Excel Parking DCB Legal Ltd Parking Failure to Purchase Ticket at Earlsdon Park Coventry

spbctjr

Dear All,

As the title suggests I have recevied a PCN for non-payment/failure to pay for parking.  I have appealed (before coming to this site) and failed.  And am now at the Claim Form stage - acknowledgement of service submitted.

I was wondering if I could get some advice as to what to focus on for my defence statement.  In my own words I will describe the events:

I entered the car park at 17:00 with intention of parking overnight as I was staying at the nearby Premier Inn.

The signage on entry was not easy to read whilst driving in.  This multi-storey car park is barrier free on entry and exit.  I estimate that I spent about 2 minutes parking and then another minute taking my large bag out of the car and organising my bits.

I then walked from the car to the payment terminal on the ground floor.  Another 30 seconds or so.

I use parking apps all the time, due the convenience and after reading on the sign next to the pay machine there was an app payment available, I decided to this.  In my experience this is a more convenient method, as it allows you to extend parking without returning to the car park.  I was also staying for a second night, so this would make it easier for my return on the second night.

Unfortunately, Excel use Connect Cashless Parking App.  It is terrible.  I have timed how long it takes with a good connection to download the app and set up an account - 4 minutes 50 seconds.  As other posters have pointed out this has separate terms and conditions attached, so to read these would take a few more minutes.  I did not read these terms and conditions or the ones on the wall of the car park, as foolishly I expected them to be reasonable and I have better things to do with my time.

Once installed, I attempted a payment that failed.  Under a freedom of information act Excel have stated in an email reply that this was 9 minutes and 21 seconds after entering the car park.  I attempted to pay with the same card once more and then a different card.  After the third attempt and now in my hotel room I gave up and returned to the payment machine and made payment.

In the FOI request, Excel state there were "3 failed payment attempts for your VRM".  This confirms I entered the correct registration number/details.

I don't have the original PCN to hand but will add this as soon as I get home.  on the myparkingcharge.co.uk it state it was for 101) FAILURE TO PURCHASE THE PARKING TARIFF FOR THE REGISTRATION MARK OF THE VEHICLE ON SITE AND/OR WITHIN THE TIME ALLOWED.

I did submit an appeal to this site and got the following response:

We refer to your appeal in respect of the above Charge Notice (CN) received on 18/05/2024.

Having considered the points you have raised and reviewed our records, we are unable to accept your appeal. Our

main reason(s) for this decision are as follows:

We acknowledge receipt of your appeal regarding the Charge Notice. While we understand that payment was indeed made for parking, it is important to note that this was done outside of the specified consideration period. As clearly outlined in the signage at the car park, vehicles must have a valid payment within the designated time frame. Any payment made outside of this period does not fulfill the requirements set forth in the Terms and Conditions.

Therefore, the charge has been issued correctly in accordance with the regulations stipulated on the signage.

In your appeal you have confirmed to us that on the date in question, you were the driver of the vehicle at the time it parked in the car park.

We note your comments concerning the use of Connect, however we must clarify that Connect is third-party software for which we are not responsible. When paying for parking using Connect, motorists should ensure that their payment has been allocated to the correct vehicle registration number, it is imperative that the information used is100% accurate. Once payment for parking is made, an acknowledgement is given that parking has been authorised and gives details of the vehicle authorised to park, the parking duration paid for, and the period of parking expiry time; it is the motorists responsibility to check those details are correct before leaving the vehicle parked and return before that period expires.

A reasonable amount of time is allowed on the car park (Consideration Period) for drivers to park their vehicle, read the advertised Terms and Conditions displayed and then either make a valid payment or leave the car park; on this occasion that Consideration Period was exceeded and as no valid payment was made within the allowed time, you became liable for the Charge Notice issued.

