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FightBack Forums _ Private Parking Tickets & Clamping _ Final Demand Letter

Posted by: RainyDay2019 Wed, 29 May 2019 - 10:02
Post #1488476

Hello, I am looking for advice on how to proceed.


The incident took place August 2017 in Wales.
A car park owned by the council had been free until it was rented out to Excel Parking in 2017. The day of the incident was the driver's first time using this car park since it was being operated by Excel Parking.
The driver queued behind a woman who was in the process of entering her reg number, however she realised she did not know it and left. Having never used this machine before the driver put their money in the machine and entered their reg number, without realising they should have entered the reg number first, before paying. The resulting ticket only had an 'R' for where the reg number is printed (The driver assumes that is as far as the woman in front had gotten with entering her number).
The driver made a call to Excel Parking that day to explain the situation and asked if it could be taken care of, would they get a parking fine etc. The man who they spoke to said that they would not, and he would take care of it.

Of course the driver received a parking fine for £100 in the post sometime later. The driver appealed the claim, based on that fact that while the ticket was purchased in error, the driver had still paid for a ticket.
The appeal was denied, the driver did not pay the fine, having been advised not to on another forum, and that they had a good case.

Two weeks ago the driver received a Demand for Payment letter, detailing that the charge has risen to £160 for debt collection costs (the driver paid £1 for parking, and still has the original ticket) and that the company intends to take the driver to court if they do not pay by the specified date (21st May).

The driver did not pay the charge, and has received today (29th May) a Final Demand for payment in the post stating that Excel Parking will also seek to recover court fees and solicitors costs.

At this stage, can anyone advise if there are any grounds to fight this claim and any chance of winning if the driver were taken to court.

Thank you for your help!

Posted by: Jlc Wed, 29 May 2019 - 10:16
Post #1488484

QUOTE (RainyDay2019 @ Wed, 29 May 2019 - 11:02) *
At this stage, can anyone advise if there are any grounds to fight this claim and any chance of winning if the driver were taken to court.

Indeed, very good grounds but it won't stop the roboclaim* I'm afraid. The driver did everything they reasonably could and phoning them and getting the promissory estoppel.

* a pressure tactic of issuing many claims to get people to pay

Posted by: RainyDay2019 Wed, 29 May 2019 - 11:24
Post #1488507

Should the driver ignore this pressure tactic then? Additionally, the driver has screenshots proving a phone call was made, however Excel Parking denies having any records of a phone call being made.

Thank you.

Posted by: Jlc Wed, 29 May 2019 - 12:32
Post #1488524

It's up to them if they issue a claim - never ignore a real claim. You can try and tell them but the roboclaim process will trundle on.

You only have to show on the balance of probabilities you made the call etc. You seem to have enough evidence to tip this balance.

Posted by: RainyDay2019 Sat, 20 Jul 2019 - 15:20
Post #1501501

Hi All,
A County Claim letter has been received in the post.


What are the next steps I will need to take to proceed to dispute the claim?


Thank you!

Posted by: ostell Sat, 20 Jul 2019 - 20:03
Post #1501562

First action us to acknowledge the claim using the details and password on the form. Nothing in the defence. This gives you 33 days from the date if issue to get your defence to the court

Looks like their equipment misbehaved

Posted by: RainyDay2019 Sat, 20 Jul 2019 - 21:25
Post #1501581

I am currently acknowledging the claim, there is am option asking if I want to contest jurisdiction of the claim made against me. I'm not sure what this means, do I need to click this option?

Posted by: Lynnzer Sat, 20 Jul 2019 - 22:17
Post #1501590

QUOTE (RainyDay2019 @ Sat, 20 Jul 2019 - 22:25) *
I am currently acknowledging the claim, there is am option asking if I want to contest jurisdiction of the claim made against me. I'm not sure what this means, do I need to click this option?

