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

Lokisan88

KeithP said:

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?

Thanks for the imput, I'll redact it to keep it simple. I though I had to use a more formal tone.

B789

Is Charles Dickens in the room? Using archaic language like that does nothing for your defence except to make you sound pompous. What's the point of admitting to being the driver if you're trying to rely on the PCN being non-PoFA?

What is the point of para #3 except to state the bleedin' obvious? What has that got to do with a defence of some woefully inadequate PoC?

What's the point of para #4, again stating the bleedin' obvious? If that's what the PCN states, what is the point of repeating it without argument or defence? "...followed by egress therefrom after a temporal interval of ten minutes..." is just extracting the urine for the reader. "temporal"... relates to worldly as opposed to spiritual affairs or of or situated in the temples of the head!!!   

Para #5, as pointed out above by @Coupon-mad, superfluous if you've already admitted to being the driver.

I gave up after that. Perhaps you ought to do a search for any of the hundreds of defences posted here to get a better example of what to put in your own paragraphs. Just a reminder though, that you are answering the woefully inadequate PoC and so should KISS. Just a statement of why you were at the location and what wasn't obvious that caused you to allegedly breach their terms and conditions, if you know or full denial if you don't.

Le_Kirk

When you rewrite it (without all the too "pompous" language) just please post only those paragraphs that you have added or altered away from the template, we don't need to check the rest of the template.  Note also that evidence goes later at witness statement stage.

Lokisan88

I amended the previous draft followig your advice. I deleted all the paras related to the PoFA and keeper liability as I'm admitting being the driver. Is that correct? I've read on other threads that there is no point on denying that if I was, despite never mentioning who was the driver in the process.

DEFENCE

 

1.  same as template.

The facts known to the Defendant:

2. same as template.

3. It is acknowledged that on November 24, 2022, the defendant's motor vehicle entered the County House Car Park located in Nottingham, NG1 1HN. Upon arrival, the car park was at full capacity, prompting the defendant to patiently wait for an available parking space for a duration of 10 minutes. As no parking spaces became vacant during this time, the defendant ultimately decided to leave the aforementioned car park without having parked or left the vehicle in question. 

Insufficient Signage Visibility.

4. 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.”

5. The purported transgression occurred during the nocturnal hours, significantly reducing the visibility of the signage in the County House Car Park. The poor lighting in the parking area, the positioning and insufficient illumination of the signs, combined with the small print of the terms and conditions made it extraordinarily difficult to adequately read and comprehend what was written on them.

6. Furthermore, it is important to note that the primary sign situated within the parking facility was 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.

7. The complexity of the scenario was exacerbated by the spatial arrangement of the signs sited at the entrance of the parking facility. These signs were situated at a perpendicular angle in relation to the heavily trafficked and constricted primary thoroughfare. The particular arrangement of these signs, coupled with the extensive information presented in small print, essentially prevents drivers from having any reasonable opportunity to safely come to a full stop and conscientiously assimilate the information written on these signs prior entering the car park premises.

8. 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).”

9. Based on the previous points, it is clear that a contract could not have been formed between the Claimant and the Defendant because the necessary conditions for forming a contract were not met.

Failure to Prove Breach of Contract

10. 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."

11. 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”.

12. The claim is based 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.

13. 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 evident 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.

14 to 40 as the rest of template

I'm not quite sure about the underlined bits on point 13. Do I mention the 5 minutes they offer to let you pay after parking your vehicle?
Can I use the argument "waiting for parking is not parking"? Is it relevant if the terms and condtions do not mention parking but instead they use the expression "enter and remaining"?

I also took some pics of the signs with the terms and conditions for your reference. Pics have not been taken at night purely to be able to show you what's written on them (I'm not going to use them as evidence).

https://www.dropbox.com/scl/fi/msj0gj1vailp1mg7wd79u/Car-park-entrance.jpg?rlkey=ezq3ermgtknaz6yh1898w1nkx&dl=0
https://www.dropbox.com/scl/fi/via92h9ns9uuulbg2z3rz/Left-sign.jpg?rlkey=n380bvkwe2ao6hwcd8gun0xph&dl=0
https://www.dropbox.com/scl/fi/w0jvnazklq6wpphaorpgg/Right-sign.jpg?rlkey=imzsegqun5u18sevc87z8ftpa&dl=0
https://www.dropbox.com/scl/fi/hpkdc96a82lomnt7muzky/Main-sign.jpg?rlkey=y1wupaydh7diqtr9phmfm27bq&dl=0

Lokisan88

B789 said:

Is Charles Dickens in the room? Using archaic language like that does nothing for your defence except to make you sound pompous. What's the point of admitting to being the driver if you're trying to rely on the PCN being non-PoFA?

