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N1 form Excel/BW Legal, served 13th March. Alleged contravention May 2011
Dub_cat
post Thu, 23 Mar 2017 - 10:44
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Hi kind people of PePIPoo

I hope you are able to help me please.

I received N1 claim form from County Court Business Centre in respect of an alleged contravention PCN in May 2011. Claimant is Excel Parking Services via BW Legal.

Back in 2011, the prevailing advice online was to ignore it. The driver had actually purchased a ticket for one hour, around 10 minutes after arriving at the car park. Leaving after a total of 31 minutes. This ticket is currently misplaced, so must assume it will not be found in time to be useful.

The registered keeper received the PCN in the post some days later, which has photos of the vehicle entering and leaving (still in possession of original letters) which although not distinct, does partially show the driver. The registered keeper also attended the car park and took photos of the main signs, and the metadata shows it as original and unmodified since 22/6/11. The signs do not mention a timeframe in which one should buy a ticket.

The driver then drafted a letter to Excel stating there must have been a mistake, but I do not believe this was sent, nor did Excel acknowledge it (also no proof of postage, so fairly confident it wasn't sent).

N1 form is dated 8 March (served date 13th) and the particulars state:

The Claimant's Claim is for the sum of £100.00 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) issued on 25/05/2011 (Issue Date) at xxxxx at George Street - Wakefield Anpr Charging Scheme Std (60-100). This PCN relates to under registration XXXXXXX.
The terms of the PCN allowed the defendant 28 days from the issue date to pay the PCN, but the Defendant failed to do so. Despite demand having been made, the defendant has failed to settle their outstanding liability.
The claim also includes Statutory Interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum a daily rate of 0.02 from 25/5/11 to 7/3/17 being an amount of £42.28. The claimant also claims £54 contractual costs pursuant to PCN Terms and Conditions.

Amount claimed: £196.28
Court Fee: £25
Legal Representative's cost: £50
Total £271.28

A letter received from BW Legal on 9th March states that they have issued legal proceedings and state the amounts of:
Principal Debt: £100
Interest: £42.28
Court Fees: £25
Solicitor's costs: £104
Outstanding balance to pay now: £271.28

So there's an obvious discrepancy between the amounts on the N1 and the amounts stated by BW, but this may not be relevant? Should the defense include that solicitors fees cannot be claimed as has been shown in other defenses?

Citizen's Advice suggest putting together a timeline, with all letters and photos being made available in the defense. They said the timeline should state all of the facts - arrival time, ticket bought, wrote to Excel (even though there's confusion on this) etc etc. Do you agree this should be included in the Defense?

I have done loads of research on here over the last week and read many cases and will continue to read many more. The acknowledgement has been done and a draft defense will be prepared and posted over the next day or so. So I am seeking advice please as to what should / should not be included.

Do you think it is worth mentioning that a ticket was purchased for one hour at the cost of £1.20? Should there be a mechanism on their Anpr system which would tally tickets to cars? The sign does not mention how soon after arrival a ticket should be purchased. Should the discrepency in costs be raised?

Is it worth mentioning any of the points above, or should one just stick to the standard defense points?

Is there any other specifics that should be included?

I really appreciate your support and time and thank you so very much for all your good fighting!
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post Thu, 23 Mar 2017 - 10:44
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southpaw82
post Thu, 23 Mar 2017 - 10:51
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Defence.


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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Dub_cat
post Thu, 23 Mar 2017 - 11:53
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Thanks Southpaw - I'm on it! ... will post asap
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lamilad
post Thu, 23 Mar 2017 - 12:13
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As above it's "defence, we're not American wink.gif

So this is pre-pofa and the driver has not been identified. Liability cannot be transferred to the keeper so it is up to Excel to prove who was driving. You'll find plenty of defences used by other posters in a similar situation. Use the 'google custom search function at the top right to search keywords like 'excel defence' pre pofa defence' etc. Modify one of those and post here for critique/ further advice.