No

Posted by: ostell Sun, 21 Jul 2019 - 08:17
Post #1501619

Check with the council involved as to the status of the car park. If it is still owned by the council and subject to a parking places order then for the purpose of POFA it is not relevant land and therefore there can be no keeper liability. Often the information required is on a council web page. As long as the driver has not been identified

Posted by: RainyDay2019 Mon, 22 Jul 2019 - 16:32
Post #1501860

QUOTE (ostell @ Sun, 21 Jul 2019 - 09:17) *
Check with the council involved as to the status of the car park. If it is still owned by the council and subject to a parking places order then for the purpose of POFA it is not relevant land and therefore there can be no keeper liability. Often the information required is on a council web page. As long as the driver has not been identified


Information I have been able to find states that the car park is held long leasehold from the City Council by way of a 150 year term, with effect from 2007, and charging commenced from 2017. However additional information states that the car park building itself is owned by a private company CATHCO, although the land itself is owned by the council. CATHCO entered administration in 2010 and the car park was managed by the Council under a short term lease agreement until leased to Excel, if that is at all relevant. I will contact the Council directly to confirm this information.

Unfortunately I think by appealing the ticket I identified myself as the driver, although the particulars of the claim appear to suggest that the Defendant is only identified as the keeper and/or the driver, not both.

Posted by: nosferatu1001 Tue, 23 Jul 2019 - 14:49
Post #1502149

Thats just their template POC.

What did you put in your appeal? Verbatim.

Posted by: RainyDay2019 Tue, 23 Jul 2019 - 18:51
Post #1502219

Similar to how I have told the story here, although referring to myself as 'I'.

Posted by: nosferatu1001 Tue, 23 Jul 2019 - 19:25
Post #1502239

Verbatim means exactly that.

Posted by: RainyDay2019 Wed, 24 Jul 2019 - 15:29
Post #1502448

Oh apologies! Is there a way for me to access the appeal that I made? I don't have a copy of it myself, and I am unable to access it through myparkingcharge. The only documentation I can find is a response to the appeal by Excel and another response by the IAS when the appeal was sent to them.

Posted by: nosferatu1001 Wed, 24 Jul 2019 - 16:45
Post #1502482

No then. It's why you keep,copies of important documents yourself...

Sar them. Gives you all documents within 30 days.

Posted by: Redivi Wed, 24 Jul 2019 - 18:44
Post #1502514

The trouble with an SAR is that the deadline to respond is long after the defence has to be submitted

I would instead send a request for all the documents Excel intends to rely on in accordance with the Over-riding Objective

Posted by: nosferatu1001 Thu, 25 Jul 2019 - 09:50
Post #1502636

They still dont have to respond in time. A SAR is at least a definitive deadline.

Posted by: ostell Thu, 25 Jul 2019 - 09:59
Post #1502640

So you request from Excel in order to narrow the issues between you, all documents that they intend to use in court, as expected by CPR . As they have those documents to hand in order to issue the claim then you expect to receive them by returnand at the latest within 7 days.

Posted by: RainyDay2019 Fri, 26 Jul 2019 - 08:05
Post #1502796

I have been able to access my appeal sent to the IAS, as follows:

I went to pay for my ticket at the machine where a lady was already at the machine, entering her details. She realised she did not know her full registration number and left the machine with the first initial of her registration number 'R' still entered on the machine as you can see on the parking ticket I have provided as evidence. I put my money in, without realising I should have entered my registration details first, as most machines you are required to put your money first before your details. I tried to enter my registration number and found it wasn't registering on screen. After printing my ticket, I noticed the error on the ticket. Upon returning home, I called the company that owns the car park to explain my situation. The gentleman I spoke to assured me it would be taken care of, however this is obviously not the case as they have chosen to fine me unfairly, despite showing evidence that I have paid for the ticket, the mistake is clear on the ticket and that I even phoned to try and resolve the situation.

My further response, after Excel responded:

I have provided further evidence showing I did call their helpline, as highlighted in red. I am happy for this call to be investigated with my network to show that this call had taken place.
I was not told by the gentleman on the phone, that by leaving the car park I would be breaching any sort of conditions. He simply asked for my registration number and told me he would sort the issue for me.
I have legally paid for a ticket, for a shorter amount that I even paid for, as can be seen by the time I entered and left, and the amount I paid for the ticket - I feel that I am being treated unfairly due to an honest mistake that could be made by anybody.

