Letter Before Claim - received from Excel Parking

KeithP

3383 wrote: »

Issue date on my claim form is 06 Jan 2020.

What is the reasoning for holding off doing the AoS? Everything i have read in the Newbies and other threads is there is no point in delaying the AoS

After five days there is no point in delaying the AoS.
Before five days, you reduce the time available for creating a Defence.


With a Claim Issue Date of 6th January, you have until Monday 27th January to file an Acknowledgment of Service. If possible, do not file an AoS before 12th January, but otherwise there is nothing to be gained by delaying it. To file an 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 filed an AoS, you have until 4pm on Monday 10th February 2020 to file your Defence.

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


When you are happy with the content, your Defence could 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. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.

Having filed your Defence, your work is not yet complete.

1. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
2. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet, and then complete it as described by bargepole in his 'what happens when' post.
3. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
4. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

3383

if possible could someone please have look at my 1st draft defence, thanks.

1 The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
1.2 The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper at the time of the incident, was parked on the material date in a marked bay at XXXXXX Car Park XXXX Road, and had a valid permit to be parked in that bay.
1.3 The valid permit was taken from the footwell of the car and shown to the employees of the Claimant as they were issuing the notice. The Defendant appealed the Parking Charge Notice on the day the ticket was issued (XXXX1) and explained what had happened.
1.4 This was an opportunity for the Claimant to act reasonably and cancel the charge.
1.5 The Particulars of Claim state that 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.
1.6 After receiving several letters through the post the defendant followed the appeals process of the Claimant explaining what had happened along with a copy of the permit provided on the day. Clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.

1.7 The Defendant received no response; a pattern of behaviour that the claimant repeated time and again despite numerous attempts by the defendant to engage.

2 The Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

2.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;
a) An explanation as to the exact nature of the charge
b) A copy of any contract it is alleged was entered into and how (e.g. copies of signage)
c) Whether the Claimant is acting as Agent or Principal, together with documents they rely on in having standing to bring this claim
d) The basis on which charges over and above the initial charge are being claimed and calculated

2.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

Background
3 The Defendant is the authorised registered keeper

4 The Defendant denies liability for the entirety of the claim for the following reasons:

4.1 The Defendant provided a valid permit so all details could be seen. The permit was made of flimsy paper, and was, to the full knowledge of the Defendant at the time, in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the permit moved out of sight or why, but made all reasonable endeavours, and complied by conduct.

4.2 The Defendant cannot be responsible for the possibility that:
a) A gust of wind may have later moved the permit from sight, despite the windows being shut & the doors being locked.
b) The employee of the Claimant may have caused the permit to move from sight, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.
c) A passer-by may have leaned on the car to get to their own vehicle or nearby offices.

4.3 None of the above scenarios are within the Defendant’s control (the Defendant was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

4.4 Notwithstanding the above, the flimsiness of the permit certainly played its part, and that is within the control of the Claimant, who must be well aware of the problem, which has become known as ''fluttering tickets''. Because they profit from drivers' misfortune caused by their own permits inability to withstand British weather, it is averred that this Claimant wilfully failed to address this issue (e.g. by ensuring permits had a sticky backing to allow it to be fixed in place). Several similar court cases have been previously dismissed on the basis that it is deemed by the judge to be the responsibility of the parking company to provide sticky backed tickets (e.g. C8GF30W7 Link Parking v Mr H. 14/11/2016 Port Talbot)

4.5 The permit was taken from the footwell of the car by the Defendant and shown to the employees of the Claimant when they were still at the scene.
4.6 The Claimant had a full record of the Defendant having a valid parking permit for the time at which the PCN was issued without the permit being visible on the dashboard.

4.7 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act 2015.

Claimant is seeking a penalty and inflated costs
5 The Claimant seeks £160 + £25 court fees which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown themselves to be in possession of a valid permit and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

5.1 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the information available from the Defendant having provided details of a valid permit that would have enabled it to establish that the Defendant was parked legitimately.

5.2 The £160 sought (for which liability is denied) the Claimant has untruthfully presented as contractual charges, which amounts to double charging, which the Protections of Feedoms Act (PoFA) 2012 Schedule 4 specifically disallows. Any term allowing for the Claimant to pursue such additional charges must be void for uncertainty. In any event, such charges must be covered by the addition of the discounted element of the charge after a driver has failed to pay within 14 days (£40).

5.3 There is no possible commercial justification for the Claimant to found an action based on such a trivial error. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated that in that case there was a commercial justification as it was a free car park and the Claimant needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a public car park where revenue is earned from the payment for parking spaces by the public.

