Court Claim - Elms Legal & Excel Parking

Coupon-mad

You should read defences on threads dated three or four years ago to see the headers and footer to add into your word doc. You need the long Statement of Truth, not the 5 year old one-liner.

Don't use the form. Don't be tempted to try it & put 'see PDF' otherwise those two words are your defence. No form!

Save your signed & dated defence as a PDF.

MrJenkinsEsq

Have you identified the driver in any of your communication with Excel, or implied it? I'm uneasy that some of the paragraphs could be read as first person admissions. If you haven't sent it yet I'd like to make some other tweaks too.

EDIT: I've made some tweaks throughout by editing the replies with the defence in - so copy it all again. Mostly to soften absolutes and remove some apparent first person accounting since I don't know if it's correct. Also to draw particular attention to the construction arguments and to attack the nauseating sign at the machine. Also noticed they already use the term 'remaining' which helps the construction argument (added at 3.6.3).

If you do find yourself in a hearing, the construction argument probably needs some explaining. The construction argument leads because it is fatal and it turns entirely on the Claimant's own sign - no disputed facts, nothing the Defendant has to prove. If it succeeds, nothing else arises. The points that follow are independent: land owner authority, incorporation, penalty and the Equality Act each defeat the claim on their own.

Incorporation = which terms are included in the contract?
Construction = what do those terms mean?

Incorporation looks like the earlier question, and answering it in this case means mucking around with which signs and terms were visible, prominent, and so on. If the construction defence wins, none of that is required.

But construction also comes first analytically. How much notice an onerous term needs depends on how onerous it is - and you cannot know how onerous it is until you know what it means. So construction isn't just the quicker route to win, it is the prior question.

The sign lists six things that trigger the £100 charge. Five of them plainly describe something the driver did wrong at the point of parking - not paying within five minutes, not entering the registration, not parking within the lines, parking a lorry or caravan, using a disabled bay without a badge.

The sixth is "parked after the expiry of time and/or date in a pay car park". Excel say that catches overstaying. Read alongside the other five, it means the same kind of thing: parking when you have no valid time. Words in a list take their meaning from the words around them - the maxim is noscitur a sociis (Chitty on Contracts (32nd edn), Vol I, Ch 13 "Express Terms", Section 3 "Construction of Terms", para 13-090 and footnote 427).

The word is "parked". Parking is what you do when you arrive; it is not something that carries on while you sit there. And Excel plainly know the difference, because the same sign says "by entering and remaining" twice - once in the contract wording at the top, once in the block at the foot. They had the word for staying, and used it elsewhere on that very board. For the £100 trigger they wrote "parked".

That reading does not leave the sixth trigger with nothing to do. It would still catch the driver who comes back later the same day, parks again without paying, and calls it one long stay on the first ticket.

Applied here: a valid two-hour ticket was bought within five minutes of arrival. At the moment of parking, nothing had expired. What followed was a late departure, which is not "parking after the expiry".

And if the words could bear both meanings, s.69 of the Consumer Rights Act 2015 requires the meaning most favourable to the consumer to prevail.

And there's a bit in there to remind the court it is not to stop the Claimant from hoisting itself with it's own petard.

Paragraphs 3.6 to 3.6.8 of the defence.

MothballsWallet

Another recommendation from me: once you have your PDF document, please run it through a PDF compression tool - personally, I use ilovepdf.com as it's been reliable for me (#NotSponsored) - to reduce the file size for email. The problem with email systems is you never know the following for the receiving mailbox:

• The available space in it.
• The maximum size of an email message that it can receive.
• The maximum size of an attachmend that it can handle.

Snacker

https://forums.moneysavingexpert.com/discussion/comment/82121368#Comment_82121368

No I haven't identified or implied the identity of the driver.

MrJenkinsEsq

@Snacker Thanks for confirming, I think I'm done tweaking the defence now :)

Snacker

https://forums.moneysavingexpert.com/discussion/comment/82121319#Comment_82121319

I've been reading through as many of them as I can from 2023. I've only found a couple that include any header or statement of truth, but I think I've found what you're referring to, and just want to make sure given the consequences if I get it wrong.

Is this the header I need to include?

IN THE COUNTY COURT

Claim No.: xxxxxx

Between

XXX (Claimant) and XXX  (Defendant)
_________________

DEFENCE

[Defence statement]

And is this the footer I need to include?

Defendant’s signature: 

Date:

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.

Gr1pr

Thats correct, adding an e signature at the bottom ( black ink on white paper, take a picture or scan it, add it at the end, save it as a pdf

Snacker

I submitted my defence via email last night and I was expecting it to show as received on MCOL today, but it isn't.

On getting home from work I saw that I'd received an automated reply from the CNBC last night just after I logged off. In it is stated:

When sending us documents please ensure you comply with the Practice Direction 5B

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part05/pd_part05b

Documents not complying will not be accepted, in particular if it is over 10MB or 25 printed pages in size.

One of the rules specified is:
3.1 An e-mail sent to the court must—

(a) include the name and telephone number of the sender and an address for contact, which can be an e-mail address

I didn't include my phone number in my email, although I did include my address. My defence deadline is Monday (7th September), presumably at 16:00. Should I add my phone number to the email and re-send it now? Or could sending it again cause more problems?

kryten3000

Call them first thing Monday - it can take them up to 10 days to process an email.

Snacker

https://forums.moneysavingexpert.com/discussion/comment/82125926#Comment_82125926

I was pretty screwed from the beginning then, as I didn't even see they'd put a bar on the case on MCOL until a week ago and nobody here- or the woman I spoke to at the CNBC- mentioned a 10 day timescale for them processing an email.

Calling them on Monday won't be possible as the signal at work is terrible and I don't finish until long after the deadline passes. Am I now looking at a default judgement?