Second of two claims from Excel - Now at WS stage

Coupon-mad

HamzaM21 said:

Coupon-mad said:

It's the legislation I mentioned above in my latest reply.  In full it is the Consumer Rights Act 2015.

It is mentioned in the template defence in a section relating to unclear signs and the fact the Act says they (consumer notices and terms) must be 'prominent' as well as terms being unambiguous and clear.  You could use those paragraphs from the Template Defence in your Witness Statement.

Can you show us your defence please, it will help us help you.

This here is the defence that I filled out and submitted on MCOL (my error, I admit that). I know that @B789 was saying that only part of it would have been transmitted to the claimant, however, it was not chopped short and this full narrative below is what was submitted and subsequently relayed to them: 

'The claim (as per the CCJ ‘Particulars of Claim’) is in relation to ‘a breach of contract for breaching the terms and conditions set on private land. The Defendant’s vehicle, {car reg}, was identified in the Copeland Street on the 14/06/2022 in breach of the advertised terms and conditions; namely Parked without displaying a valid ticket/permit. At all material times the Defendant was the registered keeper and/or the driver’. The particulars then continue and go on to mention that ‘the Defendant has failed to settle the outstanding liability’. This is I feel is incorrect, as the case should never have arisen in the first instance and a notice to keeper should never have been received in relation to this alleged breach. I have paid the claimant on the date of the contravention and have evidence of the payment being made on the date of the alleged breach.

In reference to the first point of the claim particulars ‘parked without displaying a valid ticket/permit’. Copeland Street, Derby utilises the Connect Cashless Parking application, which allows customers to pay for parking via the application, which is also deemed as a method listed under 'Pay by Phone' as per the claimants signage at Copeland Street car park [Evidence 1]. The application works by registering vehicles on the app and then selecting the vehicle on the day for whichever is parked. As a result, the application does not provide a physical ticket that needs to be displayed [Evidence 2]. The vehicle - {car reg} - involved in this alleged breach is one of 2 vehicles that I have registered on the application and on the day was listed as the default vehicle on my account [Evidence 3].

With reference to the second claim particular – ‘The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the defendant has failed to settle the outstanding liability’. I submitted an informal appeal to the claimant following receipt of a PCN, however, due to exceptional circumstances, my appeal was filed late and later denied as it was outside the allotted timeframe for appeals. As a result of a family bereavement, I was not able to follow this up with a formal appeal to the Independent Appeals Service (IAS) prior to receiving the CCJ. In my defence, a Parking Charge Notice (PCN) should never have arisen in the first instance and this case should not have reached the courts nor should the fine have accumulated to such value. The reason being that the parking tariff for the day - £2.70 – was paid on Tuesday 14th June 2022. My bank statement evidences this [Evidence 4a] [Evidence 4b] and the transaction is further evidence of the outgoing payment to ‘Excel Parking Services’ [Evidence 5]. This payment was taken from the debit card linked to the Connect Cashless Parking application. Therefore I do not believe there to have been a breach of the advertised terms and conditions, especially considering a valid outgoing payment was made to the claimant, meaning my vehicle was parked and had displayed a valid ticket/permit.

My defence includes photo evidence showing proof of outgoing payment on the date of the contravention, my vehicle details being registered as default on the parking system used in place at Copeland street and evidence of the claimants signage at the car park. These can be provided as and when requested. I am a law abiding citizen who observes the law and where I am at fault I will admit to wrongdoing, however, in this case the claimant has no jurisdiction to make a judgement as no wrongdoing was committed. The claimant has in turn caused me undue stress and anxiety as a result. The claimant has proceeded with this claim through forms of unwarranted harassment through making a false accusation, especially when terms and conditions were not breached.'

A reminder that this was the defence.

If you attached exhibits you will have to attach them again with the WS, along with the usual exhibits as the NEWBIES thread tells you.

We don't need to see their template WS again, please.  Always the same, as you will have seen when you read other threads about the same solicitor.  It's just a template we've seen before, so please spare us!

Please base your WS on the one in the NEWBIES thread. Show us your draft (but not the Claimant's WS please).

KeithP

When is your Witness Statement and evidence filing deadline?
Don't miss that.

Coupon-mad

Coupon-mad said:

Both claims are the same location and same cause of action. The one I have defended is the second claim and was filed after the first.

OK, so when you get to WS & evidence stage, MAKE A NOTE NOW to include the Henderson v Henderson argument about cause of action estoppel.

Search the forum if that wasn't in your defence, so you can raise it as a legal point in the WS.

It's not as if you will be ambushing the Claimant with something new, because they already know they filed 2 near-duplicate (and unnecessarily split) claims and that this second one is an abuse of the court system.  The second claim should be estopped.

And you haven't forgotten to include this of course?

Is this Excel or VCS?

And please can you edit the thread title as this isn't about setting a CCJ aside.

Please put something like 'second of two claims from Excel - now at WS stage' as the thread title

HamzaM21

Hi, thank you for all your help!. I will amend the name of the thread. This is for Excel Parking. I have read through the latest WS template uploaded to the newbies thread and they have mentioned Gladstones inflating the claim amount by 10.5% and being a roboclaim company to issue those fines, however, I had to deal with Elms Legal whom im not sure use roboclaim to inflate prices etc, but I do know that Elms Legal no longer represent Excel Parking services as I tried to deal with them and they mentioned that they no longer have any relation to Excel. Is there any way i can use that narrative and relate it to this claim please as that is a strong piece of evidence. Im working on this now and am due to have it submitted tomorrow by 4pm, but hoping to get it filed asap either tonight or tomorrow morning. Thanks again

Coupon-mad

You just remove the section about Gladstones 10.25% and replace four of baz's seven Exhibits with your own.

It is obvious which three are standard exhibits.

Of course you must also change the facts section and change the part dissecting their lack of evidence in the WS, with your own version! 

You also need to add the words about woeful POC and the transcripts, seen in the thread by @xavian1234

Build the jigsaw by copy & paste from other threads (as above) plus your own facts and photos. Easy!

Add a costs sheet and you are done.

HamzaM21

KeithP said:

When is your Witness Statement and evidence filing deadline?
Don't miss that.

Tomorrow by 4pm, but im hoping to get it done tonight and sent off first thing in the morning. I also cant find the exact Henderson vs Henderson part of the claim. I have searched the forum, but cannot find it anywhere except an excerpt about the case which is 1 paragraph. 

Coupon-mad

You only need the paragraph not the case, as it is very old, well known trite law.

Show us your draft WS and wait for comments first as we can help perfect it.

HamzaM21

How do i post the full WS as I cant seem to attach the file directly from my laptop?

KeithP

HamzaM21 said:

How do i post the full WS as I cant seem to attach the file directly from my laptop?

Put it in a Dropbox file and post a link to it in the thread.

Coupon-mad

Or just copy & paste it into two replies.  

Redactibg your data out of course.