EXCEL paid tariff but did not issue ticket

Snakes_Belly

It's a robo WS and much of it is irrelevant.

I bet that they claimed that their machines are well maintained and never fail. Include a copy of the Ambler case (appeal) as this related to the input of a reg into a terminal. Not a pay car park but the case is useful to demonstrate that their terminals do not work. The car park in question was in Keighley and Excel were chucked off the site after numerous complaints about terminals.

Snakes_Belly

The Ambler case went to appeal and was dismissed so may have more influence.

Snakes_Belly

https://forums.moneysavingexpert.com/discussion/5869594/court-report-excel-spanked-at-skipton

Ms Ambler was awarded more costs than usual because of Excel's behaviour.

Keith_S

In the County Court at XXXXXXXXXX



Between
Excel Parking Services Ltd. (Claimant)

and

Mr XXXXXX (Defendant)

WITNESS STATEMENT



I, XXXXXXX of XXXXXXXXXXXXXXX will say as follows:

I am the Defendant in this matter and it is admitted that I was the driver of the vehicle on the day of this event. I believe myself to be a man of good moral standing. The facts and matters referred to in this statement are within my own knowledge.
Attached to this statement is a paginated bundle of documents marked to which I will refer.

Preliminary matters:
a) The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “in respect of a Charge Notice (CN) for a contravention on 14/10/2018 at George Street Pay & Display Car Park” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', this has denied me a fair chance to defend this in an informed way.

b) Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name. No lease or contract has been submitted, only a self-written leaseholder witness statement declaring that they have a lease.

1. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

2. The Claim relates to an alleged debt arising from the vehicle having been parked without payment at George Street Pay & Display Car Park on 14th October 2018. Excel are arguing I was bound by unknown terms creating a contractual charge, yet this £100 was not a term known or agreed at the point of making the contract, neither when parking, nor when making payment at their Pay & Display Terminal (PDT). This £100 is not even mentioned in the Terms and Conditions section on their tariff board. SEE ITEM KS01

3. I did however park in this car park on the material date but completed the required steps for making payment and entering my Vehicle Registration Number (VRN). I made reasonable endeavours and entered my VRN in full and paid the £1.20 tariff for one hours parking (and left within 22 minutes). The machine failed to respond and I was forced to go through this procedure 6 times before it accepted my payment. I reasonably expected that the payment was made appropriately and had no reason to question this.

4. The PDT then failed to issue a ticket, however as this was a PAY car park and not a PAY & DISPLAY car park as stated by the claimant I failed to see a problem. There is a clear notice on the tariff board that states “You do not need to display your ticket”.

5. As such I attempted to comply with the terms and conditions but was unable to do so due to circumstances out of my control and can be considered frustration of contract.

6. 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.

7. Even if the Court believes a contract potentially existed, the Law Reform (Frustrated Contracts) Act 1943 applies. It states at 1.(1) ''money due but not paid before frustration ceases to be payable'' and; “a contract may be discharged on the ground of frustration. The unforeseeable frustration brings a contract to an end forthwith and automatically”.

8. I also cite the case Port Talbot: 19-10-2016: C1GF37H7: Link Parking v Mr N. The defendant (Mr N.) 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 I am aware that this case has not set a precedent the case is relevant.

9. As evidence I attach a witness statement from my wife, confirming that we parked and complied as instructed by the tariff board and PDT. At no time were we aware of a parking charge risk when filling in the VRN data. This was an unexpected and non-agreed charge; no contract was formed whatsoever.

10. It is trite law that a contractual term cannot be relied upon that is only communicated after conclusion of a contract, as that is too late to be incorporated into the prior agreed terms.

11. Denning LJ in Thornton v Shoe Lane Parking [1971] held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way'' and that the contract takes place when the payment is made.

12. Also Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient''

13. It is asserted that my witness statement and that of my wife 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 wife were there to bear witness.

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

15. At no point has this Claimant actually evidenced that the takings from that machine on that day were up by £1.20, nor have they even mentioned checking that information.

16. WITH REFERENCE TO THE CLAIMANTS WITNESS STATEMENT

17. The claimant uses a template borrowed from other sources and is riddled with errors.

18. WS #1 - The Claimants paralegal joined Excel a month after this event so none of the facts or matters are within his/her own knowledge.

19. WS #5 – The the CoP does not merely comprise 'recommendations'. The Supreme Court found it was effectively 'regulatory' and full compliance was required to obtain DVLA data.

