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

gbbe

Umkomaas said:

Have you sent a SAR yet (I've not ploughed back through the thread)?  This should elicit all the documentation they have sent. That way you can check whether their PoFA ducks are all in a row to hold the keeper liable. 

Good point. I was about to send it before all this crazyness. How do I find their email address when it's not on the website? As I don't have a printer to print the SAR (I was using works before but obviously have been working from home)

Actually...
I have the email I sent the original appeal to cpo@excelparking.co.uk

KeithP

How do I find their email address when it's not on the website?

Not sure why you are asking that question.

The email address of Excel's Data Protection Officer is on their website.
It is there at least three times - in each of their three Privacy Policies.

gbbe

KeithP said:

How do I find their email address when it's not on the website?

Not sure why you are asking that question.

The email address of Excel's Data Protection Officer is on their website.
It is there at least three times - in each of their three Privacy Policies.

Thanks
Separate note. When I send them my witness statement. Presumably I can send that by email. Would I send it to the data protection email like the sar or the previous email I sent the original appeal to in 2015?

Coupon-mad

gbbe said:

Thanks for the help on pofa too and thanks
@KeithP That alone is enough to stop this claim in its tracks isn't it. as they also can't prove I was the driver 

No.  If it was that easy, no VCS or Excel cases would go to a hearing as they never get the POFA right.

Also, if you know you were driving then you'd be on a sticky wicket if the Judge asks you directly.

And you cannot send your WS, exhibits, and costs schedule to the PPC or the local court by email, sorry.  You could ask for an extension as you are in lockdown with zero access to a printer but not sure how your local court will view it.

gbbe

Coupon-mad said:

And you cannot send your WS, exhibits, and costs schedule to the PPC or the local court by email, sorry.  You could ask for an extension as you are in lockdown with zero access to a printer but not sure how your local court will view it.

Ah okay that changes things a little, I thought I could email it to the court the same as the defence.

so when it says by 4pm on 14/4 I have to file at court and serve on opponent the witness statement, it means it has to have arrived in the post by this date? Meaning posting it out on the day isn't good enough? 

KeithP

...it means it has to have arrived in the post by this date? Meaning posting it out on the day isn't good enough? 

That's right. It must be with the intended recipient on the date stated.

gbbe

Okay I've just spent 3 hours fixing my university printer. It works and I even had ink to refill the black cartridge. Everything is being printed in black and white. I have also found a post office that is open during this lock down! Now all I have to do is write the bloody witness statement

gbbe

Question.... Can i print the evidence i am including in the witness statement (PoFA) double sided?

...Im trying to conserve paper.

Also the IPC Code of Practice is 68 pages long, can i just print the sections i am reffering to Section 13 and Schedule 1?

KeithP

gbbe said:

Question.... Can i print the evidence i am including in the witness statement (PoFA) double sided?

...Im trying to conserve paper.

Yes, but don't print the whole of POFA, will you? It runs to 228 pages.

gbbe said:

Also the IPC Code of Practice is 68 pages long, can i just print section 13 - the section i am reffering to?

Yes.

gbbe

thoughts?

• I do have the death Certificate of the driver to include somewhere
• point 40/41 - i know ive reffered to BPA and IPC and only IPC apply to excel, should i remove the BPA wording?
  

EXHIBITS are as follows:

• 1 POFA (Schedule 4)
• 2 Excel Parking Sign
• 3 Landowner contract
• 4 Appeal Letter
• 5 Blue Badge
• 6 SAR
• 7 Beavis Case Sign
• 8 IPC Code of practice (relevant parts)

In the County Court at XXXXX
Claim No. XXXXXXXX
Between
Excel Parking Services Ltd (Claimant)
and
XXXXXX (Defendant)

Witness Statement

1. I am XXXX, of [Address], [Postcode], the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked EXHIBIT XX1 – EXHIBIT XX? to which I will refer.

2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

3. 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.
4. I assert that at the time of the alleged parking offence, I was the registered keeper of the vehicle in question in this case. I was not the driver.

5. The Claimant has issued a Notice to Keeper which is not compliant with the strict requirements of the Protection of Freedoms Act 2012, EXHIBIT XX1, as it was not issued within 14 days of the alleged parking breach as per paragraph 9 (5) PoFA 2012, it was issued 18 days later and arrived after 22 days, no keeper liability is possible.

6. The Claimant asserts that I entered into a contract with them, that I breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. The Claimant claims that my vehicle was in the relevant car park without purchasing a valid pay & display ticket but does not state for how long my vehicle was in the car park. This is important as the signage in the car park states ‘0 – ½ HR £FREE (no ticket required)’ EXHIBIT XX2 so if it was in the carpark for less than 30 minutes no ticket is required. I also have a contract from the landowner, dated 2011 stating ‘0-1 Hr ~ FREE (No Ticket Required)’ EXHIBIT XX3. It is my understanding the vehicle was in the car park for 53 minutes, so under the 1 hour free time slot stated by the landowner, therefore no charge is payable. It remains the burden of the Claimant to prove their case.

7. I appealed the PCN, EXHIBIT XX4, on (XXX date) and received no response.

8. Having not heard about this matter for over 4 years, suddenly on (XXXX date) I received a letter purporting to be a letter before claim which appeared to be junk mail.

9. (this date) a court claim arrived out of the blue, I have researched this and discovered that Excel Parking Services Ltd are issuing robo-claims for 'parking charges' in their thousands, with no due diligence, no scrutiny of details nor even checking for a true cause of action.

