Excel Parking + ELMS Legal - Claim form from Money Claims Online received
Hi all and thanks for your help in advance.
Apologies, English is not my first language and I have to admit I struggle with abbreviations, so be patient if I get some of them wrong ^.^
I received a Claim form from the Civil National Business Centre through Money Claims Online for a PCN from Excel Parking who instructed ELMS Legal to issue court proceedings.
- Entered the County House car park in Nottingham NG1 1HN on the 24/11/23 at 19.20.58. It was full.
- Waited 10 minutes to see if any space would become available then left the car park at 19.31.42 without physically been able to park the car.
Communications received/sent in time order:
- NTK on the 23/12/2022 asking £100 of charge (appealed to Excel Parking 0n 5/01/23) hxxps://www.dropbox.com/scl/fi/08cf5dm1sqe9hqhjgdrpc/NTK-Excel-Parking-23-12-22-28-Aug-2023-11-32-28.pdf?rlkey=97ibozradm1iur23et6t783tv&dl=0
- Appeal rejected on 19/01/23
- Appealed to IAS on 06/02/23
- Appeal rejected by IAS on 04/04/23
- "Demand for Payment" letter from Excel asking for £170 (£70 accounting for "debt collection costs") on 25/04/23 hxxps://www.dropbox.com/scl/fi/9855egfeofh1z6yondlp7/demand-for-payment-Excel-Parking-25-04-23-28-Aug-2023-11-34-18.pdf?rlkey=yvtmu1mm698sj5u3iv3cgb6lj&dl=0
- "Final demand" letter from Excel £170 on 10/05/23 hxxps://www.dropbox.com/scl/fi/ipuatr92qmq67zu99isb2/Final-Demand-Excel-Parking-10-05-23-28-Aug-2023-11-35-49.pdf?rlkey=dek2c2rgg25ss3credccvnbhb&dl=0
- Letter before claim from Excel 22/05/23 hxxps://www.dropbox.com/scl/fi/c4y43wsg0a4or81hlamtj/Letter-before-claim-22-05-23-28-Aug-2023-11-36-47.pdf?rlkey=cxy0locskp5vp82j64vzejyjx&dl=0
- Notification of Instruction from ELMS Legal on 23/06/23 asking again for £170 hxxps://www.dropbox.com/scl/fi/gksh93e5vl635bqpg9e9p/Notification-of-Instructions-Elms-23-06-23-28-Aug-2023-11-38-04.pdf?rlkey=6ufcrj6grgu7r8pw0cc4u3893&dl=0
- SAR sent to Excel Parking and communication to put the case on hold sent to ELMS Legal on 26/06/23
- SAR received 26/07/23
- "Claim form" from Civil National Business Centre on 23/08/23 hxxps://www.dropbox.com/scl/fi/28c9xr972438jqmpy6snc/Claim-form-MCO.pdf?rlkey=6k1ktbcrdu46n4pnce52lrpuy&dl=0
- "Notification of issue of proceedings" from ELMS Legal on 24/08/23 hxxps://www.dropbox.com/scl/fi/j6pa7v5m4xsjk1dhzf7di/notification-of-issue-of-proceedings-24-08-23-28-Aug-2023-11-39-12.pdf?rlkey=v4h2sa4vy8u4l1o6cm9uil1pu&dl=0
At night the signage inside the car park is not lit properly and they are impossible to read from inside the car, on top of that the signage at the entrance of the car park are positioned at a 90° angle to the road. A motorist has to enter the car park from a busy single lane road with cars parked on the left side of the road, has to make a 90° right turn and get into the car park reasonably quickly to avoid creating traffic on the mentioned road. This does not give the chance to fully read the two signs positioned at the sides of the entrance. Pics from Street view hxxps://www.dropbox.com/scl/fi/brave76krfemuxkpj2lqp/Pic-1-car-park-entrance.png?rlkey=wu8f8hrby0brjcsjy6yphzxwu&dl=0
After 29 days I then received a NTK stating that the APNR camera caught my car entering the car park and leaving without paying. I've then appealed to the parking operator stating that their NTK had been issued later than the relevant time of 14 days as required by the PoFA. They rejected it on the basis they never cited the PoFA on the NTK (true) and that they didn't state that I was liable as the vehicle keeper (it became clear that they assumed from the beginning I was the driver). So I appealed to the IAS thinking of having a strong argument with the non-compliance with the PoFA, the fact that they served the NTK 29 days after the event took place and some more evidence about the signage (difficult to read all the information on entrance and signage inside not lit at night). After some back and forth the appeal was dismissed by the adjudicator on the 04/04/23.
