Excel Parking - Restricted Area Defence

SWW_RB2020

Hi all,
I've drafted a defence using the template kindly provided by @Coupon-madand hoping for some input on how to tweak it further.
A little background on the case. The car was parked (with a valid permit displayed - irrelevant to contravention but thought it was worth noting) in an unmarked area of a pay & display car park which is operated by Excel.

While the area of the car park you enter/exit and drive around while finding a parking spot is tarmac, the actual "marked" parking bays are all compacted stone/gravel areas encompassed by the surrounding the tarmac. The car was parked at one end of this gavel area, while the gravel area in question was a more of "D" shape leading to the car being not completely parked within it, but to Joe Bloggs it would appear to be a normal parking area like the rest of the car park and the markings have just completely faded away. The rest of the markings throughout the car park are also heavily faded and worn.

The NTK notes the Contravention Reason as being "Parked in a restricted/prohibited area" despite there being no markings whatsoever. Upon my intial appeal to Excel which they subsequently rejected they noted that "The signs [...] clearly state that vehicles must only park in a marked bay; the vehicle was parked in that restricted area of the car park whilst not being parked within the lines of a single marked bay and therefore you have become liable for the charge advertised."

I have used all the standard points from the template and I have noted my points 17 and 18 below:

17.       The Defendant is not the only driver of this vehicle and the Particulars of Claim offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago.  It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention.  (I have initially taken out the sentence about failure to properly serve the NTK as I cannot find anything in my case that would support this, from my understanding they have followed all the points of Section 8 and 9)

I am a bit confused about the advice after this paragraph in the template, I am unsure at this point whether this would be a non-compliance with POFA case?

Does the fake £60 additional charge fall under the non-compliance with POFA? If not, should now admit who the driver was?

I would also note that the postcode used to identify the location is wrong, while the one listed on the NTK is in the general vicinity, it's less than a 1 min walk down the road, but its not that actual postcode of the car park as per the land registry. Would this be something worth mentioning in my defence?

18.       The contravention reason alleged by the Claimant was that the Defendant’s vehicle was parked in a restricted/prohibited area. The Defendant’s vehicle had a valid parking permit which was clearly displayed and there were no markings that would indicate the area in question is restricted/prohibited. There were no markings throughout the entirety of the car park which indicated any restricted/prohibited areas.

There are markings that are present throughout the car park which vaguely outline the corners of marked parking bays however these markings are heavily faded. The car park itself has no internal lighting structures such as lamp posts and so the driver of any vehicles electing to use this car park has to rely heavily on the external lighting given off from lamp posts dotted along the "main road" [to be replaced with the actual road name] which runs adjacent to the north side of the car park and also the pedestrian walkways on the southern and western sides. This means at times of little or no natural sunlight the entire center of car park is in complete darkness and the edges of the car park are so poorly lit meaning what faded markings are there are not clearly visible. The Defendant's vehicle was initially parked during the earlier hours of the morning around 7am, with the date of the contravention being early Decemeber, this time was before sunrise and as such was of little or no natural sunlight. In addition the Defendant's vehicle car was parked adjacent to two other vehicles, one vehicle was parked on the driver's side of the Defendant's vehicle car and another was parked to the rear of the Defendant's vehicle. It was reasonable to assume that the area available adjacent to these other vehicles was a viable parking bay but a lack of faded markings would not have been visible under the poorly lit conditions. 

I have also initially included the following bit around the pathetic planning of the marked bays around the rest of the car park 

The Defendant would also bring attention to two marked bays within the car park which if used, the first would clearly block pedestrians’ access to and from the car park and the second would prevent other drivers from accessing a large number marked bays along the north wall, common sense would dictate these spaces would in fact be restricted areas but under the terms set out by the Claimant these would be perfectly acceptable places to park a vehicle.

Any advice on parts I can add, remove or reword would be greatly appreciated

D_P_Dance

Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the scammer extra costs and work, and in some cases, cancellation. 

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up,

Just as the clampers were finally closed down, so hopefully will many DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/of these Private Parking Companies.

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

nosferatu1001

Why would you admit the driver?
Its your job to work out if excel complied with POFA - hint, they dont, to my mind!
It isnt a section. Its a para. Did they really follow ALL of para 9, including the correct period starting the day after the notice is given? 
If the relevant land has not been correctly identified, that is a POFA fail as well!
The added on £60 is a breach of POFA as 4(5) tells them tehy may not charge a keeper more than the amount on the NtK. 
For 18 I would make it a lot more concise. Point out that, contrary to the claimants assertions, there are no clearly marked parking spaces so it is impossible to comply with any alleged contractual term requiring a user to only park within. 

SWW_RB2020

nosferatu1001 said:

Why would you admit the driver?

