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Excel Parking LBC Responded

Hi,

I received a NTK on 30/08/2023, parking offence was 25/08/2023.

I ignored everything up to the point of receiving a LBC on 14/11/2023.

I responded with this.


Their response was this.. Just looking for some guidance on next steps please?


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Comments

  • Coupon-mad
    Coupon-mad Posts: 129,323
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    Have a look at the NTK pictures thread.  Compare your Ntk. Was it a POFA one?

    Ask the questions again.
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  • DannyMac1984
    DannyMac1984 Posts: 792
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    edited 6 December 2023 at 1:14PM
    Thanks for the response.. I've seen that post previously but I'm struggling to find it again?

    Thought it might be easier just to post the NTK.. Doesn't look like the "period of time the vehicle was parked for" is mentioned anywhere in this letter.  It specifies the time the ticket was placed but not how long I was parked for.  Not sure if this is enough to invalidate NTK?

  • DannyMac1984
    DannyMac1984 Posts: 792
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    Hi

    Made a bit of progress with this.

    im at the point where ELMS legal sent me a letter but didn’t detail any charges or anything just continued on with Excel’s stance of “pay me my money!”.

    I emailed ELMS pretty much the same as I’d emailed Excel, their NTK didn’t specify a period of time for parking.  Excel stated in their letters that they follow IPC Code of Practise which does specify in section 25 that they complement the relevant legislations, 1 being POFA including schedule 4 so surely on this basis they’ve failed POFA and their claim is invalid?

    ELMS did offer me the fantastic opportunity to pay £145 to settle the debt which was obviously very generous of them and ignored everything else I said in my email.
  • Coupon-mad
    Coupon-mad Posts: 129,323
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    edited 3 January at 2:32PM
    It's not invalid.  Other approaches are available other than the POFA, which isn't mandatory.

    Come back when you get your court claim to defend.  It heralds the start of the process to winning.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • DannyMac1984
    DannyMac1984 Posts: 792
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    Thanks Coupon-Mad I will do
  • troublemaker22
    troublemaker22 Posts: 408
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    Just to be clear, Excel uses a form of NTK mandated by their trade body, IPC.  Unfortunately for Excel, but fortunately for their victims, the IPC model is not fully compliant with POFA.  POFA is an Act of Parliament, the law of the land. The IPC is a bunch of jumped-up nobodies with no legal or regulatory authority.  So POFA trumps the IPC.

    You've already spotted the failure to specify a period of parking (POFA 9(2)(a).

    Now look at the warning at the bottom of the page.  Does it conform to POFA 9(2)(f)?

    Remember that POFA failures benefit keepers and hirers, not drivers so when it does eventually arrive look at the claim form to see whether they are claiming from you as just driver or in one or both of the other categories as well.  In any event, if you agree with me that the NTK is not POFA-compliant, you need to be very careful not to write anything in the Defence that indicates the Defendant was driving.  Plus some other bells and whistles we can discuss after you get the claim form.
  • DannyMac1984
    DannyMac1984 Posts: 792
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    Sorry @troublemaker22 I only just read this reply, it's very helpful!

    The statement on the bottom of their NTK does cover 9(2)(f), however, 9(2)(d)(i):-

    (d)specify the total amount of those parking charges that are unpaid, as at a time which is—

    (i)specified in the notice

    is covered no where in the NTK.  I assume because they haven't specified the period of parking as per 9(2)(a) they can't determine the length of time the driver was parked there and therefore can't assign a monetary value to what parking charges were unpaid?  Unless I'm reading that wrong and it just refers to their insane charge of £100 which clearly isn't a true representation of the loss they incurred on that day!

  • DannyMac1984
    DannyMac1984 Posts: 792
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    Hi, I've now received a claim form for this, issue date 05/02/2024.  I've filed an acknowledgement of service through MCOL.

    I know my next steps are to start my defence which I've taken a copy of the template.

    I think point 2 stays the same does it?

    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 appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

    and 3 is where I detail my defence, no sure where to start?  In the particulars of the claim they state "At all material times the Defendant was the registered keeper and/or driver".  Is it just a case of refencing the above, regarding failure to meet POFA and I cannot be "tried" as the keeper of the vehicle and it isn't required of me to specify who was driving at the time?
  • KeithP
    KeithP Posts: 37,098
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    edited 13 February at 4:22PM
    Hi, I've now received a claim form for this, issue date 05/02/2024.  I've filed an acknowledgement of service through MCOL.
    With a Claim Issue Date of 5th February, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 11th March 2024 to file your Defence.

    That's almost four weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving 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'.
  • Coupon-mad
    Coupon-mad Posts: 129,323
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    edited 13 February at 4:31PM

    Excel cases are easy to defend and you have nothing to lose because you'd pay less even if it went to a hearing and you lost!

    Use the template defence - ONLY admit to being the registered keeper in para 2 - and have this sort of thing as paras 3 and 4:


    3. The Particulars of Claim are woefully inadequate. Accordingly, while the Defendant admits to being the keeper of the vehicle, the Defendant does not admit any of the other facts and circumstances alleged in the particulars of claim, as to which the Claimant is put to strict proof along with supplying a copy of the contract - the signs - and evidence (if they have it) as to who was driving and that any method of payment was working at the material time.

    4.  The Defendant does not recall being served with a Notice to Keeper that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases - which this same Claimant and their sister company lost, twice - and these transcripts will be adduced in evidence:

    (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 acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but 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) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "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 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..." Mr Edward's appeal succeeded and the Claim was dismissed.  


    (Then don't use para 4 of the Template Defence as it says there's no alleged loss.  Copy para 5 to the end, and do what the first 12 steps in the Template Defence thread says to do in the first 3 months).

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