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  • FIRST POST
    • Snakes Belly
    • By Snakes Belly 13th Sep 17, 9:45 AM
    • 237Posts
    • 221Thanks
    Snakes Belly
    Appeal dismissed by IAS
    • #1
    • 13th Sep 17, 9:45 AM
    Appeal dismissed by IAS 13th Sep 17 at 9:45 AM


    The adjudicator made their decision on 12/09/2017 12:16:07.

    The Appellant argues that they should not be required to pay the parking charge, as the ticket machines on site were not working correctly. The Appellant appears to suggest that as the ticket machines on site did not appear to be accepting payment they left their vehicle parked with a note displayed and went about their business. A helpline number is provided by the Operator which the Appellant appears to accept that they did not use at the time of the parking event. The Operator disputes that all of the payment options on site were not available at the time the Parking Charge Notice was issued and is able to suggest that payments were being made correctly at the time of the parking event. Even if all the machines on a particular site are not working this does not entitle the driver to free parking. The contractual terms require the driver to purchase and display a valid ticket (or make a valid online payment), otherwise by parking they agree to pay the charge. If the driver cannot purchase and display a ticket (or make a valid online payment) they can either park elsewhere, or remain parked and agree to pay the charge. It is the driver’s responsibility to ensure that the terms and conditions of parking are adhered to. By parking without a valid ticket displayed (or having made a valid online payment), regardless of the reason for doing so, the Appellant agreed to pay a charge. I have noted the images provided of the site and I am satisfied that the Appellant was made reasonably aware of the signage on display.

    Whilst having sympathy with the circumstances that the Appellant found themselves in they nevertheless chose to remain on site without purchasing or displaying a valid ticket (or making a valid online payment) and the appeal is therefore dismissed.

    Well as you told me my appeal has been dismissed by IAS. As I have mentioned on previous threads I would not have gone down this route if I had discovered this site first. I knew about MSE but did not realise that it covered so many topics.

    I will give some details about the scenario and ask if you consider that it is worth going the whole way or whether I should just cut my losses pay up and move on. If there is a 50/50 chance I will take it all the way.

    The facts of the case are as follows and I will keep as brief as I can.

    I was travelling to Burton on Trent to catch the train to Nottingham. On the way I suffered a migraine and had to stop for around 20 minutes, take some medication and wait for the aura to pass. It would not have been advisable to continue to drive as my vision is affected. I would have missed an earlier train and so I wanted to catch the 10.48 am train to Nottingham and arrived at the Derby Street car around 10.23 am which should have given me enough time to catch the train. I tried to obtain a ticket and the coins fell through the machine. Tried several times and I then noticed that the machine was displaying a sign which said that it was not operational.

    I did not just take a cursory look around but tried to find another machine but I could not find one and I walked over to some men that were working in the arches and asked them and they pointed to a machine belonging to another operator's car park.
    Contemplated moving the car but would may have missed the train (my ticket states that it was purchased at 10.39 am). I must have spent at least 10 minutes trying to obtain a ticket so I left a note on the dashboard and would have willingly paid.

    When I came back to my car later that day a ticket had been placed on my windscreen and this gave notice that I may receive a NTK in the post. I went on line immediately I got home and appealed which was rejected by Excel. The basis that they rejected my appeal was that I was not displaying a valid ticket. They also said that I could have paid by RingGo, telephoned them or moved my car. I do not possess a mobile phone or a smart phone and I had never heard of RingGo. If I had moved the car I would have missed the train and the tariff in the Station Car park is a much higher tariff and I certainly would have not been able to park in the main Station Car park as it fills up very early and I may have struggled to find a space on the Lower Station Car Park.

    With regard to the mobile phone issue I understand that Age UK have concerns about car parks that only use mobile applications as a means of payment as these disadvantage older people. There is a potential equality issue with regard to the use of a smart phone as only about one in five of my age group uses one. To offer RingGo as a means of payment when others are available is not indirect discrimination. To decline my appeal on the basis that I could use a mobile phone application when there was no other means of payment available may be indirect discrimination as it disadvantages my age group. If I had been in possession of a smart phone from all accounts it would have taken over 10 minutes to set up an account and pay.

    So Excel considered that I had three options available to me, move, pay by RingGo, or telephone them in which case they would have been able to sort something out? Excel never mentioned that I could have used another ticket machine and I had assumed that there was only one on the site as I could not find another.

