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Excel parking charge: please review my defence
slapdash1
post Sat, 8 Dec 2018 - 17:27
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Hi all,

I'm a first time poster here - never needed to before!

I'm fighting a parking charge from Excel at the Cavendish retail park in Keighley, notoriously for their practices. The charge relates back to May 2017, I got the letter asking for £100 in July 2017. I overstayed my welcome at the car park
by 16 mins (6 mins over the 10 mins grace). I didn't see any signs for pay and display and this is an issue regularly brought up by people who have been stung like me. I'm at the stage of sending my defence statement as I received the claim form CCBC today.

The initial letter from BW Legal arrived in August 2017 but nothing to the last warning letter received a week ago. The letter from Excel does not show any photographic evidence of the vehicle entering or leaving.

It was a company car and they have no proof that it was me driving it at the time.

The charge now stands at £246 in total - I'm contesting all of the claim. Any advice would be appreciated - I want to know what I should remove/add and if this has got any legs if this goes to court. If it's too long winded i'll redraft a more concise defence. I'm able to pay the £246 but fuming at the severity of the charge.

Below is my defence statement that I will email to CCBC:

Claim no. .......

I am ...... and I am writing to you in relation to the charge of £100 on the assumption of a stay of 16 minutes and 45 seconds at the Excel car park, Cavendish retail park, Keighley on the 21st of May 2017. The vehicle in question is registered as FP14 XRE (as per the letter received from BW Legal).

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to Excel for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to Excel’s case.

i. The Unfair Terms in Consumer Contract Regulations 1999 applies
ii. The signage does not offer a contract with the motorist
iii. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
iv. The Claimant has no standing to bring a case
v. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
vi. Order dismissing the claim


The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred as no photographic evidence has been provided and the details may not be correct. All references to signage therefore, are subject to change once the full particulars of claim have been provided.



i The Unfair Terms in Consumer Contract Regulations 1999 applies
1. It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.

2. The European Court of Justice case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);

Article 3(1) of Directive 93/13 must be interpreted as meaning that:

– the concept of ‘significant imbalance’ to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out;

– in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

3. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over free time (10 minutes), if they had the opportunity to negotiate the contract on equal terms with the other contracting party.

4. It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine pre-estimate of loss, being the normal legal situation provided for by the national law in force. Excel’s charges in the original hearing were asserted to be an average of around £18 per ticket issued.


5. It is submitted that the European Court of Justice definition of imbalance must take precedence.

6. However, in any case the instant case is not saved from being unfair by Excel. In this particular location council charges for overstay are £50 discounted to £25, not £100 discounted to £85. As the charge is 100% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.

7. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.


ii The signage does not offer a contract with the motorist

8. The claim is for breach of contract. However, it is denied any contract existed.

9. The Claimant states, in their Particulars of Claim, that the signage is ‘clearly displayed’ but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. Although the Claimant has not provided a signage map in many of their car parks signs are positioned in such a way as to create ‘entrapment zones’ where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.

10. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

iii The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies

11. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

12. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

13. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

14. The regulations define an on-premises contract as:
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

15. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

16. This is clearly an organised service-provision scheme (for parking)
The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

17. This is therefore a distance contract.

18. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

19. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.


iv The Claimant has no standing to bring a case

20. The claim form states that the land is ‘managed by Excel’. They are therefore acting as agents of the landowner.

21. The Claimant’s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ‘Excel is authorised by the landowner to operate this private car park for an on its behalf’ and ‘Parking is at the absolute discretion of the Landowner’.

22. Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have a clause identical to or similar to, ‘Parking is at the absolute discretion of the Landowner’. There is no consideration from the motorist as parking is free.

23. Although each case turns on its own facts, in all cases where Excel’s contract with the landowner has been fully disclosed, the charge for breach of contract is collected by Excel on behalf of the landowner. This is usually disclosed in paragraph 3.11. This further confirms Excel act as agent for the landowner.

24. Excel provide the landowner with a web interface where they can check parking charges issued and paid. This is usually disclosed in paragraph 8 of their contract with the landowner. It is further disclosed on their web site. Thus, Excel is acting as an agent of the landowner.

25. If Excel deny acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact (usually clauses 3.11 and 8) with the landowner.

26. Fairlie v Fenton establishes the situation regarding agency.

a. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.

