Excel Parking - County Court Letter

n4im · 15 January 2018 at 1:20AM

Good evening,

Over the past few days I have been reading the forum for County Court letters for unpaid Parking Fines including the newbies thread.

There are two cars in the household. Car A was taken to the car park and the driver put money in the machine and in auto-pilot mode typed in number plate of car B. About a week later the registered keeper got a PCN. A picture of the parking ticket matching the PCN timing was sent [which had the wrong cars number plate] and the situation was explained. The debt collectors kept chasing over a period of time and they kept getting ignored.

Recently I received a letter from County Court Business Centre in Northampton for an unpaid PCN from Excel Parking represented by BW Legal. It totals around £245. I'm keeping my personal arguments out of the defence but wanted to know if anyone can kindly proof read my letter please. The letter is written assuming I was the driver;

I, ******, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

• The Claim Form issued on ***** by Excel Parking Services Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “BW Legal Services Limited”.
• This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
b. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
c. The Schedule of information is sparse of detailed information.
d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.
The Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. If Interest charges are being claimed, the basis on which this is being claimed.
g. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

It is believed that neither the signs, nor any NTK mentioned a possible additional £243.62 for outstanding debt and damages.
• The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs’ were incurred.
• This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.
• In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

a. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
b. In the absence of strict proof, I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
c. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
ii. It is believed the signage were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
d. BPA CoP breaches - this distinguishes this case from the Beavis case:

i. the sum pursued exceeds £100.
ii. there is / was no compliant landowner contract.
• No standing - this distinguishes this case from the Beavis case:
• The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
• The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

• Failed to disclose any cause of action in the incorrectly filed Claim Form issued on xx/xx/201x.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed **** Date ****

Thank you for your time and efforts.

Redx · 15 January 2018 at 1:30AM

n4im wrote: »

The letter is written assuming I was the driver

normally the person dealing with this would be the KEEPER , especially as its likely that EXCEL failed pofa2012 and so can only hold a driver liable

was the driver named or inferred in previous correspondence ?

if so then why bring the NTK and possibly POFA2012 into it ?

if the drivers details were divulged , then the driver would be defending this on the grounds of de-minimis etc due to the PPC having received their money and a new contract was agreed by acceptance of the parking ticket payment on the day (with the wrong VRM on it)

so if it is written on behalf of the driver and not the keeper, the emphasis should be on the facts and not the NTK or POFA

no loss was made by EXCEL and the driver did not try to bilk payment - a valid payment was made

and depending on the date of the incident , EXCEL may have been an IPC member - so check this on the IPC AOS list (in which case its pointless talking about the BPA)

hope that helps

n4im · 17 January 2018 at 10:44PM

hi Redx,Thank you for your reply and very informative insights, it really has helped me a lot.

I have started again and written a defence. Would this suffice or do I need a hybrid between my initial post (minus those things you asked to omit)

The Defendant denies any liability to the Claimant and asks the Court to note the background to the case. The defendant was driving the vehicle (XXXX) and upon entering the car park, purchased a parking ticket. but subconsciously typed number plate YYYY (the registration plate of another car in the household). This was not intentional and the defendant was not trying to bilk payment as a valid payment was made.

Soon after, the defendant received a PCN, but informed Excel parking that a ticket was purchased but the incorrect number plate was entered. The defendant enclosed the parking ticket and mentioned the car with number plate YYYY was nowhere near the grounds at the time of the PCN.

Since then a number of letters from different companies have been received. This is becoming a nuisance as proof of purchase was provided and I am a new mother and do not have the time to spend constantly replying to every new company that appears.

Excel parking are no worse off as they got their parking fee from my ticket. A new contract was formed by acceptance of the parking ticket at the time (with wrong vehicle registration plate).
The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed **** Date ****

Redx · 17 January 2018 at 10:49PM

looks more like a WS to me , not a defence (post #1 was more like a defence)

LOC123 points out the differences in this thread

http://forums.moneysavingexpert.com/showthread.php?t=5773618

Coupon-mad · 17 January 2018 at 11:10PM

Same comments as here:

http://forums.moneysavingexpert.com/showthread.php?t=5776955

Take those comments on board and do the suggested forum search, and read Lamilad's case defences.

n4im · 18 January 2018 at 12:15AM

Thank you guys, i have spent the last hour reading various posts and its starting to get clearer and your posts on differences between witness statement and defence help a lot. Appreciate it. Does this look any better, ive tried to keep this defence letter as relevant as possible.

IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

Excel Parking (Claimant)

-and-

Me (Defendant)

________________________________________
DEFENCE STATEMENT
________________________________________

I, ******, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

• The Claim Form issued on ***** by Excel Parking Services Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “BW Legal Services Limited”.
• This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

The Defendant denies any liability to the Claimant as a valid ticket was purchased but an incorrect number plate was entered at the ticket machine. A new contract was formed by acceptance of the parking ticket at the time (with wrong vehicle registration plate).
The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success as a valid ticket was purchased and the claimant didn’t lose out.

