Excel Parking Services - CLAIM FORM RECEIVED

DB483

Done, thank you.
Once we hear further, we will refer back to the newbies thread for info on court date and WS/evidence etc.

Coupon-mad

You know from bargepole's COURT PROCEDURES thread that everything goes to the Claimant and court, both, from DQ N180 form onwards. NOT just the court.

Why are we continually answering questions about the DQ form...when this and all stages are covered in the sticky thread?

Le_Kirk

Coupon-mad wrote: »

Why are we continually answering questions about the DQ form...when this and all stages are covered in the sticky thread?

........ and it is covered in KeithP's useful post on (nearly) every thread plus it tells defendants on the form and accompanying form what to do!

DB483

Hello again! 
so - update - we have our court date in the next 6-7 weeks and I am preparing the witness statement. 
I have been reading the newbies thread on witness statements etc & have picked up on the mentions of a skeleton argument too - is it better to submit both? 
Also - should i be including the usual info RE signage, beavis etc if the matter is incorrect reg number on pay & display ticket? 
I will post the draft W/S for critique once finished. 
Thank you.

Coupon-mad

 have picked up on the mentions of a skeleton argument too - is it better to submit both? 

Nope, no need for a skeleton argument.  But you need a SUMMARY COSTS ASSESSMENT and you need the CRA 2015.  For examples of what people submitted, then won their cases, read the threads by keypulse and Lego-9 which were updated just the other day and are not far into the thread page lists.

Also - should i be including the usual info RE signage, beavis etc if the matter is incorrect reg number on pay & display ticket? 

Absolutely yes!  The signs are the contract - the crux of the case!

Plus OF COURSE you need to put in the Excel case transcript hosted on the Parking Prankster's CASE LAW pages, where they lost re the fact their machines fail to record a full reg number!  No link, go find it.  Gold dust for you.

DB483

OK SO, this is the first draft witness statement so far:

Claim No.: xxxxxxxxxxx

Between

Excel Parking Services LTD (Claimant)

-and-


Mxxxxxxxxx (Defendant)


_____________________

WITNESS STATEMENT
_____________________

 

I, x of x am the defendant in this case. I will say as follows:

1.       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.

 

2.       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 defence as already filed.

 

3.       I have a lay representative and have never attended the county court before.

 

4.       Within this witness statement I will make reference to various documents which I have enclosed as Appendix 1 and documents are numbered in the order they appear in this statement.

 

5.       The Claimant failed to comply with the procedural requirements of Protection of Freedoms Act (POFA) 2012. The date of the alleged Parking Charge Notice was 17/06/2019; to comply the latest date of which the Notice to Keeper should have been received is 01/07/2019. The notice to keeper was dated 01/07/2019 and was not received within the 14 days as required. As such, I have no liability in law and the court is invited to strike out this claim with immediate effect.

 

6.       In the Defence, the Claimant was put to strict proof that they have a contract with the Landowner to pursue charges and take enforcement action in court for parking charges. The Claimant has failed to provide this with its Witness Statement. Instead they have produced a contract with a leaseholder, Excel Parking Services Limited fixed for a period from 14/11/2016 to 24/03/2036.

 

7.       The allegation appears to be based on images recorded by the Claimant’s ANPR cameras at the entrance and exit to the Feethams Leisure Park and Display Car Park, that the Claimant was managing based on the contract with Excel Parking Services Limited. In paragraph 7 of the Claimant Witness Statement the Claimant provides a false information that their production in exhibit KS2 is evidence of the date, time and location that the Defendant parked their vehicle in contravention of the Terms and Conditions associated with parking within development. This is merely an image of the vehicle in transit, entering and leaving the car park in question, and is not evidence of the Defendant “failed to purchase a parking tariff”.

 

8.       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 I was in breach of any contractual agreement with the Claimant.

 

9.       It is maintained that a new contract was formed by acceptance and issuing of the pay and display ticket, showing no/the incorrect VRN.

 

10.    I entered the car park at 11:00:am and parked the vehicle, registration xxxxx. I got out of the vehicle and approached the pay and display machine at the entrance of the car park.

 

11.    The cost of 2 hours parking is £1.50. I inserted £1.70 (due to no change given) into the payment machine. This entitled me to 2 hours parking. I entered my registration number ‘xxxxxx’, pressed the green button to confirm my parking payment and retrieve the ticket to display in the vehicle windscreen.

 

12.    On checking the ticket which had been printed, it was apparent to me that only a ‘0’ had been printed on the ticket. Therefore, it is my belief that the machine had not allowed me to enter my complete registration but that when entering my full registration, the only character that the machine had enabled me to select & enter successfully, was the ‘0’.

 

13.    I displayed this ticket in my windscreen as required and left the car park at 11:57am. I stayed approximately 57 minutes in the car park and was therefore well within the 2 hour limit expiry at 13:02pm.

 

14.    I have enclosed a copy of this ticket, purchased at 11:02am Ref: xxxxxxx. (1).

 

15.    On receiving a parking charge notice from Excel Parking Services LTD, I entered an appeal with them via the appeals system provided within the parking charge notice, and provided a copy of the pay and display ticket as proof of payment for the time which the vehicle was parked (2) However, this appeal was dismissed as shown in their response (3).

 

16.    The fact I made reasonable endeavours and cannot be penalised under UK contract law is also a circumstance supported by trite law. Authority for this is the case of Jolley v Carmel Ltd [2000] 2 EGLR 154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

 

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

Due to frustration of contract, where matters were outside my control due to a possible keypad error the contract was never properly or fairly made.