    I appealed to IAS and when I saw the uploads of the site by Excel I noticed that there were other ticket machines. One by the fire door of the Travelodge and the other in the Lower Station car park where Excel have a few spaces. I went back and took some photo's of these and the one near the fire door is not signed at all. It is between two bins of the same colour and looks like a receptacle for cigarette butts. The fire door is often open and staff stand outside having a cigarette. I use the car park infrequently and have not noticed this machine before. The other machine is located at the rear of the Travelodge, is on another operator's car park and is only visible by walking the whole perimeter of the building which means entering another operator's car park. It's very ambiguous.

    There are a couple of cases that are similar to my circumstances 1) Link parking v Mr N, 2) Prendi v Camden.

    I realise that IAS are not that independent but I felt as they had not even bothered to read my comments and were totally on the side of the operator. They really are the !!!! end of the legal profession Whatever else I do I shall be writing to my MP.


    I have read the newbies and I will use the templates should I take this further. What I would really appreciate is thoughts on whether this is worth taking to court and any issues I may have missed such as size of signage. I would struggle a bit with some signage after having a migraine particularly high contrast lettering. I have to say though that I was more concerned with obtaining a ticket than anything else. Thank you.
    Last edited by Snakes Belly; 13-09-2017 at 9:52 AM.
Page 5
    • nosferatu1001
    • By nosferatu1001 7th Aug 18, 12:26 PM
    • 3,767 Posts
    • 4,564 Thanks
    nosferatu1001
    Just ask the council the specific question asked above. Dont guess. Dont assume.
    • Snakes Belly
    • By Snakes Belly 7th Aug 18, 12:36 PM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    The person that I spoke to said the car park must form part of the Travelodge as it is not listed separately.
    • nosferatu1001
    • By nosferatu1001 7th Aug 18, 12:38 PM
    • 3,767 Posts
    • 4,564 Thanks
    nosferatu1001
    Which you didnt say above.
    So theyre the occupioer and are the only one that could have hired the PPC...
    • Snakes Belly
    • By Snakes Belly 7th Aug 18, 12:44 PM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    Sorry, if I confused the issue.

    The Travelodge are the occupier however they are not the original business that hired Excel. They trade under the name like a franchise. I have asked Excel for documents showing that they have the authority to pursue claims through the courts but nothing has been forthcoming and it has been over eight weeks now since my letter of the 7th June 2018.
    Last edited by Snakes Belly; 07-08-2018 at 1:02 PM.
    • Snakes Belly
    • By Snakes Belly 12th Aug 18, 1:31 AM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    Update.

    I sent my rebuttal letter to the PCC on the 7/6/2018 within the timeframe. I requested information which they are required to supply within 30 days. No reply so I sent a second letter. Reply came dated 9/8/2018 which states that they are disappointed that we have not reached an amicable agreement in respect of their LBC and are giving me 14 days notice of their intentions to start court proceedings. None of the requested information has been provided including the authority from the landowner.

    I am not sure whether to just let them do their worst or whether to write back and make a third request for the information. I understand that if my request is not met I can stay any court action until it is provided. Not sure how I would go about this and whether it is worth doing. I have asked them twice for this information and if they have not got the authority from the landowner they will be wasting court time. This has been dragging on for over twelve months.

    I would stay any court action if it is a straightforward process and would not result in the possibility of missing a court deadline. I would like to see if they do come up with authority from the landowner.

    If they do pursue the claim through the courts it's most important that I stay focused on the main issues and defend my case in person and not by papers.

    I am finding it very hard now to remain polite to these people, which is why I am not using email.

    BTW I have been in touch with my MP.


    Thank you.
    Last edited by Snakes Belly; 12-08-2018 at 2:01 AM.
    • beamerguy
    • By beamerguy 12th Aug 18, 7:58 AM
    • 8,892 Posts
    • 11,748 Thanks
    beamerguy
    It is a shame that Excel think they are above the law.
    A judge will bring them crashing down to earth for
    non compliance of the new protocol.
    Excel are used to being whooped in court and the
    courts are also aware of their method of business, especially
    wasting the courts time.