5.4 The Defendant denies that the Claimant is entitled to any interest whatsoever.
6 The Defendant invites the court to consider this matter a trifle; the Defendant has acted in good faith; made reasonable endeavours to adhere to the terms of a contract and the Claimant has suffered no actual loss. In plain language, the Claimant has spent over 3 years aggressively seeking extravagant sums for a presumed failure to display a parking permit; evidence for the validity of which has never been questioned

6.1. The Defendant requests the court use its case management powers to strike the claim out as the Claimant has failed to provide basic details about its claim; is seeking an extravagant and unconscionable penalty and is automating their use of the court process against the public interest to intimidate and harass those acting in good faith.

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

3383

bumped - anyone able to have a quick look at my draft Defence

Le_Kirk

You seem to repeat a lot about the "showing permit to the employees" whereas this is stuff that would be better placed in the Witness Statement. A defence is a set of technical and legal arguments. You also could read threads by CEC16 and basher52 plus search the forum for the thread by beamerguy with comments at post # 14 on that thread by Coupon-mad, all three of which will give you an idea about how to approach the £60 additional contractual charges.

3383

Hi all. I have redone my defence. I would really appreciate an expert opinion.
I have taken out some of the items i will use in my witness statement instead, and tried to keep the defence concise with technical and legal arguments.

My Defence draft 2
1 The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
1.2 The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper at the time of the incident, was parked on the material date in a marked bay at XXXXXX Car Park XXXX Road, and had a valid permit to be parked in that bay.
2 The Particulars of Claim state that 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.
2.1 After receiving several letters through the post the defendant followed the appeals process of the Claimant explaining what had happened along with a copy of the permit provided on the day. Clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.
2.2 The Defendant received no response; a pattern of behaviour that the claimant repeated time and again despite numerous attempts by the defendant to engage.
3 The Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.
3.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;
a) An explanation as to the exact nature of the charge
b) A copy of any contract it is alleged was entered into and how (e.g. copies of signage)
c) Whether the Claimant is acting as Agent or Principal, together with documents they rely on in having standing to bring this claim
d) The basis on which charges over and above the initial charge are being claimed and calculated
3.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
Background
4 The Defendant is the authorised registered keeper
5 The Defendant denies liability for the entirety of the claim for the following reasons:
5.1 The Defendant provided a valid permit so all details could be seen. The permit was made of flimsy paper, and was, to the full knowledge of the Defendant at the time, in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the permit moved out of sight or why, but made all reasonable endeavours, and complied by conduct.
5.2 The Defendant cannot be responsible for the possibility that:
a) A gust of wind may have later moved the permit from sight, despite the windows being shut & the doors being locked.
b) The employee of the Claimant may have caused the permit to move from sight, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.
c) A passer-by may have leaned on the car to get to their own vehicle or nearby offices.
5.3 None of the above scenarios are within the Defendant’s control (the Defendant was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.
5.4 Notwithstanding the above, the flimsiness of the permit certainly played its part, and that is within the control of the Claimant, who must be well aware of the problem, which has become known as ''fluttering tickets''. Because they profit from drivers' misfortune caused by their own permits inability to withstand British weather, it is averred that this Claimant wilfully failed to address this issue (e.g. by ensuring permits had a sticky backing to allow it to be fixed in place). Several similar court cases have been previously dismissed on the basis that it is deemed by the judge to be the responsibility of the parking company to provide sticky backed tickets (e.g. C8GF30W7 Link Parking v Mr H. 14/11/2016 Port Talbot)
5.5 The permit was taken from the footwell of the car by the Defendant and shown to the employees of the Claimant when they were still at the scene.
5.6 The Claimant had a full record of the Defendant having a valid parking permit for the time at which the PCN was issued without the permit being visible on the dashboard.
5.7 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act 2015.

Claimant is seeking a penalty and inflated costs
6 The Claimant seeks £160 + £25 court fees which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown themselves to be in possession of a valid permit and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.
6.1The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.
6.2 The £160 sought (for which liability is denied) the Claimant has untruthfully presented as contractual charges, which amounts to double charging, which the Protections of Feedoms Act (PoFA) 2012 Schedule 4 specifically disallows. Any term allowing for the Claimant to pursue such additional charges must be void for uncertainty. In any event, such charges must be covered by the addition of the discounted element of the charge after a driver has failed to pay within 14 days (£40).
6.3. The Defendant has the reasonable belief that the Claimant has not incurred an additional £100 in damages or costs to pursue an alleged £40 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.
6.4Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £100 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.
The Beavis case is against this Claim
7. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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 an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.
7.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''
7.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

