County court claim form from excel parking services

Coupon-mad

Same as everyone else in the same position: submit your defence anyway.

Most people here don't get the SAR back yet, course not, they have 30 days.

Most people use the defence examples and just add the facts that they do know.

Plus in your case as it is Excel, and you said this:

The driver ignored the thing on the windscreen as it said it wasn’t a parking charge notice

...you might want to base your Excel defence on the VCS (Excel's sister company) 'not a CN' defence example in the NEWBIES thread defences, that surely you MUST have spotted is pretty much an exact match for your case?

And add stuff about:

- their signs being wordy and the parking charge hidden in far smaller font than the tariffs
- the fact you believe the driver paid & displayed and that excel did not give a reasonable grace period nor show that their ticketer had sychronised his/her watch with the machine or even put the correct time on the red card placed on the car - no evidence has been provided and you expect to be able to question the ticketer in person, at the hearing,
- the POFA and the fact Excel do not comply with Schedule 4 so can't hold a keeper liable

You also need to state in the email to the CCBC that your address has changed to (new address) to make sure you DO NOT miss the DQ and Notice of Allocation and Court date info about when to submit your WS and evidence, over the coming months.

And send an email to Excel's Data Protection Officer (same email you sent the SAR to) to erase the old address so they too do not use your old address at all when sending you stuff like their WS later.

The address being put right is vital, as is emailing the defence to the CCBC.

KeithP

Caspar13, you have know for several weeks now that you have needed to write a Defence.

As you say, you now have less that two days to finalise it.

Show us what you have written so far.

Coupon-mad

They could even just use the VCS one and change to Excel and they'd be 90% there!
The other 10% would be:

And add stuff about:

- their signs being wordy and the parking charge hidden in far smaller font than the tariffs

- the fact you believe the driver paid & displayed and that excel did not give a reasonable grace period nor show that their ticketer had sychronised his/her watch with the machine or even put the correct time on the red card placed on the car - no evidence has been provided and you expect to be able to question the ticketer in person, at the hearing,
- the POFA and the fact Excel do not comply with Schedule 4 so can't hold a keeper liable

Caspar13

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, appears from the sparse evidence supplied by this Claimant, to be parked on the material date on a public road, not on any yellow lines nor causing an obstruction.

2.1. 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 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.

2.2. 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.

3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. 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.

4. 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.

5. At best, parking without authorisation 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.

5.4. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

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

6.1. 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 not sending a postal NTK, is unlikely to have been in the contemplation of the Claimant's principal.

6.2. 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.

7. The POFA, 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.The keeper has not received a notice to keeper letter to confirm this maximum sum. An SAR has been requested but no information has been provided as of yet.

8. It is believed that the driver paid and displayed and that excel did not give reasonable grace period nor show that their ticketer had synchronised his/her watch with the machine or even put the correct time on the red card placed on the car - no evidence has been provided and I expect to be able to question the ticketer in person, at the hearing.

9.Excel do not appear to comply with schedule 4 so cannot hold a keeper liable.

10. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


(statement of truth and signature and date go here)

Caspar13

Thanks for your help with this guys! And thanks coupon-mad for the added suggestions too. I’ve posted my defence in the comments and am going to get it submitted tonight if you think it reads okay?

Coupon-mad

parked on the material date on a public road, not on any yellow lines nor causing an obstruction.

Eh? Why copy that bit if this was a PDT machine car park, not a road?

Move #8 up to become #5 as it needs to be higher up & fits well there:

8. It is believed that the driver paid and displayed and that [STRIKE]excel[/STRIKE] the Claimant did not give reasonable grace period nor show that their ticketer had synchronised his/her watch with the machine or even put the correct time on the red card placed on the car. No evidence has been provided and the Defendant expects to be able to question the ticketer in person regarding synchronisation of the timing, at the hearing.

Also see edits above in red.

Also below, some edits:

9.Excel do not appear to comply with Schedule 4 of the POFA, so cannot hold a keeper liable.

And I couldn't see anywhere that you've pointed out the added 'costs' are unrecoverable made up trash? Add all the stuff under 'Costs on the claim - disproportionate and disingenuous' here):

https://forums.moneysavingexpert.com/discussion/comment/75711757#Comment_75711757

Finally I didn't see you'd put this below (we know it's true):

The Claimant's signs being wordy and the parking charge hidden in far smaller font than the tariffs

You can write that yourself but remember you don't put ''I'', you write 'The Defendant avers that...'

Caspar13

Thanks, I hadn’t changed the first paragraphs fully as was unsure what to put so was mulling it over.

I deleted the element around added costs because the driver has not actually received a NTK so don’t know what they were claiming in the first instance. Would you put it in anyway?

I also removed anything in relation to the signs as they havent sent the evidence through around the signs as of yet and I didn’t want to include anything that The driver wasn’t sure about. Again, would you just include it anyway?

Thanks for your reply. This is all completely new territory to me and I really appreciate the help

Coupon-mad

I deleted the element around added costs because the driver has not actually received a NTK so don’t know what they were claiming in the first instance. Would you put it in anyway?

Yes of course.

You do know, the NTK would match what's on the sign, and that can't exceed £100.

I also removed anything in relation to the signs as they havent sent the evidence through around the signs as of yet and I didn’t want to include anything that The driver wasn’t sure about. Again, would you just include it anyway?

Yes of course. ALWAYS.

It is for them to prove otherwise and - think about it - the signage is ''the contract'' they allege was breached, so if you don't criticise the signs you are missing the main defence standpoint that everyone includes...

As I said:

(we know it's true)

Get that defence finished, printed, signed and scanned & emailed as per KeithP's advice.

Caspar13

I have made some tweaks as per suggestions above

DEFENCE

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

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

2.1. 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 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.

2.2. 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.

3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. 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.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

4.1 Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The claimants signs are wordy and the parking charge is hidden in a far smaller font than the tariffs.

5. At best, parking without authorisation 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.

5.1 County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

5.2 It is believed that the driver paid and displayed and that the claimant did not give reasonable grace period nor show that their ticketer had synchronised his/her watch with the machine or even put the correct time on the red card placed on the car. No evidence has been provided and the Defendant expects to be able to question the ticketer in person regarding synchronisation of the timing, at the hearing.

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

6.1. 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 not sending a postal NTK, is unlikely to have been in the contemplation of the Claimant's principal.

6.2. 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.

7. The POFA, 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. The keeper has not received a notice to keeper letter to confirm this maximum sum. An SAR has been requested but no information has been provided as of yet.

8.Excel do not appear to comply with Schedule 4 of the POFA, so cannot hold a keeper liable.

9. 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.

Costs on the claim - disproportionate and disingenuous
10. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

11.1. Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were either sent by a third party which offers a 'no collection, no fee' service, or were a standard feature of a low cost business model. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

10.2 The Claimant cannot reasonably recover an additional three figure sum in damages or costs to pursue an alleged £100 debt. The POFA states that the maximum sum that may be recovered is the charge stated on a compliant Notice to Keeper ('NTK') - in this case £100 - and it is denied that the NTK or the signage met the high bar set in the POFA for mandatory wording and adequate notice of the charge.

10.3 Even the purported 'legal costs' are made up out of thin air. No individual Solicitor has signed the Particulars of Claim - in breach of Practice Direction 22, and rendering the statement of truth a nullity - and this template roboclaim has clearly had no input from any supervising Solicitor, whether in house or externally. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated clerical staff.

(statement of truth and signature and date go here)

Coupon-mad

yellow/black envelope

Change to 'red envelope' (am I right?).

#9 is a summary. Needs to come down to the end, before your statement of truth.