Jump to content

Pastry

Registered Users

Change your profile picture
  • Content Count

    26
  • Joined

  • Last visited

Community Reputation

1 Neutral

About Pastry

  • Rank
    Basic Account Holder
  1. Ahh, dx100uk I was expecting a useless, condescending reply from you - I just didn’t expect it so quickly!
  2. Hello all Quick update ... I had my day in court today. And lost. The defence I submitted is below, and it was rejected on all counts. The one concession I did get was when they tried to get money off me for the debt collection agency Excel had used to send me threatening letters early on. Their solicitor could not provide any evidence of this money being paid, so the judge said I could not be expected to pay it. All in, I now have to pay£203.50 My defence: 1. The claim is denied in its entirety for the following reasons: a. As per Excel Parking Services Ltd v Martin Cutts, 2011, the signage at the Peel Centre is particularly poor and although there are several signs these are arranged to create ‘entrapment zones’ where signage is not apparent to motorists. There can therefore be no contract through performance. b. The contract fails information requirements for distance contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013. As per the Act, any contract is not binding on the consumer. c. The claimant acts as agent for the Peel Centre, collecting monies on their behalf, but does not assume the risk. As per Fairlie v Fenton, they have no standing to bring any claim. d. The case of ParkingEye v Beavis in the Supreme Court established that the penalty laws are in play, but that in that specific car park the signage was sufficient to allow the motorist to make an informed decision. In this car park, the signage is of such poor quality that the charge of £100 is a penalty and an unfair consumer term. e. The alleged contravention is not listed on the signage. 2. Additionally, any monies over the £100 are not allowed by the Protection Of Freedoms Act 2012 and are an attempt to artificially boost the claim in an attempt to get around the costs limits in small claims cases. 1. The claim is denied in its entirety for the following reasons: a. As per Excel Parking Services Ltd v Martin Cutts, 2011, the signage at the Peel Centre is particularly poor and although there are several signs these are arranged to create ‘entrapment zones’ where signage is not apparent to motorists. There can therefore be no contract through performance. b. The contract fails information requirements for distance contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013. As per the Act, any contract is not binding on the consumer. c. The claimant acts as agent for the Peel Centre, collecting monies on their behalf, but does not assume the risk. As per Fairlie v Fenton, they have no standing to bring any claim. d. The case of ParkingEye v Beavis in the Supreme Court established that the penalty laws are in play, but that in that specific car park the signage was sufficient to allow the motorist to make an informed decision. In this car park, the signage is of such poor quality that the charge of £100 is a penalty and an unfair consumer term. e. The alleged contravention is not listed on the signage. 2. Additionally, any monies over the £100 are not allowed by the Protection Of Freedoms Act 2012 and are an attempt to artificially boost the claim in an attempt to get around the costs limits in small claims cases.
  3. Hello all. A quick update. As per Ericsbrother's advice, I have been trying to find out if Excel have planning permission for the signage at the Peel Centre. It seems many other people have requested similar information from the Planning Dept, and they have 'launched an investigation' into the matter. I asked to be kept in the loop on how this progressed, and was sent an email which made the following points: " ... not all development requires planning permission. Certain house extensions and small buildings are allowed without it being necessary to make a planning application. This is also true of some “change of use”. I can provide further information about this point if it would be helpful to you. "Secondly, failure to apply for planning permission is not in itself an offence. The Planning Authority must first attempt to resolve any breach by negotiation including the submission of retrospective planning applications where applicable. If this fails it can issue an Enforcement Notice and allow a period for compliance with the requirements of that Notice. Failure to comply with an Enforcement Notice, subject to the right of appeal, is a criminal offence. The procedures involved from initial investigation can take a considerable time. Planning Enforcement Officers are not empowered to order unauthorised development to be stopped except in certain strictly controlled circumstances." This suggests to me that, even if it transpires Excel did not have planning permission, this may not be the silver bullet we hoped it might be...
  4. Thanks very much Lt Colombo. And good luck with your little battle.
  5. Okay, thanks. Just one more question I'm afraid ... are the other three threads you mention all going to court, and if so, how do I find them? When you search the CAG site for Peel centre claims there are many, many threads with hundreds of posts. Trawling through them all to find the ones that have got as far as court could take a while so if you have specific ones in mind I'd be really grateful if you could you point me in their direction.
