Two separate claim forms for two separate PCNs Excel

Coupon-mad

Looks good.

jerry2354

Wooh I won and was awarded travel costs!!

As soon as the appeals deadline blows over I'll post my final and full defences/WS/Skeleton argument (and if a judgement or anything potentially useful comes in the post) and a proper summary as to what happened on the day. Just quickly the two points that won it were that law of agencies didn't apply and that the signage was poor and poorly lit.

Thank you so much to everyone who helped me, everyone who's cases I'd used to build mine and especially Coupon-Mad for all your responses! No way would I have been able to do this otherwise...

waamo

jerry2354 wrote: »

Wooh I won and was awarded travel costs!!

As soon as the appeals deadline blows over I'll post my final and full defences/WS/Skeleton argument (and if a judgement or anything potentially useful comes in the post) and a proper summary as to what happened on the day. Just quickly the two points that won it were that law of agencies didn't apply and that the signage was poor and poorly lit.

Thank you so much to everyone who helped me, everyone who's cases I'd used to build mine and especially Coupon-Mad for all your responses! No way would I have been able to do this otherwise...

Very well done. Can you give a court report please, they can be really useful.

jerry2354

Well Excel made a mess on this one...

I met their solicitor in the waiting room before the hearing who told me straight away he was not from excel and was just going to read out their WS. He was actually quite friendly, explaining the court process and how the judge will support people who are not used to the legal process.

Speaking to him further, it was only then that he found out that two cases existed and that both were being held at the same time and he only had one copy of Excel’s witness statement. Not only that, Excel had failed to give him either of my witness statements or skeleton argument. I then showed him the order from the judge that said the two cases would be held at the same time and he proceeded to frantically check his documents and try to make a few phone calls.

This meant that the first 20 minutes of the hour long hearing was spent by him reading my witness statement and skeleton argument. Because of this he asked to delay the hearings. However, after the judge asked me if I was ok with this and I refused, it was agreed that the first case would be held and then the judge would decide on the second case (for which he did not have Excels WS) at the end.

The four main points we discussed were poor signage, lack of evidence I was driving, lack of the landowner contract and lack of proof I did not pay. The Judge ruled that the signage was indeed too poorly lit, poorly placed and too space to form a contract. He never said wether he agreed with my arguments that POFA 2012 wasn’t followed as once Excel said they weren’t relying on POFA the judge said there was no point in discussing wether they did actually follow it or not. He ruled that the law of agency certainly did not apply to this case. However, on the balance of probabilities he decided Excel probably did have the authority to operate the site even without showing the contract and that a ticket probably wasn’t purchased. He said that I would have needed some sort of positive proof that a ticket was actually purchased in order to pursue the point that the records could have been altered or that the equipment was faulty. It was never discussed wether the £60 admin charge was allowed and I forgot to push it at the time. I did try claim punitive costs but the Judge didn’t read my application which I forgot to submit three days before the hearing and he believed Excel had behaved reasonably. I did get my £5.90 travel expenses though which have since been received as a cheque! I don’t even want to cash it in just so I can frame it haha!

After judgement on the first case the second case was also dismissed as they were so similar and were within a month of occurrence.

Once the case was over the three of us (Judge and their solicitor) even had a bit of a joke about wether I wanted to take a law conversion course after the whole experience (being an engineering student myself). So the whole experience was a bit more relaxed than I had worried about! After we left his office, speaking to their solicitor, he said that he was used to these sorts of mess-ups by Excel and that after doing so many of them he’s just defaulted to reading their WS and waiting for the inevitable.

Again, thank you all so much for your help, you really are incredibly generous to give up your time to help people that otherwise wouldn’t stand a chance!

Full details of my case:
The car park was Broomhill Rooftop Car Park, in Sheffield for both tickets
Both incidents occurred at night in November/December 2018

Full copies of my defence, witness statement, skeleton argument and punitive costs application to come…

jerry2354

The second defence was the same apart from the date of contravention

IN THE COUNTY COURT

CLAIM No: xxxxxxxx

BETWEEN:

EXCEL PARKING SERVICES LTD (Claimant)

-and-

(Defendant)


DEFENCE STATEMENT


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

2. The Court is invited to take note that the Claimant has issued two claims, numbers xxxxxxxx and xxxxxxxx, against the Defendant at or around the same date, and with substantially identical particulars. It is submitted that this constitutes an abuse of process, making the Defendant potentially liable for two instances of issue fees, solicitor costs, and hearing fees, and runs contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and to apply appropriate sanctions against the Claimant.

3. The Defendant raised the issue of the two Parking Charge Notices (PCNs) in a Subject Access request in the pre-action stage and pointed out that the events were duplicates as regards the facts, and that the PCNs must be dealt in the same claim. The Claimant has ignored this and issued two separate claims wasting the court's time and that of the Defendant.

4. The Particulars of Claim state that the claim is, “in respect of a Charge Notice (CN) for a contravention on 14/11/2018 at Broomhill Roof Top Pay & Display Car Park”. It is not stated whether the Claimant is claiming against the driver or the registered keeper or what the contravention is. These assertions indicate that the Claimant has failed to identify a Cause of Action. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

5. 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.

6. The Protection of Freedoms Act (POFA) 2012, Schedule 4, at Paragraph 9(2)(f) states that the Notice To Keeper (NTK) must “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given, the creditor will have the right to recover from the keeper”. The date on which the notice is “given” is defined as, “on the second working day after the day on which it is posted”, in POFA 2012 Paragraph 9(6). However, it is written in the NTK received by the Defendant “if, after the period of 28 days beginning with the day after the Issue Date of this notice” where “Issue Date” is defined in the NTK as the date “posted”, not “given”. Since the NTK is not POFA 2012 compliant, keeper liability cannot be claimed.

