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

Coupon-mad

I'd remove paragraph 7 which adds nothing.

And remove these exact words:

"The Claimant will concede that no financial loss has arisen and that"

LenaWoods

Thank you

LenaWoods

Notice of allocation to small claims track received. I've got until the 8th August to submit my Witness Statement. I just wondered if anyone can advise on following a template WS or not? I've just been reading a post that stated in court the judge felt that the defendant's WS was "copied" from online sources, and the defendant then lost the case. Now I'm a bit concerned about mine! 

Gr1pr

Go to the newbies sticky thread in announcements,  second post,  and study the WS + Exhibits section after the following heading

LETTERS ABOUT HEARINGS - WITNESS STATEMENT AND EVIDENCE TIME!

Also study the latest discontinuations listed in the discontinuations thread by Umkomaas,  starting at the end and see what some of the recent cases had

Le_Kirk

LenaWoods said:

Notice of allocation to small claims track received. I've got until the 8th August to submit my Witness Statement. I just wondered if anyone can advise on following a template WS or not? I've just been reading a post that stated in court the judge felt that the defendant's WS was "copied" from online sources, and the defendant then lost the case. Now I'm a bit concerned about mine! 

If you search for similar cases, you should find a case where a judge, when asked by the claimant to strike out the defendant's defence "because it was copied from the internet" said "So What!"
Just because a defence has been used before doesn't invalidate it.  If it was refuting exactly the same POC, then it would have exactly the same defence!  The judge (or more likely the claimant) might say it is "an internet defence" but then has to judge the case on its merits, defence, witness statement and evidence.

Coupon-mad

HOWEVER please please don't do what posters keep doing: do NOT repeat the Template Defence second half blurb in the WS.

It should be short and mainly detailed with facts and evidence.

LenaWoods

Thanks, I was going to also ask if I can link in Google Reviews of the carpark and the negative BBC article about it by simply adding the links and asking the judge to visit these, rather than trying to screenshot every single negative review?

Le_Kirk

If the reviews and the BBC article back up any points you wrote in the defence, then yes, otherwise the judge might see it just as a smearing exercise.  But you will be expecting the judge to click links to read reviews.  You need to copy and paste the words from the reviews into your WS.

Coupon-mad

LenaWoods said:

Thanks, I was going to also ask if I can link in Google Reviews of the carpark and the negative BBC article about it by simply adding the links and asking the judge to visit these, rather than trying to screenshot every single negative review?

Show us your draft WS.

LenaWoods

2.0 Overview of Circumstances

2.1 On the dates; ............................. 2020 associated with the stated Parking Charge Notices [PCNs] issued by Excel Parking Services [EPS] Ltd, I was attending a nearby restaurant and visiting family. Therefore, I parked my vehicle, reg: ..........., in a car park titled “.............” alongside ........... Road in Derby.

2.2 I paid to park in the “..........” car park via an app, which was stated as an accepted payment method on the terms and conditions of the car park’s signage (See Exhibit E.1 and D.1). I paid via app for the entire length of stay, without physically returning to my vehicle until the ........... 2020. 

2.3 Please see my “.........” parking payment receipts for the full extent of dates mentioned in Exhibit B.1. 

2.4 I paid in full for the entire duration of time that ............ was parked in “...........” carpark, with payments totalling £17.00. All payments were made in accordance with the parking tariffs stated on the .............. carpark signage that I could see, at the time of parking.

2.5 Due to the PCNs now being over five years old, getting photo evidence is difficult. When I went back to retrieve evidence the carparks had changed, and are no longer representative of the original. 

3.0 Lack of clear boundaries and confusing layout of multiple merging carparks and their signage

3.1 After receiving several PCNs from EPS, I researched the area in more detail and noticed other customers complaining that there are not only several carparks run by different companies in very close proximity including a carpark named "......... street", which merges into the "............" carpark, but also two carparks, right next to one another and placed along the same stretch of ...... Road, using the same name; “...........” carpark. 

3.2 Both the "..........." carparks lacked clear boundaries, and neither had gates present to separate the carparks. Furthermore, all the signage confusingly stated they are the same “............” carpark. Thus making it impossible to differentiate that they were in fact two separate carparks. Please see exhibit D.1 and exhibit….. which highlights the close proximity of the "........." carparks.   

3.3 A vast number of customers have left negative reviews about the EPS run ".........." carpark, as they too found it impossible to distinguish between the multiple merging carparks contained within the area. The negative reviews are also harming the reputation of local businesses in the area. 

