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

gbbe

30. The Claimant has failed to respond to my request made on xxxx and my SAR, EXHIBIT XX6, requesting any documentation and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner’s behalf, a clear summary of facts on which the claim is based and how the charge amount has been calculated; in order to defend the claim against the alleged debt. I believe some more cases have been thrown out because pre-action protocol has not been followed, and/or the claims made have been incoherent. Excel Parking Services are surely aware of this and therefore to continue with this case constitutes unreasonable behaviour.

31. I would also like to bring to the courts attention that I did not receive the Directions Questionnaire [DQ] from the claimant in relation to this case.

32. I found it odd when I received and acknowledged the court papers that the Claimant could bring a claim against me without actually referring to anything specific. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4 in its entirety, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Nor did this Claimant furnish me with any evidence.

33. I was never shown the alleged signage contract photos (not even the original ‘PCNs’ showed the purported signs. As registered keeper, I never saw the ‘contract’ they are trying to hold me liable for.

There are many significant and crucial differences between this and PE vs Beavis, as laid out in my defence para. 18, 19 & 20. In the Beavis case one of the key factors was the clear and prominent signage in the car park the parking charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge

34. The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

35. Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

36. 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”

37. 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.”

38. The sign referred to in the Beavis case is enclosed as EXHIBIT XX7. When compared to the excel car park sign – EXHIBIT XX2, I submit that no reasonable person would agree that their terms are brief, clear and prominently proclaimed.

39. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

40. Both the IPC and BPA state that signs should be simple and easy to read, and there should be strong colour contrast between text and background. Both also recommend black on white as a good example.

41. I submit that Excel’s do not comply with IPC or BPA CoP. The dominant colours on Excel signs are blue and yellow against a background packed with confusing patterns and symbols.

42. The sign is a mass of confusing and contradictory words. The icon showing the PCN charge of £100 is hidden in the small print at the bottom of the sign. It is not prominent or obvious and not easy to see by a motorist driving, even very slowly, past the sign.

43. In support of the above 3 points I enclose Exhibit XX8 – the IPC code of practice and Exhibit XX2 – an Excel sign from the car park in question.

44. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

45. The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

46. This judgment is binding case law from the Court of Appeal.

47. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established

48. Conclusion – no evidence of contravention and the Particulars lack any basis for a claim

49. I am an unrepresented consumer who has never attended the County Court before and was not even the driver so I have limited knowledge of the events, dates, or signage terms. I object to the Claimant pursuing this case despite failure to comply with CPR 16.4

50. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers paid and displayed.

51. In order to demonstrate that the driver on this occasion failed to pay & display, the Claimant should have evidenced that. Where are the photos of the dashboard showing no P&D ticket displayed? Failing that, as this is an ANPR site, where are the system records showing no payment made on this day? They have not even supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle. It could be that the driver did input the wrong registration as it wasn’t his car and without glasses could easily have input the O in the registration XXXXX as a 0 (zero).

52. I hope that I am not going to be ambushed on the day (or late) with reams of lists where any omission could just as well be evidence of their own repeated (well known) machine failure to record a VRN, as was recorded in two Excel cases recently, Excel Parking v Ms C (Stockport) C8DP36F0 and Excel Parking v Mrs S. C8DP11F9 09/09/2016,Oldham Court. I have no idea whether the Claimant plans to amend their particulars to adduce that there was a failure by the driver to input a VRN. I am having to cover all possible scenarios known in Excel claims, due to the lack of information and evidence.

53. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

54. The Court is invited to dismiss this Claim, and to allow my wasted costs, such as are allowable pursuant to CPR 27.14, which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

Statement of Truth
I believe that the facts stated in this Witness Statement are true.
Signature
Date

KeithP

Perhaps you should add a paragraph, suitably numbered of course, between the current paras 4 and 5 saying something like:

Since the parking event, the driver has sadly died. Exhibit XXn is the Death Certificate.

I also think you need another sentence on the end of the current para 5. 
Something like:

This means that the Claimant has failed to transfer the driver's liability to the keeper.

gbbe

KeithP said:

Perhaps you should add a paragraph, suitably numbered of course, between the current paras 4 and 5 saying something like:

Since the parking event, the driver has sadly died. Exhibit XXn is the Death Certificate.

I also think you need another sentence on the end of the current para 5. 
Something like:

This means that the Claimant has failed to transfer the driver's liability to the keeper.

Thanks Keith, I have made those changes, anything else regarding the wording?

Also what are your thoughts on para 40/41 - mentioning BPA and the IPC together when only IPC CoP applies to Excel?

KeithP

I don't think there is any need to mention the BPA's CoP at all.

Also, just noticed, you have left the vehicle reg no clearly visible in para 51.
That clearly ties this forum thread to a particular incident. The parking companies do read this forum and can try and use posts against you.

gbbe

KeithP said:

I don't think there is any need to mention the BPA's CoP at all.

Also, just noticed, you have left the vehicle reg no clearly visible in para 51.
That clearly ties this forum thread to a particular incident. The parking companies do read this forum and can try and use posts against you.

thankyou for noticing! i have removed it! (and BPA)

gbbe

just printing the IPC CoP, there are 2 versions that Excel have links to from their website: the alledged offence happened in XXX so the 2017 version is closer to the time of event, is it okay to not use the most recent version??

D_P_Dance

 it okay to not use the most recent version??

Surely you should use the version current at the time of the event, or am I mistaken?

Umkomaas

I agree with DPD - only use the one current at the time of your parking event. 

nosferatu1001

use the one in force in 2015, as nothing else mattered at the time. 
You can also use the 2017version to support, but not in isolation. 

gbbe

Questions:

1. Do I put in a contents/index page of the list of Exhibits with the witness statement? The court directions state 'the claimant shall file at court copies of the trial bundle, indexed and paginated.' but doesnt state that i have to do the same

2. Do i include a cost schedule at this stage with the witness statement?

3.Do i highlight the relevant bits i have referred to in my Exhibits? as for things like PoFA i have included the whole of Schedule 4 so i could highlight the bit i have referred to?

4. If yes to Q3, do I highlight the relevant bits for both the court and the claimant in their witness statement packs? (i dont want to help the claimant out in any way)

5. I have also stated the claimant didnt comply with CPR paragraph 16, do i need to include a copy of this too? obviously the judge will already be familiar with how to complete a particular of claim form

6. Any other case law or any transcripts that I need?