Excel PCN - AoS submitted, defence drafted, advice appreciated

Snakes_Belly

B789 said:

It may be better to rewrite #5 like this:

As this is not a barrier car park, traffic is continuously moving and it would be impossible, not only for the Defendant but anyone to read a small sign that is supposed to have all the prominent terms. Therefore, no contract could be formed. The Defendant was aware that it was a paid car park and made every attempt to pay the correct tariff, did not disadvantage other users of the car park and did not overstay.

Brilliant. That has knocked Shoe Lane out of the picture before Excel have written their WS. 

Butterycrumpetlover

Thanks again for everyones input, I've done another draft early tonight comparatively. I'd love to get a bit of time in the day but work is hectic at the moment.

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3. For the date [PRIVACY] the Defendant had business in the town. The methods of payment were unreliable and overly complicated and, unbeknownst to the Defendant, it seems that the smartphone app that finally worked when the Defendant paid, defaulted to the wrong VRM. The Claimant had been aware of what happened on this day since [PRIVACY] as, in good faith, a futile attempt was made by the Defendant to resolve the dispute by supposedly ‘appealing’ using the self-serving in-house ‘appeal’ service. This appeal was rejected by the Claimant causing the Defendant to appeal via the (then non-independent) Independent Appeals service, only for the Defendant to realise afterwards this was a ‘kangaroo court’ designed to make 95% of victims pay.

4. The Defendant avers that this is a plainly extortionate charge with no legitimate interest to support it. This is not a situation where there is any genuine commercial value to be protected as a result of the Defendants actions. The Claimant has not suffered loss or pecuniary disadvantage as a result of the Defendants human error, incorrectly inputting the VRM into the smartphone app. The 'penalty' charge is unconscionable in this context, with the leading Supreme Court case of ParkingEye v Beavis distinguished.

5. As this is not a barrier car park, traffic is continuously moving and it would be impossible, not only for the Defendant but anyone to read a small sign that is supposed to have all the prominent terms. Therefore, no contract could be formed. The Defendant was aware that it was a paid car park and made every attempt to pay the correct tariff, did not disadvantage other users of the car park and did not overstay.

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Within the rest of my current defence there is reference to 'the keeper'. In this instance I am not 'the keeper', but just the driver on the day. Would it be recommended that this is changed or phrased differently to ensure it's most suited to my case?

Thank you

Coupon-mad

Have you added 'and driver' in the middle of para 2 as the Template Defence says to add?

Leave the later mentions of 'keeper' in the template because that's written to work for all cases, whether the D is the driver or not. For example, it talks about the 'maximum sum recoverable from the keeper' and you can't change that to 'driver' because that's not what the law says.  So leave the lower part of the template 'as is'.

This needs an apostrophe: "Defendants actions".

And I suggest adding here (my bold):

Therefore, no contract could be formed whereby the Defendant 'agreed' to pay £100 as a penalty (in all but name) when the Claimant's own app unfairly defaulted - without warning or alert - to another vehicle.  This common situation is no more than a 'keying error' at best, and the Claimant knows this fact yet continues to unjustly pursue the Defendant, purely to punish a parking app default error.  The Defendant was aware that it was a paid car park and made reasonable (and successful) endeavours to pay, did not disadvantage other users of the car park and did not overstay.  

Butterycrumpetlover

Coupon-mad said:

Have you added 'and driver' in the middle of para 2 as the Template Defence says to add?

Aye.

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2. It is admitted that the Defendant was the driver of the vehicle.
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That is the entirety of para2, as per template.

Coupon-mad said:

This needs an apostrophe: "Defendants actions".

I noticed more than 1 of these, thanks for the heads up.

Coupon-mad said:

And I suggest adding here (my bold):

Quality, thanks. Here is the current draft.

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3. For the date [PRIVACY] the Defendant had business in the town. The methods of payment were unreliable and overly complicated and, unbeknownst to the Defendant, it seems that the smartphone app that finally worked when the Defendant paid, defaulted to the wrong VRM. The Claimant had been aware of what happened on this day since [PRIVACY] as, in good faith, a futile attempt was made by the Defendant to resolve the dispute by supposedly ‘appealing’ using the self-serving in-house ‘appeal’ service. This appeal was rejected by the Claimant causing the Defendant to appeal via the (then non-independent) Independent Appeals service, only for the Defendant to realise afterwards this was a ‘kangaroo court’ designed to make 95% of victims pay.

4. The Defendant avers that this is a plainly extortionate charge with no legitimate interest to support it. This is not a situation where there is any genuine commercial value to be protected as a result of the Defendant’s actions. The Claimant has not suffered loss or pecuniary disadvantage as a result of the Defendant’s human error, incorrectly inputting the VRM into the smartphone app. The 'penalty' charge is unconscionable in this context, with the leading Supreme Court case of ParkingEye v Beavis distinguished.

5. As this is not a barrier car park, traffic is continuously moving and it would be impossible, not only for the Defendant but anyone to read a small sign that is supposed to have all the prominent terms. Therefore, no contract could be formed whereby the Defendant ‘agreed’ to pay £100 as a penalty (in all but name) when the Claimant’s own app unfairly defaulted - without warning or alert – to another vehicle. This common situation is no more than a ‘keying error’ at best, and the Claimant knows this fact yet continues to unjustly pursue the Defendant, purely to punish a parking app default error. The Defendant was aware that it was a paid car park and made reasonable (and successful) endeavours to pay, did not disadvantage other users of the car park and did not overstay.

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Le_Kirk

Butterycrumpetlover said:

 The Claimant has not suffered loss or pecuniary disadvantage as a result of the Defendants human error, incorrectly inputting the VRM into the smartphone app. 

Why are you accepting blame?  Maybe it was the claimant's system software that was at fault!

B789

Butterycrumpetlover said:

...the Claimant knows this fact yet continues to unjustly pursue the Defendant, purely to punish a parking app default error.

That bit doesn't sound right. Is the Claimant trying to "punish a parking app"????

Perhaps "...the Claimant knows this fact yet continues to unjustly pursue the Defendant, purely to punish them because of a parking app default error."

Snakes_Belly

"The Claimant has not suffered loss or pecuniary disadvantage as a result of the Defendants human error, incorrectly inputting the VRM into the smartphone app."

Did you actually input the VRN of the old car or did it default to the old VRN?. You were not expecting to have to use the app.

This would not have happened if their ticket machine had been working. Probably not emptied. 

 

Butterycrumpetlover

Using my phone here so I won’t try and edit in quotes.

I have to agree, the ticket machine wasn’t playing fair, not my fault but the Claimants. The app defaulted to the previous VRM due to a visit 6 months~ prior to the visit on that day, again not something that is wholly obvious. It didn’t prompt me to check it at the time from what I remember, but I know I was scrambling to pay it as it a busy day.

Snakes_Belly

Butterycrumpetlover said:

Using my phone here so I won’t try and edit in quotes.

I have to agree, the ticket machine wasn’t playing fair, not my fault but the Claimants. The app defaulted to the previous VRM due to a visit 6 months~ prior to the visit on that day, again not something that is wholly obvious. It didn’t prompt me to check it at the time from what I remember, but I know I was scrambling to pay it as it a busy day.

I would not say that you input the VRN incorrectly but that as you where unable to pay by the ticket machine you paid by app. You were unaware at the time that the app had default to the VRN of a car that was recently exchanged.

This action by the claimant is de minimis (trivial). It is of insufficient importance to involve litigation through the courts.  

What does de minimis mean in UK law?

De minimis is a legal principle which allows for matters that are small scale or of insufficient importance to be exempted from a rule or requirement. It can be used by the courts as an exclusionary tool to dismiss trivial matters from litigation.

Snakes_Belly

When dealing with this aggressive ex-clamping company you need to remain professional and firm but not overly polite. It's not like dealing with Marks and Spencer or John Lewis. Don't phone them or the debt collection agents. 

It is though quite an empowering experience to take them on. They are regularly beaten in court. Most of the Excel/VCS claims that have been heard in court where the defendant has made payment have been dismissed.