Imperial War Museum North - Excel Parking Services Ltd. Amount claimed £288.52 from 05/02/2016!

longtale_Parker

Hi, and thanks for your advices so far. I have copied and edited the template as below and would appreciate your thoughts please. I feel that (on behalf of the registered keeper) there isn't much more I can, and would rely on the proposed case detail (which I have added into Para 5:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 

3.       I first heard about this claim by post, some time after the alleged event and did not know what to do regarding what I considered initially was a mistake. I was subsequently bombarded with a number of threatening letters, giving me very limited options other than to pay an excessive charge. I did some research and saw that many of these private parking companies try to bully individuals into paying these excessive charges and hoped that the threats may go away if ignored. There had been a very long period of silence, until recently when I received a CCBC Claim Form.

I do not feel that, as Registered Keeper, I should be held liable for this, or any, amount on the basis that the claimant has failed to comply with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

4.  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.

5.       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. Moreso, I would refer to the case Excel v Wilkinson: G4QZ465V [July 2020] where the Judge, HHJ Jackson, concluded that such claims are proceedings with 'an improper collateral purpose' and that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.

Coupon-mad

The defence has “I “ which doesn’t match the rest of the defence which is in the third person because that’s the accepted format.

Change to “the Defendant” throughout and put some facts in about the car park.  Is it local, does the D know it, have they ever been there, do they have reason to be authorised...?

Your draft doesn’t even tell the Judge whether it’s the Defendant’s home car park in their estate where they live, or a local retail park, or a place they do or don’t recognise.    You can’t say it’s a mistake unless you explain why the D thinks that.

longtale_Parker

Oops.
I'm on it now - thank you CM

longtale_Parker

Please see additional details added below. Can you please advise if the reference to Excel v Wilkinson is in the correct place in Para 5? Thanks

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The Defendant knows the car park in question, having visited the Imperial War Museum North (Manchester) on a number of occasions. The Defendant does recall that the car park in question had previously offered free parking, and for a period had a parking attendant who would take payment directly. The Defendant does not recall the specific circumstances of this occasion nor do they recall seeing any signs or pay stations. 

3.       The Defendant first heard about this claim by post, some time after the alleged event and did not know what to do regarding what the Defendant considered initially was a mistake. The Defendant was subsequently bombarded with a number of threatening letters, giving them very limited options other than to pay an excessive charge. The Defendant did some research and saw that many of these private parking companies try to bully individuals into paying these excessive charges and hoped that the threats may go away if ignored. There had been a very long period of silence, until recently when the Defendant received a CCBC Claim Form.

The Defendant does not feel that, as Registered Keeper, they should be held liable for this, or any, amount on the basis that the claimant has failed to comply with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

4.  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.

5.       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. Moreso, I would refer to the case Excel v Wilkinson: G4QZ465V [July 2020] where the Judge, HHJ Jackson, concluded that such claims are proceedings with 'an improper collateral purpose' and that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.

Coupon-mad

That’s far better!

However some paragraphs are too long and should be split into two, all of them with a paragraph number, then change the paragraphs in the template below to make sense.

longtale_Parker

Thanks C-M

longtale_Parker

Updated version - thanks

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 question but liability is denied. The Defendant knows the car park in question, having visited the Imperial War Museum North (Manchester) on a number of occasions. The Defendant does recall that the car park in question had previously offered free parking, and for a period had a parking attendant who would take payment directly. The Defendant does not recall the specific circumstances of this occasion nor do they recall seeing any signs or paystations. 

3.       The Defendant first heard about this claim by post, some time after the alleged event and did not know what to do regarding what the Defendant considered initially was a mistake. The Defendant was subsequently bombarded with a number of threatening letters, giving them very limited options other than to pay an excessive charge. The Defendant did some research and saw that many of these private parking companies try to bully individuals into paying these excessive charges and hoped that the threats may go away if ignored. There had been a very long period of silence, until recently when the Defendant received a CCBC Claim Form.

4.       The Defendant does not feel that, as Registered Keeper, they should be held liable for this, or any, amount on the basis that the claimant has failed to comply with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

5.  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. 

6.       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.

7.       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.

 8.       The Defendant would refer to the case Excel v Wilkinson: G4QZ465V [July 2020] where the Judge, HHJ Jackson, concluded that such claims are proceedings with 'an improper collateral purpose' and that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.

Para 7 is the original format/ size - I did look at trying to split it, but it seemed to flow nicely. Para 3 does look a bit big still, but I wanted to make the "research" and burying the head less obvious.

I don't know if it is of relevance but I rang the War Museum to see if they knew when parking charges were introduced, as I do recall it was initially free, then attended (or vice versa). The person I spoke to was relatively new there but, when I told him the reason for my call, he did say that they no longer have Excel managing their parking and have moved to a new provider. I am hoping to get a call-back today and I will ask if they lost the contract due to complaints or incompetence (I presume it wasn't cost because the new management company is NCP!)...

Redx

I would split 2 after the first sentence , making the rest of it 3 and renumber again

When slotted into the rest of the template , renumber for the subsequent paragraphs , for the final time, submit before 4pm today as a signed pdf , by email to the ccbcaq email address and also to the claimant ( or their lawyers if legals are as acting on their behalf )

Check for an email auto receipt from the CCBC

Do nothing on MCOL , but check it on Friday to ensure that the Defence has been logged

Coupon-mad

#4 should start ‘In the alternative, ‘ because otherwise it sounds like POFA is the only reason for you denying liability.

longtale_Parker

Thanks C-M, I've made that change and am ready to email the scanned doc.

I thought I read somewhere on here what needs to go (or not go) in the subject line but can't find it in my rush to send. Should I put the case reference and "Defence", and do I need to write much in the email to confirm what I am sending?

Thanks again