Just covering all bases really the template states: "If you have a good case otherwise and are sure that you are NOT able to (or wanting to) relyupon 'non-compliance with the POFA' (= especially relevant in 'non-POFA NTK' cases fromSmart Parking, VCS, Excel, Civil Enforcement, CP Plus, Horizon, Highview, smaller PPCsand 'years old' cases from the likes of Britannia and OPS) andwant to admit to being thedriver (or if you already have ) change it to admit that the Defendant was the driver" so wasn't 100% sure this was a non-compliance POFA case. I have seen comments on other posts saying there can be a benefit in certain cases for admitting the driver but could not find the subsequent examples of this.

I will go back through the POFA and double check dates.

Where would you suggest would be best to insert reference to the incorrect postcode? Under 17? 
The added £60 is mentioned elsewhere in the template (how it is wrongful practice common among parking firms), should I also specifically refer to this under 17?

For 18 how concise would you recommend:
Would it be the fact the car park is poorly lit be sufficient or should I include the placement of the lights? 
Does the mention of the other parked cars help or hurt? As they were also parked in this "restricted" area.
I'm assuming I should just leave out the part about the other stupidly marked areas?

nosferatu1001

Yes, because 17 has a lot to do with POFA, and identifying the relevant land is a POFA requirement. 
If it were night time parkng, then obviously poorly lit will be relevant. 
Mentioning other vehicles parked in the same area will indicate it was reasonable of the driver to assume they could park there., as there was nothing indicating otherwise.
You have a choice to make. Reveal the driver or not. If they didnt comply with POFA then you have an additional defence as a Keeper. 

Coupon-mad

Yes it is a straight choice and there are 2 ways to look at it:

(a) do you want to sit there at your hearing, having not admitted to driving, yet somehow have to talk openly (but nervously) about why 'the driver' parked there and what the parking area looked like, and that it was a trap, but you aren't saying who the driver was because Excel don't comply with the POFA...it's not just about dates...!  Then how will you recover your honest stance as a witness, if the Judge or Claimant asks 'isn't it true that you were the driver?' and suddenly you have to say 'yes' (because you can't lie in court) and then your position looks like you were covering that up.

or

(b) do you want to sit there and be the admitted driver, forget the POFA argument and continue as a true witness, pointing to photos in your evidence and saying with conviction what happened and how Excel are at fault?

I've been in court in front of Judges as a lay rep and I'd choose (b) in your case.  There is a time and a place for a POFA defence but IMHO, not when the main issue is about the unclear signs and what the 'bay area' actually looked like.  A first hand witness is a powerful person in court.

SWW_RB2020

Coupon-mad said:

I've been in court in front of Judges as a lay rep and I'd choose (b) in your case.  There is a time and a place for a POFA defence but IMHO, not when the main issue is about the unclear signs and what the 'bay area' actually looked like.  A first hand witness is a powerful person in court.

Definitely sounds like b is the way to go. Is there any merit to still including reference to the incorrect address on NTK under non-POFA or would all non-POFA arguments be forfiet by admitting to being the driver? Another string to the bow as it were...

Fruitcake

You can still use the part of the PoFA that talks about the max charge the scammers are allowed to claim, and back it up with the relevant parts of the Beavis judgement about the same subject.

nosferatu1001

POFA is about holding a keeper liable. If they know who the driver is, then not meeting POFA is not relevant as they dont need to use it. 

SWW_RB2020

I have amended 17 as follows:

The Defendant admits to being the driver of the vehicle on the day in question. The Particulars of Claim offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago.  It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention. The PCN issued as part of the Notice to Keeper (NTK) clearly states the amount charged as £70 but the amount the Claimant its attempting to recover is £130, this inflation of £60 has been falsely added and is clearly in excess of the amount afforded in Schedule 4, Section 4(5) of the POFA. As previously noted under point 12 of this defence, the POFA was mentioned more than once during the Beavis case because it was only right that the intentions of Parliament regarding private PCNs were considered.

I am still trying to reword 18 to be more concise as suggested

SWW_RB2020

I've tried to make 18 as concise as possible without losing the relevant facts:

18.   The contravention reason alleged by the Claimant was that the Defendant’s vehicle was parked in a restricted/prohibited area. Contrary to the Claimant’s assertions the parking spaces within in the car park are not clearly marked so it is impossible to comply with any alleged contractual term requiring a user to only park within said spaces. The car park also has no internal lighting structures such as lamp posts and so at times of little or no natural sunlight the entire central area of car park is in complete darkness. The Defendant’s vehicle was left parked in the alleged restricted area in the early hours of the morning and at that time was parked adjacent to two other vehicles, one vehicle was parked on the driver's side of the Defendant's vehicle car and another was parked to the rear of the Defendant's vehicle. It was reasonable for the Defendant to assume that the area left empty adjacent to these other vehicles was a viable parking bay, and because of the poor lighting meant there were no clear indications otherwise.

Any further suggestions are greatly welcomed!!