Claim Form (County Court Business Centre) - Excel Parking

Carthesis

Well, the title says it all really.

After arguing with Excel parking for 5 months they've finally sent me a Claim Form (a full on MCOL effort).

Having read the thread on this, I now feel I may have made a mistake in as much as Excel sent through some form or other of their own at the start of the month which asked for a load of personal and financial information, which I ignored thinking it was part of the "Project Fear" process. This could well now have been an LBCCC and I haven't twigged that to be the case.

I'm now in the process of reading threads to sort a defence, and have acknowledged the claim through MCOL to get the 28 days.

Potted details
Car was parked in a P'n'D car park near the Driver's office. Parking paid for through the RingGo service. Due to some error somewhere, although the parking period was paid for, the transaction didn't go through until later in the afternoon. In the intervening period, the car was ticketed with a windscreen ticket which just referred to the 'MyParkingCharge' website.

Don't recall ever getting a RK notice, but that doesn't mean i didn't get one - i need to check the paperwork.

Certainly don't recall this ever going as far as dodgy debt collector letters, but again I need to have a look.

Can anyone point me in a reasonable direction for help in pulling relevant defence information together please?

Le_Kirk

NEWBIE thread (one click back, third post down) and read post # 2, then look at some of the defences written concisely by Bargepole and adapt one of them to suit your circumstances. Don't forget to do the AoS. There is a link in that post I pointed you to, to show how it should be done.

Carthesis

Le_Kirk wrote: »

NEWBIE thread (one click back, third post down) and read post # 2, then look at some of the defences written concisely by Bargepole and adapt one of them to suit your circumstances. Don't forget to do the AoS. There is a link in that post I pointed you to, to show how it should be done.

Already done the AoS - I did say that but might have been lost in the text.

I'm looking at the various Bargepole/C-M defences already.

D_P_Dance

Complain to your MP. On 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

KeithP

What is the Issue Date on your Claim Form?

Coupon-mad

In the intervening period, the car was ticketed with a windscreen ticket which just referred to the 'MyParkingCharge' website.

A card in an envelope that said 'this is NOT a parking charge notice'?

There is a VCS defence for that situation, in the NEWBIES thread, that would be adaptable for an Excel case (they are sister companies).

Carthesis

Coupon-mad wrote: »

A card in an envelope that said 'this is NOT a parking charge notice'?

There is a VCS defence for that situation, in the NEWBIES thread, that would be adaptable for an Excel case (they are sister companies).

Yes, that's the fella.

I'm obviously past the point of POPLA etc. at this point, but helpful to have that info for the defence submission. Thanks.

Snakes_Belly

Carthesis wrote: »

Yes, that's the fella.

I'm obviously past the point of POPLA etc. at this point, but helpful to have that info for the defence submission. Thanks.

If you had appealed the appeal would have been made to IAS and not POPLA and is likely to have been a total waste of your time.

Carthesis

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

EXCEL PARKING 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 registered keeper, was parked on the material date in the location alleged (an unmarked car park on land which is scheduled for future development), and had a valid ticket covering the period of parking required.
   
3. Based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:
   
   1. A contract was formed by the Defendant and the Claimant on XX/XX/2016;
      
   2. There was an agreement to pay a sum or parking charge for failure to comply with the Terms and Conditions, which in this case appears to be a failure to display a valid ticket;
      
   3. That there were Terms and Conditions prominently displayed around the site;
      
   4. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums;
      
   5. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
4. It is denied that:
   
   1. A contract was formed, and it is further denied that any contravention of ''no ticket displayed'' occurred or can have occurred when using the “pay by phone” option via the RingGo app, the failure of which was not communicated to me nor was it within my control. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's app, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.
      
   2. There was any agreement to pay a parking charge.
      
   3. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.
      
   4. 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.
      
   5. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
5. The RingGo app, being indisputably an offer of a 'distance contract', complied with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says:
   
   ''Confirmation of distance contracts: 16.—
   (1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
   (2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
   (3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''
   
6. It is further denied that the Defendant is liable for the purported debt.
   
   Rebuttal of claim
   
7. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
   
   1. Payment for parking was made via telephone using a cashless system provided by the RingGo app. At this location, the minimum time for which parking may be purchased is 1 day and is displayed as such;
      
   2. This is a distance contract which requires certain information to be supplied in advance;
      
   3. The service makes no provision for the printing of a ticket to display;
      
   4. The payment channel did not indicate any failure to make payment and responded as if payment had been made. As such the Defendant believed the necessary payment had been made, with a receipt confirming the appropriate payment for the parking period subsequently e-mailed to the Defendant;
      
   5. The failure of the payment service to process payment and/or notify the Claimant of such payment is not responsibility of the Defendant. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
8. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
   
9. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NtK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN. It is further put to the Court that this approach is not supported by The Protection of Freedoms Act (2012), and as the provisions of Schedule 4 have not been met by this approach, there is no liability in law attached to the Registered Keeper of the vehicle.
   
