Excel Parking + ELMS Legal - Claim form from Money Claims Online received

Lokisan88

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.

The facts:

- 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

Additional info:

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

hxxps://www.dropbox.com/scl/fi/gdv1rnbo06rdmzi3ktney/pic-2-car-park-entrance.png?rlkey=t2nnhseuko1jrsdznzxt8yy33&dl=0

hxxps://www.dropbox.com/scl/fi/3k1qs4jz1ydmw8c7d80v5/pic-3-car-park-entrance.png?rlkey=jzbxca5da4gdic13lb8u2hpyi&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.

Questions

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

Le_Kirk

I started going through your images and making them live BUT you have several instances of your VRM or your claim number visible so I stopped.  Make sure you redact ALL personal info and then, when you post that you have done that, I (or someone) will carry on and finish: -

https://www.dropbox.com/scl/fi/p7jql8eqj29c9wvktehfn/Night-pic.jpg?rlkey=xx9wc04sfpumhkkrefvkjlpff&dl=0

https://www.dropbox.com/scl/fi/08cf5dm1sqe9hqhjgdrpc/NTK-Excel-Parking-23-12-22-28-Aug-2023-11-32-28.pdf?rlkey=97ibozradm1iur23et6t783tv&dl=0
https://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
https://www.dropbox.com/scl/fi/c4y43wsg0a4or81hlamtj/Letter-before-claim-22-05-23-28-Aug-2023-11-36-47.pdf?rlkey=cxy0locskp5vp82j64vzejyjx&dl=0
https://www.dropbox.com/scl/fi/gksh93e5vl635bqpg9e9p/Notification-of-Instructions-Elms-23-06-23-28-Aug-2023-11-38-04.pdf?rlkey=6ufcrj6grgu7r8pw0cc4u3893&dl=0
https://www.dropbox.com/scl/fi/28c9xr972438jqmpy6snc/Claim-form-MCO.pdf?rlkey=6k1ktbcrdu46n4pnce52lrpuy&dl=0
https://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
https://www.dropbox.com/scl/fi/brave76krfemuxkpj2lqp/Pic-1-car-park-entrance.png?rlkey=wu8f8hrby0brjcsjy6yphzxwu&dl=0

https://www.dropbox.com/scl/fi/gdv1rnbo06rdmzi3ktney/pic-2-car-park-entrance.png?rlkey=t2nnhseuko1jrsdznzxt8yy33&dl=0

https://www.dropbox.com/scl/fi/3k1qs4jz1ydmw8c7d80v5/pic-3-car-park-entrance.png?rlkey=jzbxca5da4gdic13lb8u2hpyi&dl=0

Now made live for you after you said properly redacted.

B789

Welcome. Considering that English is not your first language, it is certainly better than some for whom it is their only language!

You seem fairy clued up on the process. As long as you have't inadvertently identified the driver, there is no real cause of action. However, the intellectually malnourished bottom feeders at Excel don't really care and all they are interested in is getting low-hanging fruit from the gullible tree to capitulate at the mere threat of court action and paying into their scam

The second post in the Newbies/FAQ thread gives you all the information required to deal with this. The update template defence and your own paras #2 and #3 will be all that is needed for now.

Remember, you are only answering the vague, ambiguous and poorly stated clam in the PoC. Don't do the scammers work for them by writing out a long story. Giver a s little as necessary and you can fill in the rest at WS time.

As long as you do your AoS after the 28th August and before 4pm on the 11th September you will then have until 4pm on the 25th September to submit your defence. @KeithP will confirm.

KeithP

Lokisan88 said:

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?)

Hello and welcome.
You appear to have a good grasp of the situation.

With a Claim Issue Date of 23rd August, you have until Monday 11th September to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 25th September 2023 to file your Defence.

That's over 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 again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that 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'.

Lokisan88

Le_Kirk said:

I started going through your images and making them live BUT you have several instances of your VRM or your claim number visible so I stopped.  Make sure you redact ALL personal info and then, when you post that you have done that, I (or someone) will carry on and finish: -

Apologies for that. They are now correctly redacted. I havent found any with my VRM though, I redacted all the one containing the claim number. 

Le_Kirk

Lokisan88 said:

Le_Kirk said:

I started going through your images and making them live BUT you have several instances of your VRM or your claim number visible so I stopped.  Make sure you redact ALL personal info and then, when you post that you have done that, I (or someone) will carry on and finish: -

Apologies for that. They are now correctly redacted. I havent found any with my VRM though, I redacted all the one containing the claim number. 

