Excel MCOL defence advice

Gonzalez761

Hi,

I have recently been sent an MCOL from Excel via ELMS and I was wondering if anyone would be so kind as to give me some advice on my defence?

My partner received an NTK from Excel back in May for a PCN which was issued when I was driving her car. 

Here's what has happened since:

1. Notified them I was the driver as my girlfriend did not want to get involved
2. Appealed through Excel's myparkingcharge.co.uk website stating that I did in fact buy parking via their mobile app but the registration used was that of my own car and not my girlfriends
3. Excel rejected the appeal and said no further appeals would be heard by their office and that I had to appeal to IAS
4. Did not appeal to IAS after reading on this forum that they are considered by many to be a kangaroo court and a waste of time
5. Ignored all subsequent letters until I received an LBC from ELMS
6. Submitted a SAR via email to Excel
7. Received MCOL claim for £245 (£100 PCN + £60 + £35 court fee + £50 legal representative costs)
8. Have submitted AOS that I want to defend all of the claim
9. Now drafting defence...

I have used the template from the forum to get started but I've given some specifics below

1. Signs at the entrance to the car park state that "You agree to pay a £100 parking charge if you fail to comply with the terms and conditions" however, the size of the font used is actually the smallest of those used on that sign. However, it is in bold.
2. The same sign states 'Refer to Terms & Conditions signs located at Pay & Display machines' but, the only signs I saw at the pay and display machines at the time of parking are the same as the one at the entrance. However, they did have a small blue section added to them which is where it states you can pay by mobile app.
3. Upon receiving the claim I visited the site again and nowhere on the signs I saw when I parked did I see any further terms and conditions. However, I did find a panel on the pay & display machine itself (which I wouldn't have had any reason to go near enough to see, as I paid by app) which contained some terms and conditions and, at the bottom says 'See Main Tariff Board for Full Terms and Conditions'
4. I also found that there is another sign at the far end of the car park outside a disused supermarket which does appear to have a lot more terms and conditions on it, I assume this is the 'Main Tariff Board'. However, I would never have seen that as I had no reason to go anywhere near the disused supermarket...
5. Excel rejected my appeal stating "Terms and Conditions of parking require that the full and accurate registration number of the vehicle which has been parked on site must be used when payment for parking is made". However, this is not the case, even on the sign outside the disused supermarket, there is no mention of this term.
6. It seems all the signage in the car park pre-dates them accepting payment by mobile app and all they have done is add a small blue section to signs saying you can pay by mobile phone but with no additional terms and conditions related to that.

I suppose what I would like to know is which angle you think is best to pursue? If not all of them?

Also, some of it may already be covered off by the template defence but, with my lack of legal knowledge I'm not sure and don't want to duplicate things.

Key points I have in my mind at the moment are that:

1. Even if I had accepted the terms and conditions, there isn't one that requires me to enter the correct registration so I did, in fact, pay for parking using a method that they advertise
2. It's an abuse of process to add £60
   
3. Signs are confusing - entrance sign has fairly small print, refers you to signs at machines, signs have no further details but very small print on the machine itself refers you to another sign which has a very jumbled layout, lots of small print, is not in a prominent position and very few people would have any reason to go near it. Also, there are no terms and conditions which relate to the ability to pay by mobile phone on any of the signs in the car park.

Thank you

Gonzalez761

Current Draft Defence:

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

XXXXXXXX

(Claimant) 

- and -  

XXXXXXXX

 (Defendant)

____________________

DEFENCE

____________________

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 driver of the vehicle in question, but liability is denied.  

3.  Upon arrival at the car park the defendant made payment for two hours of parking via the ‘Connect Cashless Parking’ mobile phone app which is advertised on signs located next to the pay & display machines. As the app retains previously used vehicle registration marks (VRMs), the VRM provided when making payment via the app was that of the Defendants own vehicle and was not the VRM of the vehicle to which this claim relates.

However, nowhere on the signs seen by the defendant does it state that the correct VRM of the vehicle parked in the car park must be provided and it is, therefore, argued that the VRM provided when using the app is irrelevant and that valid payment for parking was made.

A sign located at the point where the Defendant entered the car park says, ‘Refer to the Terms & Conditions signs located at the Pay & Display Machine(s).’ However, the only signs visible at the pay and display machines are identical to the sign located at the entrance to the car park and contain no further information other than a small blue section which contains details on how you can pay for parking using a mobile phone app.

