Excel Parking Claim form received

Mefty73

Hi,
Many apologies if I should not be creating a new thread etc. I am struggling to keep up with all the DO's and DON'Ts. Many many thanks in advance for any help you could provide (I know you get this request all the time).

In brief, a friend of mine has received a claim from Excel (County Court Business Centre) . The details are:


Claim No. xxxxx
Issue Date: 18 Jul 2019

The Claim is for a breach of contract for breaching the terms and conditions set on private land. The Defendant's vehicle, XXXXXX. was identified in the XXXXXX Shopping Centre on the xxxx date in breach of the advertised terms and conditions; namely parked without payment of the parking tariff for the vehicle reg mark of the vehicle on site.

At all material times the Defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The sign was the offer and the the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct. The sign specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the Defendant has failed to settle the outstanding liability.


The Claimant seeks the recovery of the parking charge notice, contractual costs and interest.
The Claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement.


Signed xxxxx
Amount claimed: £160.00
Court fee: £25.00
Legal Rep: £0.00
Total: £185.00



Now my friend stated (in her defense) that the car park initially was a fee paying car park but then was turned into a FREE car park for a number of years. The drive didn't realise it was changed back to a fee paying car park. The driver was parked there for less than 30 min and the fee would've been 60p (checked later). The drive in error assumed the parking notices were from previous fee paying time.


Obviously when the initial fine of £100 came through the post the driver refused to pay such exorbitant charge.

• The alleged breach took place Aug 2017
• The driver has not done a SAR once the letter before claim was received.
• The driver has done the AoS online today.
• The driver is struggling with the DEFENCE as the driver has not done a SAR etc and thinks numerous examples provided by the forumites do not apply in this case . Any help with possible defence would be greatly appreciated. Here is a draft defense (cut and paste job from others):

DEFENCE

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXXXXXX

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

1.2. The Particulars of Claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand the Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

1.3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

2. At the time of the alleged claim the Defendant was the registered keeper of vehicle registration mark XXXXXXX which is the subject of these proceedings.

3. Due to the sparseness of the Particulars, it is unclear if the claimant has the authorisation from the private landowner, where the xxxxx car park is situated to pursue this claim of alleged breach of contract.

3.1. In this case, the Claimant is put to strict proof that it had sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation in its own name on the material date. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs and collect monies from the machines, and no doubt, to issue PCNs - but 'on behalf of' the landowner, which would give them no authority or standing.

4. In addition to the PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant.

5. 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 cost.

8. 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.

I believe the facts contained in this Defence are true.


Name

Signature

Date


I've read in other threads that "not identifying the the driver" is not a defence. Again I apologies for childish mistakes made in the draft defence and THANK YOU for any help.

KeithP

The term 'CCJ' doesn't fit. There has been no Judgment yet.

Please edit your post, especially the title, to remove 'CCJ'.

What is the Issue Date on your friend's Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

Mefty73

Thanks for the reply KP. I've edited the post now. The claim was issued on the 18 Jul from County Court Business Centre in Northampton.

KeithP

Mefty73 wrote: »

The claim was issued on the 18 Jul from County Court Business Centre in Northampton.

With a Claim Issue Date of 18th July, you have until Tuesday 6th August to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Tuesday 20th August 2019 to file your Defence.

That's over three weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Where I say 'you' or 'your' I do of course mean the Defendant.
Everything must be done in the Defendant's name.

beamerguy

The Claimant seeks the recovery of the parking charge notice, contractual costs and interest.
The Claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement.


Signed xxxxx
Amount claimed: £160.00 <<<<<<< NO
Court fee: £25.00
Legal Rep: £0.00
Total: £185.00


The add-on contractual of £60 is rubbish. It all stems from a dodgy legal they once used who lost them a lot of cases.

Legal Rep: £0.00
This is the second time of late that they show ZERO even though it is allowed (£50). This could result in the fact that there is no real legal as a judge kicked out one of their cases with the comment that their claim was incoherent

Excel has claimed in the past that they do not rely on POFA2012 which is the law.
So, the fake add-on of £60 falls into two categories....
1: ABUSE OF PROCESS (POFA2012)
2: DOUBLE RECOVERY which the courts do not allow

Please read this
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal&highlight=abuse+of+process

This applies to all those who try to scam you and the court
PLEASE READ POST #14 ON THIS THREAD BY COUPON-MAD

Add the full text in your claim

Mefty73

Thanks to both KP and beamerguy.

The driver will be on holiday for two weeks from next week, which is why the stress. A draft defence is attached to the main thread at the bottom.

Couple of points still unclear:
- Should the driver be doing a SAR to Excell
- Should the defence include anything re: Abuse of process (POFA2012)

Thanks very much.

Quentin

Yes to both questions

Mefty73

Updated draft defence:

DEFENCE

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXXXXXX

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

1.2. The Particulars of Claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand the Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

1.3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

2. At the time of the alleged claim the Defendant was the registered keeper of vehicle registration mark XXXXXXX which is the subject of these proceedings.

3. Due to the sparseness of the Particulars, it is unclear if the claimant has the authorisation from the private landowner, where the xxxxx car park is situated to pursue this claim of alleged breach of contract.

3.1. In this case, the Claimant is put to strict proof that it had sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation in its own name on the material date. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs and collect monies from the machines, and no doubt, to issue PCNs - but 'on behalf of' the landowner, which would give them no authority or standing.

4. In addition to the PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant.
“
4.1. The defendant believes the costs on the claim - disproportionate and disingenuous as per CPR 44.3 (2), which 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.

4.2. Whilst quantified costs can be considered on a standard basis, this Claimant's purported 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 a standard feature of a low cost business model and are already counted within the parking charge itself.

4.3. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

4.4. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

4.5. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

4.6. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

4.7. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, 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. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''The judge stated 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...''

4.8. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

4.9. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

4.10. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

5. 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.

Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature


Date

Redx

not just POFA, its an abuse of process even if it was about a builders invoice, not just car parking, the addon costs should not be there , period which is what DJ GRAND and DJ TAYLOR are saying


before IT IS ORDERED , add , "The judges stated"

Mefty73

Thanks very much Quentin.

Mefty73

Thanks Redx, now edited.