Court Claim - Elms Legal & Excel Parking

Coupon-mad

That para 1 isn't the correct one from the Template Defence.

And these two statements aren't quite true:

"Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late."


"The Equality Act requires parking operators to allow more time for those with impaired mobility."

The alleged contract isn't formed at the entrance and the EA doesn't talk about parking operators. It talks generally about service providers and in fact the bit about 'allowing more time' is in the examples in the EHRC statutory Code of Practice for Service Providers.

Snacker

Thanks, @Coupon-mad

I've revised those parts and added some more points that I've found. Everything from 4 onwards is the same as before so I've just posted what's changed since the first draft. Does this look ok now?

1. The Claimant’s sparse case lacks specificity and does not comply with CPR 16.4, 16PD3 or 16PD7, failing to 'state all facts necessary for the purpose of formulating a complete cause of action'. Further, the Claimant has improperly added a false 'fee' or damages to the original Parking Charge (PC). This sum is not legally recoverable and constitutes an attempt at double recovery, which is unreasonable conduct under CPR 27.14(2)(g). The binding Supreme Court judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 held that an £85 parking charge more than covered all the 'costs of enforcement' which HHJ Moloney had listed as the pre-action work of a DVLA look-up and a simple automated letter chain, including a LBC. The same heads of cost cannot lawfully be counted twice and interest should also be disallowed. Exaggerated claims for impermissible sums are good reason for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

2. The Particulars of Claim are sparse and fail to set out with sufficient particularity the precise terms said to have been breached, the location and content of the signage relied upon, the basis of any additional sums beyond the original parking charge, or the Claimant’s standing. The Defendant reserves the right to amend this Defence if fuller particulars are provided.

3. The Claimant is put to strict proof that the signage was sufficiently prominent, legible and numerous to form a binding contract on the terms alleged. At the material time the signage at the car park was sparse. In particular, the sign at the entrance was partially obscured by vegetation (photographic evidence will be produced). Entrance signs are required by the applicable code of practice to be clear and unobstructed so that a motorist is put on notice, before or upon entry, that controlled parking terms apply.

3.1. The Defendant acknowledges that there was a clear, unobstructed sign located next to the payment machines and that a ticket was purchased shortly after arrival.
However, the overall sparsity of signage and the defective entrance sign mean that the terms were not brought to the attention of a reasonable motorist with the prominence required by ParkingEye Ltd v Beavis [2015] UKSC 67 and the relevant code of practice. The Claimant is put to strict proof of the exact content, size, positioning and legibility of all signs on the date in question.

3.2. Further and in the alternative, any technical overstay of approximately 25 minutes was caused by circumstances beyond the Defendant’s reasonable control. The Defendant was accompanied by a person who has rheumatoid arthritis. That person suffered a sudden and severe flare-up whilst away from the vehicle, requiring significant practical assistance to return to the vehicle safely. The delay was short, unintended and directly caused by the medical episode.

3.3. Genuine medical emergencies and disability-related difficulties are recognised mitigating circumstances under the applicable codes of practice. Enforcement of a parking charge (still more an inflated sum of £255) in these circumstances would be disproportionate. The Defendant will rely on photographic evidence of the signage and supporting medical evidence if required.

Coupon-mad

That's too long and won't all fit in MCOL, but you could try it if you remove para 10 from the Template Defence.

1505grandad

"Enforcement of a parking charge (still more an inflated sum of £255)……"

Surely the sum should be £170?

MrJenkinsEsq

What are the exact words on the sign by the payment machine describing when the £100 charge applies? A photo is ideal if you can get one. "Parked after the expiry of the time purchased" is the solicitor's wording. The sign's may differ, and if it actually says failing to buy a ticket rather than overstaying one, that could be incorporated into the defence.

Is it the one in Derby? I work somewhat nearby and could get photos on my way home. Caveat being we're a year on so they may have changed in the interim. I think Excel's signs carry a dated version code though which would be helpful.

Snacker

https://forums.moneysavingexpert.com/discussion/comment/82113742#Comment_82113742

I thought it'd fit as it came to 108 lines in my Word document, but then I suppose it depends on how the MCOL form decides where the line breaks are. To test it I went to MCOL, clicked 'Respond to claim' and tried to log in to access the defence form but it just keeps saying that the claim number or password are incorrect. I've triple-checked both and they're exactly what's on the claim form (and exactly what I used when I submitted my AOS).

Snacker

https://forums.moneysavingexpert.com/discussion/comment/82113837#Comment_82113837

Shouldn't I refer to the total amount they're asking for?

Snacker

https://forums.moneysavingexpert.com/discussion/comment/82114072#Comment_82114072

Thankfully I took photos of the car park very soon after the alleged infringement. I'll post them here. This has just reminded me that there were actually two tariffs on the sign by the payment machine as well, although I'm not sure if that helps me at all.

MrJenkinsEsq

On the £70. It's on the sign as "a collection fee of £70.00 on an indemnity basis for costs incurred". An indemnity covers what was actually spent, so £70 is a ceiling and they have to prove the costs. Its trigger also refers to "the payment terms detailed on the Parking Charge", which didn't exist when the contract was made.

I'm not sure that the paragraph about it being double dipping is correct in this case. Not to the point I'd suggest removing it but if it was me I'd add an in the alternative covering the above. I have to admit some ignorance because I'm not familiar with the terms in the cases the judges threw it out from.

Coupon-mad

There are loads of threads and news articles about Excel's little game at Copeland Street.

What a word-soup sign!

And the 'privacy notice' has to be at the entrance (to prominently warn of camera surveillance BEFORE a driver crosses the threshold) not tacked above the gobbledegook main sign inside.

I would concentrate your para 3 on the Equality Act 2010 and talk about:

The fact that disabled persons are legally entitled to more time by law, yet this gobbledegook wordy sign fails to provide a mechanism for persons with 'protected characteristics' and their carers (who are also protected by law) to claim that time extension. The Defendant's legal position relies on the Equality Act 2010 and the EHRC statutory EA Code of Practice for Service Providers and Public Functions, which sets out the fact that fixed time limits and inflexible policies from Service Providers are illegal (see the 'Tours' example in the statutory EA Code). There is no justification by the Claimant saying they 'did not know' about the passenger's needs because the illegality here is indirect discrimination of the disabled population 'at large' (not direct discrimination of a known person).