EXCEL paid tariff but did not issue ticket

Keith_S

Hi and thanks in advance for the help on this forum.

CASE DETAILS - (DRAFT DEFENCE BELOW)
I have received a county court claim form from Northampton County Business Centre for an unpaid “Charge Notice” in October 2018. The claimant is Excel Parking Services Ltd.

Claim is for £160 +£25 court fee for “101) Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site”

Issue date is 22 Feb 2019. AoS was completed on 4/3/2019 defending the claim.

Claim form has a typewritten signature by Simon Renshaw-Smith and bears no title.

Their PCN Notice to Keeper (NTK) showed poor quality photos of my front and rear number plate with a timestamp box (which could have been photo-shopped on) purportedly showing the vehicle entering and leaving within a space of 22 minutes.

The Site name and location states PRIVATE LAND. George Street Pay and Display Car Park, Wakefield WF1 1DP (this is the postcode of a car park on the same street over half a mile away).

I unfortunately appealed to Excel admitting I was the driver, stating that I put money (£1.20) in the machine and entered my registration number 6 times. The machine then took my money and failed to issue a ticket to display. I considered that I had dutifully paid for parking. The sign states “You do not need to display your ticket”.

I had spent 12 minutes at the terminal in the dark and pouring rain and a further 10 minutes collecting goods from the shop nearby for which I have receipts above £30.

The car park is owned by Wakefield Shirts Ltd who never take responsibility for their tenants/agents.

I have COPD, a permanent debilitating disability and my severely disabled son was with me and had a blue badge on display.

The £100 parking charge does not form part of the terms and conditions on the sign but is right at the bottom in a tiny font, so no reasonable person would have been able to easily read it.

Keith_S

DRAFT DEFENCE 1

IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx

BETWEEN:
Excel Parking Services Ltd (Claimant)
-and-
xxxxxxxxxxxx (Defendant)
________________________________________
DEFENCE
________________________________________

1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to an alleged debt arising from being “Parked without payment of the parking tariff’, when parking at a private car park on 14/10/2018. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge'.

2. The correct parking tariff of £1.20 was paid in coin at the machine and number plate details were entered as directed. The machine failed to issue a ticket. This will be evidenced by witness statements, therefore the claimant suffered no loss.

3. It is asserted that my witness statement and those of my family are the only ones from parties with personal knowledge of the events of that day and that any statement made by this Claimant or their legal representative are not facts within their personal knowledge, given the fact that only myself and my family member were there to bear witness.

4. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment. 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 comply with the terms. It is also felt unfair that they should be both out of pocket and called to court for failings on the part of the claimant.

5. An initial appeal, outlining the above circumstances, was made via the claimants on-line appeal process but was refused, without ever actually addressing the issues raised. It appears a standard rebuttal was issued, with at no point the specifics of the case being taken into consideration.

6. The claimant failed to correctly identify the car park in question as the postcode given on the PCN relates to a different private car park over half a mile away from where the vehicle was parked. Furthermore, the PCN states that it is a “Pay and Display” car park whereas the signs in the car park state it to be a “Pay” car park.

7. The Claim Form issued on 22/02/2019 by Excel Parking Services Ltd was not correctly filed under The Practice Direction as it does not have a valid signature and bears no title. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position.

8. The allegation is that the ‘Parking without payment of the parking tariff’ is based on images by their ANPR camera at the entrance and exit to the site. This is merely a very poor quality image of the vehicle in transit and is no evidence of a contravention or failure to make payment. The claimant has not provided any evidence of the car being parked.

9. The defendant was harassed and intimidated by a sequence of “debt collection” “and Demand for Payment” letters, at a time when no actual debt has been established.

10. 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, beyond the agreement to pay the tariff and identify the car registration number, which the defendant carried out.

11. 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.

12. The terms on the Claimant's signage were displayed in a font which was far too small to be read from any passing vehicle, and that anyone attempting to read the tiny font would be unable to do so easily.