Also, I have requested a SAR from Excel, on the 22.07.19, they have yet to respond. Is it worth sending another request, with a deadline of 7 days?

Additionally, the council have responded regarding ownership of the Car Park:

I write further to your enquiry regarding 'The Car Park'.

The Council owns the freehold to the site which is registered under title number 'XXXXXXX'.

Further information can be obtained via the Land Registry

Posted by: ostell Fri, 26 Jul 2019 - 08:31
Post #1502810

So is there a oarking places order on the land?

Posted by: RainyDay2019 Tue, 30 Jul 2019 - 21:27
Post #1504001

No there is no parking places order on the land.

Posted by: RainyDay2019 Fri, 2 Aug 2019 - 10:55
Post #1504674

Hello all, am I able to refer to the fact that the council own the building and that there is no parking places order on the land in my defence?

Posted by: Redivi Fri, 2 Aug 2019 - 11:30
Post #1504687

No parking places order works against you, not for you

You wanted the PPO to demonstrate that the location is relevant land and POFA doesn't apply

Posted by: RainyDay2019 Fri, 2 Aug 2019 - 17:04
Post #1504779

Oh I see, thank you for your reply!

Posted by: ostell Fri, 2 Aug 2019 - 20:10
Post #1504835

But it is owned by the council.

Posted by: RainyDay2019 Sun, 4 Aug 2019 - 10:37
Post #1505093

Hi all, I have drafted up a defence that I am proposing to submit:

I, the Defendant, was the registered keeper of the vehicle reg XXXXX at the time of alleged incident that occurred on XXXXX.

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim fail to provide any Statement of Case that enable the Defendant to defend the Claim.
The Claimant is in breach of CPR 7.4 1(b) and again at section 16.4 1(a) whereby the Defendant has expressly requested details of the key points the claimant intends to rely on in court, this should have been received within 14 days of the claim being served.
The Defendant invites the court to use its case management powers to strike out the claim in respect of this breach of to order the Claimant to file further and better Particulars of Claim.

3. Although the Particulars of Claim fail to provide the information, the Defendant is aware that the contravention notice alleges a breach of the advertised terms and conditions; namely parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site. The original ticket is still in the possession of the Defendant, and the Claimant has been informed of the particulars of the incident through an appeal of which the Claimant chose to reject. As the Defendant did purchase a ticket, the missing vehicle registration mark was de minimis.

4. The Defendant made every effort to resolve the issue regarding the incident.
The Defendant called the Claimant’s helpline displayed on site upon arriving home in order to explain the situation and determine whether there would be a charge. The Defendant was advised that there would not be a charge. The Claimant stated that they had no record of this call upon their rejection of the appeal. The Defendant has retained evidence that a call was made to their helpline.

5. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which the Claimant has referred to as ‘Debt Collection costs’. The Defendant is incredulous that the Claimant may have paid £60 to a debt collector. CPR 27.14(g) states that this £60 charge is not permitted to be recovered in Small Claims Court.


6. The Unfair Terms in Consumer Contracts Regulations 1999 at Schedule 2(e) states that it may be regarded as unfair if the consumer is required to pay a dis-proportionately high sum in compensation upon failing to fulfil their obligation. As the Defendant did purchase a ticket on the date of the alleged incident, the Defendant believes that it is excessive for the Claimant to demand the sum of £185 in compensation.

7. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe that the facts stated in this Defence are true.
XXXXXX
XXXXXXX
XXXXXXX



Something that I wanted to point out is that I am no longer the registered keeper of the vehicle (a family member is the new keeper), will this cause any problems at all?

Posted by: RainyDay2019 Thu, 8 Aug 2019 - 17:13
Post #1506308

Hi guys, I was wondering if anyone could give me some feedback on my defence above? I need to submit it soon, if thats okay.