Have you read the stickies?... and post #2 on this here:
http://forums.moneysavingexpert.com/showthread.php?t=4816822

QUOTE
Should the defense include that solicitors fees cannot be claimed
Yes

QUOTE
Citizen's Advice suggest putting together a timeline, with all letters and photos being made available in the defense. They said the timeline should state all of the facts - arrival time, ticket bought, wrote to Excel (even though there's confusion on this) etc etc. Do you agree this should be included in the Defense?

No. Your defence is a brief list of reasons (bullet points) why you are disputing the claim. Evidence (photo's letters) etc are adduced with your witness statement nearer the hearing date. CAB are not known to offer great advice on private parking issues. There are experienced posters on here - many with legal knowledge - who offer expert advice.

QUOTE
Do you think it is worth mentioning that a ticket was purchased for one hour at the cost of £1.20?
of course, if a ticket was purchased. If you did pay and display what are they stating as the reason for a 'contravention'? Is it a case of machine failure (common with Excel)?

QUOTE
Should there be a mechanism on their Anpr system which would tally tickets to cars?
Excel say they do tally up, but they can't prove it and evidence from other cases proves they do not. As here:
http://parking-prankster.blogspot.co.uk/20...y-bw-legal.html

And this case on the prankster's website: - Excel v Ms C C8DP36F0

These cases also highlight the machine failures.
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ManxRed
post Thu, 23 Mar 2017 - 12:15
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Slightly off-topic, but I've noticed that when typing the word 'defence' into a reply, I get the red underline of 'the grammar nazi'. Is that my laptop or this site?


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southpaw82
post Thu, 23 Mar 2017 - 12:39
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QUOTE (ManxRed @ Thu, 23 Mar 2017 - 12:15) *
Slightly off-topic, but I've noticed that when typing the word 'defence' into a reply, I get the red underline of 'the grammar nazi'. Is that my laptop or this site?

Your US English dictionary.


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ManxRed
post Thu, 23 Mar 2017 - 12:50
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QUOTE (southpaw82 @ Thu, 23 Mar 2017 - 12:39) *
QUOTE (ManxRed @ Thu, 23 Mar 2017 - 12:15) *
Slightly off-topic, but I've noticed that when typing the word 'defence' into a reply, I get the red underline of 'the grammar nazi'. Is that my laptop or this site?

Your US English dictionary.


I'm onto that now! biggrin.gif



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Dub_cat
post Thu, 23 Mar 2017 - 13:45
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Thank you lovely people.... yes, apologies about the Americanisation... I copied it across from Word and it was feeling American today! I am also a grammar nazi, but do make mistakes and typos!

I have a first draft defence now, but need to make a number of amendments in light of your comments - I need to reduce from a lengthy four pages to just bullet points for a skeleton defence!

Thanks for the 'tally tip' - I'll read up and amend what I've written so far. current draft on this point:

The Defendant asserts that a valid ticket was purchased for the period of stay, after a few minutes of arriving at the car park and, to the best knowledge of the Defendant, was visible in the windscreen. Upon later inspection, there is no mention on the signage of a timeframe in which one must purchase a ticket.

To the best of the knowledge of the Defendant, the car park is unmanned with only an ANPR system in operation. The parking meter requires input of the numbers of the vehicle registration, yet the ticket purchased was not tallied with the vehicle via the ANPR system.



The reason they originally stated on the PCN was 'parked without displaying a valid ticket / permit', but they have not transposed this to the Particulars of claim.

Thanks Lamilad - I have read the stickies and all the newbie info .... have I done something wrong?

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nosferatu1001
post Thu, 23 Mar 2017 - 14:43
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They cannot change their mind
Point out this discrepancy in the defence.

Four pages suggests it is more narrative. A defence is more a series of legal arguments - it shouldnt need to be 4 pages.
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Dub_cat
post Thu, 23 Mar 2017 - 14:56
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HI EVERYONE!

Just to clarify, is the 'Witness Statement' the full ‘statement of defence’?

I think I’ve basically written the full statement of defence, so I’ve now just ripped out all the detail and reduced it to the following bullet points: I must admit I am a little confused about how short the initial defence should be and this now feels like there is no information in it at all! please let me know if I should post the full version that I've put together.



I, xxxxxx, am the defendant in this matter and deny liability in its entirety of the claim.

1) The Defendant asserts that the Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper has not been proven as the driver.

