Backcester Lane, Lichfield, Excel Parking

Coupon-mad

Say that in the defence, that the Defendant can give a first hand account because they were a passenger.

You are including all the rest of the template below those facts, yes?  I think you need to boil it down more concisely and save the detail for the WS.

Stefano123

Coupon-mad said:

Say that in the defence, that the Defendant can give a first hand account because they were a passenger.

You are including all the rest of the template below those facts, yes?  I think you need to boil it down more concisely and save the detail for the WS.

Yes I've included the rest in the template. I've only included what I've added at the start. Ah OK so the detail about the events on the day go in a witness statement? I'm simply stating legislation and statute in this bit? 

avfcnicolen

Could anyone who has offering me help on my recent PCN thread please inform me if the response above is in relation to my PCN or another thread?  In honesty, I’m struggling with the terminology above.  And If this is how the documentation is written when and if I go to court. Im feeling I don’t have a hope in hell 😞.  

1505grandad, can you kindly explain what is meant by ‘I think the experts will be along and perhaps say that most of the above is for the WS’ 

Thank you 

avfcnicolen

Just realised ’WS’ is witness statement 🤦🏼‍♀️ 

Coupon-mad

Any response here is about what you are showing us here on this thread.

avfcnicolen

I’m a bit confused ! Is this the kind of thing that I should have written in my reply for the LBC or is this template for when you go to court? 

Coupon-mad

I think you do need to ask on your own thread.  You are confusing us now!

KeithP

@avfcnicolen, your best bet is to just post on your own thread....
forums.moneysavingexpert.com/discussion/6324898/excel-parking-pcn-backcester-lane-lichfield-three-spires

Of course you can/should be reading other threads, but expecting help with the resolution of your issue on other threads is a bit unfair on the originator of that other thread.

avfcnicolen

Keith P. Thank you for highlighting this! I can assure you I have no expectations!  

I made a simple error by thinking this was my thread.  Every updated comment shows up in my inbox.  So I replied to one of the messages!! 

Btw as explained in my one of my first threads. I’m totally new to this! And due to a illness I experience cognitive impairment & comprehension especially when experiencing high levels of stress.  Which I’m clearly experiencing by going through what I am as a result of Excel Parking…

Stefano123

Hi All, I've removed some of the detail from the defence and replaced it in the WS. I've also included a counter claim.

3.         It is admitted that the Defendant is the hirer of vehicle registration mark XXXXX, which is the subject of these proceedings, and not the registered keeper/ driver as is alleged by the Claimant in the Particulars of the Claim

4.         It is admitted that on 14/04/21 the Defendant's vehicle spent 18 minutes at Three Spires Shopping Centre Short Stay Car Park; however, it is denied that any parking event occurred nor was a contract entered into given the Claimants payment systems failed on the day. Payment was attempted via the ticketing machine by the Defendant, as well as Excel Parking’s online service, but those systems failed in both instances to accept payment. Therefore, the entirety of the time spent on site was spent attempting to make payment. At 13:05 as per XXXXXX bank’s systems a transaction event occurred at Three Spires Shopping Centre Short Stay Car Park’s ticketing machine, which was initiated by Apple Pay; however, the transaction was declined by the ticketing machine at 13:08. At this point, having made all reasonable attempt to pay the driver left the carpark to park elsewhere. To this end, no parking event ever occurred and no contract was entered into thus the ““landholder [cannot prove] a contract to park existed between the driver and the landholder” (POFA 2012, 6.3).

5.         It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

5.1.      The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

5.2.      Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

5.2.1.    there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

5.2.2.    that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the hirer. It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3.      To the extent that the Claimant may seek to allege that any such presumptions exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the hirer is the driver. Further, the Defendant denies that the hirer is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

COUNTERCLAIM

PARTICULARS OF HARASSMENT

19.           By reason of the matters set out above the conduct of the Claimant towards the Defendant constitutes harassment contrary to sections 1 and 3 of the Protection from Harassment Act 1997.

20.           The Claimant, having previously instructed XXXXXX, served a Letter of Claim dated XXXXXX, to which a Letter of Response dated XXXXXX was served by the Defendant and Part 20 Claimant.

21.           The Claimant , having instructed Elms Legal, served further Letters of Claim on XXXXX and XXXX, to which a Letter of Response dated XXXXX was served.

22.           The Defendant has suffered from stress and anxiety as a result of the unreasonable conduct of the Claimant, which does not comply with the Pre-Action Protocol.

23.           Further, the Defendant claims interest on Damages pursuant to Section 69 of the County Courts Act 1984 at such rate and for such period as the Court deems just.

 

AND the Defendant claims:

 

24.           Damages in the sum of £500.00 pursuant to s. 3(2) of the Protection from Harassment Act   1997.

25.           Interest thereon pursuant to statute.

26.            standard witness costs for attendance at Court, pursuant to CPR 27.14, and

27.           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.

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