27. This case is clearly ©. The signage states Excel are acting on behalf of the landowner, but does not state who the landowner is. The small print in the signage has a clause similar to ‘Excel do not assume the risk if problems occur; in these cases it is the landowner who would be liable. We are not responsible for the car park surface, other motor vehicles, damage or loss to or from motor vehicles or general site safely.’

28. Excel therefore have no standing to bring this case. Only the landowner has the right to do this.


v The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty

29. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.

30. As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner’s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.

31. In any case, all costs are due to the cost of enforcement, which was established to be an average of around £18 per ticket issued. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.

32. The charge for breach of contract is collected on behalf of the landowner, according to clause 3.11 of the landowner contract. However, all costs for issuing tickets are borne by Excel. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.

33. Each case must turn on its own fact and the facts of that case are different to this.

34. The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.

35. The social justification was because the car park was in a town centre near to a railway station and a gym as part of the complex and so might be abused by commuters who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. Excel have not established any social justification in this particular case. The length of stay in question is 16 minutes, no grounds can be made that retailers suffered as a result of the stay.

36. In this case equivalent council fines are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate. The recent case involving Eric Pyle demonstrates this point clearly, in this specific case Mr Pyle had parked for a total of 55 minutes, in consideration to the charge applied on the 21st of May 2017 in Keighley, the charge of £100 is not justifiable.

37. Additionally the sum is roughly equivalent to a week’s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.

Solicitor Costs

38. The claim includes a sum of £60, described as ‘Solicitor’s costs’. The Claimant is known to be a serial litigant, issuing up to 100’s of similar claims on a weekly basis, using the bulk processing service. Given a standard working week, the claimant’s solicitor can spend no more than a few minutes per claim, hardly justifying the £60. I have experience in working at similar legal firm; there is no possibility of a solicitor reviewing the detail with the sufficient thoroughness. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £60 is not valid because it is not incurred by the claimant.

39. Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially double charging.

40. To put this into context, if the work was done by an outside solicitor who charged Excel £10 (which is believed to be the going rate for this type of work) then Excel would only be able to claim £10, and not £60.

41. The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the litigant’s expert staff to the value of £60.

42. The £60 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee.


Order dismissing the Claim

43. I have received no documentation/photographic evidence showing that the concerned vehicle was present at the location mentioned in the email received from the county courts administrator.

44. The Claimant, has not proved that the alleged incident relates to a vehicle for which I am the Registered Keeper. Further to this, even then any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, or indeed after, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

45. If the Notice to Keeper was not issued within 14 days, then the Claimant is required to prove who the driver of the vehicle was at the time of the alleged incident. I have no recollection of ever parking at the location of the alleged incident. The vehicle that I am the Registered Keeper of, can be driven by other insured adult working for BCA Marketplace as the vehicle was a company car and is on occasion driven by other adults with their own comprehensive insurance working for my company. I submit that the Claimant cannot provide such evidence of the identity of the driver. I further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

46. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

47. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

48. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.

49. In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork, photographs relating to contraventions and pictures of all signs from the Claimant. I have asked the claimant and BW Legal for proof and have not received a response.

50. The Protection of Freedoms Act 2012 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.

51. The government have put in place a mechanism whereby liability can be transferred from driver to keeper, under the Protection Of Freedoms Act 2012, sch 4. The claimant has made the conscious decision not to avail themselves of this legislation and use a notice to keeper which fails to comply with 8.1, 8.2a, 8.2c, 8.2f, 8.8b, 9.2.a, 9.8b of the Act.

52. On the other hand it is believed that the Claimant may seek to rely on a rather unique interpretation of the judgement in Elliott -v- Loake which is different from this case.

53. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an unenforceable 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. None of this applies in this material case.

54. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

Statement of Truth:

I believe that the facts stated in this Statement are true.

Full name: ........
Dated: 08/12/19
Signed:
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post Sat, 8 Dec 2018 - 17:27
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Redivi
post Sat, 8 Dec 2018 - 17:47
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I'm about to go out so can't look at this in detail

Points #1 to #7 have to go, also #29 and #31

ParkingEye v Beavis threw out all of them
GPEOL is completely dead as an argument

In any case the UTCCR no longer exists
It was replaced by the Consumer Rights Act 2015

The courts will also dismiss #10 to #19 regarding the CCICAR

Replace #38 to #42 by a simple statement that you don't believe the charge has been incurred and, even if it has, legal costs can't be recovered in Small Claims Court (only the £50 to issue the claim)
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ostell
post Sat, 8 Dec 2018 - 19:39
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DO NOT RUSH TO SUBMIT YOUR DEFENCE read on.