10. The Claimant appears to allege that the ANPR camera ‘Identified that the vehicle parked without purchasing a valid pay & display ticket’. This is denied and there is no evidence of any single period of parking, let alone evidence of not purchasing a ticket or not displaying it, and does not mention any overstaying of any free period permitted. An ANPR camera image shows none of these things.

11. After driving in past the ANPR cameras at the entrance, it would take a regular person at least a few minutes to find a space and park in it, especially on a Saturday where the car park would have been quite busy. As a gentleman, I imagine the driver would have waited for a few other cars to manoeuvre in and out of spaces before parking themselves. I estimate that this probably took 7-8 minutes, possibly a little more.

12. Due to the driver holding a blue badge, EXHIBIT XX5, they should have been given additional time to find and park in a space as well as additional shopping time and additional time to return to the vehicle, failure to do so is indirect discrimination as per the Equality Act 2010, by failing to make ‘reasonable adjustments’ such as extending ‘fixed time limit’ policies for disabled badge holders, failing to put a system in place to prevent such individuals being subject to a PNC and failing to communicate ways for blue badge holders to avoid a PNC so that such people have the ability to claim more shopping time.

13. It is expected that when the driver returned to my car, the car park was very busy. It is also expected the driver had to queue to exit the car park, as is normal due to the car park exiting onto XXX Road, the main road through XXX at which point the driver was no longer making use of the car parking facility, but was exiting the car park. It is estimate that it took around 13 minutes to get to the exit road and out of the car park, past the ANPR cameras. Due to there being traffic lights at the exit to the car park and the road being marked with yellow hatch markings, only a single car at a time manages to get out onto the main road.

14. The driver may have returned to my car and drove it away from where it was parked within the free period and made every effort to exit the car park in a timely manner. The driver, having been delayed because of reasons beyond their control (the traffic jams both inside the car park and on the public highway outside) and could not have anticipated them. The entirety of the final 13 minutes spent in the car park were spent trying to exit it. The Claimant, a company which manages the car park, should be aware of these issues and should make reasonable allowances for the foreseeable delays users may experience in exiting the car park.

15. The Claimant's signage did not make it clear whether the 30 minute free parking period offered included time spent after entering the site via its ANPR cameras looking for a space and parking in it and locating and reading the terms and conditions and deciding to accept them, and time spent when leaving the site via the same cameras exiting the space, driving round the car park's one way system and then driving out onto a public highway. It is trite law that any uncertainty in a contract should be resolved against the person who offered it under the contra preferentem rule;
c. Even if the driver did breach the terms, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association to apply separate grace periods of at least 10 minutes at the start and end of each period of parking to allow for potential delays in finding a space, exiting the car park and to allow time for drivers to find and read the terms and conditions offered, and I believe the 23 minute ‘overstay’ is well within these grace periods for an individual, who has the need for a blue badge.

16. Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking. The CoP makes clear that such grace periods are to be applied both at the start of any parking period and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking, and time to exit the car park once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of the actual parking. It is worthy of note that the recommendation is a minimum of 10 minutes, not a maximum.

17. There is no explanation for why the Claimant has declined to apply any grace period at all in this case, which is a clear breach of the CoP.

18. In the now infamous parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated:
96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
111. “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.''

19. The Claimant should have taken a reasonable and proportionate approach, complied with its own obligations under the CoP (not to mention exercised common sense) and should have applied the grace period, particularly in light of the potential bottleneck at the traffic lights at the exit from the car park. Furthermore, the issue the court is being asked to deal with is de minimis and the court's valuable time should not have been taken up with this matter.

20. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

21. It is submitted that the main reason that the Claimant is ‘unable to take steps to enforce’ the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 prescribed wording in their Notice to Keeper letters. Had they done so, then they might have had cause to pursue me as registered keeper (subject to other evidence, such as adequate notice from signage that existed on each occasion). In the absence of such notices, there is no cause of action.

22. It seems the Claimant on the one hand admits that it does not comply with Schedule 4 of the POFA (due to not seeking to use the prescribed POFA wording in its PCNs) yet on the other hand, tries to use that Act anyway with their reference to the ‘registered keeper’ in the Particulars of Claim. This Act only applies if an operator has complied with the POFA paragraph 8 or 9 in issuing a compliant NTK as prescribed by that statute. Consequently, the Claimant is unable to rely on the keeper liability provisions of the Schedule.

23. The signage at the car park does not form a contract. The entrance signage is an ‘offer to treat’ and the signage inside the car park is prohibitive. The parking charge is hidden within the small print, it is not a clear and prominent charge and was never 'bound to' have been seen, as in the ‘Beavis’ case. 

24. Furthermore the signs are classified in planning law as an advertisement, by virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements)

25. (England) Regulations 2007 (as amended) it is a criminal offence to display this kind of advertisement in contravention of the Regulations. There is no planning permission in place for these signs.

26. I am no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report Excel Parking Services to the Information Commissioner for misuse of my data, obtained from the DVLA.

27. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay £236.20 for what was apparently an unproven £100 charge, allegedly incurred by another party, if incurred at all.

28. This intimidation is further demonstrated on the most recent letter dated XX from the Claimant where they make an offer ‘without prejudice’ and then threaten, ‘Should you fail to accept our offer .... we will bring this letter to the courts attention upon the question of costs.’

29. It is apparent from court records reported in the public domain that the Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts.