Excel claim - defence advice

Coupon-mad

On behalf of my relative they are just concerned we have not specified that we actually purchased a ticket. We are right in thinking that it really wasn't relevant in the defence stage and is more for WS.

Yes that's the detail for the WS - the story of what happened, plus evidence.

Troubled42

Dear all,
The C is pressing ahead at their loss and we've received a hearing date of Tuesday 18th August as a remote hearing.
We can only imagine with them not even bothering to claim legal fees on the claim form that they are just going to pull out once all WS' are on the table... anyway!
A few hours have gone into collecting everything together and creating a bundle. we've been reading a few recent posts in relation to online hearings and it seemed wise to bunch together -everything- so far in a single document so we've done so... this is obviously going to be easier to read and edit with your generous support and more importantly, benefit the judge. It will also be copied to the C when emailed.
We would kindly welcome your feedback on the Witness Statement. We have also started a bit of a 'crib' sheet at the top of the document.
We have redacted any personal details for now.
Please find the PDF at the bottom attached.

Our areas to address are;

• Should the crib sheet be within my bundle or should this be for personal reference?
• Is there anything else to add to the crib sheet? I feel like I am missing more obvious points aside the 3 main arguments.
• At Point 7 in the WS we reference ' I did not initially appeal the decision as I did not avoid getting a ticket. I then started receiving debt collection letters and this baseless litigation has caused me significant alarm and distress.'
  We believe this point can be expanded and is currently weak. The car park is notorious for predatory ticketing and given that this is a hotel car park, there are lots of reviews on Tripadvisor about how people have been caught out by the C.
  we am wondering if there's any weight in exhibiting people's experience in the carpark 
  we call upon @Snakes_Belly and @Fruitcake as they have first hand experience in this car park for any comments.
• Although we keep reiterating to our relative that we pretty much have this in the bag... it saddens us the amount of anxiety this process has actually caused them...!
• We have not referred to the '3rd' entrance which is technically from the Lidi carpark into Millers Lane where yet again there are no signs. It's somewhat unlikely your average person staying at travelodge like us would be coming via Lidi, though! (and we didn't.)
• The driver HAS been identified in the WS - is this appropriate given the C's position and if not, what alternative is suggested?
• Are the schedule of costs reasonable?
• a 2nd Witness statement has yet to be produced by the passenger but this would be rather short and mostly just again reiterate the points of lack of signage at the entrance taken.
• Phone number and details requested by the recent court letter can be addressed in the email but we can also add this in the bundle contents.
• We sincerely welcome any other thoughts and comments.

Thanks all.

Snakes_Belly

Have you received their WS yet?

You could mention that there are three ways to access the car park and two are without any signage. If you entered by the first turning off Miller's Lane you would struggle to see the signage because of all the random other non related signage. If you entered by the second turning off Miller's lane (as I did) you would not see the signage at all.

 Bear in mind that when you turn into Miller's Lane you are on the left hand side and cars/vans/lorries turning out of Miller's lane onto Derby Street may have to wait as they will be merging into two lane traffic so may be waiting and blocking your view.

This is also the entrance to the Station Car Park.  You are unlikely to see the sign anyway but if you did you might think that it related to the Station Car Park as Hotel Parking is often free.  

Coupon-mad

You crib sheet is for your own reference, to help focus your mind.

At Point 7 in the WS we reference ' I did not initially appeal the decision as I did not avoid getting a ticket. I then started receiving debt collection letters and this baseless litigation has caused me significant alarm and distress.'
We believe this point can be expanded and is currently weak. The car park is notorious for predatory ticketing and given that this is a hotel car park, there are lots of reviews on Tripadvisor about how people have been caught out by the C.
we am wondering if there's any weight in exhibiting people's experience in the carpark 
we call upon @Snakes_Belly and @Fruitcake as they have first hand experience in this car park for any comments.