7. The alleged contravention took place at night. Upon investigation, none of the signs containing relevant parking terms, nor the Pay and Display Machines in the car park were adequately illuminated or in a position to be seen by the driver. The terms are displayed in a font which is too small and too high up to be read from a passing vehicle and are in such a position that anyone attempting to read the tiny font would be unable to do so easily. Repeater signs are high up and poorly illuminated. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. Furthermore, it is also denied that the signage is adequate to bring the charge to the notice of drivers (POFA 2012, Schedule 4, at Paragraph 2(3)(b)(ii)) and so keeper liability cannot be claimed.

9. POFA 2012, Schedule 4, at Paragraph 9(2)(c) states that the Notice To Keeper (NTK) must, “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose”. The NTK received by the owner states the contravention reason as, “Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site the maximum period allowed at this site is minutes”. Note that a maximum allowed time has been implied but then not been stated. Therefore, the circumstances requiring payment have not been described. Since the NTK is not POFA 2012 compliant, keeper liability cannot be claimed.

10. POFA 2012, Schedule 4, at Paragraph 2(3)(b)(i) states that notices must, “specify the sum as the charge for unauthorised parking”. Instead it is merely stated on the signs that, “This is a 24hr Pay and Display car park. Failure to comply will result in a parking charge”. It is not explicitly stated what needs to be complied with or what the relevant obligation is. Therefore, keeper liability cannot be claimed.

11. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper “parking without payment” as specified in the notice to keeper. The Defendant asked for a partially redacted copy of the pay and display machine records for the time of the alleged contravention in a Subject Access Request in the pre-action stage however the Claimant has ignored this request.

12. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported Debt Collection Costs of £60, for which no calculation or explanation is given, which have not actually been incurred by the Claimant since no debt has been collected. This appears to be an attempt at double recovery.

13. Furthermore, POFA 2012, Schedule 4, at Paragraph 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.

14. The Particulars of Claim state that the Claimant is seeking recovery of interest. The date from which this is claimed, the total amount of interest claimed to the date of calculation and the daily rate at which interest accrues after that date are not specified. As such, the claim fails to comply with Civil Procedure Rule 16.4.

15. 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.

16. 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 Statement are true.

jerry2354

IN THE COUNTY COURT AT SHEFFIELD

CLAIM No: xxxxxxxx and xxxxxxxx

BETWEEN:

EXCEL PARKING SERVICES LTD (Claimant)

-and-

(Defendant)


WITNESS STATEMENT


1. I, xxxx of xxxx, am the defendant in these cases. I will say as follows:

2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

3. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defences as already filed.

4. I am an unrepresented consumer who has never attended the county court before.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claims are 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.

6. It is admitted that I was the authorised registered keeper of the vehicle in question at the time of the alleged incidents. However, I cannot recall who the driver at the times was and as I am not the only driver of this vehicle (Insurance Documents ) I cannot be presumed to be the driver in the absence of any evidence. The claimant has produced no evidence I was the driver.

7. I have no liability, as I am the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 Schedule 4. (POFA 2012 Schedule 4 ) in order to hold me responsible for the drivers alleged breach.

8. POFA 2012 (POFA 2012 Schedule 4 ) was enacted to provide private parking companies (PPCs) a legal process for them to follow which would allow them to transfer liability for parking contraventions on private land from the driver to the keeper, if the driver was not known, and the keeper did not provide the driver details when invited to do so by the PPC.

9. The claimant, through their own deliberate action chooses not to comply with POFA 2012. They cannot dispense with the statute then still ask the court to allow them to invoke keeper liability as if they had complied with it. If the court allowed this to happen then it would mean there was no need to enact POFA 2012 in the first place.

10. To comply with POFA Schedule 4, the following mandatory conditions have to be met in the Notice To Keeper (NTK):

POFA 2012, Paragraph 9(2)(f) states:

‘(2) The notice must— (f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;’

a. The first underlined part of Paragraph 9(2)(f) is incorrectly written in the NTKs received (Notice To Keeper ) as:

‘if, after the period of 28 days beginning with the day after the Issue Date of this Notice’

Where the ‘Issue Date’ is defined in the NTKs received (Notice To Keeper ) as the date ‘posted’.

POFA Schedule 4. deliberately differentiates between postage date and date ‘given’ in Paragraph 9(2)(i):

‘(2) The notice must— (i) specify the date on which the notice is sent (where it is sent by post) or given (in any other case).’

And then defines what ‘given’ means in Paragraph 9(4)(b) and Paragraph 9(6):

‘(4) The notice must be given by— (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’

‘(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.’

The claimant’s NTKs differ in their fundamental meaning to Paragraph 9(2)(f) and therefore the Claimant has failed to comply with the strict requirements of POFA.

b. Furthermore, the second underlined part of Paragraph 9(2)(f) are incorrectly written in the NTKs received (Notice To Keeper ) as:

‘if , after the period of 28 days beginning with the day after the Issue Date of this Notice, the amount of the unpaid Parking Charge specified in this Notice has not been paid in full and we do not know both the name of the driver and current address for service of the driver, we may pursue you (the Keeper) on the assumption you were the driver, for any unpaid balance of the Parking Charge.’

The above is contrary to POFA Schedule Paragraph 9 by simply assuming the keeper was the driver after a period of time i.e. in the rest of this case. Paragraph 9(2)(f) does not state that the keeper can be assumed to be the driver. Once again, the Claimant did not issue NTKs in accordance to POFA Schedule 4. These are non-POFA NTKs and so the keeper cannot be held liable.