All made live. I can't find the one with a VRM visible now. We see so many posts per day, it could have been on another thread!

1505grandad

"ANPR: The British Parking Association makes the following statement at poin t 21.1:...."

A heads-up  -  no use quoting the BPA CoP for anything to do with Excel (IPC AoS members)

Lokisan88

I drafted the defence as follows taking the template from the NEWBIES thread. 

I structured my defence on a few points. The non compliance with the PoFA in issuing the NTK wich is a requirement to be member of the IPC and to obtain data from DVLA as per point 11; the insufficient visibility of the signs at night and the subsequential non compliance with the IPC Code of Practice (again!); the failure to prove a breach of contract on the basis of the grace period.

What do you guys think?

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd

(Claimant) 

- and -  

Defendant named on claim

 (Defendant)

_________________

DEFENCE

 

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case.  The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper and the driver of the vehicle.

3. The Claimant consistently emphasizes its affiliation with the IPC in all communications with the Defendant and asserts alignment with the Code of Practice in its operations. To obtain accreditation within the International Parking Community (IPC), all members must follow the guidelines outlined in their Code of Practice.

4.The Claimant has issued a Parking Charge Notice / Notice to Keeper (NTK) to the Defendant on the 23rd December 2022. Said notice was dispatched subsequent to the automated number plate recognition (ANPR) camera system recording the Defendant’s motor vehicle into the premises of County House Car Park, situated in Nottingham NG1 1HN, followed by egress therefrom after a temporal interval of ten minutes, occurring on the 24th of November 2022.

5. It is of legal import to note that the Claimant has tendered the aforementioned NTK some twenty-nine days subsequent to the occurrence of the purported vehicular contravention. Such sequence of issuance, by extension, is demonstrated to be in contravention of the temporal framework as established within Schedule 4, Paragraph 9 of the Protection of Freedoms Act 2012 (PoFA 2012), which states - "The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period; The relevant period is defined – at the same paragraph - as “the period of 14 days beginning with the day after that on which the specified period of parking ended.”

It is imperative to duly observe that the claimant has, regrettably, not demonstrated adherence to either subsection (a) or (b). Consequently, this non-adherence leads to a discernible shortfall in achieving compliance with the provisions outlined in the Protection of Freedoms Act 2012 (PoFA 2012).

6. The Independent Parking Community (IPC) Code of Practice states – at point 25.1 - “The Code complements the relevant legislation and related guidance, which will define the overall standard of conduct for all Operators. Operators must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.   Examples of relevant law and guidance within this sector are:

g) Protection of Freedoms Act 2012, including Schedule 4;”

The Claimant, being bound by the mandates set forth within the Independent Parking Community (IPC) Code of Practice, is obligated to rigorously observe the specified timeline delineated in the PoFA 2012. As a natural consequence of the foregoing, the Defendant asserts a repudiation of the Claimant complete adherence to the precepts outlined within the IPC Code of Practice and the PoFA (2012). Consequently, it logically follows that the issuance of the aforementioned Notice to Keeper (NTK) is fundamentally flawed and, by implication, lacks legal efficacy. In this regard, the legal principle of "no keeper liability" assumes paramount significance. The Defendant submits that any potential cause of action instituted against them in their capacity as the registered keeper is inherently deficient and devoid of legal merit.

 

Insufficient Signage Visibility.

7. The International Parking Community (IPC) Code of Practice specifically delineates, in Schedule 1 under the title of "Signage," the following: “If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting.”

8. The purported transgression occurred during the nocturnal hours, thereby significantly affecting the visibility of the signage installed within precincts the County House Car Park. The limited lighting conditions made it extraordinarily difficult to adequately read and comprehend the terms and conditions displayed. The constricted luminosity prevailing at that juncture rendered the process of discerning and assimilating the terms and conditions enunciated therein a task of exceptional challenge.

9. Furthermore, it is imperative to note that the primary sign situated within the confines of the aforementioned parking facility was conspicuously devoid of illumination. This absence of adequate lighting renders the signage illegible from the interior of a motor vehicle. In light of this circumstance, any affirmation made by the Claimant asserting the "clear display" of the terms and conditions stands contradicted, manifesting as both factually inaccurate and misleading.

10. The complexity of the scenario was exacerbated by the spatial arrangement of the dual signs sited at the ingress of the aforementioned parking facility. These signs were situated at a perpendicular angle of 90 degrees in relation to the heavily trafficked and constricted primary thoroughfare. This specific orientation effectively denies motorists any feasible occasion to prudently bring their vehicles to a complete stop and conscientiously assimilate the contents inscribed upon these signs prior to effecting ingress into the car park premises.

