Backcester Lane, Lichfield, Excel Parking

Snakes_Belly

There are some cases that have been heard at County Court Level but these do not set a precedent. Jolley v Carmel Ltd. may be a useful case to quote. It relates to contract law and making reasonable endeavours to comply with the contract. You should find more details on this forum.

If you do counterclaim the claim will be heard at court unless you come to an agreement before the hearing. That means that Excel will not be able to drop the claim which they do in some instances at the last moment.   
  

Snakes_Belly

This is what I wrote in my defence. Whilst it is not parking related it is contract related. The judge in my case did pick up on this and read it out.

"The Defendant was unable to make payment due to the machine being out of service and therefore making it impossible to fulfil the consideration element of the contract. The contract is therefore frustrated and void. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms."

I think that there is a transcript of this case somewhere on the forum. 

Stefano123

Coupon-mad said:

So you've now removed para 5 and all the stuff about the POFA, given you were driving?

I've removed para 5, yes. I've instead rephrased the argument as per para 3 above given they make no mention of my actual relationship as hirer in the particulars. I've therefore not removed all mention of PoFA at this current moment.

Are you saying their lack of due diligence and failure to understand my relationship to the vehicle is inconsequential and therefore I should just remove it entirely should it be the case I was the driver? 

Jenni_D

Are you including the frustration of contract argument? If yes, how do you know it happened if you weren't party to the event? (If you were genuinely a passenger in the vehicle then you could make the claim from first-hand knowledge, but it is advisable to not back yourself into a corner and risk perjury in court - if the judge asked you "Were you the driver", how would you answer?)  

Coupon-mad

Stefano123 said:

Coupon-mad said:

So you've now removed para 5 and all the stuff about the POFA, given you were driving?

I've removed para 5, yes. I've instead rephrased the argument as per para 3 above given they make no mention of my actual relationship as hirer in the particulars. I've therefore not removed all mention of PoFA at this current moment.

Are you saying their lack of due diligence and failure to understand my relationship to the vehicle is inconsequential and therefore I should just remove it entirely should it be the case I was the driver? 

Stefano123 said:

Coupon-mad said:

So you've now removed para 5 and all the stuff about the POFA, given you were driving?

I've removed para 5, yes. I've instead rephrased the argument as per para 3 above given they make no mention of my actual relationship as hirer in the particulars. I've therefore not removed all mention of PoFA at this current moment.

Are you saying their lack of due diligence and failure to understand my relationship to the vehicle is inconsequential and therefore I should just remove it entirely should it be the case I was the driver? 

No.  I am saying if you honestly know you were driving, say so and don't use the POFA.

Stefano123

Coupon-mad said

No.  I am saying if you honestly know you were driving, say so and don't use the POFA.

Thank you for clarifying. At every other stage and in every other post I've read this has always been the default so I guess at this stage its different. Thanks 

Snakes_Belly

"I was able to evidence that payment was attempted at their machine but it was declined". Unfortunately there was no way to provide evidence a genuine attempt was then attempted to pay via the online system that refused to register details. At that point after 18 minutes on site with no cash the vehicle was removed from the premise. Hence, the "some sympathy" bit I reckon. I would hope this is more than enough in court to show they are taking the pee, massively!   

Did the bank elaborate on why the payment was declined?  There sometimes can be issues with the connection. What is in your favour is the amount of other people who have had issues with this car park.     

Stefano123

Snakes_Belly said:

"I was able to evidence that payment was attempted at their machine but it was declined". Unfortunately there was no way to provide evidence a genuine attempt was then attempted to pay via the online system that refused to register details. At that point after 18 minutes on site with no cash the vehicle was removed from the premise. Hence, the "some sympathy" bit I reckon. I would hope this is more than enough in court to show they are taking the pee, massively!   

Did the bank elaborate on why the payment was declined?  There sometimes can be issues with the connection. What is in your favour is the amount of other people who have had issues with this car park.     

This goes in my witness statement/ exhibits right and not in the defence?

Snakes_Belly

"My niece received 4 tickets, even though she had paid. The automated fine system had been configured incorrectly. Many of her colleagues paid fines unnecessarily. It look many letters and appeals to resolve.
I attempted to use the parking a few weeks ago and would not accept my card had to find alternative parking."

Someone else who had a similar issue.

There also seems to be timing issues with the clock.

Did you try to make payment by RingGo. I think you first have to set up an account and then make payment. By the time that you have done that (if you can manage to set it up) you will have gone over the time allowed to park.   

Their argument will be that the driver should have moved to another car park which they did but went over the time.

Snakes_Belly

Stefano123 said:

Snakes_Belly said:

"I was able to evidence that payment was attempted at their machine but it was declined". Unfortunately there was no way to provide evidence a genuine attempt was then attempted to pay via the online system that refused to register details. At that point after 18 minutes on site with no cash the vehicle was removed from the premise. Hence, the "some sympathy" bit I reckon. I would hope this is more than enough in court to show they are taking the pee, massively!   

Did the bank elaborate on why the payment was declined?  There sometimes can be issues with the connection. What is in your favour is the amount of other people who have had issues with this car park.     

This goes in my witness statement/ exhibits right and not in the defence?

I would mention the fact that the payment was declined and the bank have confirmed this in your defence. Evidence this in the WS.. 

The only problem I have with the WS is that these DDJ's have very little reading time (about 10 mins) and they seem to focus on the defence. The WS backs up and expands on the defence. Defence is the most important.

For example you could cite a case in your defence and include the transcript in the WS.