Further evidence to support the Claimant cannot assume the keeper being driver:

i. The claimant may seek to rely on the case of Elliot v Loake and seek to persuade the court that this case created a precedent which amounts to a presumption that the registered keeper is the driver, with no evidence or admission to prove its allegations. In the Elliot v Loake case the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil matter. Elliot v Loake was ruled as not relevant or applicable in Excel v Mr C C8DP37F1 at Stockport 31/10/2016. Despite the driver being present in the car, as Excel was not POFA complaint, could not prove who the driver was and that Elliot v Loake was not persuasive and could be distinguished, the claim was dismissed (Excel v Mr C ).

ii. Excel v Ian Lamoureux, C3DP56Q5 at Skipton. The Judge was critical of the claimants attempts to hold the keeper liable without being able to rely on POFA. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated, ‘I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012.’ (Excel v Ian Lamoureux ).

iii. VCS v Quayle C1DP0H0J. Keeper not liable for driver’s actions if POFA not complied with (VCS v Quayle ).

iv. PATAS and POPLA Lead Adjudicator and Barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, ‘There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver (2015).’ ('Keeper Liability' extract from POPLA Annual Report 2015 ).

c. POFA 2012, Paragraph 9(2)(c) states:

‘(2) The notice must— (c) describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;’

Instead, the NTKs received (Notice To Keeper ) state the contravention reason as:

‘Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site

The Maximum period allowed at this site is minutes’

The maximum period allowed has been described as ‘minutes’ and according to the NTKs, the vehicle was allegedly parked for ‘25 mins’ and ’16 mins’ at each occasion. This would imply that the maximum period had not been breached as the time was indeed minutes. This does not explicitly describe, ‘the circumstances in which the requirement to pay [the parking charges] arose’ as required by POFA 2012.

If instead this was a typographical error, then the ‘other facts that made [the parking charges] payable’ and ‘the circumstances in which the requirement to pay [the parking charges] arose’ were not clearly described.

In either situation, the NTKs do not meet the strict standards of POFA 2012 and so keeper liability cannot be claimed. Paragraph 9(2)(f) makes it clear that the creditor will only have the right to recover costs if all the applicable conditions under the Schedule are met, no matter how trivial.

11. For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. For the purposes of defending this claim as the Registered Keeper, I visited the car park at a later date to view any signage which would have been visible to any driver at the time. From this, it is denied that the signs are capable of creating a legally binding contract and differ to the signs in the ParkingEye v Beavis case (ParkingEye v Beavis ) (Photo of Beavis sign ) for the following reasons:

a. The wording and the parking charge in the signs is cramped and the text is of small font, making it illegible from a moving vehicle (Map of signs with sign close-ups )[SIGN 1 and SIGN 2]. The font colour chosen by the Claimant is extremely bright (yellow on blue) and hard to read. All capitals are also used which further hinders reading from a passing vehicle. This is in contravention of Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which Excel Parking Services Ltd is a member). It states that (Code of Practice of the IPC ):

‘Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.’

Further, this claimant is known for incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts (Excel v Cutts at Stockport County Court in 2011, claim 1SE02795 (Excel v Cutts ), DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' £53.50 costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park. I will include in my evidence, an extract from Mr Cutts' own published article ‘Phoney fines and dodgy signs take drivers for a ride’ which is specifically about Excel's signs (Phoney fines and dodgy signs take drivers for a ride ), specific analysis begins on page 25 of the article.

It is expected that this Claimant may try to counter that article about their signs but it is worth noting that the Judge agreed with Mr Cutts, who is something of an expert on clear terms as he manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

It is also worth noting that Simon Renshaw-Smith who runs Excel Parking Services, is in the public domain as having attacked the Judge’s integrity in the Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: ‘The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts'.

By contrast, in the Beavis case, the judgement stated, ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’.

b. The alleged offences both occurred at night - 16:50 which was 16 minutes after sunset (16:34) and 19:26 which was 3 hours 15 minutes after sunset (16:11). Car lighting is a legal requirement between the hours of sunset and sunrise. Upon inspection, none of the signs in the entire car park were independently illuminated (Photos at night of all signs ). This would have made signage difficult to see, contravening Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which Excel Parking Services Ltd is a member), which states that (Code of Practice of the IPC ):

‘You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.’

This is not in keeping with the spirit of the Bevis case in which the judgement stated that, ‘the terms […] could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85’. The poor night-time visibility of the signs is not in keeping with ‘prominent proclamation’.

c. One of the entrance signs was ‘hidden’ flat against a wall on the inside of the left L-bend at the entrance to the car park, meaning it would not have been visible to any drivers, particularly those of right hand drive cars such as the one involved with the alleged incident. The driver would have been more distracted by the large ‘Car Park’ sign on the right side of the bend, which will be argued is not capable of creating a legally binding contract (Video of entering ) (Hidden sign ) (Map of signs with sign close-ups )[SIGN 1 and SIGN 3].

‘Signs should, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such as to be obvious to the motorist.’

Once inside the car park, signage is sparse (Map of signs with sign close-ups ) (Photos of car park ends from entrance (middle) ) and would depend on the chance of a driver parking at extreme ends of the car park in order to see any detailed signs or pay and display machines. This is in contravention of Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which Excel Parking Services Ltd is a member). It states that (Code of Practice of the IPC ):

‘You are required to provide a sufficient number of signs on each site commensurate with its size and other characteristics to ensure that any parking conditions are adequately brought to the attention of the motorist.’

Again, this is not in keeping with the spirit of the Bevis case. The lack of visibility of the signs is not in keeping with ‘prominent proclamation’.

d. The only repeater sign in the central portion of the car park is so high up that it would not be possible to read the terms and conditions it contains from a vehicle and would likely be missed (Repeater sign in middle ).

