Excel Parking + ELMS Legal CCBC claim form

Seneschel

Hey everyone, 

 

So, we've made a little bit of a mess with our appeal process to a parking fine we received for overstaying our welcome on the 20th May this year at a shopping centre car park.

When we received notice we ran over the allowed time, it was addressed to my wife(the registered keeper of our car) so she appealed to Excel Parking before I learnt the letter had arrived, in this appeal she did admit that it was us with the car that day, she didn't state the driver but she did say we were wondering if we had overran on the time. She assumed they'd show some sort of compassion as we were running late trying to make use of the centres baby change facilities. We ran 13 minutes over even after skipping the queue for the baby change and changing our son in the car park. She regrets not mentioning that she is pregnant and that we were also out with my disabled mother who struggles with her mobility at times, but I doubt that would've changed much. Naturally, the appeal was promptly denied!

We've ignored any letters sent after our failed appeal until we received a claim form from the County Court Business Centre. Rather frustratingly everything is directed at my wife despite myself being the driver that day(not that anyone knows that, I know) and as she is pregnant, she started getting scared and stressed over this to the point she, without telling me, stopped opening any of her mail and started hiding it. Silly to hide the mail I know but I realised after discovering it, that it was easing her stress so there was no complaints from me! This has however, led to me having less time to deal with this claim form, the issue date is 25/10/23 and I only just found it in a stack of her hidden unopened mail. I did file the Acknowledgment of Service a few hours ago. 

 

I suppose my question to you all, is even if we have admitted to knowing we might have overran on the time are we likely to have a good chance of defending this? And if we do, would I be right in assuming it all has to be my wife if a court date with a judge is given? That is the bit I'm worried most about as I'm reluctant to possibly stress her out again over this. I've been reading the Newbies post and plenty of the posts of people winning which has me optimistic but it's just if it has to be my wife.

 

Any advice would be very welcome! 

 

Thank you. 

KeithP

Hello and welcome.

With a Claim Issue Date of 25th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 27th November 2023 to file a Defence.

That's well over two weeks away. Plenty of time to produce a Defence but don't leave it to the last minute.
To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline 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'.

Everywhere I have written 'you' or 'your' I do of course mean the named Defendant. Everything must be done in the name of the named defendant. Too late to change that.

When or if it comes to a hearing, the Defendant must attend but you can act as a Lay Representative and do the speaking on her behalf.

Can you please show us the Particulars of Claim from the Claim Form with personal information hidden of course?
Most of these companies are pretty hopeless at writing decent Particulars and we are beginning to see more and more cases getting thrown out because of it.

Seneschel

Hi Keith,

When or if it comes to a hearing, the Defendant must attend but you can act as a Lay Representative and do the speaking on her behalf.

That is actually reassuring to know, thank you!

Can you please show us the Particulars of Claim from the Claim Form with personal information hidden of course?
Most of these companies are pretty hopeless at writing decent Particulars and we are beginning to see more and more cases getting thrown out because of it.

A picture of the particulars as requested!

Coupon-mad

I can only see the pic hidden under a 'spoiler' like that, if I quote the person's post.  I just did that and screenshotted it in sections:



That POC isn't too bad because at least it identifies the site and the alleged breach 'parked for longer than the maximum period permitted'.

So we will say use the Template Defence but don't add the extra bit mentioned and linked there about defective POC (you'll see...).

Your wife's Facts section could state:

Equality Act 2010 breach by the Claimant
3.  The Defendant was a passenger in the car. She is pregnant and was feeling sick, and there was a second passenger who is disabled and needs more time to shop than an able-bodied person.  Under the Equality Act 2010 and the accompanying EHRC statutory Code of Practice for Service Providers (hereafter described together as 'the EA 2010') in order to avoid indirect discrimination against (unidentified) disabled service users 'at large' who are likely to use the premises, any time limit policy must be proactively flexible.  The EA 2010 makes such provisions mandatory, to allow for the needs of those with protected characteristics.

3.1.  Provisions in a car park for disabled people do not only extend to removing physical detriment by painting extra lines to create wider bays.  Time limits are also subject to EA 2010 'reasonable adjustments' and this is largely an anticipatory duty to avoid indirect discrimination. It is not lawful to offer the same fixed policies to all.  This has been the case even before the EA 2010, as reported by the BBC when referencing this illegality at the time of the previous legislation (the DDA):
http://news.bbc.co.uk/1/hi/uk/8488737.stm#:~:text=The%20UK's%20big%20supermarkets%20are,face%20penalty%20charges%20for%20overstaying.

