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  • FIRST POST
    • n4im
    • By n4im 15th Jan 18, 12:20 AM
    • 12Posts
    • 3Thanks
    n4im
    Excel Parking - County Court Letter
    • #1
    • 15th Jan 18, 12:20 AM
    Excel Parking - County Court Letter 15th Jan 18 at 12:20 AM
    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:

    !!!8226; 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 !!!8220;BW Legal Services Limited!!!8221;.
    !!!8226; 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 !!!8216;Letter before County Court Claim!!!8217;, 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 !!!8216;Letter before County Court Claim!!!8217; should have been produced, pursuant to paragraph 6 of the Practice Direction !!!8211; Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to !!!8220;take stock!!!8221;, 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. !!!8216;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.!!!8217;
    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.
    !!!8226; 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!!!8217;s (or even admin) costs!!!8217; were incurred.
    !!!8226; 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.
    !!!8226; 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.
    !!!8226; No standing - this distinguishes this case from the Beavis case:
    !!!8226; 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.
    !!!8226; 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:

    !!!8226; 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.
Page 2
    • Coupon-mad
    • By Coupon-mad 5th Feb 18, 9:45 PM
    • 57,473 Posts
    • 71,074 Thanks
    Coupon-mad
    I received the Claim form and within the claim form there is a Defendant Particulars of Claim... Do you think requesting a Full POC avenue is now closed?
    Well yes they have provided POC of sorts. But you can mention the sparse POC in your defence, as per Johnersh's version.

    And include some stuff from the Parliamentary debate to open the Judge's eyes a bit.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • n4im
    • By n4im 6th Feb 18, 11:10 PM
    • 12 Posts
    • 3 Thanks
    n4im
    Thank you everyone. We are finally at the final version. Thought id throw in point 11 as I was curious.

    IN THE COUNTY COURT
    CLAIM No:

    BETWEEN:
    Excel Parking Services Ltd (Claimant)
    -and-
    (Defendant)

    Statement of Defence


    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 subsequently evidence of purchase was sent to the claimant to prove the purchase and subsequently point out that the claimant did not lose out financially.

    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) 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. (a) A BBC Watchdog programme about Excel parking showed Excel pursuing a victim driver for miskeying a number plate, and on public record to the BBC, their spokesperson stated that they 'understand' that there might be human error in typing in a VRN and that they have 'robust checks' in place, to ensure that fines are not issued unfairly. After sending my paid ticket to Excel to prove a ticket was bought but it had the incorrect number plate due to human error, Excel had many opportunities and resources to confirm the number plate on the ticket was not in the car park at the given time? Instead of cancelling the charge straight away, Excel continued to pursue a 100 fine plus charges by using different debt collection companies.

    (b) Having purchased a parking ticket and still being chased for payment due to human error infers that Excel are not at a financial loss in this case. A human error cannot lead to a 100 penalty because that causes an imbalance against the consumer; this is a case of unfairness and breaches the Consumer Rights Act 2015. In this case, to pursue the charge is disproportionate, unfair and not saved by the Beavis case at all, because the car was not taking up a valuable space the driver was not entitled to use, and the payment was made in full.

    4. (a) During a Parliamentary debate on 2nd February 2018, Sir Greg Knight brought the current bill to the house.

    ''...it is important that those parking on private land who receive a private parking notice are treated fairly and consistently. Motorists should have the certainty that when they enter a car park on private land, they are entering into a contract that is reasonable, transparent and involves a consistent process. Poor signage, unreasonable terms, exorbitant fines, aggressive demands for payment and an opaque appeals process, together with some motorists being hit with a fine for just driving in and out of a car park without stopping, have no place in 21st-century Britain.!!!8221;
    (b) There was unanimous agreement with Sir Greg Knight and a bill was read and the will of Parliament is seeking to stamp out rogue ticketing and the unethical methods adopted by profit driven parking companies who try to lure payment through threats and intimidation. !!!8220;The changes in the bill will reassure drivers that private car park operators will in future treat them in a fair and proportionate manner!!!8221;.!!!8195;


    5. 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.

    6. 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 International Parking Community (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 the principal debt, or any additional fee charged if unpaid in 28 days.


    7. 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.


    8. 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.

    9. (a) The Defendant 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 representative!!!8217;s 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 notices to mention the 60 contractual costs above the amount claimed. The claimant regularly sends out letter templates hassling and pressurising individuals without understanding situations on a case-by-case basis, the costs of these automated templates would not match the aforementioned costs.

    (c) After the initial PCN from Excel, I responded to Excel with the valid parking ticket, but since then have been subsequently bombarded with threatening letters from Excel. I have also received numerous letters from Zenith Collections, Debt Recovery Plus Limited as well as BW Legal. This constant hassling is an inconvenience no-one needs and is further evidence of the frustrations of the public shared in the parliamentary debate (mentioned in point 4).

    10. 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.

    11. Excel Parking is not in the List of organisations that are accredited to use the DVLA service according to the document who-dvla-shares-data-with-2015-2017-volumes-q3-2017-v1.pdf. Were the vehicle ownership details obtained by Excel Parking or via a different organisation?

    12. (a) 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. The Particulars of Claim provided on claim form was very vague. There were no direct mentions of the contraventions and which rules were breached. None of the correspondence between myself and Excel was mentioned in the POC.

    (b) 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 to the best of my knowledge the facts stated in this Statement of defence, 06/02/2018 are true."


    Signed
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