Can anyone look over this WS? Was: Taken some bad advice... too late to win?

stek2008

Hello,

Firstly I wish I'd found this forum - particularly the 'newbies' thread sooner. Thank you to everyone who's helped compile that. 

Long story short - I've fallen victim to Excel Parking Services having parked when staying at Premier Inn Darlington, in the (seemingly well known) Felthams Leisure Car park (hotel reception is accessible through the car park). 

I paid for parking - but on the two days in question I stayed payment was made later than they'd like/allow for ticket to be purchased. 
On day 1 - their app was buggy and kept asking me to enter a CVC code when trying to use Apple Pay (which doesn't need any card details entering). It took me 20 mins or so from arrival to work out it was the app and to enter alternative card details.
They ignored this when I wrote to their appeals team saying that I should have called a helpline (had no idea there was one...). 

Day 2 - the app just wouldn't work at all. Internet was fine, the app just kept refusing to load any locations let alone pay for parking. The machines in the car park don't take notes and I didn't have sufficient coins. I paid in full for 24 hours once the app behaved later that evening (maybe 2 hours after arrival). 

I did appeal to them - they basically responded "computer says no". 

Where things go off the rails a bit - when they did write back my friend who "did a bit of law" (this should have been the red flag!) advised to ignore it until any thing from small claims court arrived. 
He then submitted a defence for me saying that the issue was the app supplied for payments was defective and that no financial loss was sustained.

I've now had "Notice of Proposed Allocation to Small Claims Track" paperwork through for both claims. My friend has helpfully gone on holiday and I have until 12th to respond. 

I know the usual advice is DO NOT PAY - but I'm wondering if the defence not following the example here has screwed this up for me?

Any pointers really appreciated. 

S

1505grandad

"He then submitted a defence for me saying that the issue was the app supplied for payments was defective and that no financial loss was sustained."

Can you post the defence that was filed  -  verbatim please.

Have you executed Plan A  -  complaint to landowner & MP?

Fruitcake

In whose name was the AoS and defence filed?

How many defences were filed?

What response are you required to complete by the 12th? Do you mean the N180, or a WS?

If you have two claims you should be telling the courts to estop them and have them combined, quoting Henderson v Henderson in the process.

What happened when you complained to the hotel manager/CEO?

stek2008

1505grandad said:

"He then submitted a defence for me saying that the issue was the app supplied for payments was defective and that no financial loss was sustained."

Can you post the defence that was filed  -  verbatim please.

Have you executed Plan A  -  complaint to landowner & MP?

Thanks for the reply - I have complained in the last two weeks to the building owner no acknowledgement or response. I also have the leader of the local council and local MP "looking into any influence they have". 

I can't seem to extract the filed defence back out of MCOL and don't seem to have another record of it. I'll phone the helpline first thing tomorrow and ask them to provide a copy. 

stek2008

Fruitcake said:

In whose name was the AoS and defence filed?

How many defences were filed?

What response are you required to complete by the 12th? Do you mean the N180, or a WS?

If you have two claims you should be telling the courts to estop them and have them combined, quoting Henderson v Henderson in the process.

What happened when you complained to the hotel manager/CEO?

AOS and Defence were filed using my MCOL account in my name. I did the acknowledgement of service, my friend filled out the defence field (somewhat limited by character count). 

The two forms I have in front of me are N180s.

Is it too late to request the court to combine these two cases? The parking company have treated each day as separate violations (they were separate parking sessions as the maximum single ticket was 24 hours at the car park). 

The hotel advised they "clearly state on their website that the hotel is operated by a third party" and that they have "no control over penalty charges issued". They did say they would note my complaint and look to discuss it with the building owners. 

Local MP (and leader of local council) advised they would try to assert any influence they have over the landowner. The MP hasn't been particularly communicative since but the council leader did say he was trying to make contact and reminding them that they're putting people off visiting the town... I suspect this won't go anywhere that fast from seeing stories from others' charged in this car park. 

Thanks for the help - as I said I wish I'd found this forum sooner, I feel rather stupid for letting a friend take it off my hands but we had a newborn in the house and sensible thinking was a bit lacking it seems. 

Coupon-mad

The two forms I have in front of me are N180s.
Is it too late to request the court to combine these two cases?

No.  Not too late. Ask now, in your email.