The terms on the main entrance sign (Map of signs with sign close-ups )[SIGN 1] are also too high up to be visible from a vehicle. Additionally, the terms contained are faded in a pale blue on white font, dwarfed by the size of the welcome text, which has no mention of any contractual obligation being entered into by the driver. This is in contravention of Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which Excel Parking Services Ltd is a member). It states that (Code of Practice of the IPC ):

‘Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.’

Again, this is not in keeping with the spirit of the Bevis case. The lack of visibility of the signs is not in keeping with ‘prominent proclamation’.

e. In relation to the entrance signs, none fully comply with Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which Excel Parking Services Ltd is a member). It states that (Code of Practice of the IPC ):

‘Entrance Signs should:
a) Make it clear that the motorist is entering onto private land
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
c) Identify yourself (where you are a limited company. This should be by reference to your full company name, your company number and the jurisdiction within which your company is registered).’

Both of the signs (Map of signs with sign close-ups )[SIGN 1 and SIGN 2] which are not ‘hidden’ fail to make any reference to private land, fail to refer motorists to the full terms and conditions and fail to sufficiently identify Excel Parking Services Ltd as described above.

Even the ‘hidden’ sign (Map of signs with sign close-ups )[SIGN 3] fails to include the company number and jurisdiction, fails to refer motorists to other signs within the car park and fails to mention that ‘the motorist is entering onto private land’.

12. Given the confusing signage, and the fact that the car park is located within 50 meters of three pay and display car parks which are free for 20 minutes, I believe that any driver could be easily confused into believing that this pay and display car park has the same offering (Map of signs with sign close-ups ) (Spooner Road Terms (Council car park 20 min free) ).

13. The visible entrance signage and that of the only sign passed in the central portion of the car park also fail to comply with POFA 2012 Schedule 4. Paragraph 2(3)(b). This states that signage must:

‘(i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.’

Instead, as well as not being ‘adequate to bring the charge to the notice of drivers’ (as explained previously), the repeater signs (Map of signs with sign close-ups )[SIGN 2 and SIGN 4] at the entrance and in the middle of the car park both simply state:

‘This is a 24hr Pay and Display car park. Failure to comply will result in a parking charge notice being issued through the postal service and a charge of £100.00 being enforced’

It is not clear from these signs what the ‘relevant obligation’ of the driver is, as it is never defined what must be complied with. The driver is never instructed to purchase a ticket etc. and the signs fail to refer to any other signs for details of what must be complied with.

These signs also fail to explicitly specify £100.00 as being the ‘charge for unauthorised parking’, instead referring to a ‘parking charge notice’. As the signs do not meet the strict wording of POFA 2012, keeper liability cannot be claimed.

With regards to the large entrance sign (Map of signs with sign close-ups )[SIGN 1], as well the terms not being ‘adequate to bring the charge to the notice of drivers’ (as explained previously), they also only state:

‘This is a 24 hr pay & display car park. Find space first, purchase valid ticket & display inside front windscreen with time & date clearly visible’

This fails to ‘specify the sum as the charge for unauthorised parking’ and so cannot be used to enforce a contract or comply with POFA 2012. The sign does not refer to any other signs for further conditions.

The ‘hidden’ entrance sign is inherently not ‘adequate to bring the charge to the notice of drivers’. Even ignoring this fact, the sign uses the same non-POFA wording to describe the parking charge as the repeater signs. The only difference is that it then describes the terms and conditions below. The terms on this, the only remaining entrance sign, are confusing and fail to specify the relevant obligation of a non-disabled car driver, only specifying that tariffs apply to disabled badge holders and motorbikes (Map of signs with sign close-ups )[SIGN 3]. It is also not clear which of the ‘below’ text are terms and which are irrelevant to the contract, a point made in Mr Cutts’ article (Phoney fines and dodgy signs take drivers for a ride ) on page 25.

It is argued that all remaining signage in the car park is not visible to drivers and so not ‘adequate to bring the charge to the notice of drivers’ and not POFA 2012 compliant.

As a result of these further POFA 2012 violations, keeper liability cannot be claimed.

14. Furthermore, the claim relates to a pay and display car park which would mean that a standard contract was on offer. In a court judgment between ParkingEye v Cargius 2014 the Judge distinguished the case of ParkingEye v Beavis and Wardley as it related to a case of free car parks (ParkingEye v Cargius ). The judge stipulated the following:

“I accept that once a motorist fails to comply with the terms and conditions searches have to be made of the DVLA, letters sent out and so on but in my judgement and without any evidence to the contrary, the charge in this case of £100.00 is likely on the balance of probabilities to far exceed the actual loss to the Claimant. Furthermore, the wording on the signage “Failure to comply with this will result in a Parking Charge of £100.00” is in my view intended to be a deterrent to motorists from either underpaying or not paying at all. The fact is that Parking Eye would have been quite satisfied if Mr Cargius had paid a further £2.00 and the subsequent charge of £100.00 is in my judgement totally disproportionate to the level of Parking Eye’s loss. It is my judgement a penalty and therefore unenforceable in this particular case.”

15. On 24/02/19 and 26/04/19, I wrote to Excel Parking Services Ltd with regard to a Subject Access Request (Subject Access Request ). While some data was supplied, the request for a copy of the pay and display machine logs with partially redacted registration details on the date in question was rejected. This has been reported to the Information Commissioner’s Office as the logs could contain the Defendant’s vehicle registration number, even if entered incorrectly. The defendant is yet to see any evidence of ‘parking without payment’ as specified in the NTK. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question.

16. In addition to the original parking charges, for which liability is denied, the Claimant has artificially inflated the value of the Claims by adding purported Debt Collection Costs of £60, for which no calculation or explanation is given, which have not actually been incurred by the Claimant since no debt has been collected (Notice To Keeper ) (Letter before claim ) (Particulars of claims ). This appears to be an attempt at double recovery.