    A final letter from you warning them if they do not
    comply with the law and continue to refuse to provide
    the information required, you will advise the court and
    ask for the case to be struck off

    As we know, Excel read this forum so no doubt such
    information will be read before they receive your letter

    Sooner or later one of these so called bright boys
    will have their collar felt by the courts for failure to
    comply with the new protocol and my guess, the first
    one will be Excel
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Snakes Belly
    • By Snakes Belly 12th Aug 18, 11:34 AM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    Thank you Beamer. I was thinking along those lines of doing a final letter but that will be my last dialogue with them before they instigate court proceedings.
    Last edited by Snakes Belly; 12-08-2018 at 12:01 PM.
    • beamerguy
    • By beamerguy 12th Aug 18, 3:46 PM
    • 8,892 Posts
    • 11,748 Thanks
    beamerguy
    Thank you Beamer. I was thinking along those lines of doing a final letter but that will be my last dialogue with them before they instigate court proceedings.
    Originally posted by Snakes Belly
    If EXCEL cannot behave themselves, let the court whoop them,
    EXCEL are used to that now anyway
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Snakes Belly
    • By Snakes Belly 12th Aug 18, 4:00 PM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    You know the employees have to pay for parking on the business park. I wonder if they get ticketed? Most of them seem to be on a basic minimum wage the rest being made up by bonus. Says it all really. Once you start bringing in bonus schemes for meeting and exceeding targets you are asking for trouble in this kind of scenario. A number of complaints from employees about equipment and service vehicles breaking down.

    BTW they seem to be dealing with their own litigation now. I have not received anything from a 'low rent' solicitor so perhaps they are distancing themselves after the comments in Parliament about certain solicitors.
    Last edited by Snakes Belly; 12-08-2018 at 4:04 PM.
    • Umkomaas
    • By Umkomaas 12th Aug 18, 4:20 PM
    • 19,848 Posts
    • 31,348 Thanks
    Umkomaas
    BTW they seem to be dealing with their own litigation now. I have not received anything from a 'low rent' solicitor so perhaps they are distancing themselves after the comments in Parliament about certain solicitors.
    Maybe BW Legal have messed up too many cases, costing them a lot of money? Who knows!
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Quentin
    • By Quentin 12th Aug 18, 4:23 PM
    • 37,527 Posts
    • 21,738 Thanks
    Quentin
    You know the employees have to pay for parking on the business park. I wonder if they get ticketed? Most of them seem to be on a basic minimum wage the rest being made up by bonus. Says it all really. Once you start bringing in bonus schemes for meeting and exceeding targets you are asking for trouble in this kind of scenario. A number of complaints from employees about equipment and service vehicles breaking down.

    BTW they seem to be dealing with their own litigation now. I have not received anything from a 'low rent' solicitor so perhaps they are distancing themselves after the comments in Parliament about certain solicitors.
    Originally posted by Snakes Belly

    Not unusual for employees to have to pay for parking at work


    Google the nurses parking charges at cardiff for a horrendous example
    • Snakes Belly
    • By Snakes Belly 19th Aug 18, 10:53 PM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    In my rebuttal letter to the PPC I have questioned the signage as it does not conform to the IPC code of Practice. The code states that the colours should not cause problems for the visually impaired. Excels signs are quite bright (yellow and bright blue). After a migraine I have light sensitivity and everything looks very bright. There was also a huge amount of text some of it very small.
    Last edited by Snakes Belly; 19-08-2018 at 11:00 PM.

    Nolite te bast--des carborundorum.
    • Snakes Belly
    • By Snakes Belly 20th Aug 18, 10:33 AM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    https://imgur.com/a/rKuqKhd


    I have cribbed the above from Money Matters post. It was loaded up by Le-Kirk. It is the same sign as the car park where my incident place but in a different location. I would never be able to read all that text after just experiencing a migraine with a visual disturbance. It's enough to induce another migraine.

    The car park in question is not a station car park but attracts people who use the station. Excel have in fact tried to attract station customers by their signs. How the hell is anyone with a train to catch going to read all that small print?

    Starting to feel more confident.
    Last edited by Snakes Belly; 20-08-2018 at 10:35 AM.