Even at this late stage edit your post so that the identity of the driver cannot be inferred. use "the driver....." etc. You are the hirer/keeper. And remove the VRM of the car as well. Everything to hide the identity.

The only thing you do now is acknowledge the claim using the online details and password on the form. Do not put anything at all in the defence. This gives you 33 days from the date of issue to get a defence to the court. Now that the panic is over perhaps we can help.

If there was no windscreen ticket then the Notice to Keeper arrived too late to hold you, the keeper, liable. But you say it was a hire car, which could explain the delay, and I am assuming that you received a Notice to Hirer in the the post. With that notice to hirer/keeper did you receive a copy of the hire agreement signed by the hirer and a copy of the original PCN sent to the hire company?

Your main defence point is that you, as the hirer/keeper did not receive those documents that are required by Schedule 4 of the Protection of Freedoms Act 2012 to hold the keeper liable when they do not know the identity of the driver. Here's the POFA legislation and you should be looking at section 14 (2). Not many companies get this correct, if any. Without getting this right there is no keeper liability and there is no requirement to name the driver at the time. If they have failed on this point then this should be your first defence point.

The time to receive the NTH is also prescribed and they could have run out of that time to hold you, the keeper, liable.

What are the particulars of claim? (don't identify the case)

The charge is too high. Under POFA, section 4 (5), then the maximum they can claim from the keeper is the amount of the original PCN, ie £100 + court costs £25 + solicitors fees for preparing the claim form £50. PE claims are usually for £175.

Please clarify, this is a hire car hired to you and not in your company name.

What does the signage actually say, if you have a photo at the time? The current signs are different. Can you post up the original Notice to Hirer that you received, suitably redacted.

This post has been edited by ostell: Sat, 8 Dec 2018 - 19:55
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slapdash1
post Mon, 10 Dec 2018 - 15:25
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I should have made clear. the vehicle is a company car and is owned by my employer. They must have given the driver details to BW Legal.

I've served acknowledgement and will now edit the defence statement and post again here.

thanks for your help guys - much appreciated.
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ostell
post Mon, 10 Dec 2018 - 16:16
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We have been down this route before in other threads. Please check out the EXACT status of the car. Is your company name on the V5 document. Quite common for companies to hire cars from a lease company and then give to employees.

They can't have given the driver details to BW Legal as the company were not there at the time of the alleged incident. You are the keeper of the car. Edit your first post so that the identity of the driver cannot be inferred.

So have you, or your company, got a copy of that original PCN issued? Did you ever get a PCN in your own name or were you just handed a copy of what the company received. Lots of questions to try and sort out a route to take for a defence.
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nosferatu1001
post Tue, 11 Dec 2018 - 07:34
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Indeed, your company is completely unaware of, and cannot be a Witness to, the person who drove the car at any particular time *unless* the person signing the statement was there? Were they? No? Well then that means they can only have nominated te KEEPER of the car, as youve been told

Doubt its V5'd to the company. Usually a lease firm first.
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slapdash1
post Thu, 13 Dec 2018 - 17:37
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The company owned the car ( I work for a company that re-markets used cars).

I was the registered keeper for a few weeks only - the time that the PCN arrived I was not the registered keeper and the company had actually sold the car. So neither was I the keeper at the time I received the PCN and my company did not own the vehicle - who knows where the car was at that point. To answer the question, the company could not have known exactly who was driving at that time.

I'm still confused as to how they got my details - it must have been my employer, can't think of how else they got it.

I'll upload the revised statement this evening. Thanks all for the help so far.
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SchoolRunMum
post Thu, 13 Dec 2018 - 17:58
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You can find out how they got your details by emailing the PPC a SAR (see their Data Privacy page for the DPO email).

Do that now (as in, right now when you read this), and no it's not too late. It will show you their hand and evidence. Ask for all photos taken of the vehicle and the signs on the day, and all letters sent and exchanged including with the registered keeper (BTW you were NEVER the registered keeper, although you were the keeper for a while).