17. Furthermore, POFA 2012, Schedule 4, at Paragraph 4(5) (POFA 2012 Schedule 4 ) 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 (Notice To Keeper ).

18. Both Particulars of Claim (Particulars of claims ) state that the Claimant is seeking recovery of interest. The date from which this is claimed, the total amount of interest claimed to the date of calculation and the daily rate at which interest accrues after that date are not specified. As such, the claim fails to comply with Civil Procedure Rule 16.4.

19. A similarly artificially inflated claim was struck out as an abuse of process by District Judge Jones-Evans of Caernarfon Justice Centre on 04/09/19 without a hearing, due to the additional charge being deemed a penalty rather than a genuine pre-estimate of loss and so unenforceable in law. The judge stated that the whole case was, ‘nothing more than a poor attempt to go behind the decision of the supreme court in Beavis’ (VCS v Davies ).

20. A second, similarly artificially inflated claim was struck out as an abuse of process by District Judge Grand of Newport County Court on 24/11/18 without a hearing, due to the additional charge not being POFA 2012 compliant or reflecting the Beavis case (UKCPM v Esplanade Ltd ).

21. The Court is invited to dismiss these Claims, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as the driver when the Claimant has no such right, to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

Statement of Truth

I believe the facts stated in this Witness Statement are true.

jerry2354

IN THE COUNTY COURT AT SHEFFIELD

CLAIM No: xxxxxxxx and xxxxxxxx

BETWEEN:

EXCEL PARKING SERVICES LTD (Claimant)

-and-

(Defendant)


SKELETON ARGUMENT ON BEHALF OF xxxx

1. The Defendant asks the court to dismiss the claim due to the below grounds:

Lack of Liability

2. The Claimant is not clear about whether they are pursing the Defendant as Registered Keeper or Driver. See Claimant’s Witness Statement (WS) paras 30 and 33 for contradiction.

3. If as Driver it is for them to prove that the Defendant was the Driver. The Defendant has made no admission that they were driving and puts the claimant to full proof.

4. If as a Registered Keeper, they need to follow the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA).

5. The Claimant has repeatedly stated they are not using POFA 2012, as per paras 42 and 46 of their WS.

6. Furthermore, their Notice to Keeper (NTK) is not POFA 2012 compliant as per the Defendant’s WS para 10, nor is there adequate signage to comply with POFA 2012 as per the Defendant’s WS paras 10 and 13.

7. The Claimant instead states in their WS that they are relying on the Law of Agency. An appeal at Manchester County Court on 08/06/19 with the same Claimant (Smith V Excel Parking Services C0DP9C4E/M17X062) before His Honour Judge Smith, stated that POFA 2012 is precisely where in law, an operator can hold a keeper liable for unpaid parking charges. The Claimant had chosen instead to use the general law of agency, quoting Combined Parking Solutions v AJH Films. The Judge found that this was not relevant to that case and allowed the appeal. Being on appeal, this case is persuasive.

8. If, as the Claimant suggests, the Driver of a vehicle is the agent of the Registered Keeper who is therefore liable the parking charges, why did Parliament find it necessary to introduce legislation that a parking company could recover payment from the registered keeper only if it met certain conditions (POFA 2012).

9. Furthermore, the only two other drivers of the vehicle are the Father of the Defendant and the Mother of the Defendant’s partner as stated in the Defendant’s WS para 6. It is trite law that family arrangements are not commercial unless specifically intended to be and therefore there can be no agency agreements.

10. The Signage only ever refers to the ‘you’ or ‘the driver’ and nowhere is it stated or implied that the Registered Keeper would incur the charges on behalf of the Driver.

Lack of Contract

11. It is for the Claimant to prove that a contract had been entered into.

12. In the Defence, the Claimant was put to strict proof that they have a contract from the Landowner to pursue charges and take enforcement action in court for parking charges. The Claimant has not been able to provide this. They have merely produced a statement signed by their Commercial Director stating that they have this right. There is therefore no evidence that they have this legal right. The fact that they have not produced this evidence that would significantly help their case suggests, on the balance of probabilities, that this contract does not exist.

13. The Claimant’s WS referenced Thorton v Shoe Lane Parking 1971 2 QB 163. The case provides that the signage must be sufficient to create the contract. In this case it was not. In ParkingEye Ltd v Beavis [2015] UKSC 67, the sign is much clearer and found to be sufficient. Furthermore, Thornton v Shoe Lane Parking was a barrier car park where the driver would stop and take a ticket and was shown a clear sign at the barrier. The car park in this case is not.

14. The Claimant referenced Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390 as signs being ‘the only method’ of stopping unauthorised parking. Other methods of enforcement, such as ticketed barriers, are viable. Furthermore, it is argued that in this case, the signage is not ‘sufficient and adequate’ as was stated in Vine v Waltham Forest LBC.

15. The design of all signage is intentionally hard to read making the less important parts larger than they need to be and making text smaller in favour of unused space, using poor colour schemes and without sufficient illumination given the time of the events (Defendant’s WS paras 11 and 13). No signs clearly highlight the charge of £100 as was done in the Beavis case.

16. The signage at the entrance to the car park is impossible to read while driving due to either size or being hidden behind a wall (Defendant’s WS para 11) while the rest of the signage was at the far ends of the car park. Therefore, no contact could be entered into.

Procedural Basis

17. The Claimant filed two separate claims on the same date with identical particulars bar the date of the alleged contraventions. Given the original 14-day gap between the two events and all previous documents, the Claimant must have deliberately waited and filed both claims on the same date. This amounts to an abuse of process, attempting to waste the court’s time and making the Defendant liable to two instances of costs. This was made clear to the Claimant in the pre-action stage (see the Defence and Defendant’s Exhibit 21).