13. The notice about a £100 parking charge was not included and did not form part of the Terms and Conditions but appeared in a very small font at the very bottom of the signage where it would be easily missed by any reasonable person. On this basis it is denied that the Claimant has provided signage which is capable of creating a legally binding contract.

14. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. The entrance to the Car Park is from a busy road near traffic lights with no possibility to stop safely.

15. The doctrine of contra proferentem must be applied in favour of the consumer, where terms are in any way ambiguous in their drafting or display.

16. 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, 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.

17. 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. This claim includes an additional £65, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding these purported but unsupported debt collection costs, which the Defendant submits have not actually been incurred at all as all letters came directly from Excel. The Defendant avers that this inflation of the considered amount is a gross abuse of process and is an attempt at circumventing the Small Claims costs rules.

18. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Claimant knows this. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, arising from Excel clients artificially inflating their robo-claims, which are filed in tens of thousands, per year.

19. As the breach was de minimis and Excel knew this from the appeal, they should never have brought the claim as it was too trivial to warrant the Claimants parking charge and had, in any case, caused no loss to them. This claim breached the CRA 2015 as the charge was entirely disproportionate to the breach that had occurred.

20. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

21. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.

22. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:

22.1 Lack of an initial privacy impact assessment, and

22.2 Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

22.3 Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR, together with a Pay style system as a secondary data processing system at this site, as opposed to a less privacy-intrusive method of parking enforcement.

22.4 Failure to consider the number of complaints from the landowner and other businesses, which would have alerted this Claimant to the fact that their data pay machine / ANPR and confusing signage was not being seen and/or understood by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges, and

22.5 Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the Pay system and how the data captured on both would be used, and

22.6 Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA.

23. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.

24. The driver of the vehicle in question suffers from Chronic Obstructive Pulmonary Disease (COPD) and the passenger in the vehicle has multiple physical disabilities including a below knee amputation and therefore should be allowed a reasonable adjustment in the grace period under the Equality Act 2010.

24.1 The Defendant would argue that 22 minutes does not sufficiently account for making reasonable adjustments which would allow a severely disabled man sufficient time to use the services provided.

24.2 The Equality Act 2010, specifically Chapter 20.3, states that service providers are required to make reasonable adjustments for persons with disabilities. This includes providing extra time for a disabled person to use the service. Failure to do so not only constitutes discrimination, in accordance with The EHRC Equality Act Code of Practice for Service Providers, (specifically paragraphs 14.58, 5.4 and 5.34) but also renders any contract unenforceable under the prevailing legislation, namely paragraph 142 of the Equality Act. Because this car park is open to the public, the landowner, or managing agent, on-site outlets and the private parking company are all 'service-providers' who have a legal duty to adhere to the 'Equality Act Code of Practice on Services, Public Functions and Associations' which became law on 6th April 2011.

25. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee

26. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name
Signature
Date

Le_Kirk

That is a very long defence and part of it appears to be a Witness Statement (WS), which comes later in the process. Check the NEWBIE thread for concisely written defences by Bargepole and Coupon-mad and adapt one of those. Defences are written in the third person and, when you got to it, WS are written in the First person and are the story of what happened. Start HERE and then scroll down until you see: -

Here are some cases won or in progress:

Here is a defence I suggested for a case.............

Keith_S

Yes, it did seem to drag on a bit. I have adapted one as suggested. Is this sufficient for a defence?

DRAFT DEFENCE 2

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

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.

3. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at George Street Pay & Display Car Park in Wakefield, in 2018.

3.1. The PCN stated the contravention as 'Parked without payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge (tariff) had already been paid.

3.2. 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.

4. It is denied that:
a. A contract was formed to pay anything more than the advertised tariff;
b. There was any agreement to pay a further penalty parking charge;
c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty, in at least as large lettering as the tariffs shown at the machine.
d. In addition to the parking charge there was an agreement to pay additional and unspecified additional sums;
e. the claimant in fact expended the claimed additional sums;
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice.


