Excel parking fine - Help needed to review my CCJ set aside application documents

Coupon-mad

It's not good enough to just reference CEL v Chan.  That's not what I advised.

The Judge will not know about the case or be able to read the judgment unless YOU put it in as an exhibit.

To solve the issue that you never saw the POC you need to phone the CCBC in Northampton tomorrow and ask them to email the POC to you immediately.  Then you will have it.  Don't hang about.

You want this case struck out and your costs awarded and THAT CASE is your silver bullet.

Nor did I advise you to do this:

"Additionally, the Defendant would like to submit as evidence the attached witness statement which differs from the originally submitted statement by the addition of paragraph 10.2."

No.

We meant that you draw up a SUPPLEMENTARY Witness Statement, not alter the first one.

And the HHJ Much wording and this bit needs to be in the (attached as a PDF) signed & dated Supplementary WS, not in the body of the email:

The Defendant would like to note that prior to receiving this email, the Defendant had never seen the attached document sent by the Claimant which is titled 'CONSENT ORDER'. In fact, it is the Defendant's opinion that it is quite misleading for the said document to be titled 'CONSENT ORDER'. Rather, this document should be titled 'DRAFT ORDER' as it is merely the Claimant's unilateral draft of what they wish to be achieved. The Defendant, has never seen this document before and as such would like to reject it.

The Defendant would like to reiterate that they have made an application to seek costs as well as the claim being dismissed and the CCJ set aside.

Also I really don't like that HHJ Murch paragraph wording.  Use the wording in the thread by @vincentvega27 instead.

noubee

@Coupon-mad thank you for the feedback and for the tip regarding getting the POC emailed to me. Here are the details I received from the court.

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Please see your case details below as requested.

Claim No: KXXXXXXX

Claimant: EXCEL PARKING SERVICES LIMITED

Claimant solicitor:  ELMS LEGAL LIMITED

Telephone: N/A

Reference: EXXXXXXXXXXX

Judgment amount: £ 277.00

Particulars of claim:  THE CLAIM IS FOR A BREACH OF CONTRACT FOR BREACHING THE TERMS AND CONDITIONS SET ON PRIVATE LAND. THE DEFENDANT'S VEHICLE, VXXXXXX, WAS IDENTIFIED IN THE BRISTOL ROAD SOUTH, NORTHFIELD ON THE XX/XX/2022 IN BREACHOF THE ADVERTISED TERMS AND CONDITIONS; NAMELY PARKED AFTER THE EXPIRY OF THE TIME PURCHASED. 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 ENTERING INTO A CONTRACT BY CONDUCT. 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. THE CLAIMANT SEEKS THE RECOVERY OF THE PARKING CHARGE NOTICE, CONTRACTUAL COSTS AND INTEREST.

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Here is the email and supplementary witness statement that I plan to respond with. Kindly advise if any modifications need to be made.
I copied the wording for the HHJ Murch judgment from page 3 (paragraph 7) of the Google doc which was shared and linked in the thread by vincentvega27 and I plan to take screenshots of Exhibit 02 from the same Google doc as a reference to the full judgment.

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Dear Sir/Madam

The Defendant would like to submit a supplementary witness statement in response to this email.

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Witness Statement

In the Birmingham County Court

Claim no.: KXXXXXXX

Between:

Excel Parking Services Limited

Claimant

--- and ---

Bxxxxxxxxxxy

Defendant

 

Witness Statement

I, Bxxxxxxxxxxy of [Birmingham address], am the Defendant in this matter.

This is a supplementary witness statement in support of my application for an order to set aside the judgment dated xx/05/2023.

1.          I would like to note that prior to receiving the Claimant's email which was sent on 28/09/2023 with an attachment titled 'CONSENT ORDER', I had never seen the attached document sent by the Claimant.'. In fact, it is my opinion that it is quite misleading for the said document to be titled 'CONSENT ORDER'. Rather, this document should be titled 'DRAFT ORDER' as it is merely the Claimant's unilateral draft of what they wish to be achieved. I have never seen this document before and as such would like to reject it.

2.          I would like to reiterate that I have made an application to seek costs as well as the claim being dismissed and the CCJ set aside.

3.          I strongly believe the Civil Enforcement VS Ming Tak Chan Judgment to be against this Claim [attached in Appendix A], given that a recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the particulars of claim fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. I believe that the Claimant has failed to specify how Contract terms have been breached by my conduct in the particulars of claim.

Statement of truth: I, Bxxxxxxxxxxy, 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.

Signature:

Date: xx/10/2023

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For reference, here is the signage on the parking lot. I don't know if there's any point adding this when submitting the supplementary witness statement?

KeithP

noubee said:

Witness Statement

I, Bxxxxxxxxxxy of [Birmingham address], am the Defendant in this matter.

This is a supplementary witness statement in support of my application for an order to set aside the judgment dated xx/05/2023.

1.          I would like to note that prior to receiving this email, I had never seen the attached document sent by the Claimant which is titled 'CONSENT ORDER'. In fact, it is my opinion that it is quite misleading for the said document to be titled 'CONSENT ORDER'. Rather, this document should be titled 'DRAFT ORDER' as it is merely the Claimant's unilateral draft of what they wish to be achieved. I have never seen this document before and as such would like to reject it.

