Excel Parking Services LTD Claim (Previously titled DCBL - Notice of Debt Recovery)

LenaWoods

So I'm partially way through my defence. Please let me know your thoughts! (Sorry about the format of the paragraphs can't seem to change the line spacing on here)

IN THE COUNTY COURT

CLAIM No: ...............

BETWEEN:

Excel Parking Services LTD (Claimant)

-and-

.......................(Defendant)

________________________________________

DEFENCE

________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. At the time of receiving the four relevant Charge Notices, the Defendant had, at all times, paid for vehicle parking within the private car-park named “............” located in ......... (...........), and has payment confirmation receipts as evidence of this.

3. Furthermore, the ‘land’ which forms the basis of the current claim is titled “..............” (managed by Excel Parking Services LTD), however this is adjacent to another car park on the same road, a short distance away, identically signposted with the same name; “...............”, but managed by ........

Despite having the same name, both the “..........” carparks had no boundary markings, were situated on the same road (............), adjacent to one another, and consisted of a relatively small number of marked parking spaces. In addition, the two identically signposted car parks; “............” (Excel Parking LTD) and “.............” (.....) utilised the same name, and similar colour signage systems, making them impossible to differentiate. 

4. At the time of parking, which was a dark, rainy evening on the ..............., the two carparks were indistinguishable. The lack of signage and boundary clarity to alert users that these car-parks were actually separate entities, meant the Defendant paid to park in “..............” managed by ........, rather than “..............” carpark managed by ................ 

At the time of parking there was no way to determine the car parks were separate, or where they began and where they terminated from one another. For this reason, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

5. The Particulars of Claim state that the Defendant .......... was the registered keeper

and/or the driver of the vehicle .............. under registration ............ These assertions

indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu

of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil

Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the

requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

6. The signage for the ........... carpark provided with the Notice to Keeper, state clients to either ‘pay and display’ , ‘pay by phone’ or ‘pay via App’. The Defendant did adhered to this by paying via App. Therefore, due to the sparseness of the particulars, and the claim stating that the Defendant is in breach for ‘not displaying a valid ticket/ permit’ despite the signage allowing for other payment options, it is unclear as to what legal basis the claim is brought for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

7. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a

sufficiently clear manner which would be capable of binding any reasonable person reading

them.  The terms on the Claimant's signage are displayed in a font which is far too small to be

read from a passing vehicle, or from the distance the registered vehicle was parked, and is in

such a position that anyone attempting to read the tiny font would be unable to do so easily. There was also no lighting above the sign, despite being a 24 hour car park. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it

has the necessary authorisation from the landowner to issue parking charge notices, and to

pursue payment by means of litigation.

9.1. The Protection of Freedoms Act 2012, Schedule 4 (the POFA) at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to

Keeper, in this case for four PCNs, is a maximum of £400, depending on the Claimant's full

compliance with the POFA and establishing a breach of a 'relevant obligation' and/or 'relevant

contract' from adequately prominent, large lettering terms on copious and clear signage. The

claim includes an additional £380, for which no calculation or explanation is given, and which

appears to be an attempt at double recovery.

9.2. This claim inflates the total to an eye-watering £780.00, in a clear attempt at double

recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable

conduct as a gross abuse of process and may consider using the court's case management

powers to strike the claim out of the court's own volition. The acid test is whether the conduct

permits of a reasonable explanation, but the Defendant avers it cannot.

9.3. It was held in the Supreme Court (See Mr Barry Beavis’s case, 2015, where £85 was

claimed, and no more) that a private parking charge already includes a very significant and high

percentage in profit and more than covers the costs of running an automated regime of template

letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking

operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile

on top of any parking charge claim, nor 'indemnity costs if applicable', whatever that cut&paste

phrase may mean. The Claimant knows this, as do their solicitors who charge little or no fee to

IPC members, given the connection between Vehicle Control Services Limited and the IPC

Trade Body, and the Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, caused by IPC/Vehicle Control Services Limited' clients

artificially inflating their robo-claims.

10. In summary, it is the Defendant's position that the claim discloses no cause of action, is

without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out

the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

11. Lastly, Excel Parking Services Ltd is owned by the same person .................., based at the same address (.................), and includes subsidiary ................ In ............, Vehicle Control Services Limited were ordered, by court (claim number ............), to pay myself (defendant) £50 in witness expenses but this never materialised. As Excel Parking Sevices operate under two trading names; Excel Parking and Vehicle Control Services (VCS) I request that Excel Parking Services Ltd pay me the £50 owed, plus my own court fees and time applied to deal with harassment from Excel Parking Services Ltd, and time taken off work, to the amount outstanding equating £500.

Coupon-mad

You decided not to use the Template Defence?

LenaWoods

I used the template defence that I had from MSE in 2019 and changed bits.... Not sure if some are not relevant anymore!

LenaWoods

I will add in additional sections from https://forums.moneysavingexpert.com/discussion/comment/81199155/#Comment_81199155 

but I also forgot to mention... I'm a bit confused as the Claimant is written as Excel Parking Services, however address for sending documents and payments is listed as Elms Legal Limited. 

So I'm not sure if I should be focussing on Elms Legal or Excel Parking Services in this context

Coupon-mad

Elms are just the solicitors.

Don't use a 6 year old defence!

Le_Kirk

LenaWoods said:

I used the template defence that I had from MSE in 2019 and changed bits.... Not sure if some are not relevant anymore!

