Excel Parking vs MrGrumpy

callmeMrGrumpy

Exaggerated Claim and 'market failure' currently examined by the Government

 

1.       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.

 

2.       I say that fees were not paid out or incurred by this Claimant, who is to put 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.

3.       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.

 

4.       The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here:

 

“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."

5.       Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some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: 

6.       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.

 

7.       With that sum in mind, it is clear that the extant 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.

8.       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.

 

9.       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.

 

10.   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.

 

11.   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.

 

12.   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).

callmeMrGrumpy

CRA Breaches

 

1.       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.

 

2.       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.

 

3.       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).

 

4.       Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit 7)

 

The Beavis case is against this claim

 

5.       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 11) - set a high bar that this Claimant has failed to reach.

 

6.       Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (See Exhibit 08) for paragraphs from ParkingEye v Beavis).

 

7.       In the present case, the Claimant has fallen foul of those tests. There is one main issue that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

 

7.1.    Hidden Terms:

 

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence. The purported added (false) 'costs' are even more hidden and are also unspecified as a sum. Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top. None of this was agreed by me, let alone known or even seen as I attempted to gain entry to the store. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

7.1.2.Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

7.1.3.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".

Excel Parking Services Ltd Witness Statement errors.

Conclusion

8.       At no point has the Defendant denied using the carpark facilities or tried to evade the charges, and I believe I went above and beyond reasonable steps to provide payment at the soonest opportunity.

9.       The Contract has hidden terms, unexpected/cumbersome obligations and 'concealed pitfalls or traps'. 5 minutes to navigate site, Park safely, locate and approach pay station, read all Terms and conditions and make an informed decision, complete payment transaction or if necessary return to vehicle and vacate site is a cumbersome obligation and does not have scope for failures in equipment at technology owned or operated on the behalf of the Claimant.

10.   The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

11.   The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC. It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation. In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

12.   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.

13.   With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. 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.

Not_A_Hope

Your claim number and VRM are visible in your draft WS. A few comments to help hone your WS.

All paragraphs should be numbered 1, 2, 3 etc and continue throughout the statement for easy reference (not 1, 1.1, 1.2 etc).

Delete para 7. Don’t waste your time trying to counterclaim. That should have been submitted with the Defence along with a fee and very unlikely to succeed.

I don’t know what others think but I think they allegation  ‘Parked without purchasing a valid P&D ticket for VRM’ in the POC is specific enough that Chan does not not apply in your case. I would delete all references to Chan including that in your Conclusion.

Para 1.11. I wouldn’t mention anything about failing the grace period in your WS unless you saw it on the sign and were aware of this restrictive condition. If Excel are daft enough to take it to a hearing let their rep squirm on whether they are suggesting you did not pay (which is the allegation in the POC) or were delayed in paying as a result of their machinery and app failings.

You haven’t mentioned anything about lack of signage or landholder authority 

Hope this helps

callmeMrGrumpy

Ok. My old eyes I can’t spot the edit button to remove reg and case number.  Any clues or is it another new account issue so don’t yet have the rights. 

The paragraph numbering are continuous in the word document, just cut and paste into multiple posts meant here means bit of formatting got messed up. Hopefully all addressed when I get rights to post links and can have the document properly hosted so can be viewed properly. 

Paragraph 7 I submitted a counter claim for wasting my time at time of defence but already been dismissed  as Judge said that costs of defending are stanardly discussed at end of case and will be addressed then. Paragraph 7 just for completeness as it’s restating the defence I submitted, but will remove it from the WS. 

Paragraph 1.11 I’ll amend to be an acknowledgment of what the staff at Jumpin Fun said. 

The POC claims parked without ticket. Do I drop the chan parts and just up argue that they are changing their tactic from no ticket to slow ticket purchase and argue that the 5 minute condition is an unfair condition?

Landholder responsibility, an earlier post I made yesterday listed the evidence the Judge is expecting from EPS and what they have actually provided. I need to add a whole section to this tearing up into the WS by EPS as Dili g to answer or provide information directly asked for.

 They have supplied a mock up of what they think the signage should be as of now as the contract, not what was present last June. But this is just a computer image not photo and it’s not dated. Google mapsshow the entrance of the site a week prior to the date I was there and it’s completely different. 

They also have only provided a bit of excel headed paper only detailing excel stating they have rights on the land, and no details or signatures from the landowner. It fails to meet the requirements they have been directed to provide. Then there are other issues with the images have provided, all detailed in an earlier post. 

Out of curiosity - how long does an account need to be active before I can post links?

callmeMrGrumpy

yeap - confirmed the editing of a post is a feature only allowed after a certain criteria met, but not sure if its a number of posts or a number of active days. can't find details but may just need to be active a few more days.

Not_A_Hope

On any threads you contribute you should see three dots at the top right hand side of your comment. If you click on this you can access the that comment and edit it. I think you need about 10 posts before you can edit or post links.

As far as I am aware Chan is used in a defence where the PPC have simply stated the driver parked in contravention of the terms and conditions without stating which term was breached. They have made a specific allegation in the POC that you parked without purchasing a valid P&D ticket for VRM. You can refute this allegation by providing evidence of your purchase via an App. Have you checked that you inputted the correct VRM?

If Excel wish to argue in court that actually you broke their Terms and Conditions in relation to any grace period then that is what they should have put in their POC. 

callmeMrGrumpy

This is my 12th post - as yet no cog or three buttons to edit a post. 

About the claim, their POC said no payment made, my records and their witness statement say payment was made, and then in their witness statement they say it was paid to slowly, a different argument than that made in POC, I’m also arguing the 5 minutes consideration and payment period is an arduous and unfair condition and does take into account their own equipment failures. 

Signage as I entered the car park at time has nothing stating payment within 5 minutes, I’ve got a google street view image with the date as part of the evidence. The signs, tariffs and machines have all been updated since the event. 

Coupon-mad

I think the magic number might be 20 posts!

Not_A_Hope

Signage as I entered the car park at time has nothing stating payment within 5 minutes

If you have evidence of that they can hardly claim you broke their grace period if it wasn’t include on their T&Cs

callmeMrGrumpy

I can no edit posts - i'll be going back and fixing up the previous posts, but fingers crossed can now post links to my actual document. anyway, down to business.

The Chan suggestion.Not_A_Hope said:

On any threads you contribute you should see three dots at the top right hand side of your comment. If you click on this you can access the that comment and edit it. I think you need about 10 posts before you can edit or post links.

As far as I am aware Chan is used in a defence where the PPC have simply stated the driver parked in contravention of the terms and conditions without stating which term was breached. They have made a specific allegation in the POC that you parked without purchasing a valid P&D ticket for VRM. You can refute this allegation by providing evidence of your purchase via an App. Have you checked that you inputted the correct VRM?

If Excel wish to argue in court that actually you broke their Terms and Conditions in relation to any grace period then that is what they should have put in their POC. 

My point of argument for using the Chan case was that in CPR 16.4a - 

(a)a concise statement of the facts on which the claimant relies;

My point it's not a statement a concise statement of facts and just copy and pasted waffle firing off stray points like no ticket and briefing saying in breach of T&C's but doesn't specifically name the draw attention to which T&C. Based on the POC, am I defending some unknown T&C breach or non-payment?