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

Coupon-mad

The numbers they come up with are as clear as mud!  Should this go into the claim form?

Nothing goes into any 'form' but yes add that to your facts section of the Template Defence.

Plus deny that the PCN was "issued on 4th May 2024" as pleaded.

spbctjr

It seems that less is more ;-)  next version -

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 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.

4. It is completely unclear how the Interest charges, as noted on the POC, at a rate of 8% or £0.03 per day have been calculated.

5. The PCN was not issued on 4th May as stated in the POC.

6. 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.

7. 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

8. 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.

9. 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.

10. 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).

11. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

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." 

12. 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:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

13. 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).

14. 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.

15. 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. 

16. 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'.

17. 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).

18. 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'.

19. 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.

20. 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'.

21. 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

22. 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):

 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

23. 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.

24.  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

25.  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.  

26. 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''. 

27.  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

28. 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.

29. 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

30. 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.

31. 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. 

32.  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:

 

Coupon-mad

That's great (but we never need to see the whole of the template defence...)!

Le_Kirk

genuine pre-estimate of loss

This is not used any more.  I haven't read through the whole of the defence as 1) it would take too long and 2) we don't need to check the work of the template writer (@Coupon_mad) and am assuming that you didn't make any changes to the standard template.

RogerW_3

spbctjr said:

.

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.

Total nonsense.

 IPC Code of Practice Section 14.2 makes Excel 100% responsible for it's chosen technology being fit for purpose. Section 27.1 requires Excel to ensure that it's operatives, servants and agents maintain a professional standard and comply with the law at all times. Section 25.1 requires compliance with consumer laws.

Taken as a whole this means that if the app cannot be downloaded, the terms and conditions read and understood (and in the context of any Excel signage T&C) and successfully used to make payment within the 5 minutes period (which is generally the case) then it is unfit for purpose, unfair terms and conditions exist and Excel do not have a reasonable or valid claim. The Motorist is not responsible for an unfit for purpose app. 

I suspect a court may agree that it is physically impossible to comply with the 5 minute period. Indeed, if you take into consideration the Excel T&C, the Connect T&C, and the IPC Code of Conduct (which you need to be able to find and then download, assuming it is even mentioned in the signage), you could potentially argue that it may reasonably take more than an hour to obtain all that information, digest it and understand how it all inter-relates before you can make a decision on whether you want to pay to park. 

There should never be a 5 minute period for making payment. Instead there should be a reasonable obligation to make payment within a practical period if the stay is longer than 5 minutes.

 In addition, until such time that you can successfully download the payment app you know nothing about the hidden fees. If it takes more than 5 minutes to successfully download the app that means you know nothing about those fees until the grace period has expired, and those annoying hidden fees may make people decide not to park, so Excel are deliberately luring people into incurring a Parking Charge and that violates Section 27.3.

Because those Connect T&C are not correctly stated in the Excel signage, they are also deliberately using misleading tactics to lure motorists into incurring Parking Charges which is a violation of Section 27 3.

One other problem at many Excel Car parks is that the WiFi signal is too weak so downloads and attempts to pay repeatedly crash or totally fail. Excel deliberately use Connect Cashless to exploit the weak WiFi signal to their advantage. Needs to be challenged. Given it's obligations under Sections 14 .2 and 27.1 it seems to me that Excel has a legal duty of care to install a free to use strong WiFi signal if it is using a payment app and so that no matter what mobile data operator a motorist is subscribed to, downloading the app and making payment can always be achieved quickly just like it is quick to feed coins into a machine or use card payment. It is well known that some data operators have poor or even no WiFi signal in some areas. Such analogies may be useful as a case defence.

Also, given that they have been notified in thousands of appeals and also court cases about the app being the problem preventing payment, Excel has an over-riding obligation under Sections 14 2, 21 and 27.1 to carry out corrective action due to the magnitude of complaints. It cannot keep trotting out the nonsense third party app excuse. I am considering requesting them to provide details of all appeals that identify the payment app problem so that their own data will evidence that the app is a very obvious problem and that they are failing to take corrective action in compliance with Sections 14.2, 21 and 27.1. It will take them a long time and cost them a lot of money to collate all that data. Cheaper for them to withdraw.

With regard to terms and conditions. Because the Connect T&C are not stated in the signage that means that Excel signage T&C are incomplete and cannot be enforced. It has also occured to me that the IPC Code of Conduct is not fully stated on any Excel Car Park Signage and it seems to me that may also mean that the Excel T&C are incomplete and unenforceable.

One other problem caused for Excel by the Connect app. The Excel T&C signage fails to correctly mention the hidden "convenience" and sms payment confirmation fees, so the Excel T&C are incomplete, misleading, unclear and unenforceable. They probably also violate unfair contract terms consumer protection law which may give Excel a £5,000 fine headache.I am thinking of requesting a copy of their agreement with Connect Cashless. I suspect it will destroy their third party app nonsense excuse.

pablotoon19

spbctjr 

If you dont mind, could you share a copy of the freedom of information that you sent to Excel. 

I'm currently going through an appeal having paid for parking through their Connect app, but the app didn't provide any receipt details and I've only got my digital banking transaction as proof that it happened. 

Thanks.

Castle

pablotoon19 said:

spbctjr 

If you dont mind, could you share a copy of the freedom of information that you sent to Excel. 

I'm currently going through an appeal having paid for parking through their Connect app, but the app didn't provide any receipt details and I've only got my digital banking transaction as proof that it happened. 

Thanks.

Neither Excel nor Connect are subject to the F.O.I. Act. 

Coupon-mad

pablotoon19 said:

spbctjr 

If you dont mind, could you share a copy of the freedom of information that you sent to Excel. 

I'm currently going through an appeal having paid for parking through their Connect app, but the app didn't provide any receipt details and I've only got my digital banking transaction as proof that it happened. 

As above, you can't FOI Excel.

What's happened in your case is either paying 'too late' going by Excel's unworkable 5 minute limit, or you paid for the wrong car or made a VRM typo.

pablotoon19

Spbctjr stated that they had obtained details of the app and attempts to make payment, that’s what I’m looking to evidence for mine, but I don’t have any way of making them provide this.

My alleged offence was an hour after parking and paying via the app, but the app isn’t showing a receipt. I do however have the bank transaction showing the purchase (3 hours parking plus the 20p convenience fee). 

This is the only time I have ever used the app and my vehicle details, still stored in the app are correct. There were loads of cars in the car park that day with penalty notices on the windscreen so I suspect the app failed to work properly that day, but they have demanded I produce the VAT receipt from the app, which is blank. The only proof I have of the transaction is my bank statement.

Coupon-mad

Who is the app provider?