We maintain that the signs on this site meet the requirements set by the International Parking Community (IPC) Code of Practice. The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so. It can never be a defence to a claim in contract law to say, "I did not read the terms", so long as the existence of those terms is reasonably advertised. We have fully reviewed this case and we are satisfied that the Charge Notice was correctly issued. We are unable to accept the mitigating circumstances raised in your representations, your appeal is therefore rejected and the charge

will stand;

So to my mind the "consideration period" of 5 minutes is totally unreasonable.  They offered an option to pay by app, and this alone would take more than 5 minutes to completet a payment if it actually worked.  Add in the time to park, unload your car, walk to the payment terminal, read all the terms at the car park and on the app, its easily 10 minutes (10 minutes is what I have seen at a lot of other carparks operating a similar system).

However, I appreciate, this may not be the best approach.  I have not returned to check the signage as I am not local and google maps is out of date, but I am pretty sure it did state the 5 minutes as photos of the recent signs from Excel all say this and the signage looked quite new.

They acknowledge I paid, just not within the consideration period.  I left the car park the next morning well before the parking period expired.  So they have not lost out on unpaid parking, so no loss to them.

Any advice would be much appreciated.

Thanks,

A very annoyed Excel customer.

Coupon-mad

You're not an Excel customer. There are only Excel victims who get claim forms!

Excel are an appalling ex-clamper company and I predict they'll eventually get kicked out of the AOS old boys' club and finally banned from processing DVLA data.

Here's a similar thread:
https://forums.moneysavingexpert.com/discussion/comment/80998227#Comment_80998227

Do NOT copy that defence, which is a little basic and was written before the person found this forum. However, the way they worded & explained the delay in paying is reasonable and you should try to fit your story concisely in as paragraph 3 of the Template Defence.

Show us what you come up with.

Show us the redacted Claim Form too (cover your data & VRM & the claim number & the MCOL password).

This is a strong defence position - you owe nothing - and DCB Legal always discontinue before hearings anyway.

It'll all be over in 2025 with no hearing and nothing to pay. They are trying it on.

spbctjr

Sorry Coupon-Mad, I meant victim!

Thanks for the advice and reassurance.  I will put something together based on the post link given.

Coupon-mad

Show us what you come up with for your paragraph 3 onwards (use more paragraphs if you need to, and renumber the Template).

Show us the redacted Claim Form too (cover your data & VRM & the claim number & the MCOL password).

KeithP

Hello and welcome.

What is the Issue Date on your Claim Form?

Can you please show us a picture of the Particulars of Claim - with personal detail hidden of course.

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so? Your MCOL Claim History will have the definitive answer to that.

spbctjr

Hi Keith,

Issue date 5th September (went on holiday on 4th) - Acknowledgement of Service filed today, 17th September.

Claim form below.

KeithP

spbctjr said:

Issue date 5th September - Acknowledgement of Service filed today, 17th September.

With a Claim Issue Date of 5th September, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 8th October 2024 to file a Defence.

That's three weeks away. Plenty of time to produce a Defence but please 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'.

spbctjr

OK first attempt:

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Excel Parking Services Limited

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (Defendant)

_________________

DEFENCE

 

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

 

The facts known to the Defendant:

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 driver.

 

3. The Defendant was using the car park as they were staying at the nearby Premier Inn hotel.  On the day in question the Defendant entered the car park at approximately 17:00.  The Defendant did not see any signs close to where they parked.  On entry, the Defendant understood from the signage that payment should be made at the payment terminals on arrival, but after parking their vehicle.  The Defendant was not able to read or notice any other conditions whilst entering the car park.

4. The Defendant was visiting Coventry to participate in a sports event and had a large amount of kit with them.  From entry to parking, the Defendant took around 2 minutes.  Another minute was spent removing their kit bag and other effects to carry to the hotel.  The Defendant then walked to the payment station which took approximately 30 seconds.

5. The Defendant noticed that a cashless parking app was offered as a method of payment and decided to proceed with this method of payment.  They installed the app (Connect Cashless Parking), which takes around 5 minutes on a good internet connection to install on a fast Android phone, including the requirement to add personal details, acknowledge (but not read a set of terms and conditions), and receive and enter a code sent by SMS to the defendant’s phone.