7.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

7.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''
8 The Defendant invites the court to consider this matter a trifle; the Defendant has acted in good faith; made reasonable endeavours to adhere to the terms of a contract and the Claimant has suffered no actual loss. In plain language, the Claimant has spent over 3 years aggressively seeking extravagant sums for a presumed failure to display a parking permit; evidence for the validity of which has never been questioned

9 The Defendant requests the court use its case management powers to strike the claim out as the Claimant has failed to provide basic details about its claim; is seeking an extravagant and unconscionable penalty and is automating their use of the court process against the public interest to intimidate and harass those acting in good faith.

10 The Claimant has failed to establish its legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd

3383

i have made amendments to my defence. can someone have a glance and point me in the right direction please.

im unsure how much 'depth' i need to go into on the DS compared to the WS

Coupon-mad

3383 wrote: »

im unsure how much 'depth' i need to go into on the DS compared to the WS

As yours is about a car park where you had a permit as an employee, read this thread where the OP won in court this week:

https://forums.moneysavingexpert.com/discussion/5804474/parking-charge-notice-in-work-car-park&page=2

Her defence is in post #40 and then most of the discussion is about her WS and evidence after that, which shows you how much detail she went into at the two stages.

[STRIKE]2.1[/STRIKE] 3. After receiving several letters through the post the defendant followed the appeals process of the Claimant explaining what had happened along with a copy of the permit provided on the day. Clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and conditions (“T&C”) - as far as they were understood.
[STRIKE]2.2[/STRIKE] 3.1. The Defendant received no response; a pattern of behaviour that the claimant repeated time and again despite numerous attempts by the Defendant to engage. The Claimant knew, or should have known many months before filing this claim that they have no cause of action against the Defendant [STRIKE]authorised[/STRIKE] who was the registered keeper and driver of the vehicle, has never tried to ignore the matter and who has proved their authorisation from the start.

3.2. The Claimant is treating an authorised driver as if they were unauthorised and it makes a mockery of their tenuous excuse for operating at the site under the thin veil of 'managing' the parking for the occupiers, if they have free rein to sue employees with permission to park. There can be no legitimate interest to support this case and in all facts, the case of ParkingEye Ltd v Beavis [2015] UKSC67 is fully distinguished, and this charge falls foul under the penalty rule, which remains 'engaged'.

[STRIKE]3 The Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.
3.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;
a) An explanation as to the exact nature of the charge
b) A copy of any contract it is alleged was entered into and how (e.g. copies of signage)
c) Whether the Claimant is acting as Agent or Principal, together with documents they rely on in having standing to bring this claim
d) The basis on which charges over and above the initial charge are being claimed and calculated
3.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.[/STRIKE]

[STRIKE]Background[/STRIKE]
4 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 against known permit holders. [STRIKE]The Defendant is the authorised registered keeper and driver of the vehicle[/STRIKE]

Your figures don't make sense as you talk about £160 but it doesn't sound like the PCN was for £100. FORGET the £40 bribe. How much was the actual parking charge without the discount? How much have they added to that (NOT the £25 court fee, forget that)?

3383

Coupon-mad wrote: »

Your figures don't make sense as you talk about £160 but it doesn't sound like the PCN was for £100. FORGET the £40 bribe. How much was the actual parking charge without the discount? How much have they added to that (NOT the £25 court fee, forget that)?

Thanks Coupon-mad.

I have amended and added the points in red.
Thanks for the link to the other thread for pointers on a DS and WS.
Re: the actual parking charge amounts. I have checked the ticket issued at the time and the amount is £100 and the amount on the court claim form is £160.
I have amended my section 7 regarding the amount claimed for.
7. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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 an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.
7.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''
7.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

7.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

7.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

Coupon-mad

OK, last things, remove this phrase which is easy for them to knock back:

and the Claimant has suffered no actual loss.

And remove #10 as I already wrote the more usual wording in the new #4 in red.

Make sure it has a statement of truth and your name, signature and date, and then follow the process set out in KeithP's reply earlier about how to file the defence.

And no asking us about the really simple DQ N180 form stage - drives us mad!

3383

in a rejection appeal letter i have received from excel it claims i was in breach of their T&C. they have never supplied me with the T&Cs. should i add the following to my defence.

11. The Claimant also stated in the Particulars of Claim that the claim is for ‘breaching terms and conditions in operation at the car park/ private land’. However, the claimant has failed to provide evidence of that agreement