    Nolite te bast--des carborundorum.
    • Snakes Belly
    • By Snakes Belly 3rd Sep 18, 7:36 PM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    N THE COUNTY COURT CLAIM NO. XXXXXX

    BETWEEN:


    Excel Parking Services Limited Claimant
    and
    XXXXXXX XXXXXXX Defendant

    __________
    DEFENCE

    __________


    Introduction


    1. I am Snake’s Belly, Defendant in this matter. My address for service is X XXXXXX XXXXX XXXXX XXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX


    2. This is my statement of truth and my defence.

    There are special circumstances around this case relating to a chronic illness that is likely to be covered by the Equality Act 2010. I have never tested this because I have not claimed any benefits. I have got a medical record and have been on regular medication (for a number of years) which is only prescribed in chronic conditions.

    I assert that the Claimant has no cause for action for the following reasons:

    3. It is admitted that the Defendant was the driver and authorised registered keeper of the vehicle on X/0X/2017.

    4. It is believed that that claim relates to a purported debt as the result of the issue of a MyParkingCharge notice in relation to an alleged contravention by the driver of the vehicle XXXX XXX when it was parked at Derby Street Car Park, Burton on Trent, Staffordshire.


    5. Further based upon the limited details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:


    i. There was a contract formed by the Defendant and the Claimant on XX/0X/2017.
    ii. There was an agreement to pay a sum or parking charge.
    iii. That there were Terms and Conditions prominently displayed around the site.
    iv. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
    v. The Claimant fully complied with their obligations within the International Parking. Community Code of Practice of which they were member at the time.

    vi. That signage was adequate.





    6. It is denied that:

    i. A contract was formed,

    ii. There was any agreement to pay a parking charge.


    iii. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.


    iv. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

    v. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they are a member.


    vi. That signage was adequate.

    7. It is further denied that the Defendant is liable for the purported debt.
    8. The Claimant did not respond to the Defendant’s multiple requests for further information as section 5 of the Protocol, Disclosure of Documents which states:-
    5.1 Early disclosure of documents and relevant information can help to clarify or resolve any issues in dispute. Where any aspect of the debt is disputed (including the amount, interest, charges, time for payment, or the creditor’s compliance with relevant statutes and regulations), the parties should exchange information and disclose documents sufficient to enable them to understand each other’s position.
    5.2 “If the debtor requests a document or information, the creditor must –

    • (a) provide the document or information; or
    • (b) explain why the document or information is unavailable,
      Within 30 days of receipt of the request.”

    Rebuttal of Claim.
    The Defendant was unable to make payment due to the machine being out of service and therefore making it impossible to fulfil the consideration element of the contract. The contract is therefore frustrated and void. There are many cases whereby the Claimant’s equipment is faulty which results in spurious claims being issued. At best this is poor customer service and at worst the use of predatory tactics as defined in the IPC Code of Practice.

    8. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

    9. The Defendant denies that they would have agreed to pay the original demand of £60 and to agree to the alleged contract had the terms and conditions of the contract been properly displayed.


    10. The signage at Derby Street Car Park was inadequate to form a contract with the motorist.

    i. Signage of the car park in question is inadequate, failing the 'large lettering' requirement and as such any contract denied. The signs contain a very large amount of detail and information in very small print. The brash colouring of the signs also makes the lettering difficult to read for a person suffering with light sensitivity and visual impairments. The bright blue and bright yellow does not conform to the IPC Code of Practice which states that.

    “The colours used on signage should be such that the contrast between the background and the text makes the wording on the sign clearly legible. Black text on a white background or white text on a black background will provide a suitable contrast. Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired”
    ii. There was a lack of signage over a ticket machine which is sited in a poor location making it extremely difficult to locate an alternative means of payment in an ambiguous car park that is shared with another operator. The car park is shared with the Lower Station Car Park and there is no demarcation between the two sites. The Lower Station Car Park is subject to railway bylaws.

    iii. The signage is a fundamental term to the contract, and the Defendant invites the Court to find that they were not only unclear but also unfair and would be difficult for a person with visual impairments to read. The information relating to the contract has a bright yellow background with small black lettering. The amount of detail on the signs would make impossible to read all the terms and conditions and stay within the grace period. It is certain that the Defendant would have exceeded the grace period in attempting to pay.

    iv. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

    11. Professionalism

    i. “You agree to ensure that all your operators, servants or agents maintain a professional standard of behaviour when carrying out their duties and comply with the rule of law at all times” IPC Code of Practice.