20. WS #6/#44 – The postcode for this address is incorrect and leads one to a private carpark on George street but almost half a mile away. See KS02

21. WS #6 – This is a PAY carpark not a PAY & DISPLAY. Evidenced by the signs on the car park supplied by the claimant. SEE ITEM KS03 & KS04

22. However, even this is misleading as one of the signs provided by the claimant does state Pay and Display but THIS SIGN IS NOT LOCATED IN THIS CAR PARK AT ALL, as is evidenced by the claimants own photographs showing the 2 tariff boards. SEE ITEM KS05 & KS06

23. WS #7 – “Whilst the vehicle was parked within the development the Defendant was confirmed as the driver” – No he wasn’t. You confirmed the keeper through DVLA and I confirmed I was the driver during my appeal.

24. WS #8 – Excel is the Claimant not the Client. So Excel appointed themselves?

25. WS #9 - “The Claimant is contracted to undertake parking management” – so Excel are the agents or the tenants. No contract or lease has been submitted to prove Excel have the authority to issue PCNs and specifically to issue litigation.

26. WS #12 – No contract has been submitted

27. WS #17 – No contract has been submitted

28. WS #18/#36 – The entry sign located at the entrance can only be viewed sideways on by any motorist entering by turning left into the carpark as I did. SEE ITEM KS06 Motorists are unable to stop and read the entry sign as they would be blocking the entrance and the very busy road which is within 20 feet of the traffic lights. Therefore no contract could have existed at that point.

29. WS #19 #47-51 - The signs in this car park are not sufficient, prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself which is buried within 100 words in a small font at the very bottom of the tariff boards SEE ITEM KS05 Compare this to the sign in the Beavis case SEE ITEM KS0

30. WS #20 – The vehicle was recorded as entering and leaving. There is no evidence of it being parked, save for my own admission in the appeal. Again the tariff was paid and the claimants PDT failed to record it.

31. WS #26/27 - It is in the public domain that the IAS turn the usual rules of evidence on their head, by expecting the consumer (rather than the claimant) to bear the burden of proving their case, even being expected to evidence matters that are solely in the knowledge of the parking firm. In my case, I realise now that I bore an impossible burden, of being expected to prove to the IAS that I had paid £1.20 and somehow evidence (weeks later) the whereabouts of my unregistered payment - which was within this claimant's own machine. This reverse burden of proof puts consumers in an impossible position.

32. WS #30 – Thornton vs Shoe Lane is irrelevant in this case, merely showing 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.

33. WS #32 – Vine vs Waltham Forest is misquoted/out of context. In para 11 of the judgment. The court goes on to note that the signage was insufficient in vine. It's fact specific. The Claimant appears to be leading the Court to the Respondent's argument in Vine v London Borough of Waltham Forest and NOT the ratio of the judgment from Roch LJ, where Miss Vine WON!

34. WS #33 – Once again, template paragraphs that are totally irrelevant as I admitted to being the driver at appeal.

35. WS #34#35 – Template paragraph - I did not fail to act, I appealed and put forward my position.

36. WS #37 - The Claimant relies upon the ParkingEye vs Beavis case as a general proposition that parking charges are not penalties and that a contract may be established with the terms of a parking sign. The Defendant relies on the same case to aver that there was no contract of parking and refers the Court to Para 94 of the leading judgment from Lord Neuberger and Lord Sumption:

37. The £85 is described in the notice as a parking charge, but no one suggests that that label is conclusive. In our view it was not, as a matter of contractual analysis, a charge for the right to park, nor was it a charge for the right to overstay the two-hour limit. Not only is the £85 payable upon certain breaches which may occur within the two-hour free parking period, but there is no fixed period of time for which the motorist is permitted to stay after the two hours have expired, for which the £85 could be regarded as consideration.

38. WS #40 - The P&D log is not signed off by an engineer or NCP's Data Protection Officer as a true copy. That list could have been invented and/or been mocked up or simply typed up on a sheet of paper by anyone. I note that no other payments were registered on either PDT during the 45 minutes after my arrival. However, this simply proves that the PDT failed to register my payment. In that case, what happened to my money. I can only assume it is still in the Claimants possession.