 

18.    The PDT log which the claimant wishes to rely upon, shows that there is no other ticket purchased at 11:02am entitling 2 hours parking until 13:02pm other than the ticket showing ‘0’ which was purchased by me, displayed in the vehicle and was later provided to them as evidence of payment.

 

19.    I have included images of the signage present at the car park (4). The sign is incredibly wordy, and the charge is hidden in the small print at the bottom of the sign. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the British Parking Association code of practice as hard to read.

 

20.    Furthermore, I have since noted several errors and inconsistencies in the signage, notably the following where reasons for issuing parking charges are listed in images of signage in KS1 which was provided in the claimant’s witness statement:

                                                               i.      ‘failure to make payment within 5 minutes following entry to the car park/private land’

·       However, other imaging provided states the following:

                                                               i.      ‘after a vehicle has entered the car park, 10 minutes is allowed to purchase the required parking tarrif’

And:

                                                              ii.      ‘ any vehicle/driver remaining in this car park 10 minutes after entry is subject to & agrees to the full terms and conditions’

This is contradictory, shows inconsistency and could cause confusion as to the amount of time permitted to purchase a ticket.

21.    The letter from Excel Parking Services dated 22/07/2019 in response to my appeal, states the following ‘if you were unable to use another ticket machine, or use an alternative method of payment, you should have sough alternative parking or phoned the helpline’ In light of points above, this raises the question, if it took longer than 5 minutes to seek an alternative machine, call the helpline, speak to a person, explain the problem, seek resolution and failing that, leave the car park to find other parking, outside of that 5 minute window, would a Parking Charge Notice be issued still in those circumstances.

 

22.    In the case of C8DP11F9, the defendant’s case was similar to mine in that she complied with the terms in that she entered the car park, paid for her ticket and entered her registration number. The ticket produced showed ‘QQ’ as opposed to her registration number. She displayed that ticket and as far as she was concerned, complied with the terms and conditions. The claim by Excel Parking Services was dismissed by District Judge Burrow. DJ Burrow concluded that she did not find it appropriate to enter a judgement against the defendant in favour of the claimant and given that the defendant she obtained a ticket, made payment to obtain that ticket which showed the relevant time of entry, the amount paid and the registration that the ticket machine produced, DJ Burrow found it would have been unreasonable to expect the defendant to do anything further.

 

23.    The charge listed on the initial Parking Charge Notice were £100 or £60 if paid within 14 days. The next correspondence dated 20/08/2019, demand for payment, lists the charge as £160 (£100 charge and £60 ‘debt recovery fee’). Then a final demand letter was received dated 04/09/2019 which lists the outstanding balance as £160. On the last letter before claim dated 19/09/2019 the charge is listed as £160 (£100 charge plus £60 ‘debt recovery fee’) estimated court fees of £25 are also listed along with interest at 0.02% daily. The Claim form received lists the amount claimed as £160 plus a court fee of £25 making the total £185.

 

24.    There were no visible signs to mention the £60 contractual costs on the amount claimed nor the court fee claimed.

 

25.    These sums have been held to be unrecoverable (ParkingEye v Beavis [2015] UKSC 67). It is an abuse of process for the Claimant to issue knowingly inflated claims.

 

26.    In Case 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.

 

27.    In Case 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.

 

28.    In addition to the original parking charge; believed to be £100, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported debt recovery costs of £60 which I submit have not actually been incurred by the Claimant.

 

29.    Whilst £60 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Excel Parking Services LTD have not expended such a sum on my case. The added 'debt recovery/legal' cost is an artificially invented figure (carefully avoided in the Beavis case where only £85 was pursued, presumably to avoid just such scrutiny). This is a cynical attempt to circumvent the Small Claims costs rules using double recovery.

30.    This ordeal has caused me significant stress and anxiety not to mention the time and effort involved in researching, the administration and time required for putting together defence and witness statements along with the document bundle.

All help/advice/criticism welcome & very much appreciated! 
Also - putting together the bundle (you can see by the WS what will be included).
Have started to note down costs for summary assessment - if anyone has any advice/guidance on how to set this out & what can be charged for stress etc (so far i have loss of earnings for myself and lay person for the day in court, travel & parking, £19 per hour for time taken to research, appeal, defence, witness statement, postage costs) - that would be great! have i missed anything? 

DB483

Also, forgot to say - i received a letter from Excel 2 weeks ago now offering to settle. I responded explaining i wouldnt be settling and that liability was denied as per the defence and the evidence shown of the purchased ticket. 

Coupon-mad

Instead they have produced a contract with a leaseholder, Excel Parking Services Limited fixed for a period from 14/11/2016 to 24/03/2036.

Hang on, Excel have shown an agreement with themselves?  State in there, how absurd that is...

But, just as absurdly from your point of view, think about why #5 and #10 cannot work together. Think about this...

DB483

CM: 
i dont think its with themselves, but its a document which says ‘leaseholder witness statement’ but is signed only by someone from excel? 

In response to your second point, is this because i am identifying as the driver? If so, would the need for the PCN/NTK to have been received within 14 days still apply? And could i still not use that as it was late in any event aside from whether the driver is identified or not? 

Sorry! I have read so much over the last few days my brain is fried. 

Redx

POFA does not help an identified driver , so the 14 day rule cannot apply either , more like 6 months for a PCN to a driver , it's not considered late unless 7 months had elapsed

Is , the driver cannot hide behind POFA , so it's one or the other

A driver can be and is the first person witness on the day