    The claim is disputed and as such should not have been passed to collection agents. The Claimant and their agents were advised that the claim was disputed. On advising the collection agents that the claim was disputed they should have ceased contact with the Defendant and referred the matter back to the Claimant. Failure to advise the Defendant that the Claimant was passing their information to collection agents and the use of multiple agents amount to harassment. Sending letters designed to look like court documents also constitutes harassment. The Claimant’s conduct and that of their agents has been vexatious and unreasonable throughout the process. This is an unregulated business and the actions of the Claimant and their agents do not comply with the FCA Handbook.

    CONC 7.5.3R01/04/2014RP
    A firm must not ignore or disregard a customer's claim that a debt has been settled or is disputed and must not continue to make demands for payment without providing clear justification and/or evidence as to why the customer's claim is not valid. [Note: paragraphs 3.1 and 3.10 of DCG]

    CONC 7.7.2R01/04/2014RP
    A firm must not claim the costs of recovering a debt from a customer if it has no contractual right to claim such costs. [Note: paragraph 3.11b of DCG]

    CONC 7.7.3R01/04/2014RP
    A firm must not cause a customer to believe that the customer is legally liable to pay the costs of recovery where no such obligation exists. [Note: paragraph 3.11a of DCG]

    ‘In accordance with the Law of Property Act 1925, a debt can be sold to a debt purchasing company. In order to confirm the sale, the purchasing company must provide the customer with a Notice of Assignment, a letter explaining what has been purchased. The debt purchasing company may then seek to recover the outstanding balance through their own collection company, or they may choose to outsource the recovery to a third party debt collection agency.’

    The Defendant received letters from Zenith Collections which gave the appearance of being assigned. The Defendant asked the Claimant to confirm whether the claim had ever been assigned as part of the request for further information under section 5 of the Protocol. The Defendant did not receive any reply. Zenith letters are made to look like notice of assignment. The claims are not really assigned but made to look as if they are and designed to menace and intimidate.

    The Administration of Justice Act 1970 S.40 makes it a Criminal Offence for a creditor or a creditor’s agent (often a debt collection agency) to make demands (for money), which are aimed at causing ‘alarm, distress or humiliation, because of their frequency or publicity or manner’.

    Equally, a creditor will be committing an offence if they falsely imply that non-payment of the debt will lead to criminal proceedings; or the creditor pretends to be someone they are not e.g. a court official or bailiff. It is also an offence to send a person a document which looks like it has been sent from a court.



    12. Should the claimant rely on the case of Parking Eye v Beavis, I wish to point out that there is a test of good faith. Para 205:

    “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

    The true pre estimate of loss as defined in the Beavis case is not relevant to the case in question. The charge in the Beavis case was considered commercially justifiable as the business relied on a regular turnover of cars. The car park situated in Derby Road is a long stay car park serving the Travelodge and the station. It is busiest in the morning and there are always spaces.

    13. The Claimant has artificially inflated the value of the Claim from £60 to £185. The Defendant submits the £60 of added costs has not actually been incurred by the Claimant and that these figures are regardless of facts. This is an abuse of process.

    14. The Defendant has repeatedly requested the following information from the Claimant in order to comply with the Pre Action Protocol.

    There is no evidence you have any proprietary interest in the land sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012. Please provide a copy of the contract(s) with the landowner authorising Excel to offer contracts for parking in their name and pursue unpaid parking charges including through court proceedings in their name on the material dates.

    Details of the signs displayed (size of sign, size of font, height at which displayed).

    Is the claim for a contractual breach? Please provide details of the contract.

    Is the claim for trespass? If so, provide details.

    A calculation of the interest.

    The collection agent’s communications suggest that the alleged debt has been assigned. Please give a copy of the notice of assignment to a third party.

    The defendant now puts the Claimant under strict proof to provide a copy of the contract with the landowner authorising Excel to offer contract for parking in their own name and to pursue unpaid parking charges through court proceedings on the material dates.



    17. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.



    18. The Defendant denies the claim, voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

    19. I believe the facts stated in this Defence Statement are true.

    .


    Received the MCOL on Saturday morning and responded to the claim online.


    I have drafted a defence. It's a work in progress but I have got some time. I have not included any cases at the moment and I would like to mention Excel's MO in more detail. I think that this is the hardest bit.


    Would be grateful if someone would please scan over it and see if there is anything that I have omitted or anything that does not add value. Thank you.



    Last edited by Snakes Belly; 03-09-2018 at 8:08 PM.