39. WS #41 – The signs on site state that “You need not display your ticket”.
40. WS #42 – The log confirms that the PDT failed to register my payment.
41. WS #45 – The relevancy is proof of the confusing system and signs used by the Claimant.
42. WS #46 – “a charge notice for a contravention” is not a clear and adequate POC.
43. WS #52 – Lord Dennings Red Hand Rule still applies.

44. WS #53 - The additional costs are buried within 100 words in a small font at the very bottom of the tariff boards and do not form part of the Terms and Conditions section. This is unclear and misleading. SEE ITEM KSXX and KSXX

45. WS #54 – The Defendant refers to the POFA, at Section 4(5) which 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 £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

46. This £60 debt recovery fee was NEVER paid to any debt collector, and the £100 already includes the costs of the letters (the Beavis case covered that fact in the Supreme Court, where ParkingEye only got their £85 parking charge and could not have claimed that the cost of the letters were also 'damages' as they are part of the normal business model that the £100 is set to cover, plus a profit.

47. WS #58. - This claimant is relying upon the case of ParkingEye v Beavis [2015] UKSC 67, regarding disproportionate charges. However, the Court of Appeal and the Supreme Court's decisions during the course of that case do not support this claim at all. Beavis was a matter concerning an unusual enforcement regime and location, offering a free licence to park followed after 2 hours, by a charge. Indeed at the Court of Appeal stage the Judges stated that the 'free licence to park' regime was the factor which made that case 'completely different' from ordinary transactional contracts where a sum of money owed can be easily quantified. I suggest, exactly as in my case, where a mere £1.20 has been quantified as the sum in dispute and surely any reasonable person would consider £100 (and certainly this vastly inflated claim) to be 'extravagant' and out of all proportion.

48. ParkingEye Ltd v Beavis [2015] UKSC 67 described non-prominent signs and unclear terms as creating a ‘concealed pitfall or trap’ and further confirmed that a non-landowner parking firm could not have pursued a sum pleaded in damages, or for trespass, which remains solely in the gift of a landowner.

49. 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.

Name
Date
Signature

Coupon-mad

You have 'NCP' in #38.

Remove #22 and replace it!

There is NO WAY you want to be telling the Judge that this sign isn't at the location!

https://www.dropbox.com/s/mozgd4r7s0gneq0/Sign%202.pdf?dl=0

LOL, read the bottom right and bottom banner words...hahaha!

If Excel reckon they've been running this car park since 2009 how come one of the George Street signs they've adduced in evidence, says the contract is with their sister company VCS?

Either the Claimant is lying, or VCS ran it at some point since 2014 when VCS joined the IPC, as the VCS version of the George Street sign shown has the IPC logo:

https://theipc.info/aos-members/v

VCS and Excel do get themselves in a muddle at some car parks:

http://parking-prankster.blogspot.com/2017/02/vehicle-control-services-discontinue.html

http://parking-prankster.blogspot.com/2017/01/vcs-discontinue-another-albert-street.html

https://forums.moneysavingexpert.com/discussion/comment/75585007#Comment_75585007

Keith_S

I replaced NCP with Excel at #38 then added the one from Snake Belly at 38b - that was just too sweet to miss.

38b. In Excel Parking Services Ltd vs Ambler. E1DP2061 Judge Skalskyj-Reynolds awarded £989 against Excel for tampering with PDT logs – SEE ITEM KSXX.

I missed that about CVS on the bottom of the sign, but why would I not want that brought to the judges attention that it's not there? How would you suggest I reword #22

Coupon-mad

Keith_S wrote: »

I missed that about VCS on the bottom of the sign, but why would I not want that brought to the judges attention that it's not there?

Errrm...I gave you the links that show you why you obviously WANT the Claimant's evidence to stand. It is their case that the VCS sign was there. OK then...

It creates confusion and seriously muddies the waters as regards who runs the car park, who offers the contract, that the WS is a lie because it claims that Excel have always run this car park since 2009 (''Excel have told untruths in their Witness Statement, then?'', you must ask their rep?!).

It is so important, it is a time bomb for them!

This is EXACTLY like the cases VCS fielded with Excel signs - regardless of which car park it's about, the facts are the same and the case must fail - so cite those previous cases in your WS and provide the Prankster's Blog as evidence (the Prankster even lists some of the cases by name).

You haven't realised this is potentially the silver bullet that kills their claim?!

You DO NOT want to tell the Judge he/she can ignore the silver bullet...PROMISE us you will not sit there and say ''Oh, but that sign wasn't there anyway''.

