Excel Parking Services - Siddals Road car park Derby -(I WON!)

MysticDad

I have two queries which I hope people on here may be able to advise on:


My questions are as follows:

1) The Gov Code of Practice was formally introduced (Feb 2022) prior to the Claim being issued (March 2022).  This states that operators should undertake reasonable endeavours to trace the driver. They have charged an extra £60 Debt Collection fee.   I'm aware that BRITANNIA PARKING GROUP LTD & MATTHEW SEMARK-JULLIEN established that debt collection fees should not automatically result in cases being struck out. Their response to my subject access request supports my suspicion that they did not make any additional effort to trace me.  The company were clearly aware of the code of practice and therefore knew that automatically adding such fees were unlawful. The Code of Practice states that “The publication of this Code ... marks the start of an adjustment period in which parking companies will be expected to follow as many of these new rules as possible.  I'd argue that not escalating costs is something that the parking company could and should have implemented as soon as the COP was published.  Therefore I am minded to argue that the company knew that the £60 claim was an abuse of process and should be struck out.   Does this argument hold water?

2) If the claim is not struck out then given that this was a major keying error my feeling is that a Court would deem it reasonable for me to pay something to the parking company. The Code states a max of £20. I anticipate the parking operator will argue that because my V5C wasnt up to date then I should be liable for the whole £100 and should not have the opportunity to go through the IPC.  For clarity, my V5C was updated by DVLA after the company's second letter (final reminder) was sent, so was up to date before they issued their third letter (Demand for Payment).

Umkomaas

Therefore I am minded to argue that the company knew that the £60 claim was an abuse of process and should be struck out.   Does this argument hold water?

No longer termed as such since Semark-Jullien, and will the case will almost never be struck out because of it - instead argue double recovery. Judges are dismissing the add-on (not the whole case) almost by default where the claim is fully defended.

For clarity, my V5C was updated by DVLA after the company's second letter (final reminder) was sent, so was up to date before they issued their third letter (Demand for Payment).

The PPC has just one, single opportunity to access your details from the DVLA - at the time of the parking event. Even if you subsequently update your details with the DVLA, the PPC is never further updated, nor are they able to check your details with the DVLA when issuing court proceedings. That however, is not an excuse for not checking your details via other methods, such as a soft trace, which can cost as little as 29p!

Which PPC and which solicitors are acting for them - advice can be different depending on players involved?

Coupon-mad

 The Code states a max of £20.

It doesn't.

The applicable code is the IPC CoP and it doesn't state that.  The BPA CoP does, but that's irrelevant.

The new draft statutory CoP from the DLUHC doesn't say £20 either. It's fairer than that.

It says all keying error situations must see the PCN cancelled (completely) on appeal.  The aim is to disincentivise PPCs from using dodgy machines where the burden falls upon the driver to key stuff in that could trip them up, AND to be less keen to issue such PCNs in the first place without checking for close-match VRMs, because they'll know the Appeals Charter will wipe them out.

You notice I said 'draft CoP' from the DLUHC?  It never was 'law' because although it was published and no MPs stopped it, two Judicial Reviews have blocked it.  And even if they hadn't temporarily stalled its effect, the Code wasn't implemented yet.  It will be in the end but never was, yet.

MysticDad

Thanks very much

Umkomaas

MysticDad said:

Thanks. 

The parking company is Excel Parking Services. The solicitors are Elms Legal. 

Which PPC and which solicitors are acting for them - advice can be different depending on players involved?

Well this is where knowing which PPC/legal is involved can be important. In too many cases with Excel (and their sister company VCS) when the case gets to the court hearing they (via their representing advocate) will state they have not received your Witness Statement and evidence and ask for (and are too often given) an adjournment, meaning you have to send them the documentation, yet again, and take yet another day off work to attend the second hearing. 

Be aware and ensure you send your documentation via email with both the court and Excel email addresses together in the address bar, then if the court have it, then so do Excel.

Fruitcake

Send it to yourself as well. If you receive it (take a screenshot and add it as an exhibit), and the court receives it, then on the balance of probabilities, the claimant received it as well.

MysticDad

Thanks for the tip.  I have emailed Excel and they have acknowledged receipt. I will make sure I bring proof of this with me 👍

Coupon-mad

MysticDad said:

Thanks for the tip.  I have emailed Excel and they have acknowledged receipt. I will make sure I bring proof of this with me 👍

Have you copied the skeleton argument with the 5 attachments, shown by @Brokenchief to support the argument that not only should the CCJ be set aside, but the claim is 'dead' and must be struck out?

MysticDad

Right, thank you for your replies .  Latest update is that after I made my application to Set Aside, based on advice from here and other resources I submitted a revised witness statement (with draft defence as an exhibit).

Elms have now phoned me up and said they would agree to provide a consent order:

I asked them to put it in writing, which they did by email at 4.30pm, giving me until midday the next day to respond. It states:
1. Judgment set aside
2. Claim allocated to small claims track
3. No order as to costs

I believe that 'no order as to costs' would mean me accepting that I cannot claim my £275 Set Aside application fee from them, even in I am successful in defending the claim?

I've responded saying
- I welcome that they agree the order should be set aside
- Expecting a reply from me at such short notice is unreasonable
- Clarification on what 'no order as to costs means'
- Given that they previously refused my request for consent (without giving any reason), I had to pay the full fee and therefore I am seeking to recover those costs.

Am I on the right lines here, and what consent order should I be seeking?

Grizebeck

You certainly dont agree no order as to costs
As yes your right in your thinking about costs

MysticDad

Thanks Grizebeck.  Desperately underhand from the claimant. In the phone call they made out that it was in my interests to agree to their proposal because it meant that I would have the opportunity to get on and defend the claim. Presumably the short deadline to respond was intended to restrict my ability to made an informed decision on how to proceed.

I don't anticipate that they will come back with a revised consent order. Otherwise they have a week left to file a witness statement in response.