Yes.  There is weight in including Tripadvisor screnshots on a single page, merely to 'illustrate' the problem of the predatory ticketing.  All those consumers can't be wrong - the common denominator is the parking firm's signs.

You could mention that their are three ways to access the car park and two are without any signage.

I agree, that is a good thing to say to make the Judge listen, even if you didn't use the Lidl entrance it's still a fact and part and parcel of a car park where consumers are 'set up to fail'.  If you've already said who was driving or it's better to present it as admitted driver and talk openly about the signs, then do that.  Judges prefer it!

Give us the weekend to look at your attached docs and remind us on Sunday for comments!

Troubled42

@Snakes_Belly @Coupon-mad - thanks for the feedback already, always appreciated
Upon this, we have added quite a bit more to the statement and I've asked my relative to clarify the details a bit more which has resulted in a few more details in the WS.
We have also included multiple reviews of predatory ticketing and added details about the 3rd entrance. We have also extended the reasons for not appealing.

And as a bonus..... The C's Copy/pasta WS came through today. It is mostly 2-3 pages worth of them explaining that they 'have' signs and that the T&C's were breached.
It also includes a contract paper and some shoddy pictures of the car park taken Feb19.
See here for the C's WS.
Near point 32 on their WS... its interesting to note they are claiming they DID NOT receive our defence a few months ago.
We reviewed this thread a few posts back and noticed whilst we did forward all of this to NCCB, the only documents forwarded on to the Claimant were the DQ & Appendix C.
In hindsight I wish I just sent the defence to the C at the time to avoid this but as we all might assume... the NCCB -should've- forwarded my defence to the C.....
A few other remaining queries;

• Any other points to challenge in regards to the C's WS?
• The driver HAS been identified in the WS - is this appropriate given the C's position and if not, what alternative is suggested? It does not necessarily have to be disclosed but we are assuming this defence is more related to those claims which do not reach the court room.
• Are the schedule of costs reasonable?
• a 2nd Witness statement has yet to be produced by the passenger but this would be rather short and mostly just again reiterate the points of lack of signage at the entrance taken.

Attached is the latest revision of the bundle.

Coupon-mad

If the CCBC didn't supply your defence that's a CCBC error.   Not your fault; you are not meant to send a copy out to the other side, the CCBC does that.  Just make sure your bundle includes a copy and the Southampton judgment.

EDIT -
That WS of theirs is not signed!  And has the old statement of truth (a solicitor firm should know better  - no excuse for such shoddiness). DO NOT point out their error...DO NOT mention it till hearing day then ask the Judge as a preliminary matter to strike out the Claimant's WS because it's not signed and is based on an old template bearing the pre-April 2020 statement of truth.  No evidence that the person whose name is on it prepared it because a paralegal wouldn't make such basic errors. 

Tackle that FIRST before the Claimant is allowed to speak, say to the Judge you have a concerning preliminary matter to raise about the witness statement of the Claimant.

Additional observations:

https://www.derbytelegraph.co.uk/burton/mums-outrage-parking-fine-burton-3812035
Useful graphic in that article you can use if this is the right site.

Excel have signed their own supposed landowner authority.  The freeholder has not signed or confirmed the land is leased or the boundary/map of the land supposedly leased to Excel.  They have not provided a copy of this lease nor even a Land Registry title record whcih would prove if they had a long lease and would include a definitive map.

I assume they also supplied photos of your car without a p&d ticket from them - but is it clear where your car was parked, exactly - does it prove you were not in an Excel bay?   Did they include a machine record to prove that no payment was made to their machine that matched your numberplate - or did they miss that too?

Snakes_Belly

Just a point. The Hotel (Grainstore) is listed and I think that the cobbled area and buildings are also listed.  This will limit the signs that they can erect. 

They have greatly enhanced those signs in their WS. You need to show the judge and emphasis what those signs really look like.

They mention permission from the "freeholder" to erect these signs.  I think that their lease is a sub lease. They pay the leaseholder of the Travelodge. I don't know if this has any relevance.

