EXCEL PARKING claimform - Irregular NTD, Improper approach to DVLA and NTK outside of limits.***Claim Discontinued***

[AndyOrch]

Test

[bo54col]

To resurrect this old thread, Excel have finally decide to test this case in the claims court. Today an N1 claim form has been received.

Can I trouble you for some guidance on what to frame the defence around, the NTD not fitting PoFA 2012, or taking the NTD as valid Excel applying for the DVLA to early (within 28 days) or a mixture of those and signage not having planning permission, and or no ANPR therefore the the invitation to accept the contract was declined and the driver left after making that decisions.

Guidance would be appreciated

[dx100uk]

please complete the above

 

dx

thread title updated

[ericsbrother]

Can yu pst up the particulars of claim so we can try and fathom out why they thik you owe them money. It will undoubtedly be the usual vague nonsense. you will need to acknowledge the claim but dont fill out anything about a defence yet,  we will help you with that when we have a little more information and you will have a total of 33 days to file that if you get the AOS done pronto.

 

Once that is done you send Excel or their solicitors a CPR31.14 request for documents asking for sight of the contract between themselves and the landowner that assigns the right to enter into contracts with the public and to make civil claims in their own name Also ask for copies of the planning permissions granted for their sugnage and equipment at the site ( parking meters need different planning consent to the signs so 2 PP's references needed) Give them14 days to respond and when they dont you make use of this in your outline defence along with rubbishing their POC

 

After that we need to see the signs at the car park in question and also pictures of the payment meter and associated blurb. Pictures of the entrance from the public highway regardless of whether there are signs there or not as well please. Pictures of all signs that are different, we need to be able to read the small print. Also whilst you are there you need to do a sketch of where the signs are, how big they are and whetehr there is anything obscuring them like trees or wheelie bins.

 

Also make a note of whether they are lit by lamps above them etc

[bo54col]

Thanks You. Im back online now.

 

Ack of Service sent back. CPR letter sent to Excel.

 

Signage photos, Sanitised POC,  and sketch to follow. 

 

 

[bo54col]

Name of the Claimant EXCEL PARKING SERVICES

claimants Solicitors:  Simon Renshaw Smith

 

Date of issue – 13 May 2019 

 

Date of issue XX + 19 days ( 5 day for service + 14 days to acknowledge) = 1 June + 14 days to submit defence = 15/ June  2019

 

 

What is the claim for – 

 

The Claimants claim is for the sum of £160 due from the Defendant to the claimant in respect of a Charge Notice (CN) for a contravention on 06/01/2017 17:25:00 at Cloisters P&D Car Park  - Formby (Formby)

The CN relates to a VW Golf under registration P******. The terms of the CN allowed the Defendant 28 days from the issue date to pay the CN, but the Defendant failed to do so. Despite demand having been made the Defendant has failed to settle their outstanding liability.

The Claimant seeks the recovery of the CN and interest under section 69 of the County Courts Act 1984 at the rate of 8% at the same rate up to the date of judgement or earlier payment.

 

What is the value of the claim?  £160 plus £25 costs

 

Has the claim been issued by the Private parking Company or was the PCN assigned and it is the Debt purchaser who has issued the claim ?

 

Private Parking Company, Excel Parking Services Ltd

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Not Applicable

[bo54col]

I have checked the Sefton Council planning website and no planning applications have been made for any signage or electronic devices for the Cloisters Car Park. 

[dx100uk]

SRS is going to be in court...I bet not!!

 

so our std 2 or 3 line defence by 4pm 14th june

[bo54col]

46 minutes ago, dx100uk said:

SRS is going to be in court...I bet not!!

 

so our std 2 or 3 line defence by 4pm 14th june

 

Thanks, 

 

where will I find the 2 or 3 line standard defence ?

 

Is it the one as per the sticky in post 28 above ?

Edited June 5, 2019 by bo54col

[FTMDave]

Post 53 is a good start at 

However, you could have done the search yourself, which would be a good idea as you will need to have your argumenta prepared for court.

 

Well done on sussing out the fleecers have no planning permission.

[bo54col]

Going thru the old letters, this has been assigned to ZENITH Collections as of 1/06/2017.  Doe that make a difference ?

[honeybee13]

Not to the court case,  I wouldn't say but it's odd timing. 

 

How is your defence going?

 

HB

[dx100uk]

Nothing of consequence

[bo54col]

HB

 

Im just going to keep it simple and the 3 or 3 line general defence found in the posts, as suggested by dx100uk

 

Havent compiled it yet. 

 

I am right in thinking the defence goes to the court only, not to Excel who filed the claim ?

[ericsbrother]

post up what you want to say and we will advise whether to add anything about their procedural cock-ups,

they havent said in what capacity they are suing you and whether this is for a breach of contract or for monies due under a contract

 

as they say they are recovering monies from a charge notice and that then means they are claiming what?

£100 as that was the sum on the notice (if it existed) or NTK (POFA limits any demand then) but doesn't mention any so called contractual collection or administration fees so where does the £160 come from in law?.