10. At best, parking without authorisation via means of payment could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.
    
11. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days. Further, the Defendant submits that no losses have been incurred by the Claimant, as payment for the parking period has been made and can be evidenced.
    
12. The Claimant has artificially inflated the value of the Claim from £xx to £xx. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures entirely arbitrary and applied regardless of facts. Further, the Defendant submits that:
    
    [LIST=2]
13. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
    
14. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £xx to £xx. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    
15. 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 £xx.

[*]The signage on this site was inadequate to form a contract with the motorist.

1. The signage on and around the site in question was unclear and not prominent and 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, or any additional fee charged if unpaid in 28 days.
   
2. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Denning’s "Red Hand Rule”.
   
3. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in ParkingEye Ltd v Beavis [2015] UKSC 67) this fails to meet the requirements of Schedule 4 of the POFA.
   
4. The RingGo signage specifically states that there is “No need to display a ticket in your car” therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
   
5. If the Claimant wanted to impose a condition to continuously display permits, then they should have drafted clear instruction to that effect, requiring specific terms of how to 'continuously display' when a paper ticket has not been issued or there is no contravention.
   
6. Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

[*]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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.
   
2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

Non-disclosure of reasonable grounds or particulars for bringing a claim:

[*]Excel Parking Ltd are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim:

1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
   
2. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question, particularly in this instance where payment for the period of parking has been made;
   
3. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge;
   
4. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

[*]The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s), and does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:

'The driver of the vehicle registration XXXX XXX incurred the parking charge(s) on XX/XX/2016 for breaching the terms of parking on the land at Spaw Street Arches.

The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle AND THE CLAIMANT CLAIMS £160.00 for Parking Charges / Damages and indemnity costs if applicable, together with interest of £6.81 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgement at £0.04 per day’

[*]The Claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.

1. The Claimant has disclosed no cause of action to give rise to any debt.
   
2. The Claimant has stated that a parking charge was incurred.
   
3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
   
4. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.

[*]There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information.

[*]These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. 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. 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.

[*]The Defendant invites the Court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their Particulars of Claim being incoherent, failing to comply with CPR16.4, and “providing no facts that could give rise to any apparent claim in law”. The Practice Direction also sets out the following example which is analogous to this claim: “those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.”

[*]It is a matter of public record that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

[*]The Claimant is 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. As examples, the Defendant invites the Court to consider, amongst many others, the following:

1. Excel v Ms C [C8DP36F0] - the Defendant purchased and displayed a ticket, but a fault on the ticket machine caused the ticket to be incorrectly printed. The case was dismissed and costs were awarded to the Defendant;
   
2. Excel v Mr W. [C7DP8T7D] - The Claimant brought a case against the Registered Keeper of a vehicle despite making no attempt to comply with, and clearly stating that they do not rely on, the provisions in The Protection of Freedoms Act (2012). The case was dismissed and costs were awarded to the Defendant;
   
3. Excel v Mrs. E [C8DP79CC] - the Claimant brought a case against the Registered Keeper in a pre-POFA vent, whereby liability was attempted via Elliott v Loake and CPS v AJH even after a previous case (Excel v Lamoreux) indicated this approach was unlikely to be valid. The case was dismissed and costs were awarded to the Defendant;
   
4. Excel v Mr B [C9DP35CY] - The Claimant brought a case against the Registered Keeper for the Driver “leaving the site” when the identity of the Driver had not been confirmed at the time. The case was dismissed and costs were awarded to the Defendant.

[*]Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority. The Defendant believes the terms 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. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

[*]The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

[*]The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

[*]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.
[/LIST]

I believe the facts contained in this Defence are true.

Name

Signature

Date

Coupon-mad

That's not the VCS 'not a CN' defence example I told you to use. You seem to have assumed I pointed you to read a POPLA appeal. I didn't. It's in the example defences!

I like #22 though.

Carthesis

Coupon-mad wrote: »

That's not the VCS 'not a CN' defence example I told you to use. You seem to have assumed I pointed you to read a POPLA appeal. I didn't. It's in the example defences!

I like #22 though.

I took the relevant parts from

A 2018 defence re VCS and a 'THIS IS NOT A PARKING CHARGE' which they then call a parking charge later:

https://forums.moneysavingexpert.com/discussion/comment/74816302#Comment_74816302

I've bodged it around a bit to fit in with the other points i was making, but that's the post I took it from. Was that not the one you meant?