2) The Defendant asserts that a valid ticket was purchased for the period of stay and displayed in good faith in line with the terms of the car park.

3) The parking meter requires input of the numbers of the vehicle registration, yet the ticket purchased was not tallied with the vehicle via the ANPR system.

4) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.

5) The Defendant asserts that the signage on site was confusing and did not meet the British Parking Association (BPA) Code of Practice.

6) 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.

7) The Claimants charges are unlawful as in breach of the Consumer Rights Act 2015 specifically section 62(1) Schedule 2.

8) There is a discrepancy between the constituent parts of the total amount on the particulars of the claim to that of the subsequent letter from BW Legal, giving rise to suspect that the costs have been inflated.

9) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence and no scrutiny of details.

10) The charge is a penalty and unfair consumer charge.

11) In this case the case concerns a pay and display ticket, although the Particular’s of the Claim does not state on what basis the claim is being brought, nor the specifics of the alleged contravention. There is therefore no commercial justification for the charge.

12) The Defendant denies that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Ltd.

13) The Protection of Freedoms Act 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.

14) Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. The Defendant denies that the Claimant is entitled to the relief claimed or any relief at all.

I ask the court to respectfully strike out this claim with immediate effect.

I believe that the facts stated in this Statement of Defence, (date) are true.


QUOTE (nosferatu1001 @ Thu, 23 Mar 2017 - 14:43) *
They cannot change their mind
Point out this discrepancy in the defence.

Four pages suggests it is more narrative. A defence is more a series of legal arguments - it shouldnt need to be 4 pages.


thanks Nosferatu - the full version feels more robust as a legal argument and only spans so many pages due it being double spaced etc. but I happily take on board your point. I just want to make sure I have my ducks in a row and it might be that I have included things which don't need to be included. .... happy to post the full version too for comments

thanks for everything!
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nosferatu1001
post Thu, 23 Mar 2017 - 15:47
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1.5 spacing is fine.

Defence - legal argument
Witness statement - a statement by a witness. Set of facts, NOT a legal argument. Forms part of the EVIDENCE, and is only sent as per the directions on the hearing allocation letter from your local court.

Each legal argument should be contained - so in 1) for example, it is "The keeper has no liability in the matter, as the POFA 2012 has not been complied with to establish Keeper liability..." - at the moment it is just two points jammed together, without any real conclusion.
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ostell
post Thu, 23 Mar 2017 - 15:57
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QUOTE (Dub_cat @ Thu, 23 Mar 2017 - 14:56) *
1) The Defendant asserts that the Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper has not been proven as the driver. POFA was not enacted at the time therefore any mention of it is irrelevant


2) The Defendant asserts that a valid ticket was purchased by the driver for the period of stay and displayed in good faith in line with the terms of the car park.

13) The Protection of Freedoms Act 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. POFA was not enacted at the time therefore any mention of it is irrelevant

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Dub_cat
post Thu, 23 Mar 2017 - 17:14
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thank you lovely people. biggrin.gif

Great clarification on the WS / Defence - thanks for that!

Thanks for pointing out the PoFA notes.

I will make edits and probably revert back to the fuller version and re-post tomorrow.

One other question for the moment please - should I be making a Part 18 request for further information at this stage?

I found this thread about ANPR machines particularly helpful: http://forums.pepipoo.com/index.php?showto...10335&st=20 for anyone else reading this with the same problem
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nosferatu1001
post Thu, 23 Mar 2017 - 17:31
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Doesnt apply in small claims
Doesn't matter however, just don't call it a part 18. Just say you're asking for copies of documents you don't have that would assist in narrowing the points of disagreement, such as...
Don't ask for anything you don't know the answer to.
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Dub_cat
post Thu, 23 Mar 2017 - 17:44
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QUOTE (nosferatu1001 @ Thu, 23 Mar 2017 - 17:31) *
Doesnt apply in small claims
Doesn't matter however, just don't call it a part 18. Just say you're asking for copies of documents you don't have that would assist in narrowing the points of disagreement, such as...
Don't ask for anything you don't know the answer to.


Thank you so much!
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lamilad
post Thu, 23 Mar 2017 - 18:31
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QUOTE
should I be making a Part 18 request for further information at this stage?

