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

Lokisan88

Thank you Le_Kirk, I added the court judgement for Wilkinson to the bundle and I also added these points after point 7 to include the full correspondence received from Excel and their legal team.

8.     On June 23rd 2023 I received the first letter from ELMS Legal stating a “Notification of Instruction” where the Claimant had instructed them to recover the debt. The letter demanded a payment of £170 for the unpaid PCN, threatening further legal action (exhibit AM09).

9.     On August 24th 2024, a day after receiving the Claim form from the court, I received another letter from ELMS Legal demanding, once more, the payment of an even more inflated sum of £255, including legal fees (exhibit AM10).

10.     On 20/09/23 I received a letter from the Claimant informing that ELMS Legal was no longer representing them and asking for payment of a reduced amount, compared to the previous letter, but still inflated sum of £195 to settle the matter and discontinue the case in a mere attempt to recover a £95 more of the original PCN. It is to note that this letter specifies a different address to be used for correspondence to the one displayed in the “Notice of Change of legal representative” included (exhibit AM11).

I repost the previous question: When I mention previous cases, Code of Practice and DLUHC Code (with IA draft) do I have to provide a copy of each in the bundle? 

Lokisan88

Reading other topics it looks like other members have ifnfact included those references into the bundle, I will do the same. 

Any suggestions about the WS itself? I added a Schedule of costs at the end as well.

Coupon-mad

You just give a URL link to the DLUHC's draft IA.  There are a-f suggested exhibits in the NEWBIES thread like a checklist, did you read that?

It's a minor point, but your WS is wrong to say 'on x date I received this and that' because you don't receive letters on the date they are dated!

And this date is in the future:

9.     On August 24th 2024,

Lokisan88

Coupon-mad said:

You just give a URL link to the DLUHC's draft IA.  There are a-f suggested exhibits in the NEWBIES thread like a checklist, did you read that?

It's a minor point, but your WS is wrong to say 'on x date I received this and that' because you don't receive letters on the date they are dated!

And this date is in the future:

9.     On August 24th 2024,

Yes sorry, I've read it and I think I sorted the exhibits. 

I'll change that about receiving the letters and I'll wait for the claimant's WS to see if I can dispute any of their points. 

Lokisan88

I received the claimant's WS https://www.dropbox.com/scl/fi/w4c0qd7mlkg2xstw5yn06/Excel-WS-redacted-1.pdf?rlkey=clz5zmi46gbbj7mvkrkbm180m&dl=0

I think there are a few points on that WS that I can argue against.

Point 7. They state the terms of the contract being 10 minutes of consideration time ( I stayed for 10mins and 46 sec) but on the signs it say 5mins, should I point out the discrepancy or just stick with not prominent signs?

Point 13. They state that the signage is compliant after being audited by the IPC. Still no illumination on the sign

Point 16 and 17 say that the Government Code of Practice has been withdrawn on the back of a Judicial Review and they make a reference to some appeals, namely Britannia v Semark-Julian, One Parking Solution v Wilshaw, Vehicle Control Service Ltd v Ward and Vehicle Control Service Ltd v Percy. Any suggestions on how to argue against these?

Point 19. Says they have authority to manage the car park. Does it look legit or is there something I can use here? 

Point 21. Says the guy might not be able to attend. Does it mean nobody will be present at the hearing?
Will that be in my favour?

Another thing worth mentioning is that their pictures of the car park have been taken in daylight and the night time ones have been taken  at sunset with some light opposed to the total darkness of when the alleged contravention  took place (19.40).

Coupon-mad

Surely all 4 of those appeal cases were already in the lower part of your defence, if you used the Template?

Point 7. They state the terms of the contract being 10 minutes of consideration time ( I stayed for 10mins and 46 sec) but on the signs it say 5mins, should I point out the discrepancy or just stick with not prominent signs?

Why not challenge their calculations because the timings are from two different cameras (in & out) that are not synched and are not the same to the minute, let alone to the second.

Also why not also use the DLUHC Code (which is only temporarily withdrawn for re-visiting the money only, not the other clauses) in terms of the definition of a 'parking period'?

Lokisan88

Yes you're right about those cases reported. No need to reiterate them in my WS if already present in my defence?

Good idea about challenging the timing from 2 different cameras. 

I'll look into integrate the definition of parking period from the DLUHC Code

Lokisan88

This is the final draft of my WS, what are your thoughts?

