Disputing a ticket - frustration of contract?

Vanadesse

This is a bit of a complicated and long one, bear with me... And yes, the driver has already been named as myself.

08/03/2016: On the afternoon of the parking charge, I was driving home in very heavy rain when my wipers suddenly stopped working. Thankfully I was just near the entrance to a Retail Park so I was just able to manoeuvre into a parking space whilst calling the RAC to come and sort the problem. Given the heavy rain, moving anywhere else was literally impossible and I couldn't have stopped on the side of the road as it wouldn't have been safe nor legal. I am now aware that there was a 30 minute free parking period, which I overstayed by 16 minutes. I didn't attend the parking machine whilst there because it was pouring with rain, I had my 10 month old baby asleep in the car and I didn't want to leave her alone in the car whilst I ran around trying to find change for the machine (I had no cash on me as I wasn't expecting to stop anywhere) nor was I prepared to get her out of the car in such a heavy downpour, which was bad enough that I could barely see the bay lines. I called the RAC immediately who told me that a patrol van was on it's way straight away and would be most likely 10-15 minutes. On that basis, I didn't get out of my car to get a pay and display ticket. There was a warden in the car park at the time who saw that I was stopped there who said nothing so again, I didn't really think anything of the situation.

I appealed to them with the information above and the attached report from the RAC to prove that they had attended my broken down vehicle at the time in question. My appeal was apparently rejected, something that I received no notification of until I had further threatening letters regarding court action from BW Legal chasing the payment. There was lots of back and forth but basically Excel refused to cancel the PCN, despite my evidence of frustration of contract and being unable to leave the car park. BW Legal were less than useless and just constantly harrassed me. In the end my last contact was basically saying that I would vigorously defend a claim in court and would consider a counter claim for harrassment and misuse of my personal data due to Excel Parking continue to pursue despite being aware of the circumstances.

In my appeal rejection letter they stated:

"We note the comments you have made advising that you pulled into the car park to await the RAC as your wipers were not working, and it was raining heavily. However, we must advise you that there is a Helpline telephone number situated on the bottom of our signs. By making a telephone call on the number provided you can inform us of any problems white within the site, and most probably prevent a Parking Charge being issued to yourself. Unfortunately, as this was not the case, the Notice was issued correctly and the charge will stand."

This clearly indicates that the circumstances in which I had to stop in the the car park (I am reluctant to use the word park as I only got out of the car to speak to the RAC technician and didn't leave the side of my vehicle) are extenuating enough to have avoided the Parking Charge Notice but because I didn't call before hand, which I didn't know to because I didn't get out in the heavy rain to read the small print of a sign, they refuse to now consider those circumstances.

I appealed to the IAS, who said...

"While I note the Appellant's comments, the guidance to this appeal makes it clear that I am bound by the law of contract and can only consider legal challenges not mistakes or extenuating circumstances. This is a car park in which a 30 minute free period of parking is offered, after which a ticket must be purchased or the driver must leave the site. Having had sight of the contractual terms I am content that the signage is neither misleading nor unclear. On the evidence provided it is clear that the Appellant stayed on site for 46 minutes without obtaining a valid ticket.

I am satisfied that the Operator has proven their prima facie case. Whilst having some sympathy with the Appellant's circumstances, once liability has been established, only the Operator has the discretion to vary or cancel the parking charge based on mitigating circumstances. Accordingly this appeal is dismissed."

However, frustration of contract IS a legal challenge, not a mere extenuating circumstances. However post this I heard nothing more from Excel Parking or BW Legal.

That was in 2017 and I heard nothing since then so thought that was the end of it until I received a letter of claim today from a new solicitors, DCB Legal. I have spoken to them and they were less than helpful and have basically told me to fill in an online form and wait a few weeks and then someone will get back to me.

I'm wondering if anyone has any advice on how to deal with this? I'm beyond stressed at the reappearance of this 5 years after.

Fruitcake

Never, ever 'phone a PPC or one of their agents.

What happened when you complained to the landowner? It is never too late to get a landowner cancellation.

Follow the guide to court written by bargepole you will find in the second post of the NEWBIES thread.
There is also a ready written defence template where you will only need to amend a couple of paragraphs.

I'm not sure if frustration of contract is a valid defence point, but almost every other applicable point you could think of is there.

I suggest you also have a look at the appeal court case (meaning it is persuasive on the lower courts) of (Laura) Jopson vs Homeguard (Services) The court transcript is available online.
In the judges findings, around paragraphs 19 and 20, he stated that attending to a small vicissitude such as a flat tyre is not parking. I would suggest that attending to failed windscreen wipers during heavy rain constitutes a small vicissitude.

Get pics of the site and signage. Use Google Streetview (GSV) to get historical photos that may be of some use.

Please tell us the precise location as this site may have cropped up here before.

Le_Kirk

"We note the comments you have made advising that you pulled into the car park to await the RAC as your wipers were not working, and it was raining heavily. However, we must advise you that there is a Helpline telephone number situated on the bottom of our signs.

I couldn't see the signs as it was raining heavily and the wipers were not working!

Coupon-mad

My goodness why do people phone parking firms, their debt collectors and roboclaim solicitors...thinking they will be helpful is naive. STOP PHONING.

read the NEWBIES thread first and do what it says for LBC stage. Court is the point you will win and finally kill off this pathetic PCN.

Vanadesse

Fruitcake said:

Never, ever 'phone a PPC or one of their agents.

What happened when you complained to the landowner? It is never too late to get a landowner cancellation.

Follow the guide to court written by bargepole you will find in the second post of the NEWBIES thread.
There is also a ready written defence template where you will only need to amend a couple of paragraphs.

I'm not sure if frustration of contract is a valid defence point, but almost every other applicable point you could think of is there.

I suggest you also have a look at the appeal court case (meaning it is persuasive on the lower courts) of (Laura) Jopson vs Homeguard (Services) The court transcript is available online.
In the judges findings, around paragraphs 19 and 20, he stated that attending to a small vicissitude such as a flat tyre is not parking. I would suggest that attending to failed windscreen wipers during heavy rain constitutes a small vicissitude.

Get pics of the site and signage. Use Google Streetview (GSV) to get historical photos that may be of some use.

Please tell us the precise location as this site may have cropped up here before.

I actually haven’t complained to the landowner. I’ve previously been down that route but surprisingly didn’t even think of that with this one. I will try that for sure, thanks.

I’ll take a look at that case and get some photos to post. 

Vanadesse

Le_Kirk said:

"We note the comments you have made advising that you pulled into the car park to await the RAC as your wipers were not working, and it was raining heavily. However, we must advise you that there is a Helpline telephone number situated on the bottom of our signs.

I couldn't see the signs as it was raining heavily and the wipers were not working!

It sounds OTT but it was like a torrential downpour, I only just managed to see my way in and definitely couldn’t see any sign through a window. 

Vanadesse

Coupon-mad said:

My goodness why do people phone parking firms, their debt collectors and roboclaim solicitors...thinking they will be helpful is naive. STOP PHONING.

read the NEWBIES thread first and do what it says for LBC stage. Court is the point you will win and finally kill off this pathetic PCN.

It’s not naive. It’s how I’ve had every other parking ticket (albeit that’s maybe 2 or 3) cancelled in the past. Court is the point I’d rather avoid.

Vanadesse

This is the car park

Vanadesse

It’s now run by a different company 

Vanadesse

And has been extended to 45 minutes!

Vanadesse

and has been extended to 45 minutes now!