EXCEL paid tariff but did not issue ticket

Keith_S

I have edited part 2 and 2.1 of the above defence for clarity. Would anyone care to comment before I send this in. Thanks.

KeithP

anon wrote: »

I have edited part 2 and 2.1 of the above defence for clarity. Would anyone care to comment before I send this in. Thanks.

You still have over a week to file a Defence.

Do not rush this.

Keith_S

hXXps://ibb.co/RbGgPJc

This sign shows the £60/£100 blurb does not form part of the terms & conditions on the right.
It is placed in very small font at the very bottom of the sign within 115 words.
This is my evidence of poor and inadequate signage and failure to make a contract.

I have a legal precedence listed for payment of tariff not being recorded by faulty machine
and will have witness statements for the same.

Umkomaas

https://ibb.co/RbGgPJc

A psychedelic mess!

How can that hope to form a contract? But final legal interpretation will need to come from a Judge - if the chance to ask the question of one arises!

Keith_S

How can that hope to form a contract?
Well that's what I'm hoping. Is there a good legal reference I can use here?

I have used Jolley V Carmel LTD (2000) 2-EGLR-154 as a precedent for payment issue. Are there any similar ones I could quote or is one enough?

Keith_S

I think my defence is ready to go but will wait til Monday for any comments before emailing it. Many thanks for all your help thus far.


IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
Excel Parking Services Ltd (Claimant)
-and-
xxxxxxxxxxxx (Defendant)
________________________________________
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 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. (A ticket is not required to be displayed).

3. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment again. 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.

4. The contravention appears to be based on images by their ANPR camera at the entrance and exit to their site. This is merely an image of the vehicle in transit (with information superimposed by an unconnected offsite server) and is not evidence of the Defendant "being parked without payment". The Claimant is put to strict proof otherwise.

5. The claimant has also failed to correctly identify the car park where the contravention was "detected". The postcode WF1 1DP on the PCN relates to a private car park on George Street half a mile away where the defendant denies ever being parked. The George Street "Pay and Display" listed on the PCN is actually located at WF1 1NE and is actually a "Pay" car park.

6. 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.

7. 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, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015

8. The terms on the Claimant's signage are 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.

9. The signage did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant.

10. It is also denied that in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

11. 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.

12. 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.

13. 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

Coupon-mad

This payment will be evidenced by witness statements, therefore the claimant suffered no loss.

I'd remove the above. Never mention 'no loss' in a PCN defence.

Keith_S

My Defence is listed as recieved and the DQ has been sent.
I am about to send the SAR using the template - plus a request for the cash collection / meter reading record for the PDT on that day (to show excess cash in machine)
Would it be useful to also do a FOI request for PCNs issued on that day and PCNs issued due to non-payment of tariff?

KeithP

anon wrote: »

Would it be useful to also do a FOI request for PCNs issued on that day and PCNs issued due to non-payment of tariff?

Freedom of Information requests are only applicable to public bodies.

Private parking companies do not have to disclose the information you are seeking.

Keith_S

Thanks KeithP, I should have realised that. My train of thought was due to a similar request of the DVLA which is a public body. Do you think it's something worth chasing up with DVLA?