They will try to say that the contract was formed by that crappy sign at the entrance at the first turning off Miller's Lane. Firstly there is more than one entrance and as you were staying at the Travelodge you would have most likely entered by the second entrance off Millers lane. You could have also gone in through Lidl's car park if you were unfamiliar with the area. Excel will cite the Shoe Lane case. This case relates to a barrier car park with clear signs at the entry and cannot in anyway be compared to the Derby Street Car Park. 

Excel are also citing the Vine Case. They have taken this out of context. Miss Vine actually won her case on appeal. She did not see the sign as her view was blocked.  

The Beavis case relates to a car park on at a shopping centre/business park where parking was free for a period of time to allow for a turnover of customers. Mr Beavis went over the time. The Derby Street car park is a long stay car park not a short stay car park. It serves mainly the Hotel and the Station. 

I would certainly use the tripadvisor reviews (which are plenty).  Those reviews also mention that the staff of the hotel have not exactly been helpful to the visitors with regard to issues with the car park. 

Fruitcake

From the scammer's WS: -

The key to the site map shows the entrance should be identified by a blue line, yet there is no blue line at all on the map showing the three entrances as far as I can see.

The alleged contract does not mention the identity of the landowner, nor freeholder, nor leaseholder, so there is no proof they have a valid contract with any of those entities.
As already mentioned, none of the above have signed the contract.

The alleged contract does not comply with the requirements of the Companies Act 2006, Section 44.
This states that for a contract to be executed it must be signed by two authorised signatories from each party. The document produced by the scammers is only signed by one party, and has not been countersigned or witnessed by another authorised person as defined by the above act.

https://www.legislation.gov.uk/ukpga/2006/46/section/44

"44 Execution of documents

(1) Under the law of England and Wales or Northern Ireland a document is executed by a company—
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.

(2) A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.

(3) The following are “authorised signatories” for the purposes of subsection (2)—
(a) every director of the company, and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company."


The alleged contract has not been executed in accordance with paragraph 1 because it has not been signed by two people from each company nor by a director and witness of each company in accordance with the requirements of paragraph 2, and has not been signed by authorised signatories as defined in paragraph 3.
As such the contract is not valid in accordance with the above Act of Parliament, and thus the PCNs are also invalid.
Quote the relevant part of the IPC CoP  concerning permission to operate (if it exists) and state that the contract failure is also a CoP failure.

Complain to the IPC about this lack of authority, and also make two complaints to the DVLA, one for a data breach and one for a KADOE contract breach. Since the scammers had no authority to operate on the site they should not have requested keeper data, and the DVLA should not have supplied it.

The £100 charge on the sign is too small to be read from more than a couple of paces way, and certainly not from a moving vehicle. The scammer's own images show that part of the signs are illegible due to sunlight reflecting off them.

The tariffs on the sign at the site are different to the ones shown in their WS taken from a stock image (it doesn't show the daily rates). This makes the stock image a false instrument because that sign does not exist at the location in question., in a document signed as a statement of truth.

The WS also states that the claimant has operated a parking scheme since the 19th of December 2014, yet the alleged contract was not signed until the 15th of September 2015, so the first statement is false.

Snakes_Belly

I did not see in their WS an image of your car showing that you were not displaying a valid ticket. Does one exist? 

The Travelodge has a lot of deliveries, laundry, drayman, etc. I have images of the laundry being delivered which blocks off the view of the main ticket machine.

Read the article about the lady from Burton on Trent that CM posted. Tempted to contact the paper. Excel stated that they had never had problems before with this car park, liars.

Coupon-mad

The main thing though, is the unsigned WS and old statement of truth, giving away it is an old template from months ago (pre-April), and no person has bothered to sign the WS (at all) anyway so must be struck out. 

But that waits till hearing day - a preliminary matter you need to raise before the Claimant starts to present their case!