Since receiving notification from Excel Parking Services Limited that they believe the Defendant is indebted to them, the Defendant has visited the location concerned and was able to locate a further sign located at the far end of the car park close to the entrance of a disused supermarket but not at a pay & display machine. This sign does appear to contain more terms and conditions than those located by the pay & display machines however, as stated above, the sign at the entrance to the car park suggests that Terms & Conditions are detailed on signs located at the Pay & Display machines and not on a sign located outside a disused building which the Defendant had no cause to go anywhere near.

Even if it can be proved that the Defendant had entered into a contract with Excel Parking Services Limited subject to the terms shown on the above-mentioned sign, which is denied, the sign does not contain any terms which state the Defendant must provide the correct VRM for the vehicle being parked when payment is made using the app.

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.

6.       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.  

7.  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').

8.  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.

** Will delete as Defendant is driver

 

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

9.       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.  

10.       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.

11.   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.  

12.   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.

13.       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.

14.   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.

15.   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.

 

16.  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:

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

(b) 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.

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

Statement of Truth

I 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.

Defendant’s signature:

Date:

 

D_P_Dance

Have you complained to your MP?

Fruitcake

Please only show us the parts of the template that you have changed. We are checking your work no Coupon-mad's. 

Gonzalez761

Fruitcake said:

Please only show us the parts of the template that you have changed. We are checking your work no Coupon-mad's. 

Apologies, as I'm a newbie I can't yet go back and edit it but as soon as I can I will. I have only edited points 2 and 3, the rest remains unedited.

Gonzalez761

D_P_Dance said:

Have you complained to your MP?

I haven't, no. I did try a complaint to the store I was visiting but they just said they weren't responsible for the car park. 

1505grandad

Just checking:-

The claim is in the name of the driver and not the RK

Date of issue of claim

Date of AoS

Gonzalez761

1505grandad said:

Just checking:-

The claim is in the name of the driver and not the RK

Date of issue of claim

Date of AoS

Yes, claim is in the name of the driver and not the RK. It was issued on 6th Oct 2021 and AOS completed on 13th Oct 2021.

KeithP

Gonzalez761 said:

It was issued on 6th Oct 2021 and AOS completed on 13th Oct 2021.

With a Claim Issue Date of 6th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 8th November 2021 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence and it is good to see you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Redx

Do not wait for the ability to edit , post your draft paragraphs 2 and 3 below , for critique , plus confirm that you have emailed a SAR to the DPO at Excel too

Your thinking is on the right lines however

Gonzalez761

Thanks, paragraphs I have edited are as follows:

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

3.  Upon arrival at the car park the defendant made payment for two hours of parking via the ‘Connect Cashless Parking’ mobile phone app which is advertised on signs located next to the pay & display machines. As the app retains previously used vehicle registration marks (VRMs), the VRM provided when making payment via the app was that of the Defendants own vehicle and was not the VRM of the vehicle to which this claim relates.

However, nowhere on the signs seen by the defendant does it state that the correct VRM of the vehicle parked in the car park must be provided and it is, therefore, argued that the VRM provided when using the app is irrelevant and that valid payment for parking was made.

A sign located at the point where the Defendant entered the car park says, ‘Refer to the Terms & Conditions signs located at the Pay & Display Machine(s).’ However, the only signs visible at the pay and display machines are identical to the sign located at the entrance to the car park and contain no further information other than a small blue section which contains details on how you can pay for parking using a mobile phone app.

Since receiving notification from Excel Parking Services Limited that they believe the Defendant is indebted to them, the Defendant has visited the location concerned and was able to locate a further sign located at the far end of the car park close to the entrance of a disused supermarket but not at a pay & display machine. This sign does appear to contain more terms and conditions than those located by the pay & display machines however, as stated above, the sign at the entrance to the car park suggests that Terms & Conditions are detailed on signs located at the Pay & Display machines and not on a sign located outside a disused building which the Defendant had no cause to go anywhere near.

Even if it can be proved that the Defendant had entered into a contract with Excel Parking Services Limited subject to the terms shown on the above-mentioned sign, which is denied, the sign does not contain any terms which state the Defendant must provide the correct VRM for the vehicle being parked when payment is made using the app.