Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

milkybk · 11 January 2023 at 2:20PM

Coupon-mad said:

You'd be told eventually by a court Order but they take weeks.

Better to presume they filled it in (why wouldn't they?) and proactively inform the court if any additional unavailable dates that were not on your DQ.

Perfect, makes complete sense. Thanks for your help and patience as always.

KeithP · 11 January 2023 at 6:38PM

Also worth noting - or perhaps not - that courts seem to send a reminder if a DQ isn't filed in time, giving the Claimant or Defendant another seven days to comply.

milkybk · 13 January 2023 at 11:37AM

KeithP said:

Also worth noting - or perhaps not - that courts seem to send a reminder if a DQ isn't filed in time, giving the Claimant or Defendant another seven days to comply.

Ok thanks for the info Keith. An extra week on top of the year they've already had haha very lenient! Must be painful for the courts have to deal with these sort of arbitrary cases and companies all the time.

I emailed the Court as suggested with my holiday dates for 2023 as suggested. Will update the thread as and when I hear from them.

milkybk · 4 March 2023 at 1:16PM

Moring all - As @Coupon-mad expected the Claimant did eventually file their forms, even though they missed the file dates on all occasions, some by literally more than a year and others remainders by weeks/months. I received this letter in the mail this week, my hearing is scheduled for July of this year (date works well for me):

Image: https://us-noi.v-cdn.net/6031891/uploads/editor/n8/nj2jk4dglps4.jpg

It doesn't state when we need to submit all our documents by but I would presume the sooner the better really. Therefore I'd like to crack on and finish mine.

So I shall now continue to work on my Witness Statement for the original claim itself, i.e. the alleged parking charge. I have already almost completed the WS, as I did this straight after the CCJ set aside hearing was won, as I presumed the Claimant would immediately file for a hearing for the original claim. Once this is complete I would like to share it here for advise and critique.

Question 1 - The WS is quite large and there's multiple pictures and even some videos, so what would be the best way to share it with people on this forum so they can comment etc? Also I presume it would be quite easy to post personal information on here if I was to share it (which we don't want the Claimant to see etc), as pictures etc wouldn't be redacted. Open to any suggestions.

Question 2 - As the Court letter shows, the hearing will be done virtually (like my set aside hearing). I have some concerns with this, as at the set aside hearing the Judge wasn't given all my paperwork etc. How will I be able to show the Judge e.g. videos of the car part at night (at the time of the alleged parking charge) if everything is submitted via email? Also, it is likely my WS will be too large for email, so how should I sent it to them?

My defence is already complete but I would like to post it here in case people think I need to make any adjustments:

Defence - for critique and advise :

EDIT - Spoilers wouldn't open for some so defence is posted without them a couple posts down from here

IN THE MILTON KEYNES COUNTY COURT

Claim No. XXXX

BETWEEN:

Excel Parking Services Limited

Claimant

– and –

Defendant

XXXXXXX

__________________________________________________________

DEFENCE OF XXXXXX

__________________________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in the alleged incident. However, the first the Defendant knew of the alleged PCN was on receipt of a Notice to Keeper (NTK) through the post. Furthermore, upon receiving the aforementioned NTK from the Claimant in 2017, no person, who might have been the driver, was able to confirm seeing a Notice to Driver (NTD) affixed to the vehicle in question.

3. The alleged PCN occurred in January 2017, with a CCJ (now set aside by DDJ McDonagh) being defectively served against the Defendant in September 2020, some 43 months after the original NTK was acknowledged. At the time of the alleged PCN the Defendant appealed and the Claimant failed/refused to identify a driver. Over 56 months have now passed since the alleged event and the Defendant cannot be sure who was driving on an unremarkable day so long ago, therefore the Defendant is unable to confirm or deny who was driving and the Claimant is put to strict proof.

4. The original Claim description does not clearly state whether the Claimant is claiming against the driver or the registered keeper. The Claimant’s original CCJ claim states the alleged contravention as “parking without payment of the parking tariff”. However upon request during the 2017 appeal process and a further SAR request in 2021, the Claimant has failed to produce PDT receipts for the night of the alleged offence. Therefore the claim is nothing more than conjecture which indicates that the Claimant has failed to identify a Cause of Action. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. As can be seen from the NTK ANPR car photographs, the alleged contravention took place at night. Upon investigation, none of the signs containing relevant parking terms, nor the Pay and Display Machines in the car park were adequately illuminated or in a position to be seen by the driver. The terms are displayed in a font which is too small and too high up to be read from a passing vehicle and are in such a position that anyone attempting to read the tiny font would be unable to do so easily. Repeater signs are high up and poorly illuminated. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. Further proof of this will be filed with the Defendant’s Witness Statement, showing most signage has no lighting at all.