  6. Hello all I said 'no' to mediation and have now received a 'Notice of Transfer of Proceedings' which states that the claim has 'been transferred to (my local) County Court Hearing Centre for allocation'. I guess this means I am going to court. If anybody would like to give me some advice on how to prepare, I'd be very grateful. Also, any ideas for my defence would be good. I think we can safely assume that ExCel and BW Legal monitor this site for any mention of themselves and keep a close eye on conversations like this in order to inform their own actions. With that in mind, I think it would be best if any defence ideas are PMd to me - otherwise they will have a heads-up on what I'll say in court, and can prepare a counter argument to cut me down quickly. I will, of course, make any suggestions public after the hearing, for better or worse!
  7. It seems they have paid to reinstate the case. The county court business centre Says that if I do not agree to mediation it will go to court. Looks like I will have to agree. How should I approach it? Agree only to pay the normal parking charge that i originally omitted to pay at the machine?
  8. Hello I thought this had gone away, but it hasn't. Despite the county court business centre telling me the case had been stayed, I have now received a copy of the 'Directions Questionnaire (Small Claims Track)' that BW Legal has filed at court. They have ticked the 'Yes' box next to the question 'Do you agree to this case being referred to the Small Claims Mediation Service?' Any advice would be very welcome indeed. I have no idea how I'm expected to proceed here ... !
  9. Hi This is the defence I used in the end. Good luck! 1. The claim is denied in its entirety for the following reasons: a. As per Excel Parking Services Ltd v Martin Cutts, 2011, the signage at the Peel Centre is particularly poor and although there are several signs these are arranged to create ‘entrapment zones’ where signage is not apparent to motorists. There can therefore be no contract through performance. b. The contract fails information requirements for distance contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013. As per the Act, any contract is not binding on the consumer. c. The claimant acts as agent for the Peel Centre, collecting monies on their behalf, but does not assume the risk. As per Fairlie v Fenton, they have no standing to bring any claim. d. The case of ParkingEye v Beavis in the Supreme Court established that the penalty laws are in play, but that in that specific car park the signage was sufficient to allow the motorist to make an informed decision. In this car park, the signage is of such poor quality that the charge of £100 is a penalty and an unfair consumer term. e. The alleged contravention is not listed on the signage. 2. Additionally, any monies over the £100 are not allowed by the Protection Of Freedoms Act 2012 and are an attempt to artificially boost the claim in an attempt to get around the costs limits in small claims cases. I believe the facts stated in this Defence Statement are true.
  10. I just thought I'd give you an update on this case. I received a letter from the County Court Business Centre saying that they had received my defence and forwarded it to the claimant on 27 June. I just rang up to check the situation and it seems the claimant (Excel) still had not come back to say they wished to proceed, so the claim has been stayed they will now have to pay for an application to lift it. I guess this means the defence that parking prankster, ericsbrother and others helped me compile has done the trick!
  11. Thanks Ericsbrother. I have tried to google the case you mentioned using various combinations of the terms 'Excel parking', 'Trevor', Peel Centre', 'Judge' and 'sacked', but have not found anything. Do you have the defendant's full name or any other details that might help me find details of the case?
  12. Thanks dx100uk - all done online. Will await some feedback from everyone on the defence I outlined above ...
  13. Hello all. I am going to return the 'Acknowledgement of service' form to county court, which gives me a bit longer to prepare my defence, which is an edited version of steampowered's suggested defence. My only worry is that some of it hinges on whether or not Excel are the landowners at the Peel Centre. I've tried to do some research online and can't find any definitive answers, although somebody on a forum thought that Peel Holdings own Excel, which kind of does make Excel the landowner ..? Anyway, see what you think to this: 1. It is admitted that Defendant is the owner of Ford xxxxxxx. 2. The Defendant is unable to admit or deny the precise times he was parked in the Peel Centre car park as he has no recollection of this. The Claimant is put to proof of the same. 3. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC[2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. 4. Alternatively, even if there was a contract, the provision requiring payment of £160.86 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; © the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and (d) the clause is specifically expressed to be a penalty on the Claimant's signs. 5. 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
×
×
  • Create New...