Excel Parking/Elms Legal - County Court Small Claims

northernlight5

Hello all,

Firstly, I wanted to say what a great resource this is for supporting people with their parking challenges. It’s fantastic that so many people have taken the time to provide such great advice. So thank you to all those that contribute on a regular basis.

As the registered keeper, I've recently received a county court small claims form from Excel Parking. I have submitted my AOS and an SAR and I am currently preparing my defence.

Details

Claimant: Excel Parking (with Elms Legal acting on their behalf)

Contravention Date: 28/03/20

NTK Issue date: 15/04/20

NTK Charge: £100 (discounted to £60 if paid within 14 days)

County Court Claim: 27/05/21

AOS received by court: 09/06/21

Currently preparing defence

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Particulars of Claim:

“The Claim is for a breach of contract for breaching the terms and conditions set on private land. The Defendant’s vehicle, XXXXXXXX, was identified in XXXXXXXXXXXXX on the 28/03/2020 in breach of the advertised terms and conditions; namely Failure to pay applicable tariff due before exiting the car park. At all material times the Defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The sign was the offer and the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct. The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the Defendant has failed to settle the outstanding liability. The Claimant seeks the recovery of the parking charge notice, contractual costs and interest.”

Amount claimed £160

Court fee £35

Legal representative’s costs £50

Total amount £245

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The NTK indicates that the ticket was issued on the back of ANPR cameras, and no evidence has been provided to indicate the driver (just the vehicle). From this and the particulars of claim, I believe that the PPC do not know who the driver was. Whilst there’s no mention of Excel relying on POFA in their claim, I believe they are indeed relying on it in order to pursue me as the registered keeper. However their NTK is not POFA compliant (not issued within 14 days) and so they cannot invoke keeper liability.

Obviously another area of challenge include the amount claimed of £160 (vs. £100 in NTK) and abuse of process. From what I’ve read, this is picked up in the double recovery costs discussed on the standard defence template. I presume that I should then follow up on abuse of process in my witness statement?

The proposed defence is as follows,

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The Claimant has provided no evidence that the Defendant was the driver of the vehicle at the time of the alleged contractual breach.

3. The Defendant's insurance policy allows other drivers use of the vehicle. The Claimant’s first Notice to Keeper was received almost 3 weeks after the alleged event. Due to this delay and the fact that no Parking Charge Notice was applied on the day, it is not known who the driver was and the balance of probabilities is not tipped in favour of the Claimant.

4. The Defendant cannot be held liable as registered keeper, due to the Claimant not complying with the 'keeper liability' requirements set out in the Protection of Freedoms Act 2012 (PoFA), Schedule 4.

a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of the charge and prescribed Notice to Keeper letters in time and with mandatory wording.

c) The claimant has no right to assert that the defendant is liable based on “reasonable assumption”. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no “reasonable presumption” in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

Remainder of defence statement as per template defence on the parking tickets forum sticky.

I’d welcome comments and advice. Thank you in advance.

KeithP

northernlight5 said:

County Court Claim: 27/05/21

AOS received by court: 09/06/21

Hello and welcome.

With a Claim Issue Date of 27th May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 29th June 2021 to file your Defence.

That's just a week away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Coupon-mad

3. The Defendant's insurance policy allows other drivers use of the vehicle and this car park is familiar as a place that various family members have visited from time to time, without issues.  The date given by the Claimant was a few days after the Prime Minister's announcement about the first lockdown, which was a fraught time for everyone and memories of those first few days are something of a blur.  The Defendant recollects that short visits to shops and pharmacies were undertaken when necessary by unaccompanied family members around that time (using this vehicle) to ensure that wider family members had basic necessities and medical supplies.   Mostly, the Defendant remained at home as per the advice at the time.  It is impossible in the absence of any evidence from the Claimant, to even guess who was driving on the material date and the Claimant is put to strict proof.   The Claimant’s first Notice to Keeper was received almost 3 weeks after the alleged event. Due to this delay and the fact that no Parking Charge Notice was applied on the day, it is not known who the driver was and the balance of probabilities is not tipped in favour of the Claimant.


(The rest looks very good).

Umkomaas

Claimant: Excel Parking (with Elms Legal acting on their behalf)

Don't be surprised if you receive a communication from Excel to tell you that Elms Legal will no longer be representing them and Excel will be pursuing the claim themselves. It's not known why they are dispensing with Elms Legal's services, but it doesn't change things any for you. 

Just a heads up as many who have received this have come back to the forum wondering how it affects things, as I said, it doesn't.  

D_P_Dance

Total amount £245

That almost certainly c0ntains unlawful mounts, read this and complain to your MP.

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0

northernlight5

@ KeithP - thank you for confirming the dates
@ Umkomaas - thanks for flagging the recent trend with Elms Legal, I'd picked up that vibe too on the forum. I'm ready for whoever it may be! 
@ D_P_Dance - absolutely, I will be complaining to my MP
@ Coupon-mad - articulate and eloquent, thank you so much!!