    Nolite te bast--des carborundorum.
    • Coupon-mad
    • By Coupon-mad 3rd Sep 18, 9:43 PM
    • 62,736 Posts
    • 75,678 Thanks
    Coupon-mad
    That's a pretty old one. Better to use a template by bargepole recently, that has a better introduction than that, and doesn't repeat the Claimant's case!

    Search bargepole defence on this forum.
    • IamEmanresu
    • By IamEmanresu 4th Sep 18, 9:01 AM
    • 3,664 Posts
    • 6,001 Thanks
    IamEmanresu
    I have to agree with CM on the template. For example "This is an unregulated business and the actions of the Claimant and their agents do not comply with the FCA Handbook." If the business is unregulated what does the FCA handbook (which applies to regulated companies within certain debt areas) have to do with it.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • Snakes Belly
    • By Snakes Belly 6th Sep 18, 11:01 AM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    Thanks to the kind posters on pepipoo I am up and running again now.

    @IamEmanre When I lost access to the site I was in the process of posting another draft as I was not really happy with it. I have removed some of the comments about the FCA. I did realise that they are unregulated however the handbook does include collection agents which threw me a bit.

    I will post my next attempt when I have had another good look at it and tidied it up. It's most important to me that I can confidently substantiate my case verbally in court which I should be able to do if I am fully clear in the points of law.

    I have not asked Excel to provide an audit trail of the ticket machine. I'm not sure whether I should have done but it would be unreliable and I would not have the experience of someone like Lamilad to know if it had been tampered with.

    @CM I assume it's this one. https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24

    I have managed to find out who the Landowner is. They have recently cleared a charge against the land in question.

    I am glad that I started to look at this as soon as the MCOL came through.
    Last edited by Snakes Belly; 06-09-2018 at 11:37 AM.

    Nolite te bast--des carborundorum.
    • Snakes Belly
    • By Snakes Belly 6th Sep 18, 1:41 PM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    IN THE COUNTY COURT CLAIM NO. XXXXXX

    BETWEEN:


    Excel Parking Services Limited Claimant
    and
    XXXXXXX XXXXXXX Defendant

    __________
    DEFENCE

    __________



    • The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

    • It is believed that that claim relates to a purported debt as the result of the issue of a MyParkingCharge notice in relation to an alleged contravention by the driver of the vehicle XXXX XXX when it was parked at Derby Street Car Park, Burton on Trent, Staffordshire DE14 2JJ on XXX.

    • The facts are the defendant was unable to enter into a valid and binding contract as the defendant was unable to fulfill the consideration element of the contract due to the failure of the Claimant’s equipment and inadequate signage.

    • The Defendant was unable to make payment due to the machine being out of service and therefore making it impossible to fulfil the consideration element of the contract. The contract is therefore frustrated and void. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms. The defendant believes that every effort in their power was made to comply with the contractual terms.

    • Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.


    • The Claimant did not respond to the Defendant’s multiple requests for further information as section 5 of the Protocol, Disclosure of Documents.

    • The defendant now puts the Claimant under strict proof to provide a copy of the contract with the landowner authorising Excel to offer contract for parking in their own name and to pursue unpaid parking charges through court proceedings on the material dates.






    • The signage at Derby Street Car Park is inadequate to form a contract with the motorist.

    Signage of the car park in question is inadequate, failing the 'large lettering' requirement and as such any contract denied. The signs contain a very large amount of detail and information in very small print. The brash colouring of the signs also makes the lettering difficult to read for a person suffering with light sensitivity and visual impairments. The bright blue and bright yellow does not conform to the IPC Code of Practice which states that.

    i.“The colours used on signage should be such that the contrast between the background and the text makes the wording on the sign clearly legible. Black text on a white background or white text on a black background will provide a suitable contrast. Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired” The defendant was suffering from photophobia as a direct result of a migraine with aura that had occurred shortly before the alleged contravention.
    ii. There was a lack of signage over a ticket machine which is sited in a poor location making it extremely difficult to locate an alternative means of payment in an ambiguous car park that is shared with another operator. The car park is shared with the Lower Station Car Park and there is no demarcation between the two sites. The Lower Station Car Park is subject to railway bylaws.
    iii. It is certain that the Defendant would have exceeded the grace period in attempting to pay.