3.2.  There is no excuse to be heard that the Claimant "didn't know" about the disabled passenger in the car.  Indirect discrimination is against the disabled population 'at large' and shopping centres expect and know that a fairly high percentage of shoppers will have mobility, stamina or other impairments that will slow them down.  The Claimant - as agent for the retail park - has offered no increased time limit remedy within the parking contract offered to all motorists at this site.  This could easily be achieved, by adding a sticker with an extra sentence to the signs at the accessible bays, explaining how those who need it can claim their legal right to more time; thus enabling disabled persons to have the extended shopping time they need, confident of being exempted from the 'scattergun' approach of ANPR operators issuing parking charge notices automatically to all cars which exceed a fixed time limit policy.

This Claimant cannot invoke keeper liability
4.  The Defendant was not the driver. She was only a passenger and cannot be held liable by this Claimant because they cannot invoke 'keeper liability'. As the registered keeper, the Defendant is as a matter of law, not liable to this Claimant, who (by their own choice of wording on the Notice to Keeper) cannot invoke 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').  This Claimant routinely aims speculative claims at registered keepers and hopes to obtain CCJs in 90% of cases (regardless of lawful liability) which is wholly unreasonable conduct.  The Claimant knows full well, mainly from two cases their owner has lost at appeal in recent years - one lost by VCS, and one lost by their sister company, Excel Parking - that they cannot hold keepers liable outwith the POFA, and cannot rely upon an assumption that the keeper was driving:

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving, or that the driver was somehow acting 'on behalf of' the keeper, which was wholly without merit. Excel were not left without a remedy in car park management: they could have used the POFA but they did not. Mr Smith's appeal was allowed and Excel's claim was dismissed.

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation, as in this case) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan held:

35.1. "The finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established.  If this were not the case car parking companies could simply have obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper, to identify the driver or at least set out a positive case in order to avoid responsibility himself. In my judgment that was not the position before ... [the POFA] ... was in force; 

35.2.  my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and 

35.3.  it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..."

5.   Mr Edward's appeal succeeded and the Claim was dismissed.  In the extant case, this Claimant has launched 'roboclaim' cut & paste proceedings saying vaguely that the Defendant was 'keeper and/or driver' and waited to see if the registered keeper has the nous to research the POFA and to meaningfully defend, or if they could gain a default CCJ (as happens in 90% of small claims).  It is a lucrative gamble with the odds of wrongful success heavily weighted in parking operators' favour, but this is plainly an abuse of the court process.

6.   This baseless claim demonstrates precisely the behaviour that HHJ Gargan identified in 35.1. This claim has no basis in law and it is averred that neither the court nor the non-liable (pregnant, vulnerable and extremely intimidated) Defendant should be troubled with a hearing.  It is bad enough that she has been so scared about this mounting threat - that she was misled into thinking was a 'fine' or offence that she could be in real trouble for - that she has been hiding post from her husband and nearly missed the defence deadline.  She has had help in preparing this defence and now trusts that the court will strike the claim out, for want of any cause of action against her.

7.  Further and in the alternative, subsequent research by the Defendant and her family has established that the parking signage at the site in question was wholly inadequate.  Terms and conditions are minuscule and illegible, placed extremely high and signs are noticeably absent from entire rows; in particular t&cs are absent in the vicinity of the disabled bays. Therefore, the sparse signs cannot reasonably be construed as having created a contractual relationship between the Claimant and the driver, even without the added illegality of the Claimant failing to meet their EA 2010 duty by offering more time to disabled shoppers and even without the added (equally fatal to the claim) issue of lack of keeper liability. The signs also do not warn of any 'contractual costs' in large lettering and it is noted that the Particulars of Claim do not state any breakdown of the purported heads of cost, nor the date/detail/rate that they are using to calculate interest. There is no sum of money (at all) in the POC and there was no sum(s) of money that could be read on the day either, let alone agreed from the position of the driver's seat as he parked in a disabled bay.