Primary defence - payment was made but the system hid a concealed pitfall or trap
5. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel. Payment for parking was made via the claimants coin operated system.

5.1. The Defendant followed the instructions exactly as shown on the signage at the payment machine. The payment channel did not indicate any failure to make payment.

5.2. The machine made no attempt to print a ticket, however the sign stated there was no requirement to display a ticket. The Defendant reasonably expected that the payment was made appropriately and had no reason to question this.

5.3. It was only when a PCN arrived in the post that the Defendant knew (too late) of what appeared to be a problem caused by the Claimant's machine itself.

5.4. The DPA states that personal data is 'inaccurate' if it is incorrect or misleading as to any matter of fact. The matter of fact here is that payment of the tariff was made by the driver of the vehicle which was captured by ANPR, and for which the Claimant duly obtained the Defendant's personal data from the DVLA.

5.5. Given the fact that the ANPR data did not match with a payment made, an automated PCN was issued. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their machines are fit for purpose, such that the dangerous 'default to the old VRN' presumption and associated consumer risk is eliminated.

5.6. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the Claimant's own machine was faulty at the outset, and going unnoticed by a driver.


No agreement on the penalty and no contract formed by conduct
6. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for their own machine failure. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, and must also be a valid and enforceable ('distance') telephone payment contract that is not unconscionable, given the facts of the case. The Defendant avers that this punitive charge fails in all respects.

6.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.

6.2.3. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

7. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

No standing or landowner authority
8. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined parameters (including when caused by failure of their own data processing/excessive storage) and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification
9. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty, for not noticing an additional contract in very small print at the very bottom of signage.

9.1. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

10. 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.

KeithP

anon wrote: »

I have received a county court claim form from Northampton County Business Centre...

Issue date is 22 Feb 2019. AoS was completed on 4/3/2019 defending the claim.

With a Claim Issue Date of 22nd February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 27th March 2019 to file your Defence.

That's nearly two weeks away. Loads of time to produce a 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 suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Le_Kirk

Still quite long, you need to split off the defence bit from what will become the Witness Statement (WS) bits. Defence bits are those similar to the concisely written defence by Bargepole, as pertains to the POC provided by the claimant. WS bits are your story of what happened on the day.

Keith_S

PoC is "The claimant's claim is for the sum of £160 being monies due from the defendant in respect of a Charge Notice (CN) for a contravention on xx/10/2018 at George Street Pay and Display Car Park" The CN relates to xxxxx under reg no xxxx. and waffle about failing to pay.

I have redone Bargepoles concise defence below. Is this really sufficient??

DRAFT DEFENCE 3

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 driver and registered keeper, was parked on the material date in the George Street Car Park, Wakefield WF1 1NE and the required tariff was paid in coin at the machine and number plate details were entered following the instructions on the sign. The machine failed to issue a ticket. This will be evidenced by witness statements, therefore the claimant suffered no loss.

2.1. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment. 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 comply with the terms. It is also felt unfair that they should be both out of pocket and called to court for failings on the part of the claimant.

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.

4. 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.

5. 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.

6. The Claimant is put to strict proof that it has sufficient proprietary 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.

7. 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.

8. 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

Keith_S

Should I mention the Equality act in this defence?

D_P_Dance

If you paid then they are trying to scam you.

If you can prove that you paid then they are wasting your, and the court's , time, and, if it gets in front of a judge, are likely to crash and burn.

Your may be entitle to unreasonable behaviour costs , read CPR 27.14 (2)(g) and complain to your MP.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem become so widespread that MPs agreed to enact a Bill to regulate these scammers. It received The Royal Assent today.

Keith_S

I can't prove that I paid as the machine failed to print a ticket (there is no requirement to display a ticket), however I have WS from 2 passengers in the car to state this is true.

I also intend to request the meter reading/cash collection for that date to prove they collected more money than was registered in the machine. Is this viable?

D_P_Dance

Then it would appear that they might be urinating into the wind.