:eek:

How would you suggest I reword #22

I already showed you Parking Prankster links that fed you what to say! Dead easy.

That's why I gave them to you so you can understand what YOU have to argue at your hearing and in your WS and you need to put it in words you understand.

Keith_S

Yes, I see your point. Am I on the right track now. Now this is starting to become fun LOL.

21. WS #6 – This is a PAY carpark not a PAY & DISPLAY. Evidenced by the sign on the car park supplied by the claimant. SEE ITEM KS03 (sign1)

22. However, even this is misleading as one of the signs provided by the claimant does state Pay and Display but this sign is contracting with VCS rather than Excel, as is evidenced by the claimants own photographs showing the second tariff board, therefore Excel have no rights to bring a claim. SEE ITEM KS04 (sign 2)

22a. This causes confusion over who runs the car park and who offers the contract. The Claimants Witness Statement claims that Excel have always run this car park since 2009. This sign contradicts that. VCS must have ran it at some point since 2014 which is when VCS joined the IPC, as the VCS version of the sign shown has the IPC logo on it. SEE ITEM KSXX (IPC page)

22b. There are many instances of incorrect signage between CVS and Excel where cases are regularly discontinued such as Vehicle Control Services v Ms O. C8DP9D8C 23/1/2017, VCS v Zozulya A8QZ6666, VCS v Ms M. 3QZ53955 and VCS v Ms O C8DP9D8C. These cases are cited by the Parking Prankster as evidenced at KSXX and KS XX

Snakes_Belly

Keith, there are some articles from local newspapers regarding the car park where the Ambler case took place. The Ambler case was not in isolation and the tip of the iceberg. There could not possibly have been so many people with parking transgressions in this car park.

I included these articles in my WS and the representative (first court date) wanted them to be disregarded. I would have argued that they supported the Ambler case.

https://www.keighleynews.co.uk/news/15434580.battle-goes-on-for-motorists-fined-by-excel-parking-while-using-keighley-cavendish-retail-park/

https://www.keighleynews.co.uk/news/15434574.enforcement-company-subject-to-huge-number-of-complaints-withdraws-from-keighleys-cavendish-retail-park-car-park/

https://www.thetelegraphandargus.co.uk/news/15434669.motorists-in-keighley-glad-to-see-the-back-of-controversial-excel-parking-services-wardens/

Coupon-mad

Much better, maybe with this added (be careful to put right 'VCS' as you've typed it 'CVS'):

21. WS #6 – This is a PAY carpark not a PAY & DISPLAY. Evidenced by the sign on the car park supplied by the claimant. SEE ITEM KS03 (sign1)

22. However, even this is misleading as one of the signs provided by the claimant does state Pay and Display but this sign is contracting with VCS rather than Excel, as is evidenced by the claimants own photographs showing the second tariff board, therefore Excel have no rights to bring a claim. SEE ITEM KS04 (sign 2)

22a. This causes confusion over who runs the car park and who offers the contract. The Claimants Witness Statement claims that Excel have always run this car park since 2009. This sign contradicts that. VCS must have ran it at some point since 2014 which is when VCS joined the IPC, as the VCS version of the sign shown has the IPC logo on it. SEE ITEM KSXX (IPC page)

22b. There are many instances of incorrect signage between [STRIKE]CVS[/STRIKE] VCS and Excel where cases are regularly discontinued such as Vehicle Control Services v Ms O. C8DP9D8C 23/1/2017, VCS v Zozulya A8QZ6666, VCS v Ms M. 3QZ53955 and VCS v Ms O C8DP9D8C. These cases are cited by the Parking Prankster as evidenced at KSXX and KS XX.

22c. I believe that the evidence shows untruth by the Claimant, who is attempting to lead the Court to believe that Excel have continuously run this car park for ten years without a gap, by relying on an outdated (pre-POFA/clamping ban and pre-Beavis case) 2009 contract they have drawn up and signed themselves. Whether or not Excel are/were the leaseholders at some point is immaterial, given the smoking gun of the post-2014 VCS signage the Claimant themselves have adduced in evidence with a 'statement of truth'. I conclude that even if there was a contract with clear information and a potentially recoverable, legitimate penalty (which is vigorously denied) on the balance of probabilities it was offered by VCS (Company number 02498820) not Excel Parking Services Ltd (Company number 02878122). The claim from the latter company must fail.