I changed a few things:
- table of contents added to first page
- changed exact timing on para 3 with approximate timing (otherwise I was giving too much credit to their calculation of timing)
- all of the dates for the letters
- paras 32 and 33 to challenge Claimant's WS (challenged their calculation of time and included DLUHC definition of parking period)
- para 41 for costs
- schedule of costs at the end

Para 3-10 Explanation of facts
Para 15 IPC Code of Practice to support my case
Paras 11-14, 16-31 and 34-40 are still from template.

 

In the County Court at the COUNTY COURT at Nottingham, 60 Canal Street, Nottingham, Nottinghamshire, NHG1 7EJ

Claim Number: xxxxx

 

 

 Excel Parking Services Ltd                           (Claimant)

V

Mr. xxxxxxxxx                       (Defendant)

WITNESS STATEMENT OF DEFENDANT FOR VIDEO CONFERENCE HEARING ON xxxxxx

 

1.     I, Mr. xxxxx, of xxxxxxx, am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.     In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

Facts and sequence of events

3.     On November 24, 2022, at around 19:20, I entered County House Car Park with my partner. It was nighttime, and the road leading to the car park was busy, with cars parked on the left-hand side of the pavement, typical for that time of night. Entering from a 30mph road (exhibit AM01), I could not safely stop the car to read the small signage at a sharp angle on either side of the entrance (exhibit AM02). The signs contain a lot of information in a minuscule size (see exhibit AM03). Inside, the car park is not illuminated, making it challenging to see any signs from inside the vehicle. Since it was full, I waited for 10 minutes inside the car, without parking it, and eventually exited at around 19:30 without finding a parking spot. I didn't notice any well-lit signs indicating ANPR cameras or mentioning a consideration period during my exit. Had this been clear to me, I would have never waited more than the consideration period in order to avoid a PCN.

4.     Additionally, the only sign inside the perimeter of the car park is not lit. It is crammed with information written in tiny letters and is placed far from the exit. This makes it impossible to be read while in a moving vehicle at night. (see exhibit AM04).

5.     After receiving the PCN a month later, dated 23/12/2022 (see exhibit AM05), I started the appeal process to the parking company first and to the regulatory body, IPC, after. The appeal process felt to be biased toward the parking company from the beginning. It took over a month to come to the complete dismissal of my arguments without ever being addressed.

6.     I, then, received a demand for payment, dated 25/04/23 from the claimant, inflating the original fee by an additional £70, justifying it as “debt collection costs”, with the total amounting to £170 (see exhibit AM06).

7.     Subsequently, I received a few intimidating letters threatening court proceeding (see exhibit AM07 and AM08) and demanding payment of the inflated balance.

8.     The first letter from ELMS Legal stating a “Notification of Instruction” where the Claimant had instructed them to recover the debt was dated 23rd June 2023. The letter demanded a payment of £170 for the unpaid PCN, threatening further legal action (exhibit AM09).

9.     A day after receiving the Claim form from the court, I received another letter from ELMS Legal, dated 24th August 2023, demanding, once more, the payment of an even more inflated sum of £255, including legal fees (exhibit AM10).

10. Later, I received a letter from the Claimant, dated 20/09/23 informing that ELMS Legal was no longer representing them and asking for payment of a reduced amount, compared to the previous letter, but still inflated sum of £195 to settle the matter and discontinue the case, in a mere attempt to recover a £95 more on top of the original PCN. It is to note that this letter specifies a different address to be used for correspondence to the one displayed in the “Notice of Change of legal representative” included (exhibit AM11).

Exaggerated claim

11. The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

12. I say that fees were not paid out or incurred by this Claimant, who is put to strict proof of:

(i)       the alleged breach, and

(ii)     a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

13.   This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

14.   I will mention again, as in my defence, a quote from The Department for Levelling Up, Housing and Communities ('the DLUHC') published in its statutory Parking Code of Practice on 7th February 2022:

https://www.gov.uk/government/publications/private-parking-code-of-practice

"Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

15.   The International Parking Community (IPC) Code of Practice, of which the Claimant is a member, includes the following which supports my case:

(i)    13.1 Motorists must be allowed a sufficient Consideration Period so they may make an informed decision as to whether or not to enter or remain on the Private Land;

(ii)   15.1 Parking Charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/or other documentation

(iii) Schedule 1 – Signage: If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting.

16.   The Claimant has submitted no evidence regarding a consideration period. A contract to park by conduct cannot be formed unless there is a consideration period to discover, read, understand and accept the contract.

17.   The Defendant maintains that the car was stopped for a very brief period of time consistent with a consideration period, and never left unattended which the Government's definition shows is not 'parking' and I moved from the private land, thereby signalling that I did not accept any contract (if such were to exist and be valid - but no such contract was seen or in view).