 

Now you can mention all of this in a tidied up version as part of your defence to refute excel having a cause for action in the first place but you dont want this to be the only string to your bow.

 

You could also force the into paying more money by not saying why there was no contract (to breach) and hit them with a barrage of points at the exchange of documents stage as the vagure defence will encourage them to think they have a chance but you may prefer that they understand you have a lot of ammo and try and get them to drop the claim and skulk away sooner than that stage.

 

It is normal to send a copy of the defence to the claimant but if you file online then that nicety is waived.

Referring to the above you might want them to know now that you arent going to pay up so encouraging them to drop it.

Simple Simon is notoriously greedy and stubborn so it is a toss up which strategy to use

[bo54col]

Ive attached the long version of the defence here. Please advise if you think its too much and needs to be shortened.

 

Ive also attached 2 pictures of the Signage as you enter - showing no contract details, and the other sign where the contract wording is confusing. 

 

 

Entry signage.pdf Signage after parking.pdf

[dx100uk]

removed the defence as all your details are showing in properties of the doc

which is why we say use PDF

however just copy and paste the text here

so we can edit it please

 

IMHO that's mostly for your WS.

more is LESS.

 

[bo54col]

4 minutes ago, dx100uk said:

removed the defence as all your details are showing in properties of the doc

which is why we say use PDF

however just copy and paste the text here

so we can edit it please

 

IMHO that's mostly for your WS.

more is LESS.

 

Apologies. I did save it as PDF, but uploaded the wrong one.

 

DEFENCE

 

1.    It is denied that the Defendant parked in Cloisters P&D Formby at the times mentioned in the Particulars. The Claimant is put to strict proof of the same.

 

 

1.     The driver of the vehicle has not been identified and the registered keeper is not liable.

 

2.     It is denied that the Claimant has complied with Schedule 4, Protection of Freedoms Act 2012

The ‘NTD’ does not conform to Schedule 4 paragraph 7 of the PoFA 2012. This legislation stipulates what mandatory information should be included on an ‘NTD,' such as the day, date, location, vehicle, parking breach, time of the breach, the appeal process etc. 

 

3.     As all of this information is not present on the NTD, I consider the NTD to be invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that I, being the registered keeper, cannot be held to account for the alleged debt of the driver.

 

4.     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. 

 

5.     If there was a contract, it is denied that the penalty charge is incorporated into the contract. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, the relevant term must be made known before a contract was formed. Here, the charge was not incorporated into the contract because it is unclear, due to the signage, who the contract is with. Upon entering the site there is no conditions of contract visible on the board highlighting the car park. Other signage, only visible after parking is duplicitous stating a contract is formed Vehicle Control Services Ltd and enforced by vehicle Control Services Ltd. This claim is not brought by Vehicle Control Services Ltd.

 

6.     Alternatively, even if there was a contract, the provision requiring payment of £185 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; (c) 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. 

 

7.     Further and alternatively, the provision requiring payment of £185 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose. 

 

 

8.     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. 

[dx100uk]

Def 99% of that is for your WS

 

read the exanple in the link of ftmdaves post above

[brassnecked]

Only needs to be 3 line atm, the other stuff comes in at WS stage,

[bo54col]

2 line defence

 

1.It is denied that the defendant parked in Cloisters P&D Formby at the time mentioned in the particulars. The claimant is put to strict proof of the same.

 

2. No cause for action against the defendant as no contract offered and no keeper liability created.

 

 

Is this succinct enough ?

Edited June 7, 2019 by bo54col

[ericsbrother]

Ok so do you want to have a pop at their POC along with this or leave that for the WS as well?

In the grand scheme of things it doesnt matter as filing a defence puts you in a minority position of about 15% of those who are sued so it might be enough to make them look at the stats for taking it further and their chances of winning (slim).

[bo54col]

Id rather flatten it now, if you where able to help undermine the POC too, EB?

 

 

[ericsbrother]

then you need to say that

 

1. the particulars of claim do not make it clear in what capacity the defendant s being sued, if as the driver then it is put to strict proof the defendant was indeed driving at the time.

 

If the claimant is relying on suing the defendant for having  keeper liability then the defendant denies such a liability has been created because of the failures of the claimant to create one under the POFA 2012.

 

2. Further to this the POFA limits the amount that can be claimed from the keeper to the amount claimed on the Notice to Keeper and so all of the other charges that may or may not have been mentioned on the signage at the land are not permitted under the POFA.

 

3.The claimant does not show a cause for action,  they state that it is for a parking charge but do not say whether this is a contractual sum or damages for a breach of contract.

 

The defendant denies being the driver at the time and the claim states specifically that it is the driver who is liable so all liability is denied and the defendant requests that the claim is stuck out under CPR 3.3,  16.2 and 16.4

 

you are inviting the court to use its managemnt powers to boot this out or make the claimant write it all out again.

Unfortunatley it is rare for all of this to be read and acted upon before it gets further down the line but always worth a go.

[bo54col]

Thanks EB,

 

Ill give it a whirl, and keep the thread updated.