P.S. 
I hope YOUR WIFE did the online AOS, not you in your name?  Your name cannot go anywhere; you are a third party (albeit you can later lay rep).  Hopefully your wife's name was on the AOS.

Seneschel

Coupon-mad said:

I can only see the pic hidden under a 'spoiler' like that, if I quote the person's post.  I just did that and screenshotted it in sections:
 

Hi, thanks for the very detailed response! I'm sorry for the late reply, we were due to go on holiday the following day and I greatly underestimated phone coverage in the middle of a forest!

I'll avoid using the spoilers for pictures in the future.

That POC isn't too bad because at least it identifies the site and the alleged breach 'parked for longer than the maximum period permitted'.

So we will say use the Template Defence but don't add the extra bit mentioned and linked there about defective POC (you'll see...).

Your wife's Facts section could state:

Okay, so I removed the section mentioning the part about the POC and added that very detailed section you provided to the facts section.

P.S. 
I hope YOUR WIFE did the online AOS, not you in your name?  Your name cannot go anywhere; you are a third party (albeit you can later lay rep).  Hopefully your wife's name was on the AOS.

Yes, my wife completed the AOS in her name, however, we recieved a letter while we were away stating that the AOS was signed by a third party. It was signed in my wifes current name whereas the claim is made against my wife in her maiden name. They have ask her response to be signed and posted or emailed back again. I'm not sure if that invalidates the extra time the AOS was supposed to provide.

Coupon-mad

Yes it does, so get the defence signed and emailed tonight!  Eeek, if the AOS has ben rejected there is no AOS. 
Just crack on and she must defend NOW.

She needs to sign & date the defence (under the statement of truth at the bottom) with her normal signature and underneath that, print her married name and then 'née MAIDEN NAME'.

e.g. "Mary Toogood, née Johnson"

And she should put in the body of the email that she is attaching her marriage certificate as well as her defence because the claim was made in her maiden name but the Defendant is now (her married name) and the CNBC was wrong to reject the Acknowledgement of Service which should also be reinstated on MCOL immediately when updating it with the Defence.

_________________

And, please do us, you, your wife and all motorists a real favour:

Please please please also find time to do this relevant 'court work' Inquiry this month:

https://forums.moneysavingexpert.com/discussion/comment/80375249/#Comment_80375249

The Committee invites evidence on:

• What the current level of delay in the County Court is

• The ways in which the County Court engages with litigants in person, and how this could be improved

• The causes of action giving rise to claims in the County Court

• What future reforms to the County Court should be considered.

Please tell them that private parking firms and their bulk litigators are the problem as far as small claims delays are concerned, as they dominate court lists. Parking claim numbers are rising every year and will make up about a third of all small claims in 2023, based on the 2022 figures that the MoJ divulged in the DLUHC's recent Parking Code of Practice draft Impact Assessment.

About half a million parking claims are now made (2023 likely figure).

The MoJ must separate parking cases with a new pre-action protocol requiring use of ADR instead of inflated debt demands and bulk litigators who want court. It should be a last resort but it's the first.

These MPs are inviting evidence not rants or opinion so we need people like you to respond, who are currently caught up in this nightmare that you / your wife are.

You want to change things?

This Committee is your voice.

As you know, the Government is already regulating the private parking industry, so they are listening and are aware of the scourge of unfair PCNs from rogues and bulk litigators.

Interested parties have until 22 December to make a submission to the committee.

Your evidence will make all the difference.  You or your wife could do the submission for that Inquiry.

Any questions please ask.

It's vital that this Committee hears loud & clear that the problem is parking claims and bulk litigators dominating the small claims track. 

Seneschel

We have the defence signed and can send that right away, my wife has signed it how you suggested and has uploaded the marriage certificate. 

 

I know in the newbies thread it says to only email the defence during working hours to ensure you get a response, should we still email it tonight due to the potential loss of time if they have rejected the AOS?

Coupon-mad

Uploaded?  It's an email with two attachments.  DO IT TONIGHT.

Seneschel

Alright, email sent, thank you!

KeithP

Seneschel said:

Alright, email sent, thank you!

And hopefully you got an email receipt in return?

Seneschel

KeithP said:

Seneschel said:

Alright, email sent, thank you!

And hopefully you got an email receipt in return?

Yes, an automated one almost instantly confirming receipt