You should use the latest one in the announcements on first page of forum

LenaWoods

Le_Kirk said:

LenaWoods said:

I used the template defence that I had from MSE in 2019 and changed bits.... Not sure if some are not relevant anymore!

You should use the latest one in the announcements on first page of forum

That is this announcement: https://forums.moneysavingexpert.com/discussion/comment/81199155/#Comment_81199155 right? 

Coupon-mad

No, you can see which cases that's for.

LenaWoods

Ah thank you I've been looking at the wrong page! I will edit it and repost 

LenaWoods

So I've updated my defence, with the correct version (I think!). If anyone has any thoughts, or useful links to defences specifically against Excel Parking Services please feel free to share. Once again sorry about the paragraph spacing, (my laptop doesn't seem to like transferring word docs over to MSE for some reason) and thank you very much for your help.

IN THE COUNTY COURT

CLAIM No: ..........

BETWEEN:

Excel Parking Services LTD

-and-

............................

________________________________________

DEFENCE

________________________________________

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver.

3. Due to the date of parking being nearly five years in the past, the Defendant finds it difficult to recall detailed facts surrounding the issue. However, the Defendant can recall that the car was parked in a car park titled “...........” due to visiting friends and family in the area on the dates specified. 

4. At the time of receiving the four relevant Charge Notices, the Defendant had, at all times, paid for vehicle parking within the private car-park named “..............” located in .......... (.............), and has payment confirmation receipts as evidence of this.

5. Furthermore, the ‘land’ which forms the basis of the current claim is titled “.............” (managed by Excel Parking Services LTD), however this is adjacent to another car park on the same road, a short distance away, identically signposted as; “.............”, but managed by NCP. Both carparks had the same name, no clear boundary markings, and were situated on the same road (............), adjacent to one another. In addition, the two identically signposted car parks utilised similar colour signage systems, making them impossible to differentiate. 

6. At the time of parking, which was a dark, rainy evening on the ..............., the two carparks were indistinguishable. The lack of well-lit, clear signage and boundary clarity to alert users that these car-parks were actually separate entities, meant the Defendant paid to park in “............” managed by NCP, rather than “.............” carpark managed by Excel Parking Services LTD. At the time of parking there was no way to determine the car parks were in fact separate. For this reason, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

7. The Particulars of Claim state that the Defendant ............ was the registered keeper

and/or the driver of the vehicle ............. under registration ............. These assertions

indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu

of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil

Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the

requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

8. The signs for the “.................” carparks state users are to either ‘pay and display’ , ‘pay by phone’ or ‘pay via App’. The Defendant did adhere to this by paying via App. Therefore, due to the sparseness of the particulars, and the claim stating that the Defendant is in breach for ‘not displaying a valid ticket/ permit’ despite the signage allowing for other payment options that do not deploy a displayable ticket, it is unclear as to what legal basis the claim is brought for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

9. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a

sufficiently clear manner which would be capable of binding any reasonable person reading

them. The terms on the Claimant's signage are completely unlit, mostly in a dark blue colouration, yet displayed in a 24 hour carpark, whereby the Defendant parked late in the evening. The signage font is also far too small to be read from a passing vehicle, or from the distance the registered vehicle was parked, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to

pursue payment by means of litigation.

11. The Protection of Freedoms Act 2012, Schedule 4 (the POFA) at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to

Keeper, in this case for four PCNs, is a maximum of £400, depending on the Claimant's full

compliance with the POFA and establishing a breach of a 'relevant obligation' and/or 'relevant

contract' from adequately prominent, large lettering terms on copious and clear signage. The

claim includes an additional £380, for which no calculation or explanation is given, and which

appears to be an attempt at double recovery.

12. This claim inflates the total to an eye-watering £780.00, in a clear attempt at double

recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable

conduct as a gross abuse of process and may consider using the court's case management

powers to strike the claim out of the court's own volition. The acid test is whether the conduct

permits of a reasonable explanation, but the Defendant avers it cannot.

13. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

14. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished. 

Exaggerated Claim and 'market failure' currently being addressed by UK Government (same as in template Defence)

CRA breach - lack of prominent terms (same as in template defence)

ParkingEye v Beavis is distinguished (same as in template defence)

Lack of standing or landowner authority, and lack of ADR (same as in template defence)

Breach of court ordered Witness Expenses payable to Defendant

37. Lastly, Excel Parking Services Ltd is owned by the same person Simon Renshaw-Smith, based at the same address (7 Europa View in Tinsley), and includes subsidiary Vehicle Control Services VCS. In October 2019, Vehicle Control Services Limited were ordered, by court (claim number ............), to pay the Defendant £50 in witness expenses but this never materialised. As Excel Parking Services Ltd operate under two trading names; Excel Parking and Vehicle Control Services (VCS) I request that Excel Parking Services Ltd pay me the £50 owed, plus my own court fees and time applied to deal with harassment from Excel Parking Services Ltd to the amount outstanding equating £500.

Conclusion

38. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm. The July 2023 Government IA analysis shows (from data from this industry) that the usual letter-chain costs eight times less than the sum claimed for it. The claim itself relies on an unfair charge which is entirely without merit, and should be dismissed.

39. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and previous court ordered witness costs payable to Defendant claim ..........

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

40.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

Statement of Truth (same as template Defence)