    11. Professionalism

    i. “You agree to ensure that all your operators, servants or agents maintain a professional standard of behaviour when carrying out their duties and comply with the rule of law at all times” IPC Code of Practice.

    The claim is disputed and as such should not have been passed to collection agents. The Claimant and their agents were advised that the claim was disputed. On advising the collection agents that the claim was disputed they should have ceased contact with the Defendant and referred the matter back to the Claimant. Failure to advise the Defendant that the Claimant was passing their information to collection agents and the use of multiple agents amount to harassment. Sending letters designed to look like court documents also constitutes harassment. The Claimant’s conduct and that of their agents has been vexatious and unreasonable throughout the process.

    ‘In accordance with the Law of Property Act 1925, a debt can be sold to a debt purchasing company. In order to confirm the sale, the purchasing company must provide the customer with a Notice of Assignment, a letter explaining what has been purchased. The debt purchasing company may then seek to recover the outstanding balance through their own collection company, or they may choose to outsource the recovery to a third party debt collection agency.’

    The Defendant received letters from Zenith Collections which gave the appearance of being assigned. The Defendant asked the Claimant to confirm whether the claim had ever been assigned as part of the request for further information under section 5 of the Protocol. The Defendant did not receive any reply. Zenith debt collection letters are designed to represent a notice of assignment with the purpose of causing alarm and distress to the recipient.

    The Administration of Justice Act 1970 S.40 makes it a Criminal Offence for a creditor or a creditor’s agent (often a debt collection agency) to make demands (for money), which are aimed at causing ‘alarm, distress or humiliation, because of their frequency or publicity or manner’.

    Equally, a creditor will be committing an offence if they falsely imply that non-payment of the debt will lead to criminal proceedings; or the creditor pretends to be someone they are not e.g. a court official or bailiff. It is also an offence to send a person a document which looks like it has been sent from a court.



    12. The charge in the Beavis case was considered commercially justifiable as the business model relied on a regular turnover of customers. The car park situated in Derby Road is a long stay car park serving the Travelodge and the station. It is busiest in the morning and there are always spaces.

    13. The Claimant has artificially inflated the value of the Claim from £60 to £185. The Defendant submits the £60 of added costs has not actually been incurred by the Claimant and that these figures are regardless of facts. This is an abuse of process. The defendant actually wrote to the collection agent DRP requesting that they should refer back to the Claimant as the claim was in dispute. They ignored my request.


    14. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.



    15. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to court (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).


    16. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.




    17. I believe the facts stated in this Defence Statement are true.
    .



    Nolite te bast--des carborundorum.
    • Snakes Belly
    • By Snakes Belly 6th Sep 18, 1:49 PM
    • 237 Posts
    • 221 Thanks
    Snakes Belly
    I have posted my amended defence statement but it has not picked up all the numbering. Some of the points are aimed at the unreasonable behaviour of the Claimant.


    I have based it on Bargepoles defence to some extent but have included the elements that are relevant to my case. IMO the most important point in relation to my case is the fact that I did really try to comply with the consideration element of the contract. IAS made out that I just swanned off. That was not the case. It is after all a car park that services a station as well as the Travelodge and the signs are like war and peace.


    Thank you.

    Nolite te bast--des carborundorum.
    • IamEmanresu
    • By IamEmanresu 6th Sep 18, 1:52 PM
    • 3,664 Posts
    • 6,001 Thanks
    IamEmanresu
    The defendant now puts the Claimant under strict proof to provide a copy of the contract with the landowner authorising Excel to offer contract for parking in their own name and to pursue unpaid parking charges through court proceedings on the material dates.
    Have you checked who pays the Non-domestic rates as the occupier? It is likely to be Excel so they will be able to offer parking / issue claims in their own right. They are more like NCP than ParkingEye.

    Also take out 11 (Professionalism) as it is weak and just clutters up the arguments.

    I did really try to comply with the consideration
    This is a "frustration" argument and the success of it will depend on the alternative payment mechanisms available. What did the signs say about machine failures/ alternative payments?

    You actually have a decent defence / WS in your very first post that highlights a lot of the issues facing someone with health issues, and a lack of clarity in the signs. These seem to have been thrown away in the search for a template.

    If it were me, I'd just copy over most of your first posting and use that.
    Last edited by IamEmanresu; 06-09-2018 at 2:00 PM.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
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