3.4 Quotes from Google Reviews for the "..........." car park/ "............." centre: 

a)  “......... fun itself is fine. However the carpark is an absolute scam. There are 2 separate carparks which is not made in the least bit clear. We have had a £100 fine even though I paid on entry but it seems I paid for the wrong carpark. Clearly I'm not the only one with issues but looking at the other reviews ....... don't seem to care. Absolute joke and I won't be bothering to come again because it's just not worth the hassle EDIT IN RESPONSE TO .......... RESPONSE; I stand by what I said. It is NOT made clear at all that there are 2 carparks. You get hardly any time to then navigate a very complicated parking system and that's further complicated by having 2 separate companies managing the car park. It really isn't good enough to absolve yourself of any responsibility when these are the carparks used by YOUR customers and they are managed by absolute scam artists.”

b) “To pay Car parking requirements a computer science degree. It's very clearly a trap for parking ticket's all parking machines have been removed and there's now 4 separate car park providers opening around this venue.”

c) “I went to a Birthday party and received a PCN for 100£ because I entered my car registration in their NCP car park system and not in their Excel one. How do a new customer going with a crying baby and kids on a dark rainy day to know their car park boundaries, mapping system , signposts etc . We just get in to give kids a good time where as their car park arrangement system is repelling the parents. I can see other parents and customer have raised this concerns . How about the receptionist while handing the wrist band could easily check with customer if they have sorted thier car park ? Please work smartly , you have invested money and dont let your new customers turn off .I wont book or go again , they dont seem to be helpful even when I raise this concern to them .”

d) “I've been wondering why nobody uses this car park, now I know why. The car park uses cashless car parking app. Here's the con, if you pay for parking at the ....... Street Car Park, and use the ............ road entrance where the car park is clearly sign posted - .......... Street Car Park,  you get a £100 fine. The ......... road side is a different car park code! I am currently appealing. So far I have have had £100 in fines, £600 to come?”

e) “AVOID THE SCAM.The car park has 2 entrances, but each entrance uses a different car park code. If you use both entrances to enter and exit, the company fines you for the car park you "didn't pay for" despite paying on the app and having a receipt. This type of dishonest practice is shameful and should be illegal.”

h) Response from business ......... to the numerous negative reviews: “We hope you had a good time once you were inside! We appreciate your frustration with the car-park. Please rest assured that we are working tirelessly alongside local MPs and councillors, to resolve this situation for our customers! We hope to welcome you back here soon! ”

3.5 In addition, the confusion and scam tactics utilised by EPS in their merging of ............ and .................. carpark have been reported numerous times to MPs and reported by the BBC this year! 

Please see the following quote from the BBC article in Exhibit …

“each MP had received numerous complaints about operators from drivers who had "faced significant financial penalties for late payment, even when they report making genuine efforts to comply".

"Contributing factors beyond their control include unclear or misleading signage, malfunctioning payment machines, and insufficient alternative methods for purchasing tickets," 

4.0 No legally binding contract can be established by the Claimant’s unclear/ inadequate signage

4.1 At the time of parking, which was a dark, rainy evening, I saw an entrance sign for a “...........” car park and entered. I then saw the bright yellow ........... signage, which listed payment options close to my vehicle. Please see the clear and bright yellow ............. signage in Exhibit C.1. This is what I used to guide my payments. 

4.2 Upon entering the .......... carpark I could not see the EPS's ............. signage shown in Exhibit E.1. Most likely due to the complete lack of any lighting to illuminate the sign in the wet and dark evening, and the sign being predominantly dark blue in colour, and therefore blending in with the dark background. Furthermore, the signage utilized an absolutely tiny font alongside a confusing layout of the several small diagrams and images, and there is a complete lack of paragraphing between alternate points made. The latter combined makes the text illegible, especially during out of daylight hours rendering the sign not visible to anyone driving a vehicle or walking through the carpark.

4.3 The picture of the EPS "..........." signage in Exhibit E.1 was taken whilst positioned as close to the front of the sign as possible, yet the text is still not visible. In addition, a flash camera shot had to be utilised to actually gain a picture of this sign in the dark, as there is no lighting to make it visible to customers and it wouldn’t show up in the photo. 

4.4 It is ridiculous and unfair that EPS Ltd expects drivers to notice this sign in a 24 hour operating carpark, let alone navigate it and make a payment in just 10 minutes to avoid being issued a PCN. 

4.5 Considering that at the time of parking it was heavy rain and dark, the EPS .......... signage (Exhibit E.1) was not clearly visible, but I did immediately notice and utilise the bright yellow ........... signage (Exhibit C.1) close by.

4.6 I have included a copy of the sufficiently presented, Beavis [2015] UKSC 67 case sign, in Exhibit ……., to demonstrate the confusing layout of the Claimant’s signage.

4.7 Overall, the Claimant therefore had no right to claim a PCN from myself according to paragraph 2(2) and 2(3) of the POFA 2012 Schedule 4, as no contract was formed. For the above reasons, the Claimant also fails to meet the IPC signage conditions stated in Exhibits C1,2 and 3, so did not establish a contract with myself

4.8 Further adding to the chaotic, confusing nature of the "........." and merging carparks managed by EPS, the payment information appears to be different when comparing entrance signs and other signage in the carpark. In fact, EPS have admitted to customers that the signs in the "........" car park are wrong and inconsistent. Please see the negative reviews from yet more clients regarding this issue below;

a) “Paid for my parking still got a fine. This company is a total scam. They even advised me over the phone their cameras and signage is wrong! Avoid”

b) “Price at machine is 33% more than what the big billboard at entrance is advertising, misleading and deceiving. Would avoid on this basis alone”

4.9 In fact, the Claimant has not provided proof of signage audit by the Independent Parking Committee (IPC). Therefore, any mention that their signs follow the IPC’s standards in their Witness Statement and Reply to my Defence cannot be taken seriously until relevant evidence is presented.