6. During this time the defendant was walking to the Premier Inn hotel with his bags.  The defendant entered the correct vehicle details and the correct card details on the app.  The first attempt failed with no explanation given on the app exactly 9 minutes and 21 seconds from the point at which the claimant states the Defendant’s vehicle entered the car park.  A second attempt was made and again failed.  A third attempt, with a different card, was made, which again failed.

7. At this point, the Defendant was in his hotel room so had to return to the car park pay machines and pay using the same card that he had attempted to use on the app, this time working successfully.

8. The Defendant paid for 24 hours of parking, entering the car park at approximately 5pm and leaving the next morning at approximately 9:55am, utilising only 17 hours of the 24 paid for.

9. The 5 minutes allowed from entry to payment is totally unreasonable.  The Defendant made every attempt possible to pay as quickly as practically possible.

10. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

11. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.


Exaggerated Claim and 'market failure' currently being addressed by UK Government

12. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

13. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

14. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

15. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: link removed.

The Ministerial Foreword is damning: "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." 

16. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here:  link removed

17. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

18. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

19. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the  fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

20. It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  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 ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

21. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

22. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

23. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

24. 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 from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

25. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

26. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

 link removed

27. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

28.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of 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

29.  Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

30. The Supreme Court held that 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 alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

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

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities 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''. 

31.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review' the IPC's CEO observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t." 

Lack of standing or landowner authority, and lack of ADR

32. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

33. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

Conclusion

34. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

35. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

36.  Attention is drawn 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))."   

 

Statement of Truth

I believe that the facts stated in this defence 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.

Signature:

Date:

LDast

Your para #3 (and the extra ones) doesn't have to be so long and detailed. You are simply defending against the allegation in the PoC. Imagine you had no prior knowledge of the PCN and the first you knew about this invoice was the claim and the only detail you have is what is alleged  in the PoC.

Their allegation is unclear as it does not state what the actual term of the "contract" was breached. Also, have a careful look at all the info provided in those PoC. Is the date shown the actual date that the PCN was "issued"? Remember, the PCN isn't actually issued until after they have obtained the keepers details from the DVLA which tales a day or so. Check the date.

How much of the sum being claimed is the principal and how much is actually damages? Does the interest calculated include on whatever the alleged  damages or debt recovery cost were? Either way, from what date has interest been calculated as you need to check the sum being claimed is accurate?

So, as you see, there is very little to go on and you can actually expand on your defence late, when you prepare your Witness Statement. All you need is the "hook" in the defence. Something along the lines of this for your para #3 is all you would need. The rest of the defence covers all the other failures in the PoC:

"The Defendant paid the correct tariff for the full period parked. However, the Claimant's requirement to use a third-party app, notorious for its slowness, frustrated the Defendant's ability to pay within the inadequately short and unclear consideration period of five minutes. The attempt to impose a charge for simply taking too long to complete payment—despite the full tariff being paid—amounts to an unenforceable penalty rather than a genuine pre-estimate of loss."

Coupon-mad

Was the PCN actually 'issued' on 4th May?

Or was that only the parking event date?

spbctjr

Dear All,

Thanks for the comments.  I will amend para 3.

With regard to interest calculation the PCN was given an issue date of 10th May 2024.

Initial charge was £100 (£60 for early payment), they have added £70 "debt collection fee".  So £170 total, which on the claim form has risen to £173.76.  i.e. 3.76 of interest.  They state interest is £0.03 per day, so 125 and 1/3 days interest.

It is 125 days from the date of parking.  119 days from the date of the PCN. 

At 8% interest stated as a charge of £0.03 per day, that's £10.95 interest per year.  So that would make the amount they are claiming to be charging interest on £136.87, which makes no sense to me, however I try and calculate it.

Presumably, the debt collection cost of £70 was not "incurred" by them immediately, so charging interest on this from the 10th May would not be allowed. The numbers they come up with are as clear as mud!  Should this go into the claim form?

PCN image attached for reference.