Excel MCOL defence advice

Gonzalez761

Redx said:

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

Done. Yes SAR has been sent to DPO at Excel.

Coupon-mad

Every paragraph needs a number.

You should add that you were driving your girlfriend's car on this occasion and had no idea of any alleged breach of terms that day.  You appealed in good faith to resolve the dispute, as soon as a PCN arrived in your name.  It was noticed when you checked the phone app transactions, that your payment was automatically attributed by the app to your own (other car) VRM.  That car was not in the car park that day and the Clamant knows this because their ANPR system held all VRM images from that day.

You told the parking firm about the error but instead of cancelling the parking charge, treating it as a 'keying error' and re-attributing your payment to the right car, they rejected the appeal.

There can be no legitimate interest in pursuing a paying patron in these circumstances and as soon as the Claimant was able to attribute that payment to the right car, the charge from then on became an unconscionable penalty, fully distinguished from the unusual circumstances in the Supreme Court Beavis case.

Gonzalez761

Coupon-mad said:

Every paragraph needs a number.

You should add that you were driving your girlfriend's car on this occasion and had no idea of any alleged breach of terms that day.  You appealed in good faith to resolve the dispute, as soon as a PCN arrived in your name.  It was noticed when you checked the phone app transactions, that your payment was automatically attributed by the app to your own (other car) VRM.  That car was not in the car park that day and the Clamant knows this because their ANPR system held all VRM images from that day.

You told the parking firm about the error but instead of cancelling the parking charge, treating it as a 'keying error' and re-attributing your payment to the right car, they rejected the appeal.

There can be no legitimate interest in pursuing a paying patron in these circumstances and as soon as the Claimant was able to attribute that payment to the right car, the charge from then on became an unconscionable penalty, fully distinguished from the unusual circumstances in the Supreme Court Beavis case.

Thank you very much. I will add the paragraph numbers and what you mention above. I should have added that the car park does not have ANPR. It is a pay and display car park where they have added the ability to pay by phone.

Le_Kirk

If they don't have ANPR, why the hassle about the wrong VRM?  If you paid and displayed, that should be good enough.

Gonzalez761

Le_Kirk said:

If they don't have ANPR, why the hassle about the wrong VRM?  If you paid and displayed, that should be good enough.

Payment was made using the mobile phone app but with the wrong VRM. No ticket was displayed.

Coupon-mad

Ok, so the bit about knowing the other car wasn't in the car park isn't relevant but the rest is.

Gonzalez761

Thank you very much, please see below updated sections which have been edited. Any feedback would be gratefully received. 

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.  On the day in question the Defendant was driving his girlfriend's car and had no idea of any alleged breach of terms that day. The Defendant appealed in good faith to resolve the dispute as soon as a Parking Charge Notice arrived in his name.

4.  It was noticed when the Defendant checked his phone app transactions, that the payment was automatically attributed by the app to his own car’s VRM. That car was not in the car park that day.

5.  The Defendant told the Claimant about the error but, instead of cancelling the parking charge, treating it as a ‘keying error’ and re-attributing the payment to the correct vehicle, they rejected the appeal.

6.  There can be no legitimate interest in pursuing a paying patron in these circumstances and as soon as the Claimant was able to attribute that payment to the right car, the charge from then on became an unconscionable penalty, fully distinguished from the unusual circumstances in the Supreme Court Beavis case.

7.  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.

8.  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.

9.  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 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.

10.  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 sign mentioned in paragraph 9, 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. 

Coupon-mad

Looks fine, with the rest of the template.

Gonzalez761

Thanks, will get it submitted with the rest of the template. 

95Rollers

Looks good. I like the way the Beavis part is explained in simplicity.