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

KeithP

MysticDad said:

There is certainly more information that I would like to add.  I will provide an expanded Defence statement.

I think that's the wrong thing to do.

Surely you are wanting to 'expand' - or even 'provide' a Witness Statement together with evidence?

MysticDad

Sorry, I am obviously using the incorrect terminology.

At the Set Aside I provided a witness statement evidencing why the order should be set aside under Part 12 because it was incorrectly served, and exhibiting a draft Defence to show that I had reasonable prospects of success in defeating the claim once the order was set aside.

I understand that I now need to provide a new witness statement (not a defence statement).  This will cover the points raised in my draft defence, which briefly are:

1. I paid for Parking and have copy of the electronic receipt.
   
   
2. The purpose of the charge (a keying error is a technical breach for which the Claimant has not suffered any loss)
   
   
3. Lack of reasonable care and skill in providing the service - Breach of Consumer Rights Act S.49 in that the parking app used by the claimant doesn't comply with the IPC Code or Gov Code in that it makes no attempt verify the validity of the VRM or warn the user to check the details.
   
   
4. Lack of reasonable care in pursuing the charge, by failing to employ reasonable endeavours to locate the defendant resulting in an escalation of the claim (didn't do a credit check)
   
   
5. Double recovery

It will also also include some further points which came to light during the Set Aside. Briefly:

1. The wording on the claim "failing to display a valid ticket/permit" is for a breach of a term that does not exist on the terms & conditions given on the signage. There is a term which states "A valid Pay & Display ticket must be displayed inside the front windscreen of your vehicle with the date and time clearly shown.”  This term plainly solely applies to persons making use of the facility to pay for parking using the on-site pay and display ticket machine, whereas I paid using the mobile phone app. It is impossible for a user of the mobile app to display a ticked in their car.
   
   
2. Lack of Landowner Authority - The leaseholder witness statement provided at the Set Aside states the contract expired in 2018.
   
   
3. Lack of Landowner Authority - The leaseholder statement says they are authorised to pursue charges in accordance with the Approved Operator Code of Practice (and has a BPA logo).  The Claimant has not adhered to several key terms of the BPA AOC [which is not surprising because they are now an IPC member].
   
   
4. Failure to provide a copy of the full written terms of the contract.  The claimant has not provided full or accurate copies of the Signage on the date of the alleged incident.  The Defendant paid for parking using the Connect Contactless App, paying £2.50, plus a 20p administration charge.  The signage provided by the Claimant provides an entirely different pricing structure.  Accordingly, the photos of signage provided by the Claimant are either incorrect or incomplete.  The Claimant has therefore failed to provide a full copy the written terms of the contract between the parties.

Coupon-mad

The purpose of the charge (a keying error is a technical breach for which the Claimant has not suffered any loss)  and which should have seen no PCN issued - or the PCN cancelled once a keying error was discovered - according to the BPA CoP and also the new incoming statutory DLUHC Code of Practice, which identifies such PCNs as inherently unfair by setting motorists up to fail; a 'keypad error penalty clause' burden that is disproportionately imbalanced against consumers and contrary to the Consumer Rights Act 2015.

Coupon-mad

Head the WS up as a Supplementary Witness Statement and attach exhibits and a SIGNED copy of the defence which you are doing to prevent any confusion or objection by the Claimants.

MysticDad

I think I understand what you are saying.  This would be my statement   (I am not sure if I should Exhibit my defence statement?):

I   XXXX, being the Defendant in this case will state as follows;

I make this statement further to my previous Witness Statement of (26/09/2022), which was prepared as part of my successful application to have the Default Judgement Set Aside. As part of that statement I provided a Draft Defence.  The Claimant’s subsequent witness statement for that hearing provided copies of the Car Park Signage and Leaseholder Witness Statement (Exhibit ELS5).

I refer to my updated Defence statement dated 19/01/2023 based on the information first made available to me by the Claimant as part of that Set Aside application as Exhibit K.

Statement of Truth

I believe that the facts stated in this witness statement 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.

Coupon-mad

You can't 'update' your defence, just sign & date it and state it is appended to avoid any confusion or objection because previously it was in draft form.

MysticDad

Thanks all. I sumbitted my statement and signed the defence.

Excel have missed the deadline for submitting theirs (unless, I suppose they have posted it) , so presumably they have given up.

Le_Kirk

They have not given up (well they might have) but they will claim they did file and serve their WS on time and the court will give them leeway - far more than they give defendants in my opinion.  You can of course ask the judge not to allow the WS to be permitted at the hearing.

MysticDad

My suspicion is that they have forgotten about the deadline, with them ditching Elms after the Set Aside hearing. If it does end up going to the hearing then I'm not worried. They have a very weak case and I would quite enjoy hearing the judge's observations.

MysticDad

So, Excel missed the deadline to provide their statement, but the Court decided to give them an extension and I have now received a witness statement from them (dated 12 December 2022!).  Hearing is going ahead next week by video.

There is nothing new or surprising in their statement, and it is full of typos/spelling errors. 

Their claim is still 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

by the Claimant (image of terms below).  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 like me who paid by App.

They have still failed to provide any evidence at all relating to the App payment. My receipt says "Vehicle: Skoda" and they insist that this is where I should have entered the Vehicle Registration Mark, despite having no supporting evidence.

They 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).