All of the appeals have been submitted by the keeper and the driver has never been named.
After that I’ve received numerous letters asking for payment which I ignored until I received the letter first letter from ELMS, to which I replied asking for a SAR to the PO and to put the case on hold to ELMS.
Now I’ve received the court paper with the issue date of 23/03/23 which gives me 14 days to acknowledge. As instructed on the NEWBIES thread I’m going to reply online after 5 days to get the 28 days extension which will bring the deadline to send my defence to the 24/09/23 (33 days after the issue date correct?)
I read the guidance and the instructions are brillaint and the template for the defence from which I’ll take the relevant parts.
I’m just unsure if these points need to be added to the defence or not:
- Despite mentioning (during the ISA appeal) that the PO is compliant with the IPC code of Practice in fact they are not. I’ve found that they breach the CoP in multiple occasions - On schedule 1 of the IPC Code of Practice is stated that: […] Operators need to ensure that all signs are readable during the hours of enforcement as they form the legal basis of any charge. If signs cannot be read then resulting charges that depend upon their content will not be enforceable. It was dark and there was no illumination. see this picture for reference hxxps://www.dropbox.com/scl/fi/p7jql8eqj29c9wvktehfn/Night-pic.jpg?rlkey=xx9wc04sfpumhkkrefvkjlpff&dl=0
- ANPR: The British Parking Association makes the following statement at poin t 21.1: “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.” The IPC Code of Practice states, also, at point 20.2: “Where ANPR technology is used, this must be clearly stated using appropriate signage. You must tell drivers what information will be captured and what this information will be used for.” On the signage there is only the ANPR logo but no explanation as to what the data acquired will be used for.
- Grace period: there is 5 minutes of grace period on the car park signs while on the NTK it mentions “the maximum period allowed is 0 minutes”. According to Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015 (S.I. 2015/561) which amended S.I. 2007/3483, The Civil Enforcement of Parking Contraventions (England) General Regulations 2007, the Government introduced a 10 – minutes grace period where it states that "No penalty charge is payable for the contravention where the vehicle has been left beyond the permitted parking period for a period not exceeding 10 minutes.". Furthermore the Department of Transport advises that any Penalty Charge Notice (PCN) issued within the 10-minute grace period is illegal. Does the grace period applies to the start of the parking or is it just at the end of it?
- Authorization from land owner. During the ISA appeal I asked proof of authorization from the land owner but they never produced any evidence stating that “A copy of our authority to manage parking on this site was supplied as part of the IPC audit process and is available solely to the Adjudicator for their perusal.” Is there ground here? Since they have already breached the IPC code of practice.
- On the charge of £170 there is £70 of debt collection cost. I’ve read a lot about the £60 charge that can account for Abuse of Process, I guess this is the same and I can use all the arguments regarding fees that exceed the £100. Maybe the £60 have now became £70 due to inflation XD
- Is there ground to pursue the non-compliancy with PoFA since it’s a requirement to be member of the IPC or should I focus on the other arguments? IPC Code of Practice point 21.1.13 which states that the NTK (for ANPR usage) is to […] be given so that it will be received by the keeper within 14 days beginning the day after.
- I read about a user, not_the_messiah, who managed to write to the BWLegal to ask about their legal athority to add the £60 charge and managed to scare them off and to get the case discontinued by them. Is it something I could try as well or in my case ELMS won't budge?
I'll be starting to draft the defence shortly, all advices are welcome.
PS: I had to chage the links to hxxps as I'm new here
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