Furthermore it is to note;

a. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
b. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
c. The Schedule of information is sparse of detailed information.
d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.
The Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
v. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vi. If Interest charges are being claimed, the basis on which this is being claimed.
vii. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

g. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
h. In the absence of strict proof, I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
i. A plan showing where any signs were displayed as well as details of any signs displayed (size, height, font etc).

I believe the facts contained in this Defence Statement are true.

Signed **** Date ****

Coupon-mad · 18 January 2018 at 12:39AM

I was struggling to find an actual defence point hidden in there, which is this one:

The Defendant denies any liability to the Claimant as a valid ticket was purchased but an incorrect number plate was entered at the ticket machine. A new contract was formed by acceptance of the parking ticket at the time (with wrong vehicle registration plate).
The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success as a valid ticket was purchased and the claimant didn’t lose out.

The rest is very waffly, not the best example I can think of.

Advertising consent gets you nowhere, IMHO.

Did you find Lamilad's defences? He beat Excel 3 times, threads on here an on pepipoo.

n4im · 20 January 2018 at 5:37PM

I may just put the defence point and submit it - got 2 more days. You are right the rest is very waffley

Redx · 20 January 2018 at 6:58PM

a LAMILAD version of a defence would be a much better option, even if you put the paragraph above into it

bear in mind that the defence should be based on legal arguments and he beat them several times and learned a lot in the process

the Witness Statement comes MUCH LATER down the line, which is where the waffle can be used if necessary

Coupon-mad · 20 January 2018 at 6:58PM

n4im wrote: »

I may just put the defence point and submit it - got 2 more days. You are right the rest is very waffley

NONONO.

Do not send a (almost certainly doomed) single point defence. If you do, on your head be it - you go directly against our advice.

How easy is it to:

- search this forum for 'Lamilad Excel defence'

or

- search Google for the same? I just did so and got both his defence threads (pepipoo and here) in less than one second.

n4im · 20 January 2018 at 8:59PM

I have read Lamilads thread and it was a intriguing read. Having borrowed Lamilads defence and Part 18 defence,

A lot is copied from lamilads except point 1 and point 8. I have removed anything which relates to owner/driver as the drivers identity may have previously been inferred.

Statement of Defence

20/01/2018

1. The Defendant denies any liability to the Claimant as a valid ticket was purchased but an incorrect number plate was entered at the ticket machine. A new contract was formed by acceptance of the parking ticket at the time (with wrong vehicle registration plate).
The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success as a valid ticket was purchased and the claimant didn’t lose out.

2. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the Landholder. Strict proof is required that there is a chain of contracts leading from the Landholder to Excel Parking Services Ltd.
a) Excel Parking Services Ltd is not the lawful occupier of the land
b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

3. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the Landholder. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

4. The signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

5. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

6. The claimant has yet to respond to part 18 Request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the 20/06/2016.
a) A request to explain if Excel Parking Services Ltd are making a claim as an agent of the Landholder or making the claim as occupier in their own right.
b) A request to explain if the amount claimed by Excel Parking Services Ltd is for a genuine pre estimate of loss for a breach of contract or a contractual sum?
c) A request to provide copies of the signs on which Excel Parking Services Ltd rely and confirm the signs were in situ on the date of the event. Also to provide the date the signs were installed.
d) A request to confirm that the signs were at the entrance to the site on the date in question. Also to confirm that the signs meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1.

7. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the Landholder and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

8. (a)The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representatives costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

(b)The amount claimed is £100 + £60 Contractual costs + £9.12 interest + £25 Court Fee + £50 Legal representative costs, a total of £244.12. There were no visible signs to mention the £60 contractual costs on above the amount claimed. Automated templates which are sent out regularly in order to hassle individuals without understanding situations on a case by case basis. The £169.12 claimed is not representative of the loss to Excel as the hourly parking cost was £0.50 and this was paid.

9. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the Landholder can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the Landholder themselves claiming for a nominal sum.

10. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
In my opinion, there is a better alternative than legal proceedings, namely that we utilise the services of a completely independent ADR service suited to parking charges. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence, 20/01/2018 (date I intend to send) are true."

Signed

[my name]

This is my Part 18 to Excel (should I include the specifics of having bought a ticket but had wrong registration number on it)?

IN THE NORTHAMPTON COUNTY COURT CLAIM NO: XXX

BETWEEN:

Excel Parking Services Ltd [Claimant]

and

{MY NAME} [Defendant]

PART 18 REQUEST FOR FURTHER INFORMATION

To: Excel Parking Services Ltd

Please answer the following questions:
1. What is the basis of the claim. Is Excel Parking Services Ltd making a claim as an agent of the landowner or making the claim as occupier in their own right?
2. Is the amount claimed by Excel Parking Services Ltd for a genuine pre estimate of loss for a breach of contract or a contractual sum?
3. If the contract has been conveyed by the use of signage on site, please provide copies of the signs on which you rely and confirm these are the signs in situ on the date of the event. Please also provide the date these signs were installed, for example, a works schedule, maintenance record or invoice for the work.
4. Were there signs at the entrance to the site on the date in question? Did these meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1 (Please indicate)
TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU.
I also require that answers to these questions be verified by a Statement of Truth by an authorised signatory of Excel Parking Services Ltd

Excel Parking - County Court Letter

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