18. The two cases were then consolidated into a single hearing by the Judge. The Claimant’s WS produces no evidence, be that photographs, documents or pay and display machine logs to prove lack of ticket for the second claim which was alleged to have occurred on 14/11/18 (Claim No xxxxxxxx). Having missed the deadline to submit all evidence, the second claim cannot be pursued.

19. The Claimant has also not included any evidence of calibration or the accuracy of either the equipment used to time the duration of the vehicle in the car park or that of the pay and display machine to show it was functional at the time of the alleged events.

20. The claim made via Money Claims Online (MCOL) is broad and unspecific. It does not utilise the 1080 character limit instead using a mere 679 characters. MCOL explicitly allows claimants to submit further particulars outside the platform.

21. There is no explanation in the particulars for the additional £60 which cannot be recovered under POFA 2012 (Defendant’s WS para 17). There is also no breakdown in the particulars for any interest which has also been claimed (Defendant’s WS para 18).

22. From the two cases detailed in the Defendant’s WS paras 19 and 20, it is worth highlighting the recent case of VCS Ltd v Davies (F2QZ4W28), as VCS are a sister company to Excel Parking Services Ltd, both directed by Simon Renshaw-Smith. The similarly artificially inflated claim was struck out as an abuse of process without a hearing, due to the additional charge being deemed a penalty rather than a genuine pre-estimate of loss and so unenforceable in law. The judge stated that the whole case was, ‘nothing more than a poor attempt to go behind the decision of the supreme court in Beavis’. In addition to the above cases, County Court Judges have refused all added parking firm 'costs' in County courts, such as the following cases, struck out in recent months without a hearing:

23. In Claim number F0DP163T on 11/07/19, District Judge Grand sitting at the County Court at Southampton, struck out an overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason.

24. In Claim number F0DP201T on 10/06/19, District Judge Taylor echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. The Order was identical in striking out all such claims without a hearing. The Judge stated: ‘IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...’

25. The Claimant’s Witness Statement is inconsistent. Para 32 contradicts with para 42 and 64 on the use of POFA 2012. A further contradiction is pointed out in para 2 of this Skeleton Argument.

Statement of Truth

I believe the facts stated in this Skeleton Argument are true.

jerry2354

NB this was unsuccessful and not read by the judge anyway

DEFENDANT’S COSTS APPLICATION

1. General costs rule in Small Claims: no costs order. However:
1.1. CPR Rule 27.14(2)(g): costs can be awarded where a party behaves unreasonably
1.2. Paragraph 16 of Practice Direction – Pre-Action Conduct: a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest.
The Defendant says both apply and seeks a costs order against the Claimant.

Breaches of Pre-action PD (“the PD”):

2. Paras 3, 8 and 12 of the PD set out its purpose, which is to primarily to avoid litigation (para 8) by laying down a procedure which allows the parties to:
2.1. understand each other’s positions (para 3)
2.2. make decisions about how to proceed (para 3)
2.3. explore settlement/consider ADR (para 3)
2.4. support the “efficient management” of any proceedings and reduce costs (para 3)
2.5. “stocktake” and review their respective positions after following the PD by exchanging information, to see if proceedings can be avoided and to “at least” narrow the issues (para 12).

3. Paras 6(a) & (c) oblige a Claimant to enter into a meaningful dialogue with a Defendant at an early stage by imposing specific obligations to:
3.1. explain the claim in a Letter Before Claim (LBC),
3.2. provide relevant core documents, and
3.3. answer any questions asked by a Defendant in sufficient detail for a Defendant to understand and respond

4. The LBCs (LBCs ) were a blatant breach of para 6: no explanation of what the claims were for (e.g. breach of contract, trespass and so on) and referred to/included no core documents which could be used to form a legal argument. Examples of core documents/information which the Claimant should and could have provided are:
4.1. claim was for a breach of contract,
4.2. whether claim was pursued against the Defendant as Driver or Registered Keeper (RK) referencing POFA 2012,
4.3. a copy of the landowner contract demonstrating the Claimant has the right to issue PCNs on the land,
4.4. a copy of the signage and an explanation that this set out the terms of the contract, details of where the signage was displayed, how big the signs were and so on,
4.5. how the contract had been entered into and how it had been breached,
4.6. photographs showing the car actually parked with the absence of a purchased ticket displayed,
4.7. a redacted copy of the pay and display (P&D) machine logs to support the lack of ticket claim,
4.8. plan/photograph showing where the car was parked and where the signs were situated,
4.9. certificates of calibration and records of maintenance for the Automatic Number Plate Recognition (ANPR) cameras and P&D machines on site.
Some of this information was only provided with the WS. Some of it has never been provided.

5. The Defendant invited the Claimant to rectify its breaches and requested documents through Subject Access Requests (SARs ). Those requests were partially ignored with no redacted P&D machine logs or a list of outstanding claims being included, as was the reminder that only a single claim could be issued (Excel SAR replies ). A second request was rejected (Excel SAR replies ). Even now, at the final hearing, the Claimant has still not produced all of the relevant, core documentation and information which it must have in its possession.

6. Such documentation that the Claimant has produced, has been provided only after proceedings were issued, and very late (with the Witness Statement served on 19/09/19) and some of it is incomplete. The Claimant has not:
6.1. included the P&D machine log for the date (14/11/18) of the second claim (xxxxxxxx),
6.2. displayed any evidence of the calibration and maintenance of the ANPR cameras and P&D machines,
6.3. evidenced any landowner contract,
6.4. shown any photographs of the car being parked without a ticket and,
6.5. has not shown where the car was parked in relation to any signage.
This missing information is of crucial importance because it forms the basis of the Claim.