11. In ParkingEye Ltd v Beavis [2015] UKSC67 at paragraph n.95 it is stated - “Since 2007, the policy of the Secretary of State has been to disclose the information for parking enforcement purposes only to members of an accredited trade association. The criteria for accreditation were stated in Parliament Page 41 to include the existence of “a clear and enforced code of conduct (for example relating to conduct, parking charge signage, charge levels, appeals procedure, approval of ticket wording and appropriate pursuit of penalties” (Hansard (HC Debates), 24 July 2006, col 95WS).”

12. As per the foregoing elucidation, a contract could not have formed between the Claimant and the Defendant, given that the prerequisites for such contractual establishment have not been duly satisfied.

Failure to Prove Breach of Contract

13. Under section 13.2 of the IPC Code of Practice, a grace period is established as follow: “Before a Parking Charge is issued Motorists must be allowed a Grace Period save and except when 13.3 is applicable. A Grace Period is a 10 minutes period at the end of a Permitted Period of Parking.” This aspect is further highlighted by the Government through the Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2015 (S.I. 2015/561) which amends S.I. 2007/3483, The Civil Enforcement of Parking Contraventions (England) General Regulations 2007, particularly at point 3, which explicitly states: " 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."

14. Under section 13.3, the same IPC Code of Practice states: “A Grace Period is not required when the Permitted Period of Parking does not exceed 1 hour providing that the signage on the site makes it clear to the Motorist, in a prominent font, that no Grace Period applies on that land.” The signage present within the premises of County House Car Park does not expressly reference the non-existence of a Grace Period, as stipulated in point 13.3 of the Independent Parking Community (IPC) Code of Practice. On the contrary the signage explicitly indicates a Grace Period of 5 minutes. The IPC Code of Practice also defines “Permitted Period of Parking” as “a period where all terms and conditions of parking are complied with”.

15. The claim is predicated upon an alleged violation of terms and conditions concerning a 10-minute overstay. The Claimant asserts that the Defendant's vehicle was situated within the car park without the purchasing of a valid pay and display ticket. However, it is evident that the Defendant's vehicle entered the County House Car Park at 19:20:58 on the 24th of November 2022 and departed at 19:31:42 on the same day, resulting in a total duration of approximately 10 minutes spent within the car park. This duration comfortably falls within the Grace period delineated in the Independent Parking Community (IPC) Code of Practice.

16. Considering the aforementioned details, coupled with the allowance of 5 minutes of free parking as indicated by the signage within the County House Car Park, the purported contravention indisputably occurred well within the Grace period delineated above. As a result, it is manifestly apparent that no violation of the terms and conditions, as alleged, has taken place. Additionally, it is essential to emphasize that the Defendant's vehicle was not parked; rather, it remained in motion while awaiting an available parking space. This critical distinction implies the absence of any contractual agreement entered into with the Claimant, given that the Defendant's vehicle did not occupy a designated parking space during its time within the premises.

After this I'll add all the points from the template and the conclusion.


Few questions arises:
- at point 16, is it still relevant/accurate saying that waiting for parking is not parking? The legislation seems to be vague about the definition of parking
- is it advisable to say that the car park allowes for 5 minutes of free parking to back up the fact that the overstay is just 5 minutes and not 10? Or is it better not to mention those 5 minutes and focus just on the grace period of 10 minutes defide by the Code of practice and the government?
- are all the points relevant at the defence stage? 
- Is it too long? Did I miss any important point?

I'm going to take some pics of the car park signs as well so you can see if point 10 is relevant.

Coupon-mad

Para 5 has no legs at all if you are admitting to driving.  The two points conflict.

What do you mean by 'temporal'?  It doesn't mean what you think.

KeithP

There's lots of 'too clever' English in there.

Keep it simple.

For example, I would replace "the signage installed within precincts the County House Car Park" with "the signage installed within the  precincts of the County House Car Park".

Another example... "at a perpendicular angle of 90 degrees".  What else other than 90 degrees can 'perpendicular' mean?

Lokisan88

Coupon-mad said:

Para 5 has no legs at all if you are admitting to driving.  The two points conflict.

What do you mean by 'temporal'?  It doesn't mean what you think.

Thank you, I was wondering exactly the same. I'll redact it without para 5. Is it worth cutting out all the paras regarding the keeper liability if I'm stating I'm the driver?