What is the point of para #3 except to state the bleedin' obvious? What has that got to do with a defence of some woefully inadequate PoC?

What's the point of para #4, again stating the bleedin' obvious? If that's what the PCN states, what is the point of repeating it without argument or defence? "...followed by egress therefrom after a temporal interval of ten minutes..." is just extracting the urine for the reader. "temporal"... relates to worldly as opposed to spiritual affairs or of or situated in the temples of the head!!!   

Para #5, as pointed out above by @Coupon-mad, superfluous if you've already admitted to being the driver.

I gave up after that. Perhaps you ought to do a search for any of the hundreds of defences posted here to get a better example of what to put in your own paragraphs. Just a reminder though, that you are answering the woefully inadequate PoC and so should KISS. Just a statement of why you were at the location and what wasn't obvious that caused you to allegedly breach their terms and conditions, if you know or full denial if you don't.

Thank you for the advice. I redacted the defence with a less formal language and deleted the reference to the PoFA. Or do you think I should stick with non complinace to the PoFA,  not having mentioned who was the driver in the process of my appeal? 

In regards to the expression "temporal" I was referring to this definition of the adjective from the Thesaurus: -  "of or relating to time as opposed to eternity". I think it comes from Latin if I'm not wrong

Coupon-mad

'Temporal' makes no sense to me here!

There is still over-pompous wording in 6 and 7.

I'd remove 8, 10 and 13.

Lokisan88

Coupon-mad said:

'Temporal' makes no sense to me here!

There is still over-pompous wording in 6 and 7.

I'd remove 8, 10 and 13.

I changed 6 and 7 as follow:

6. Furthermore, it is important to note that the primary sign situated within the parking facility is not illuminated, rendering it unreadable 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 is both false and misleading.

7. The situation was exacerbated by the placement of the signs at the entrance of the parking facility. These are situated at a perpendicular angle in relation to the heavily trafficked and narrow thoroughfare. The particular arrangement of the signs, combined with the information presented in small print, essentially prevents drivers from understanding and accepting the terms and conditions before entering the car park premises, without causing any disruption to the traffic flow on the thoroughfare.

I also deleted 8, 10 and 13 as suggested.

The rest is as before. Do you think it is enough?

Coupon-mad

The wording is still in antiquated English.  Reads like the dialogue in an episode of Downtown Abbey!

Change:

6. Furthermore, it is important to note that the primary sign situated within the parking facility is not illuminated, rendering it unreadable 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 is both false and misleading.

to

6. Signage at this site is unlit and in minuscule text.  The Claimant's case is likely to rely upon alleged "clear display" of the terms and conditions.  This would be false and misleading.  The situation at this location is made worse by poor placement of the sparse signs which are at an angle on approach, cannot be read from a car and do not meet the statutory requirements for prominence and 'adequate notice'.  Any t&cs were not seen, let alone agreed.  There was no fair opportunity to learn that the car park was subject to any restrictions.

Then delete 7.

Lokisan88

Sorry about the archaic english, I must have read Tolkien too much 

Redacted as suggested. I also deleted previous para 5 as redundant after changing para 6. 

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd

(Claimant) 

- and -  

Defendant named on claim

 (Defendant)

_________________

DEFENCE

 

1.  as per template

The facts known to the Defendant:

2. as per template

3. It is acknowledged that on November 24, 2022, the Defendant's motor vehicle entered the County House Car Park located in Nottingham, NG1 1HN. Upon arrival, the car park was at full capacity, forcing the Defendant to wait for an available parking space for a duration of 10 minutes. As no parking spaces became vacant during this time, the Defendant ultimately decided to leave the aforementioned car park without having parked or left the vehicle in question.

Insufficient Signage Visibility.

4. 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.”

5. Signage at this site is unlit and in minuscule text. The Claimant's case is likely to rely upon alleged "clear display" of the terms and conditions. This would be false and misleading. The situation at this location is made worse by poor placement of the sparse signs which are at an angle on approach, cannot be read from a car and do not meet the statutory requirements for prominence and 'adequate notice'.  Any terms and conditions were not seen, let alone agreed. There was no fair opportunity to learn that the car park was subject to any restrictions.

6. Based on these previous points, it is clear that a contract could not have been formed between the Claimant and the Defendant because the necessary conditions for forming a contract were not met.

Failure to Prove Breach of Contract

7. 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”.

8. The claim is based 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.

the rest of the paras are as per template.

Coupon-mad

I'd get rid of para 8 (it's repetition and it's answering an allegation that isn't stated in the Claim) and remove the earlier unnecessary word "aforementioned".