7. There are of course identical obligations on a Defendant (paragraphs 3, 6(b)/(c) and 12). However, compliance with them is dependent on the Claimant’s prior compliance.

8. The Claimant’s conduct has denied the Defendant the opportunities under 2.1-5: no pre-action dialogue. In fact, until the Claimant served its Witness Statement on 19/09/19, the Defendant had no idea of the cause of action being pursued or the evidence being relied upon, which resulted in him having to defend the Claim on all fronts.

9. Had the Claimant complied, the following could have been discussed prior to court proceedings, and issues before the court today could have been disposed of or narrowed:
9.1. whether or not the Defendant was driver - this would have saved all the time which has been spent on the Claimant asserting that s/he is and the Defendant producing evidence to deny this;
9.2. The Defendant’s liability as the RK – liability under POFA could have been disposed of as a result of the Defendant’s case that POFA was not enacted at time of the parking event and that POFA has not been complied with after the event meaning that there can be no RK liability;
9.3. The Claimant’s authority to issue parking tickets – without a landowner agreement the Claimant cannot enter into a contract with the Defendant on behalf of the landowner and so the entire case is meritless;
9.4. Whether a ticket had been purchased – this would have saved the time spent on the Claimant asserting a ticket was not purchased and the Defendant trying to ascertain whether this was the case;
9.5. Whether the equipment used to issue the ticket was accurate and functional – if the time the vehicle was recorded in the car park was less then no contract would have been entered into or if the P&D machine was not functional then there would have been no way to satisfy the terms of the contract;
9.6. Whether the signage was visible coherent enough to form a contract – this would have saved the Defendant’s time gathering his own photographs and mapping the signage.

10. Para 13-16 sanctions: compliance with the PD is not voluntary, nor is it a “guide” to best practice. It is part of the CPR and is binding. Parties are expected to comply with it. The court may punish those who do not. Inter alia, the court’s powers include a costs order, and this may be on the indemnity basis (16(a) and (b)) and the power to remit (or increase) interest 16(c)/(d). Such sanctions can apply even against a successful party (paragraph 16).

11. The PD’s aim is to create an opportunity to resolve matters (or at least narrow issues) in the “lower cost atmosphere of pre-action protocol procedure”, rather than the “higher cost atmosphere of court proceedings” (as it was referred to in Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855).

12. The Defendant relies on the following case law:

12.1. Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch);
The successful Claimant failed to recover costs and ordered to pay the Defendant’s. Judgment reiterated that the aim of the pre-action requirements was to enable an early exchange of information so that a potential claim could be fully investigated and, if possible, resolved without the need for costly litigation. It clearly demonstrates that litigation should be a last resort, not pursued as a matter of course as the Claimant has done in this case.

12.2. Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872;
Punitive costs order against the Claimant for failing to comply with the PD.
Paragraph 11: “It is abundantly clear to me that….. this is not a series of allegations that had been properly or thoroughly investigated until…. “ after proceedings had been issued.
Paragraph 14: “The pre-action protocol provides that there should be a claim letter with a clear summary of the facts on which each claim is based”, and “the object of the protocol is… to get people to put their cards on the table and to honestly and rationally discuss matters. To that end meetings are provided for, and there is a requirement… which prescribes that there should be a rational and sensible response… the protocol provides the framework for a sensible discussion, or the chance for a sensible discussion so that the option is available to a party to avoid the need for litigation.”

12.3. Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855;
Defendant awarded costs because of the Claimant’s failure to comply with the PD. Judgment reiterates the purpose of the pre-action obligations is for parties to make a real attempt to resolve matters at an early stage.
Paragraph 46: punitive costs order was justified by the “exchange of information taking place, not in the lower-cost atmosphere of pre-action protocol procedure, but in the higher-cost atmosphere of court proceedings “

Post-action conduct:

13. The Claimant’s unreasonable conduct extends beyond the pre-action phase and has continued during these proceedings - no attempt to answer the Defendant’s reasonable requests for documents, its Particulars of Claim were incoherent and incomprehensible, the issuing of a knowingly inflated claim and the issuing of two claims with substantially identical particulars.

14. The Claimant filed two separate claims on the same date with identical particulars bar the date of the alleged contraventions (Particulars of claim ). Given the original 14-day gap between the two events and all previous documents (NTKs ) (LBCs ), the Claimant must have deliberately waited and filed both claims on the same date. This amounts to an abuse of process, attempting to waste the Court’s time and making the Defendant liable to two instances of costs. This runs contrary to the overriding objective of CPR 1.1 - the disposal of cases justly and at proportionate cost. This was made clear to the Claimant in the pre-action stage (SARs ).

15. The Claimant and/or its solicitors must know the Particulars of Claim (Particulars of claim ) are incoherent. They disclose no cause of action and contain no detail whatsoever which would have allowed the Defendant to understand and deal properly with the Claim, including filing an appropriate Defence. This is a serious and significant breach of CPR Part 16.4. Further, the Particulars make no mention of how any terms were breached and so do not meet the requirements of Practice Direction 16 para 7.5. The claim should have been struck out pursuant to CPR 3.4 (the Defendant did not make an application as the issue fee of £255 was out of proportion to the claim). The Claimant and it’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases and is believed to be currently the subject of an active investigation by the SRA. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.

16. The Claimant has sought to retrospectively remedy this breach by particularising the Claim in its Witness Statement (albeit briefly). This is not the purpose of the Witness Statement and does not remedy the initial breach of R16.4/the defective Particulars of Claim. This has resulted in the Defendant having to add defence points retrospectively, because when the Defence was filed he had no idea upon what basis the claim was being brought and exactly what it related to.

17. Further, the Claimant has only served a single Witness Statement for one of the two claims being held in the same hearing. No reference is made to the second claim number and only evidence from the first claim is contained within the Witness Statement received.