That defence is far too wordy. Make sure you have gone on MCOL and acknowledged the claim within 14 days of service, so that buys you another 14 days to work on a better defence and hopefully to get the SAR results back, which shouldn't take long as they are easy for any PPC to find. You will have to show your claim form to ID yourself to the DPO when asking for a SAR.

Acronyms are all explained in the 5th post of the MSE parking forum NEWBIES thread...saves us answering the same Qs again and again.

Look instead at the concise templates by bargepole as linked in the 2nd post of the same MSE NEWBIES thread (there is a nice short one about signs not being clear).

This post has been edited by SchoolRunMum: Wed, 19 Dec 2018 - 18:43
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nosferatu1001
post Fri, 14 Dec 2018 - 07:39
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So yo uneed to admit or deny whether you were the keeper at the time
If you say you were not hte keeper at the time - it had alreayd been sold - or was the car still your companies whne the INCIDENT took place, NOT when the PCN came through?
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slapdash1
post Wed, 19 Dec 2018 - 09:38
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I've gone on MCOL and acknowledged the claim.

re-draft of the defence below:

Claim no…

I am …… and I am writing to you in relation to the charge of £245 on the assumption of a stay of 16 minutes and 45 seconds at the Excel car park, Cavendish retail park, Keighley on the 21st of May 2017.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to Excel for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to Excel’s case.

i. The signage does not offer a contract with the motorist
ii. The Claimant has no standing to bring a case
iii. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
iv. Order dismissing the claim


The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred as no photographic evidence has been provided and the details may not be correct. All references to signage therefore, are subject to change once the full particulars of claim have been provided.



i The signage does not offer a contract with the driver

1. The claim is for breach of contract. However, it is denied any contract existed.

2. The Claimant states, in their Particulars of Claim, that the signage is ‘clearly displayed’ but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. Although the Claimant has not provided a signage map in many of their car parks signs are positioned in such a way as to create ‘entrapment zones’ where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.

3. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.



ii The Claimant has no standing to bring a case

4. The claim form states that the land is ‘managed by Excel’. They are therefore acting as agents of the landowner.

5. The Claimant’s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ‘Excel is authorised by the landowner to operate this private car park for an on its behalf’ and ‘Parking is at the absolute discretion of the Landowner’.

6. Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have a clause identical to or similar to, ‘Parking is at the absolute discretion of the Landowner’. There is no consideration from the motorist as parking is free.

7. Although each case turns on its own facts, in all cases where Excel’s contract with the landowner has been fully disclosed, the charge for breach of contract is collected by Excel on behalf of the landowner. This is usually disclosed in paragraph 3.11. This further confirms Excel act as agent for the landowner.

8. Excel provide the landowner with a web interface where they can check parking charges issued and paid. This is usually disclosed in paragraph 8 of their contract with the landowner. It is further disclosed on their web site. Thus, Excel is acting as an agent of the landowner.

9. If Excel deny acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact (usually clauses 3.11 and 8) with the landowner.

10. Fairlie v Fenton establishes the situation regarding agency.

a. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.

11. This case is clearly ©. The signage states Excel are acting on behalf of the landowner, but does not state who the landowner is. The small print in the signage has a clause similar to ‘Excel do not assume the risk if problems occur; in these cases it is the landowner who would be liable. We are not responsible for the car park surface, other motor vehicles, damage or loss to or from motor vehicles or general site safely.’

12. Excel therefore have no standing to bring this case. Only the landowner has the right to do this.


iii The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty

13. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.

14. As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner’s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.

15. In any case, all costs are due to the cost of enforcement, which was established to be an average of around £18 per ticket issued. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.

16. The charge for breach of contract is collected on behalf of the landowner, according to clause 3.11 of the landowner contract. However, all costs for issuing tickets are borne by Excel. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.

17. Each case must turn on its own fact and the facts of that case are different to this.

18. The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.

19. The social justification was because the car park was in a town centre near to a railway station and a gym as part of the complex and so might be abused by commuters who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. Excel have not established any social justification in this particular case. The length of stay in question is 16 minutes, no grounds can be made that retailers suffered as a result of the stay.


20. Additionally the sum is roughly equivalent to a week’s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.

Iv Order dismissing the Claim

21. I have received no documentation/photographic evidence showing that the concerned vehicle was present at the location mentioned in the email received from the county courts administrator.