18.   In support of the previous point is useful to mention 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage and the event did not classify as 'parking'. The judge also stated that in any case £100 was not likely to be a true pre-estimate of loss. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

19.   Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link below) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

20.   Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case and argue against the efficacy of the inflated sum to act as deterrent.

21.   With that sum in mind, it is clear that the existing claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position.

22.   The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

23.   In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal'.

24.   This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

25.   Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

26.   In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015.

CRA breaches

27.   Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

28.   Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

29.   The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

ParkingEye v Beavis is distinguished

30.   The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs - see exhibit AM12 - set a high bar that this Claimant has failed to reach.

31.   In the present case, the Claimant has fallen foul of those tests. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

(i)    Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii)   Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2, both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space".

Lokisan88

Observations re this Claimant's Witness Statement

32.   In paragraph 11 of the Claimant’s Witness Statement, it is stated that the alleged breach of contract occurred after the vehicle has been seen leaving the car park after 10 minutes and 46 seconds. The consideration time, set by the Claimant, is 10 minutes, indicating that the alleged breach of contract relates to 46 seconds. However, considering that the timings are derived from different cameras (entry and exit) that are not synchronized, and certainly not to the exact second, the Claimant is required to provide solid evidence, such as documented proof of ANPR camera calibration and synchronization.

33.   The DLUHC (which is only temporarily withdrawn pending review of the levels of private parking charges and additional fees not the other clauses) defines, at paragraph 2.24, parking period as “the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle)” and specifies “This is not the period between a vehicle being recorded as entering and departing controlled land.”

34.   Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (exhibit AM13).

35.   I have found that parking Defendants are often ambushed by 'Chaplair v Kumari' but that case has no application in my case. To pre-empt this: Kumari concerns a lease where both parties signed/agreed a contract and knew about the terms. Completely different to predatory ticketing, unclear terms and pitfalls/traps set up by ex-wheel clampers and firms of their type, to catch out drivers in car parks.

36.   Similarly, my research has revealed that parking Claimants often cite 'One Parking Solution v Wilshaw' (a flawed judgment, wrongly missing the point whereby the DVLA requires mandatory landowner authority in parking cases, but it was a unique site where OPS had title in the land and were held to be 'tenants-at-will, unlike in this case).  That case seems to be used to mislead courts into thinking that no landowner contract is required (relying on an old and inapplicable 'I could sell you Buckingham Palace' argument). Quite the contrary.  Landowner authority is always required in these cases because it is a prerequisite of the DVLA KADOE rules before keeper data can even be obtained. The DLUHC Code reiterates this and it will be effectively cemented as a statutory requirement.

Conclusion

37.   The claim is entirely without merit. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

38.   There is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

39.   In the matter of costs, the Defendant asks:

a)     at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

b)     for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

40.   Attention is drawn specifically to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

My costs

41.   I request the Court to dismiss this claim in its entirety, and to award my fully assessed costs - not just for the attendance at the hearing - such as are allowable pursuant to CPR 27.14. Please refer to the Schedule of Cost attached to this bundle (AM17).

Statement of Truth

I 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.

 

Defendant’s signature:

 

Date:

AM17 Schedule of Costs

I respectively request that the court orders the claimant, Excel Parking Service Limited, to pay the unnecessary costs their defectively served claim has caused. A summary of those costs can be found below:

-        Loss of leave or earnings to attend hearing - day of annual leave taken from work. I'm a Senior xxxxx working long days; a contracted day of work is 12.5 hours. My hourly rate is £30 per hour. Therefore, the total for the days annual leave comes to £375.

-        Time spent on the following:

1.     Reviewing Claim Form = 1 hour

2.     Acknowledging Claim Form = 0.5 hour

3.     Preparing and drafting the defence = 5 hours

4.     Legal research for a non – British individual who has English as their second language = 10 hours

5.     Preparing and drafting witness statement = 5 hours

6.     Preparing and drafting court order = 0.5 hours

7.     Inter-parties correspondence (between myself and Claimant including appeal process) = 1.5 hours

8.     Compiling evidence bundle = 2 hours

9.     Listed preparation total hours spent therefore equals 25.5 hours.

·        Under CPR 46.5, Litigant in Person costs recovery is calculated at a rate of £19 per hour. 

·        Therefore, the preparation costs total £484.50.

 

I therefore respectively ask the court for total costs of £859.50, to be paid to the Defendant by the Claimant.

Trainerman

I have not read it all yet, but your in your para 3 you say "typical of this time of night". That implies that you know the area well, and if you do then you would surely know the restrictions. The signage on the day in question becomes less relevant if you have knowledge of the area.

I would reword that