Claim Submission Form Received - Acknowledgement filed...now to prepare the defence

gbbe

Unconscionable, punitive 'parking charge' - again, Beavis is distinguished
18. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of a few pounds. Had the Defendant been clearly alerted to the sum on the day - there would be no unfair penalty, and the Retail Park (or landowner) would gain in income and avoid any parking issues at all, including all the complaints mounting up online about EXCEL PARKING SERVICES LTD.
18.1. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of a few pounds unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.
19. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be a few pounds and no more.
19.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.
19.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just a few pounds and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.
20. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, lack of reasonable adjustments and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.
21. In addition to the original 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.
21.1. These have been described as a 'DCBL administration and recover fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Letter Before Claim there is also a second add-on, artificially hiking the sum to £236.20. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

21.1.2. 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.

22. The Defendant denies the claim in its entirety voiding any liability to the Claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, the Defendant is keeping a note of their wasted time/costs in dealing with this matter.

23. 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 and for this reason the Defendant requests the court strike out claim xxxxxxxxx

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

Name
Signature
Date

KeithP

3. The driver was the occupant of the car...

That made me smile. Unusual to find a driver that wasn't an occupant of the car.

gbbe

KeithP said:

3. The driver was the occupant of the car...

That made me smile. Unusual to find a driver that wasn't an occupant of the car.

it was written in someone else's defence, i did think it was stating the obvious, any other observations?

gbbe

also just discovered this......

17. Through online research, the Defendant has discovered that after an appeal was submitted to POPLA, Gala Bingo are (or were) the land owners of the XX Retail Park and their unredacted contract with EXCEL PARKING SERVICES LTD states the first hour of parking is free, this is further evidence that EXCEL PARKING SERVICES LTD are not complying with the terms of their signed contract with the Landowner. Additionally, the driver in this case is suggested to have been in the car park for under an hour, making recovery for damages for an individual parking for less than an hour a breach of the Landowners contract and unenforceable.  

Le_Kirk

I think your argument at 21.1.2 (Ladak) is old and no longer used.  Where did you find it?  Was it in a post by Coupon-mad?

gbbe

Le_Kirk said:

I think your argument at 21.1.2 (Ladak) is old and no longer used.  Where did you find it?  Was it in a post by Coupon-mad?

Yes I think it was by coupon-mad

Le_Kirk

This was posted by Coupon-mad (my emphasis) on 23rd January: -

Coupon-mad said:

Very good research, but replace all the points under 'Costs on the claim – disproportionate and disingenuous' with the ending from basher52's thread, or the current wording from post #14 of the Abuse of Process thread.

I can tell from your mention of Ladak v Locums that we don't use any more, that this ending is not the current suggested point about abuse of process/adding a false £60 to the claim. As seen in either of the threads I mentioned.
Apart from getting the current wording for that bit, your defence is fine.

gbbe

okay defence was filed with the court at the start of the week, do i post a copy of the DQ to the claimant? and do you need to send it by recorded post?

KeithP

okay defence was filed with the court at the start of the week, do i have to send it to the claimant?

No, just to the CCBC. My earlier post would've said so if that was needed.

 or just send them the DQ? 

After filing your Defence with the CCBC, everything you sent to the court you must send a copy to the Claimant... and vice versa.

and do you need to send it by recorded post?

Never ever send anything to a parking company or their solicitors using any service that requires a signature.

All that does is give the intended recipient the opportunity to not sign and hence refuse delivery.

All you have then is proof of non-delivery. Not quite what you want.

Send it by standard first class post obtaining a free Certificate of Posting from the Post Office counter. The item is deemed delivered two working days later.

Keep that Certificate of Posting as proof in case the Claimant denies receiving your WS and evidence.

gbbe

KeithP said:

and do you need to send it by recorded post?

Never ever send anything to a parking company or their solicitors using any service that requires a signature.

All that does is give the intended recipient the opportunity to not sign and hence refuse delivery.

Wow i didnt even think of them refusing it! thanks! very good point!