4.10 In the following paragraphs I refer to Schedule 1 of the IPC’s Code of Practice, of which I have included a copy of in Exhibit …...

4.11 In Schedule 1 of the IPC’s terms and conditions, it is stated that:

‘Signage within the site must be such as to be obvious to the motorist. Text should be of such a size and in a font that can be easily read by a motorist”

EPS Ltd, therefore, fail to comply with the IPC’s Code of Practice and Section 7 of the GPOFA 2012 as no contract was clear to customers. .

4.12 Schedule 1 of the IPC’s Code of Practice also states the following:

‘If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.’

However, at the time of parking, it was heavy rain and dark. The dark blue sign, containing the tiny font was not illuminated. Therefore, EPS Ltd did not adhere to the conditions set out within the IPC’s Code of Practice. 

For the reasons stated in paragraphs 4.10 and 4.11, the Claimant also fails to comply with the GPOFA 2012 Paragraph 7.2. In summary, as no terms and conditions or offer was in clear sight, no legally binding contract was established between myself and the Claimant. For this reason, the signs were not presented clearly enough to establish a contract with myself according to paragraph 7 of the GPOFA.

5.0 EPS's POC is Invalid

5.1 In the POC written by the claimant, it states that EPS Ltd base their claim on the fact that the vehicle wasn’t “displaying a valid permit/ ticket”. However, their own signage in Exhibit E.1 states that customers can pay via means of App, online, or via phone systems, none of which generate physical tickets. EPS therefore give customers payment options which make it impossible to not receive PCNs and contradict their own contract.

EPS claim is that I parked in breach of the advertised terms and conditions; namely ‘Parked without displaying a valid ticket/permit.’ However, this term was not displayed on the Pay & Display car park sign or the Pay by Phone sign exhibited see Exhibit …. by the Claimant.  Accordingly, this term did not form part of the contract.  The terms and conditions are clearly written with users of the pay & display machines in mind, so they don't make sense for anyone who paid by App.

5.2 This is extremely misleading and unfair, and it does not comply with CPR 16.4 which sets out POCs must contain:

 i) the precise, concise factual allegations it makes against the Defendant and

ii) the factual or legal basis of its claim and

iii) exactly how its claim is calculated 

5.3 The POC should also contain an attached copy of the contract relied on, and must contain the exact wording of the clause of the terms and conditions of the contract which are relied on

5.4 The POC should also state every reason why the claimant believes that the defendant was in breach of the contract.

5.5 In the case of Civil Enforcement vs Mik Tak Chan, in August 2023 (Exhibit ....) the court struck out the claim due to the Claimant not meeting the above requirements in section 5 of the WS. 

5.6 In summary, EPS Ltd are using the terms and conditions/ instructions stated on the sign unfairly against myself and others! Due to the use of unfair terms, in compliance with paragraphs 1(c),(i), (j) and (m) in Schedule 2 of the UTCCR 1999, there could be no legally binding contract established according to paragraph 8.1 of the UTCCR 1999 and paragraph 62.1, 2 and 4 of the CRA 2015. Because there were no relevant terms of contract in place that could be applied, the Claimant also fails to comply with paragraph 2.1 of the POFA 2012.

5.7 This evidence also shows that EPS Ltd are guilty of acting in an unfair manner according to paragraph 1(o) in Schedule 2 of the UTCCR 1999. The Claimant has therefore breached requirements set out in paragraph 7 of the GPOFA by acting in manner of paragraph 62 of the CRA 2015.

6.0 EPS Fail to comply with directions given

6.1 EPS have also failed to comply with the Directions given, in that they were required to provide a copy of the agreement with the landowner (Excel have simply provided a leaseholder witness statement). See Exhibit ...... . This is argued in the case judged by district judge Davies in Derby 2023 to be a self-serving statement, as Excel produce this themselves and that their claim should be struck out on this basis alone. See: https://forums.moneysavingexpert.com/discussion/6382892/excel-parking-services-siddals-road-car-park-derby-i-won/p7  {not sure how to reference this}

6.0 Summary

6.1 Overall, using the payment information from the only clear signage available for the ............. carpark at the time (Exhibit….), I made the best effort possible to pay to park in ........... carpark for the duration of the time stated (and longer) by the Claimants PCNs. I have shown my receipt of payment for this in exhibit........

6.2 At the time there were several aspects that were confusing in regard to the layout of several merging carparks, two of which car parks both used signage with the same name “.........” carpark, making it impossible to know there were in fact separate.

6.3 Additionally, it was impossible for any customer paying via online/ App means could adhere to the terms of EPS Ltd’s signage and “display a permit” in order to avoid receiving a PCN. The sign therefore deliberately misleads customers into receiving PCNs and cannot form a contract with customers.

6.4 There are numerous similar complaints regarding the issues highlighted in my defence/ WS. With the stated problems affecting businesses and paying customers. EPS are engaging in such bad practice that the abuse of issuing PCNs caused has been raised with MPs/ courts and reported by the BBC. 

6.5 I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Costs......