 30-minute drive back to their home, also missing the appointment.

10. The Claimant also stated in response the Defendant’s appeal that the Defendant should have called the helpline that was stated upon signage. The defendant called the helpline twice, selecting option 1 (faulty machine). After selecting the faulty machine option, no phone line connection was made, and the defendant was left in silence on 2 attempts. The defendant’s intent to report the faulty machine was present. But the quality of the phone line did not allow communication to take place.

11. There are numerous cases in relation to car parks managed by the claimant whereby equipment has not been maintained or faulty. This has resulted in motorists receiving fines and at best is poor customer service and at worst entrapment.

12. The defendant has not requested evidence of the maintenance records at the time of the alleged contravention. The reason being is that during a hearing, this same Claimant - Excel Parking Services Ltd - were reportedly held to have altered/tampered with PDT machine evidence, in the decision made by a Skipton Court Judge, and then afterwards the facts were restated in the order by HHJ Gosnell declining Excel's appeal (ref: Excel v Ambler, case no. E1DP2061). The Defendant does not believe that any such records in this case would have any credence and has therefore not requested them, as the Defendant has no confidence in the conduct of this Claimant.

13. The defendant cites the case Port Talbot: 19-10-2016: C1GF37H7: Link Parking v Mr N. The defendant (MrN.) was unable to purchase a ticket due to a faulty machine. The Claimant stated that Mr N. should have moved his car. The judge ruled that frustration of contract applied and that Mr N. had attempted to fulfil his contractual obligations but could not because of the broken machine. The claim was dismissed. Whilst the defendant is aware that this case has not set a precedent the case is relevant.

14. The defendant cites the consumer rights act 2015: Penalising a driver when a PDT machine is broken offends against the mandatory test of fairness and the doctrines of open dealing, transparency and good faith.

15. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

16. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to court (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2) (g).


17. 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.


18. I believe the facts stated in this Defence Statement are true.

Coupon-mad

You have the first bit I wrote for you in post #63, but not the second bit, the quote from the Operational Guidance about broken machines.

You also have nothing about the fake added costs, so we suggest this ending (OBVIOUSLY ADDING PARAGRAPH NUMBERS):

https://forums.moneysavingexpert.com/discussion/comment/75922229#Comment_75922229

HTH

Spencerdog123

Coupon-mad wrote: »

You have the first bit I wrote for you in post #63, but not the second bit, the quote from the Operational Guidance about broken machines.

You also have nothing about the fake added costs, so we suggest this ending (OBVIOUSLY ADDING PARAGRAPH NUMBERS):

https://forums.moneysavingexpert.com/discussion/comment/75922229#Comment_75922229

HTH

Thank You

With the out of order devices 2 part you mentioned. Within that statement "unless alternative means of payment were available to the driver and clearly indicated."

This is one of the main things excel are trying to come back at me with.

They suggest other methods or parking. So That is why I wasn't 100% sure. I will enter something regarding there added fees now :-)

Kind Regards

Snakes_Belly

Are they saying that you should have moved your car? Is it in their terms and conditions that you should move your car if their machines are not working? Is it in their terms and conditions that you have to be carrying a smart phone?

I am not an expert but I would mention Prendi as this was a decision made by Henry Greenslade who said. 'each case will turn on it's merits'.