Read the first 12 steps in the Template Defence thread and the section about the N180 form in the NEWBIES thread, which explains how to answer every question.

Do one email with BOTH Claim numbers in the subject line

Then attach both DQs to that one email and attach a copy of CEL v Chan (court transcript found all over the forum) and respectfully ask the Allocating Judge to either:

- strike both claims out due to hopelessly inadequate POC (persuasive authority attached from HHJ Murch at Luton court), or

- strike the second claim out, it being an abuse and estopped (trite law authority: Henderson v Henderson) or

- combine both claims into one hearing to minimise costs, given they are based on duplicate facts, same signage, same parties, and/or

- order the Claimant to file and serve further and better particulars (consolidating the 2 claims for simplicity) and then allow the Defendant to amend their defence once more adequate information is supplied.

Finish by saying you are not making a formal n244 application as that would incur a disproportionate cost, which would be unfair on the Defendant in a case where the fault and abuse of the court process lies squarely with the Claimant.  This is merely a request to kindly ask for directions which meet the Overriding Objective and deal with two duplicate and inadequately pleaded claims justly.

stek2008

Thanks so much @Coupon-mad - I've sent a response covering what you suggested (or rather I have it queued to send after 9am tomorrow by email as I wasn't sure if the court still only accept emails during their hours). 

Really appreciate the help. 

stek2008

Coupon-mad said:

The two forms I have in front of me are N180s.
Is it too late to request the court to combine these two cases?

No.  Not too late. Ask now, in your email.

Read the first 12 steps in the Template Defence thread and the section about the N180 form in the NEWBIES thread, which explains how to answer every question.

Do one email with BOTH Claim numbers in the subject line

Then attach both DQs to that one email and attach a copy of CEL v Chan (court transcript found all over the forum) and respectfully ask the Allocating Judge to either:

- strike both claims out due to hopelessly inadequate POC (persuasive authority attached from HHJ Murch at Luton court), or

- strike the second claim out, it being an abuse and estopped (trite law authority: Henderson v Henderson) or

- combine both claims into one hearing to minimise costs, given they are based on duplicate facts, same signage, same parties, and/or

- order the Claimant to file and serve further and better particulars (consolidating the 2 claims for simplicity) and then allow the Defendant to amend their defence once more adequate information is supplied.

Finish by saying you are not making a formal n244 application as that would incur a disproportionate cost, which would be unfair on the Defendant in a case where the fault and abuse of the court process lies squarely with the Claimant.  This is merely a request to kindly ask for directions which meet the Overriding Objective and deal with two duplicate and inadequately pleaded claims justly.

The judge has gone with the 'combine both claims into one hearing' option. 

I've had a notice of allocation to Small Claims Track (Hearing) forms today for both claims. With a court date of 14th March @ 2pm. 

The letter goes on to say I need to provide witness statements by 5th February 2024. 

Coupon-mad

Very good.

Back to the NEWBIES thread for you then, to read the linked example WS cases.

stek2008

Coupon-mad said:

Very good.

Back to the NEWBIES thread for you then, to read the linked example WS cases.

My defence/argument is essentially that their payment app was faulty/had bugs (plus their refusal to take cards directly in the car park) meant I failed to pay in the 5 minutes allowed. 

Can anyone steer me towards anything particularly relevant I should include or give me a nudge towards the best example WS in the other threads?

I've got evidence of other users who experienced the same errors with the app - but hoping there's something I'm so far missing that makes the 5 minutes allowed to pay unfair somehow...

Sorry for this late request. I suffer with long covid - every now and then a pretty regular cold/flu like bug seems to completely wipe me out. I've been laid up most of the last 3 weeks I have got a letter from the hospital that if needs be I'll use to ask the court for extra time to respond but I'm hoping I can get something finished by court close tomorrow. 

I've also now had a bundle of documents through from the parking company's solicitor - is this being prepared a reasonable sign they intend to keep going all the way to court hearing?

Coupon-mad

Yes, the nudge was in my last reply.

Tells you everything you need to know, including an a-f list of suggested exhibits.

hoping there's something I'm so far missing that makes the 5 minutes allowed to pay unfair somehow

Yep, the Consumer Rights Act 2015 which is already in the exemplar WS x 5 linked in the 'WS stage' section of the NEWBIES thread.