Excel PCN - AoS submitted, defence drafted, advice appreciated

Butterycrumpetlover

EDIT: I won this in court with a judge thanks to the help and guidance of this forum. See page 9 for my write-up, or click here.

---

Hello,

Firstly I want to thank everyone who has put together the plethora of information available both on these forums and hosted off site. It is well and truly appreciated whether you know it or not. I imagine there is a quiet majority who don't register for the forum and voice this opinion, so thank you again for that work done.

Having read a lot on these forums, bookmarked various pages and waited eagerly for this stage of the process I'd like to firstly offer some information to help you understand where I'm at and hopefully help clarify what my timeline is.

I received a claim form with issue date 22-Mar-2023 from CCBC. I submitted my acknowledgment of service on 27-Mar-2023, 5 days after the issue date as suggested, and have written a rough draft including the template from this thread: https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1

With that in mind please can someone advise me as to what my deadlines are?

My defence draft is currenty fairly war and peace which I am aware isn't advised but will be shortened over the next week or so, or perhaps with the help of the users of these forums. I figured I would just write out loads and then trim down, using the initial write-up as basis for the witness statement at a later date. I believe I am currently at around halfway through point 3 of this thread which I found within the newbies thread: https://forums.moneysavingexpert.com/discussion/5546325/court-claim-procedure-updated-october-2016/p1

My situation is as follows: Have parked in this carpark before (around 6 months prior) and paid on the app. On the day the physical payment machine was behaving badly so opted for smartphone app but forgot to change VRM from old car to new car. The app was behaving badly accepting apple pay on the day so took over 15 minutes to pay but did eventualy pay for 2 hours parking. From entry to exit was under the 2 hours paid for, irrelevant of whatever clauses or terms they may advise I've broken.

My current defence draft is as follows, with privacy redaction in square brackets which should hopefully still make sense even if I might have overdone it. Better safe than sorry I guess!

---"

3. For the date [PRIVACY] the Defendant had business in the town that the car park is located in to do some shopping. The Defendant had difficulty on the day to pay at the physical payment machine and with the smartphone application, but did eventually succeed to pay.

4. Shortly before this date the Defendants partner had sold the car with the VRM [CAR-1] and bought the car with the VRM [CAR-2] (the Defendant is insured and can provide proof if necessary).

5. When attempting to complete the payment for a ticket costing [PRIVACY] for 2 hours the Defendant faced errors and issues, with multiple systems, causing the payment to not complete promptly within minutes of their arrival time, not for want of trying. The Defendant faced issues when attempting to pay with the physical machine in the car park and after some attempts opted to pay with the smartphone application as they had done in the past. It took the Defendant multiple attempts, with minutes waiting for the transaction to fail in between, before the defendant had success with the payment on the smartphone application.

6. When using the smartphone application to pay for parking the Defendant forgot to change the VRM from [CAR-1] to [CAR-2]. The Defendant had in the past used the smartphone application to pay for parking at the same car park for the car with the VRM (Removed by Forum Team) with success (approximately 6 months prior), hence the smartphone application remembered this and suggested it.

7. The time of entry was [ENTRY] and the time of exit was [EXIT], a total time of [PRIVACY] minutes and the Defendant had paid for 120 minutes. The time of successful payment, according to the VAT receipt provided by the smartphone application, was [PRIVACY], giving the Defendant 2 hours paid until [PRIVACY]. It took the Defendant [PRIVACY] minutes to have success paying the [PRIVACY] fee. Within these [PRIVACY] minutes the Defendant had to enter the car park, park the car, get to the physical payment machine and realise it was non-functional, re-download the smartphone application, open it, and log in to begin to attempt to pay for the parking. With this in mind the time taken to enter, park and pay subtracted from the time of exit paid for gives a time of stay of [PRIVACY] minutes, [PRIVACY] minutes less than the paid for 120 minutes.

"---

 If I have misread and broken any rules, missed any really obvious steps or given away who I am please don't hesitate to let me know and I will make amends as soon as possible.