7. Furthermore, it is also denied that the signage is adequate to bring the charge to the notice of drivers (POFA 2012, Schedule 4, at Paragraph 2(3)(b)(ii)) and so keeper liability cannot be claimed.

8. POFA 2012, Schedule 4, at Paragraph 9(2)(c) states that the NTK must “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose”. The NTK received by the owner states the contravention reason as, “Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site. The maximum period allowed at this site is ___ minutes”. Note that a maximum allowed time has been implied but then not been stated. Therefore, the circumstances requiring payment have not been described. Since the NTK is not POFA 2012 compliant, keeper liability cannot be claimed.

9. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper “parking without payment” as specified in the NTK. The Defendant asked for copies of the pay and display machine records for the time of the alleged contravention in a Subject Access Request in the pre-action stage however the Claimant has ignored this request.

10. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

11. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

12. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.

13. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing. He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice. He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

14. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case). It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

15. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable. However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.

16. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

17. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

18. The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

19. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

20. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''. In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio. To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

21. Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed: 'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

22. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

In the matter of costs, the Defendant seeks:

23. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14

(b) The Defendant therefore asks the Court to consider his Schedule of Costs.

(c) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

24. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

Statement of Truth:

I, XXXX, the Defendant, believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signed: ___XXXX__

Dated: ____XXXX___________

Thank you all in advance for your continued support.

Fruitcake · 4 March 2023 at 1:39PM

Most courts have a page/file-size limit. Anything over that and they will refuse to print it. It may therefore be necessary for you to print a copy for the court, but you can email it to the claimant's solicitors.

Videos must be sent on a durable medium such as a CD/DVD or memory stick. The latter is probably the best option.

You will need to post it to the court and the claimant. If you are printing and posting/hand delivering your WS bundle to the court then include it with that. Ideally it should be physically attached to the bundle and also separately labelled. Buy a nice ring binder with coloured/numbered dividers for the court's bundle.

Include a video link to Youtube in your WS as well and make sure someone you know can play it on their device not connected to your network. Do the same with both memory sticks as a precaution.

This is one occasion where sending the video to the claimant by signed for method might be advisable, and backed up with a second copy sent by first class mail from a Post Office counter making sure you get the all important free proof of posting.

This may sound like overkill but it wouldn't be the first time a PPC has said they didn't receive something, and I know of at least one case where they said they hadn't received a copy of the video.

When emailing anything, send it to yourself as well. If you receive it then on the balance of probabilities so will the PPC.

Is the Spoiler supposed to be a hyperlink because I can't get it to open?

You would be better uploading it to Dropbox or similar then posting a link to it here.
Redact personal data of course, make sure the account is not in your real name and doesn't contain anything other than your WS.

Coupon-mad · 4 March 2023 at 2:01PM

Don't use the Robert Cox WS in the NEWBIES thread, nor Britannia v Crosby. Out of date.

milkybk · 4 March 2023 at 2:57PM

Fruitcake said:

Most courts have a page/file-size limit. Anything over that and they will refuse to print it. It may therefore be necessary for you to print a copy for the court, but you can email it to the claimant's solicitors.

Videos must be sent on a durable medium such as a CD/DVD or memory stick. The latter is probably the best option.

You will need to post it to the court and the claimant. If you are printing and posting/hand delivering your WS bundle to the court then include it with that. Ideally it should be physically attached to the bundle and also separately labelled. Buy a nice ring binder with coloured/numbered dividers for the court's bundle.

Include a video link to Youtube in your WS as well and make sure someone you know can play it on their device not connected to your network. Do the same with both memory sticks as a precaution.

This is one occasion where sending the video to the claimant by signed for method might be advisable, and backed up with a second copy sent by first class mail from a Post Office counter making sure you get the all important free proof of posting.

This may sound like overkill but it wouldn't be the first time a PPC has said they didn't receive something, and I know of at least one case where they said they hadn't received a copy of the video.

When emailing anything, send it to yourself as well. If you receive it then on the balance of probabilities so will the PPC.

Is the Spoiler supposed to be a hyperlink because I can't get it to open?

You would be better uploading it to Dropbox or similar then posting a link to it here.
Redact personal data of course, make sure the account is not in your real name and doesn't contain anything other than your WS.

Hi, thanks for your advise, USB option sounds very sensible and I'll be sure to do that (plus the YouTube links). The spoilers was my defence I was posting for comment and critique, please find below without spoilers (was trying to keep the post shorter haha).

Defence - for critique and advise :