Is there information you definitely know you need from them in order to prepare your case? If not then the answer is 'no'.

If they left out important details from their PoC and not given you enough information to properly understand the claim then use this to your advantage and mention it in your defence and WS showing how unreasonable they've been by not giving you enough information.

Have you read Fellsider's thread? He won in court yesterday because the claimants PoC were woeful and they had not followed pre action protocol.

Sending a P18 highlighting their deficiencies just allows them to get their house in order before the hearing.
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southpaw82
post Thu, 23 Mar 2017 - 19:19
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QUOTE (lamilad @ Thu, 23 Mar 2017 - 18:31) *
Have you read Fellsider's thread? He won in court yesterday because the claimants PoC were woeful and they had not followed pre action protocol.

I think he won on keeper liability, not lack of adherence to any pre action protocol. That would go to costs not liability.


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Dub_cat
post Thu, 23 Mar 2017 - 23:37
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Thanks @Lamilad - I've spent the last 12 hours digesting more cases including yours and Lynch's!

I have drafted a Part 18 type email, but not sent it - the PoC indeed does not state the cause of the alleged contravention (PoC in my original notes at the top of the thread) - I have included it in my defence. I will be posting a rewritten defence tomorrow and I'll hold off sending the email!

As for the POFA - I'm far more confused about it now after having read so many threads and cases. This case pre-dates the PoFA 2012, but I'm unsure how I should frame it in the defence.

I've drafted a point:
The alleged parking contravention was prior to the implementation of The Protection of Freedoms Act 2012; the Claimant has no right to pursue the Registered Keeper for payment where no evidence exists to substantiate it.

point taken Southpaw - I'll have a read of the Fellsider thread (if I haven't already!) they're all starting to blur into one!

thanks you all!

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southpaw82
post Thu, 23 Mar 2017 - 23:57
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QUOTE (Dub_cat @ Thu, 23 Mar 2017 - 23:37) *
As for the POFA - I'm far more confused about it now after having read so many threads and cases. This case pre-dates the PoFA 2012, but I'm unsure how I should frame it in the defence.

I've drafted a point:
The alleged parking contravention was prior to the implementation of The Protection of Freedoms Act 2012; the Claimant has no right to pursue the Registered Keeper for payment where no evidence exists to substantiate it.

"The Claimant must prove that the Defendant was the driver of the vehicle at the time it was parked. The Claimant cannot rely on the Protection of Freedoms Act 2012 to transfer liability to the keeper because the parking incident in question occurred prior to the Act coming into force."


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Dub_cat
post Fri, 24 Mar 2017 - 11:04
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Good morning all!

I am ready to be pulled apart on this.... it's a long one, but I thought it better to cover all bases, then pull it back if you experts think it's too much.

Thank you muchly!


1. The Claimant must prove that the Defendant was the driver of the vehicle at the time it was parked. The Claimant cannot rely on the Protection of Freedoms Act 2012 to transfer liability to the keeper because the parking incident in question occurred prior to the Act coming into force.

2. The Defendant asserts that a valid ticket was purchased by the driver for the period of stay after a few minutes of arriving at the car park and, to the best knowledge of the Defendant, was visible in the windscreen. Upon later inspection, there is no mention on the signage of a timeframe in which any driver must purchase a ticket.

3. To the best of the knowledge of the Defendant, the car park is unmanned with only an ANPR system in operation. The parking meter requires input of the numbers of the vehicle registration, yet it is apparent the ticket purchased has not been tallied with the vehicle via the ANPR system. [is it worth mentioning this is technologically possible? (parking prankster)]

4. The Particulars of Claim only contains the Parking Charge Notice reference, location and date/time and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. The Defendant requests the court to strike out the claim for failure to disclose a cause of action and failure to comply with CPR 16.4 Contents of the particulars of claim and Practice Direction 16 paras 7.3 - 7.5

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 Defendant asserts that the signage on site was (and still is) sparce, inadequate, placed high on lampposts and did not meet the British Parking Association (BPA) Code of Practice. The claimant was a member of the BPA, whose requirements were not followed. Indeed, Excel has been criticised for misleading signage as in Excel Parking Services v Hetherington-Jakeman. Therefore, the Defendant asserts that a contract is void and not enforceable.