Thanks in advance for any advice or suggestions offered, much appreciated.

KeithP

Butterycrumpetlover said:

I received a claim form with issue date 22-Mar-2023 from CCBC. I submitted my acknowledgment of service on 27-Mar-2023, 5 days after the issue date as suggested...

With that in mind please can someone advise me as to what my deadlines are?

With a Claim Issue Date of 22nd March, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 24th April 2023 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

I think you can put all that far more concisely to refute the allegations in the claim.

Can you copy & paste the Particulars of Claim here please (minus the VRM!)?

Is the claim filed by Elms Legal, or by Excel?

Butterycrumpetlover

Coupon-mad said:

I think you can put all that far more concisely to refute the allegations in the claim.

Can you copy & paste the Particulars of Claim here please (minus the VRM!)?

Is the claim filed by Elms Legal, or by Excel?

Thank you. The claim is filed by ELMS.

Particulars of claim are as follows;

"The Claim is for a breach of contract for breaching the terms and conditions set on private land. The Defendant's vehicle, [PRIVACY], was identified in the [PRIVACY] Car Park on the [DATE] in breach of the advertised terms and conditions; namely Parked without purchasing a valid Pay & Display ticket for VRM. At all material times the Defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The sign was the offer and the act of entering private land was the acceptance of the offer hereby into a contract by conduct. The signs specifically detail the terms and conditions and the consequences of failure to comply, namey a parking charge notice will be issued, and the Defendant has failed to settle the outstanding liability. The Claimant seeks the recovery of the parking charge notice, contractual costs and interest."
 

Coupon-mad

I very much doubt the original NTK said exactly this:

"Parked without purchasing a valid Pay & Display ticket for VRM."

Butterycrumpetlover

Coupon-mad said:

I very much doubt the original NTK said exactly this:

"Parked without purchasing a valid Pay & Display ticket for VRM."

The original NTK said "Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site. The Maximum period allowed at this site is 0 minutes" under "Contravention reason".

Coupon-mad

Did you ever appeal it, such that Excel knew this was just a keying error all along?

Butterycrumpetlover

Yes I appealed on that point with Excel, they were "unable to accept" my appeal, would you believe. Unfortunately, naively, I also appealed with the IAS too at this point. It was around this time last year that I sought further advice and came across the advice on these forums post-IAS.

Coupon-mad

Now THAT should be in your defence.  It is great that you disputed it and they knew all along from within weeks, that this was just a keying error.

It blows apart any argument they might otherwise have had.

They cannot now argue 'commercial justification' and 'legitimate interest' which is what saved the £85 parking charge in ParkingEye v Beavis from being struck out as a penalty.

A parking firm cannot just punish people for human error.  The Beavis case judgment effectively says so, and the new statutory CoP that is replacing the self-serving and wishy-washy IPC CoP also effectively says so.

Here's some homework for you; adapt this defence point to read well to suit your case:
https://forums.moneysavingexpert.com/discussion/comment/79950834#Comment_79950834

That will work as a point 4 (edited by you to make sense).

Para 3 should concisely say what happened and that the Claimant has known this since (month/year) because in good faith, a futile attempt was made by the Defendant to resolve the dispute by supposedly 'appealing' using the self-serving in-house (then non-independent IAS) portals, which the Defendant only realised afterwards was a 'kangaroo court' designed to make 95% of victims pay.

Let's see your next draft.

Snakes_Belly

Which car park? 

Snakes_Belly

"The original NTK said "Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site. The Maximum period allowed at this site is 0 minutes" under "Contravention reason".

How come there is 0 mins consideration time allowed?

You have made every attempt to comply wth the terms of their contract. You may have got a bit distracted regarding the VRN as you had such difficulty in paying due to the failure of their equipment.

Let's eee what their signage looks like.

They are an aggressive ex clamping company that do a lot of sabre rattling but their arguments frequently fall apart when facing a judge. They don't face the judge themselves but employ an ill prepared rep to put their head above the parapet.