22. The Claimant, has not proved that the alleged incident relates to a vehicle for which I am the Registered Keeper. Further to this, even then any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, or indeed after, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

23. If the Notice to Keeper was not issued within 14 days, then the Claimant is required to prove who the driver of the vehicle was at the time of the alleged incident. I have no recollection of ever parking at the location of the alleged incident. The vehicle that I am the Registered Keeper of, can be driven by other insured adult working for BCA Marketplace as the vehicle was a company car and is on occasion driven by other adults with their own comprehensive insurance working for my company. I submit that the Claimant cannot provide such evidence of the identity of the driver. I further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

24. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

25. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

26. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.

27. In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork, photographs relating to contraventions and pictures of all signs from the Claimant. I have asked the claimant and BW Legal for proof and have not received a response.

28. The Protection of Freedoms Act 2012 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.

29. The government have put in place a mechanism whereby liability can be transferred from driver to keeper, under the Protection Of Freedoms Act 2012, The claimant has made the conscious decision not to avail themselves of this legislation and use a notice to keeper which fails to comply with 8.1, 8.2a, 8.2c, 8.2f, 8.8b, 9.2.a, 9.8b of the Act.

30. On the other hand it is believed that the Claimant may seek to rely on a rather unique interpretation of the judgement in Elliott -v- Loake which is different from this case.

31. In summary, I do not believe the charge has been incurred and even if it can be demonstrated that it has, the legal costs cannot be recovered in Small claims Court (excluding the £50 to issue the claim).

32. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

Statement of Truth:

I believe that the facts stated in this Statement are true.

Full name:
Dated: 08/12/19
Signed:
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bearclaw
post Wed, 19 Dec 2018 - 09:52
Post #11


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You need to number all the paragraphs and also be sure that you explicity state the keeper and deny who is the driver...

In relation to the charge of £245 on the assumption of a stay of 16 minutes and 45 seconds at the Excel car park, Cavendish retail park, Keighley on the 21st of May 2017.

1. I am …… and it is admitted that I was the Keeper of the vehicle at the time in question.

2. The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to Excel for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to Excel’s case.

i. The signage does not offer a contract with the motorist
ii. The Claimant has no standing to bring a case
iii. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
iv. Order dismissing the claim


3. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred as no photographic evidence has been provided and the details may not be correct. All references to signage therefore, are subject to change once the full particulars of claim have been provided.




You have a section 12, then a subsection iii? Where are the subsections i and ii? Other examples need tidying up.
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Ollyfrog
post Wed, 19 Dec 2018 - 10:25
Post #12


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I also thought iii) GPEOL was a no-no since Bevis?

I'm still a rookie here so please wait for someone else to confirm that.
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nosferatu1001
post Wed, 19 Dec 2018 - 10:57
Post #13


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iii) is dead
Do not ever use that phrase
You have to explain how BEAVIS means that this charge REMANIS a penalty.
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slapdash1
post Thu, 20 Dec 2018 - 15:25
Post #14


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Should I completely remove points 13-20?
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SchoolRunMum
post Thu, 20 Dec 2018 - 19:43
Post #15


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I'd remove the whole thing, which is far too wordy.

Use bargepole's concise template defence instead (from th MSE parking forum NEWBIES thread, post #2) and just add in your own 'The facts are...' point.
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slapdash1
post Sat, 19 Jan 2019 - 14:03
Post #16


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HI all,

The defence was submitted on time, acknowledged by the court but BW Legal have sent me an email stating that they will be taking this to court.

Honestly, I'm quite nervous about that prospect. Is there any value in approaching BW Legal to settle out of court or for Mediation? I'm not so sure the case will land in my favour if it did go to court and have become quite exhausted by all of this.

Any suggestions welcome and thanks again for your help.
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Jlc
post Sat, 19 Jan 2019 - 14:09
Post #17


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They would love you to pay - that's the whole point of their pressure. They don't back off from defences, actually generally no matter how strong.

But, ultimately, you need to be prepared to go to a hearing.

You can settle at any point, it's just how much they are prepared to accept... (But financially they stand to lose the most if they go to a hearing)

This post has been edited by Jlc: Sat, 19 Jan 2019 - 14:09


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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