18. In any event, the Witness Statement received did not contain the information, nor many of the documents, to which the Defendant was entitled to during the pre-action phase of the proceedings – for instance, no land-owner contract, no proof of calibration/maintenance of the car park equipment, no photos of the car parked without a ticket, no photos showing where the car was parked in relation to signage (Excel SAR replies ).

19. The Claimant has issued a knowingly inflated claim by attempting to recover an additional £60 on top of the original parking charge. This is an abuse of process and has led to other similar claims being struck out. There is no doubt that the Claimant is aware of this, with Excel’s sister company, VCS Ltd also of 2 Europa Court with the same director Simon Renshaw-Smith, having their claim recently struck out by District Judge Jones-Evans in the Country Court at Caernarfon on 04/09/19 (F2QZ4W28) (VCS Ltd v J Davies ) with the statement that the claim of £60 was, ‘unenforceable in law and is an abuse of process’. This judgement has been echoed elsewhere (UKCPM Ltd v Esplanade Ltd ). In another example, at Newport (IOW) County Court on 21/02/19 (F0DP201T), District Judge Taylor stated, ‘IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...’

Summary:

20. The Claimant appears to believe it is immune from steps which each party to litigation is expected and required to take both prior to proceedings being issued, and afterwards. Its attitude to its obligations under the PD, and under the CPR, to the court process and the rules of natural justice, is contemptuous and cannot go unnoticed and unpunished.

21. The Claimant’s conduct, both pre- and post-action, has denied the Defendant the opportunity to understand and deal with the claim: he has been unable to properly assess the strength of the claim at an early stage (and likewise the Claimant has denied itself the opportunity to assess the strength of the defence) and for each party to have entered into dialogue and/or attempted to narrow the issues between them (let alone agree a compromise).

22. The Claimant’s dogged determination to proceed to court regardless of whatever the Defendant has to say has resulted in a significant waste of time and costs and court resources. The Defendant has had to submit a lengthy Witness Statement, a lengthy Defence and a lengthy Skeleton Argument accompanied by a large amount of legislation and case law.

23. The Claimant has no excuse: it has been represented by solicitors who are known to deal [almost] exclusively with these types of claims and who are professionally bound to know the law and comply with relevant obligations/procedures.

24. In considering the reasonableness of the Claimant’s conduct the court should take into account its position as a professional parking company whose day to day business is issuing PCNs and pursuing motorists for payment. It is therefore a seasoned litigant which should be fully conversant with the court rules and its obligations. In comparison, the Defendant is a litigant in person, an ordinary person with no experience of the court (yet has managed to comply with all of his/her obligations and the court rules).

25. The Defendant submits that paras 22-3 result in the Claimant having a higher duty to behave reasonably.

26. This case falls comfortably within the category of those in which the court should exercise its powers under R27.14(2)(g) and/or para 16 of the PD. A summary costs order should be made against the Claimant on the indemnity basis and a costs schedule is attached.

Coupon-mad

jerry2354 wrote: »

Well Excel made a mess on this one...

I met their solicitor in the waiting room before the hearing who told me straight away he was not from excel and was just going to read out their WS. He was actually quite friendly, explaining the court process and how the judge will support people who are not used to the legal process.

Speaking to him further, it was only then that he found out that two cases existed and that both were being held at the same time and he only had one copy of Excel’s witness statement. Not only that, Excel had failed to give him either of my witness statements or skeleton argument. I then showed him the order from the judge that said the two cases would be held at the same time and he proceeded to frantically check his documents and try to make a few phone calls.

This meant that the first 20 minutes of the hour long hearing was spent by him reading my witness statement and skeleton argument. Because of this he asked to delay the hearings. However, after the judge asked me if I was ok with this and I refused, it was agreed that the first case would be held and then the judge would decide on the second case (for which he did not have Excels WS) at the end.

The four main points we discussed were poor signage, lack of evidence I was driving, lack of the landowner contract and lack of proof I did not pay. The Judge ruled that the signage was indeed too poorly lit, poorly placed and too space to form a contract. He never said wether he agreed with my arguments that POFA 2012 wasn’t followed as once Excel said they weren’t relying on POFA the judge said there was no point in discussing wether they did actually follow it or not. He ruled that the law of agency certainly did not apply to this case. However, on the balance of probabilities he decided Excel probably did have the authority to operate the site even without showing the contract and that a ticket probably wasn’t purchased. He said that I would have needed some sort of positive proof that a ticket was actually purchased in order to pursue the point that the records could have been altered or that the equipment was faulty. It was never discussed wether the £60 admin charge was allowed and I forgot to push it at the time. I did try claim punitive costs but the Judge didn’t read my application which I forgot to submit three days before the hearing and he believed Excel had behaved reasonably. I did get my £5.90 travel expenses though which have since been received as a cheque! I don’t even want to cash it in just so I can frame it haha!

After judgement on the first case the second case was also dismissed as they were so similar and were within a month of occurrence.

Once the case was over the three of us (Judge and their solicitor) even had a bit of a joke about wether I wanted to take a law conversion course after the whole experience (being an engineering student myself). So the whole experience was a bit more relaxed than I had worried about! After we left his office, speaking to their solicitor, he said that he was used to these sorts of mess-ups by Excel and that after doing so many of them he’s just defaulted to reading their WS and waiting for the inevitable.

Again, thank you all so much for your help, you really are incredibly generous to give up your time to help people that otherwise wouldn’t stand a chance!

Full details of my case:
The car park was Broomhill Rooftop Car Park, in Sheffield for both tickets
Both incidents occurred at night in November/December 2018

Full copies of my defence, witness statement and skeleton to come…

VERY well done - another one bites the dust! :T