2.          I would like to reiterate that I have made an application to seek costs as well as the claim being dismissed and the CCJ set aside.

3.          I strongly believe the Civil Enforcement VS Ming Tak Chan Judgment to be against this Claim [attached in Appendix A], given that a recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the particulars of claim fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. I believe that the Claimant has failed to specify how Contract terms have been breached by my conduct in the particulars of claim.

Statement of truth: I, Bxxxxxxxxxxy, 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.

Signature:

Date: xx/10/2023

Para 1 of your Supplementary Witness Statement starts...
1.          I would like to note that prior to receiving this email...
What email?? Remember that whoever is reading this WS has probably not been keeping up to date on this thread.  

KeithP

noubee said:

For reference, here is the signage on the parking lot. I don't know if there's any point adding this when submitting the supplementary witness statement?

I've not read back through the thread, but has the difference between Excel Parking Services Ltd and Vehicle Control Services Ltd been discussed?

I find it interesting to note that in this picture you have shown us that in the right hand sign we can see Excel Parking Services Ltd welcoming us in to the car park, and in the left hand sign we have parking restrictions being spelt out by Vehicle Control Services Limited.

One wonders... does the left hand know what the right hand is doing?

noubee

Thank you @KeithP I have edited the paragraph 1 in the original post accordingly. Do let me know if that is okay to go ahead and submit.

Coupon-mad

noubee said:

Thank you @KeithP I have edited the paragraph 1 in the original post accordingly. Do let me know if that is okay to go ahead and submit.

For reference, here is the signage on the parking lot. I don't know if there's any point adding this when submitting the supplementary witness statement?

Hahaha!

There's another silver bullet right there!

Yes use that as an exhibit but only with the metadata showing the date & time you took the photo (or screenshot the photo which on an iPhone will display the data/time.  Don't show undated photos.

The reason this is a silver bullet?

That contract isn't offered by Excel Parking Services Ltd.  

STOP

DO NOT SUBMIT THIS YET!

Coupon-mad

Put something like this INSTEAD of your para 3:

3.  See exhibit Xxxx - this photograph shows the purported contractual sign at the location.  The red & white sign listing terms and conditions and a 'Parking Charge of £100' identifies Vehicle Control Services Ltd (a different legal entity, not this Claimant).  As such, the contract was not offered by this Claimant, who is a stranger to the bargain.  They are separate legal entities, being separate Ltd companies. The claim must fail on this point immediately.

4. See exhibit Xxxx - bank statements showing that I paid for two parking sessions that day and the Claimant knows this.  I purchased another ticket to extend my parking. Luckily, I paid by card and have no idea why the allegation in the Particulars of Claim ('POC') - which I obtained for the first time only today from the CNBC at Northampton - accuses me of being: 'PARKED AFTER THE EXPIRY OF THE TIME PURCHASED.' This will be robustly denied in my defence, if the Court orders me to produce one and allows this meritless claim to continue, but I believe these facts (in this paragraph and the preceding one) are enough to see the claim struck out.  If not, then further and in the alternative:

5.  The claim was issued via Money Claims Online and, as a result, was subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity. I trust that the court will agree at my application hearing, that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served nor was attempted to be served at the old address.  

6.  There is now a persuasive Appeal judgment to support striking out the claim, in circumstances of poorly pleaded private parking cases. What did I do wrong?  Given I received no letters because the Claimant did not bother to trace my address (a breach of the IPC Code of Practice) I know nothing about this and the PCN is disputed.  It is unclear because my parking time was paid for.  In addition, the period of parking is not stated (there is no 'time of breach' at all in the POC) so I don't know if I am being accused of the first ticket payment expiring, or the second one.  I don't know how long the Claimants are saying I was parked for, nor even how long they are suggesting I was parked after expiry. In short, whilst in this case a generic 'reason' for breach has been stated, the POC fails to specify when the breach occurred. Nor does the POC state the conduct which amounted to the alleged breach. 

7.  See Exhibit xxxx -  A recent persuasive appeal judgment in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44).  This case confirms that where the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside and costs awarded to the Applicant/Defendant.  On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the 'conduct which amounted to the breach' in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4 and award my costs in full, as happened in Chan appeal case (which also started with a N244 CCJ set aside application which was initially wrongly refused by the first learned Judge).


8.  I believe that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording and not bothering to check a Defendant's last recorded address before litigation, private parking firms should not be surprised when courts strike out their claims based in the above persuasive authority and award costs.

Le_Kirk

....... it's a car park, not a parking lot!

noubee

Cheers @Coupon-mad and @KeithP this is looking like a fantastic defence.
I would just like to caution that I did not personally take the above photo, but rather took a screenshot from the Google maps street view of that location. If submitting the photo to the court, would I then need to return to the car park and take the photo myself? Bear in mind that the orginal parking incident took place October last year, so If I go back there now, I can't be sure if the sign I'll see there is the same sign that was there last year.

Please advise.

Coupon-mad

Even better.  Independent evidence! Well if you took it from Google Streetview say so and attach a second full page screenshot that shows the date (on a laptop the date of image is displayed).

Obviously number all your exhibits. Your initials and a number.