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. The Defendant asserts that clauses in the Terms and Conditions are unreasonable and the signage does not draw attention to such clauses in accordance with Lord Denning's "Red Hand Rule" from Spurling V Bradshaw. Moreover, the Defendant asserts that, as a result of the signage, the Claimant is unable to demonstrate that anyone parking a vehicle in that car park fully understood the risks and happily took them in accordance with Vine v London Borough of Waltham Forest.

8. The Claimants charges are unlawful as in breach of the Consumer Rights Act 2015 specifically section 62(1) Schedule 2. [can I / should I include this???]

9. The claimant has produced a figure of £271.28. This is a completely unsubstantiated and inflated three-figure sum, incoherently adduced by the claimant's solicitors. The Defendant has the reasonable belief that the sum is simply a number made up out of thin air, and an attempt to artificially inflate recovery by the Claimant. Any time and resources allegedly spent by the Claimant are staff employed performing their normal duties for the express purpose of operating its business model and whose cost would have been incurred if the ticket had been displayed or not. The claimant's solicitor advertises that it typically issues 10 000 to 20 000 claims every month - more than one every minute of the working day

10. Furthermore, Interest has been added to this alleged debt which would have been avoided if court action were issued in 2011. The Defendant feels this delay is a punitive measure, having deliberately waited five years and ten months from the date of the alleged contravention before taking the matter to court, resulting in the highest possible interest claimed for the period.

11. It appears that BW Legal have altered the charges in this case from those stated in the Particulars of Claim on the County Court Claim N1 Form. A letter from BW Legal dated 8 March 2017 states that they have issued legal proceedings for the amounts of: Principal Debt: £100, Interest: £42.28, Court Fees: £25, Solicitor's Costs: £104, totaling: £271.28. This letter offers a pay now option. However, The Particulars of Claim on the N1 form, also issued on 8th March states the Amount claimed: £196.28, Court Fee: £25, Legal Representative's cost: £50, Totalling £271.28. How is it that the constituting parts of the claim are significantly different, yet the resulting total the same?

12. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence and no scrutiny of details. The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. 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 the detriment of the unrepresented Defendant. The Defendant asserts that parking companies such as Excel are using the small claims track is a form of aggressive, automated debt collection and is a waste of court time and resources.

13. A valid ticket was paid for and the ticket displayed in good faith according to the terms of the car park. The Defendant has no desire whatsoever to be forced to spend the necessary time and energy combating this case in court – but has been forced to.

14. The charge is a penalty and unfair consumer charge. The leading case law on this is ParkingEye v Beavis [2015] UKSC 67. Although Mr Beavis lost his case, the Defendant submits that in this particular situation the case law introduced by Beavis is more favorable to the motorist than the operator. The supreme court ruled that the charge of £85 was not a genuine pre-estimate of loss and that ParkingEye had conceded that that was the case. The penalties law was therefore engaged.

15. The court ruled that in this case the desire of the landowner was that the motorist had two hours free parking but then left to encourage turnover for other shoppers. The charge therefore needed to be large to ensure that it acted as a deterrent, and this was therefore commercially justified.

16. In this case the case concerns a pay and display ticket, although the Particular’s of the Claim does not state on what basis the claim is being brought, nor the specifics of the alleged contravention. There is therefore no commercial justification for the charge.

17. Additionally, even if a ticket was not paid for, the Court of Appeal ruled in the Beavis case that a large charge was not justified in paid car parks. The CoA ruling (paras 46 and 47) can be taken as a judgment that in a rate per hour car park any charge must be related to the initial fee and the actual costs incurred, and the judgement of Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148 is referred to. As this was not overruled by the Supreme Court, the judgment stands and is binding on lower courts.

18. The Defendant denies that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Ltd.

19. 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. Even if they have been incurred, the Claimant has described them as "Legal representative’s costs" on the claim form and as ‘Solicitor’s Costs’ on the subsequent letter. These cannot be recovered in the Small Claims Court. Such charges are, in any case, according to CPR 27.14, not recoverable in the Small Claims court
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