Posted by: Redivi Thu, 8 Aug 2019 - 17:49
Post #1506319

A couple of thoughts

3. Although the Particulars of Claim fail to provide the information, the Defendant is aware that the contravention notice alleges a breach of the advertised terms and conditions; namely parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site. The original ticket is still in the possession of the Defendant, and the Claimant has been informed of the particulars of the incident through an appeal of which the Claimant chose to reject. As the Defendant did purchase a ticket, the missing vehicle registration mark was de minimis. The failure to record the vehicle's registration number was entirely the fault of the Claimant's equipment that had retained the partial registration of the previous user.

4. The Defendant made every effort to resolve the issue regarding the incident.
The Defendant called the Claimant’s helpline displayed on site upon arriving home in order to explain the situation and determine whether there would be a charge. The Defendant was advised that there would not be a charge. The Claimant stated that they had no record of this call upon their rejection of the appeal. The Defendant has retained evidence that a call was made to their helpline and relies on Promissory Estoppel


5. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which the Claimant has referred to as ‘Debt Collection costs’. The Defendant is incredulous that the Claimant may have paid £60 to a debt collector to collect a £100 parking notice whether or not it was successful. CPR 27.14(g) states that this £60 charge is not permitted to be recovered in Small Claims Court.

6. The Unfair Terms in Consumer Contracts Regulations 1999 at Schedule 2(e) Consumer Rights Act 2015 states that it may be regarded as unfair if the consumer is required to pay a dis-proportionately high sum in compensation upon failing to fulfil their obligation. As the Defendant did purchase a ticket on the date of the alleged incident, the Defendant believes that it is excessive for the Claimant's demand for the sum of £185 in compensation is a grossly disproportionate penalty that does not meet the conditions of ParkingEye v Beavis to be disengaged.

There's no point including comments about POFA. It's obvious from your defence that you were the driver

Posted by: RainyDay2019 Fri, 16 Aug 2019 - 19:18
Post #1508496

Hello all.

I have received the Directions Questionnaire.
As I have noticed in other threads, it is advised not to agree to the case being referred to the Small Claims Mediation Service, if this is correct?
I will be moving house by the 30th of August, should I write my new address in the contact details? or my current one? (Family will still be at the current address, so will not need to worry about lost post).
I assume I tick 'no' to asking the court for permission for the written evidence of an expert?

Posted by: nosferatu1001 Mon, 19 Aug 2019 - 06:50
Post #1508852

Well it depends - do you have anything you wish to mediate? Do you want to avoid court so will pay to do so? If yes, then mediate.

Yes you MUST give them your new ADDRESS FOR SERV(CE (use those PRECISE words ) update the court *and* the claimant. Failing to do so is a bad idea

What expert woul dyou be supplying?

Posted by: Redivi Mon, 19 Aug 2019 - 07:35
Post #1508865

That's a very quick turnaround to receive the DQ

Posted by: RainyDay2019 Mon, 19 Aug 2019 - 10:09
Post #1508891

Do I need to send a copy of the DQ to Excel Parking as well?

Posted by: Redivi Mon, 19 Aug 2019 - 10:21
Post #1508892

The answer is Yes

You're in a legal process
You must make the effort to read the documents carefully

It can be very expensive if you neglect to do this later when the court sends its instructions to prepare for a hearing

Posted by: nosferatu1001 Mon, 19 Aug 2019 - 13:26
Post #1508939

That cannot be stressed enough

Op - the form tells you to send it on all parties, youre looking for words such as "serve" or "file". That indicates you need to send original or copies to them.

When yoget the hearing you WILLbe told to serve your documents on the court and claimant, uusally 14 dys before. this is your WS and evidence to support your WS.

Posted by: RainyDay2019 Wed, 21 Aug 2019 - 15:28
Post #1509584

Thank you!
I just wanted to clarify on that part in the form - I have sent a copy to Excel Parking and the original back to the court, also kept a copy for myself!

Posted by: nosferatu1001 Thu, 22 Aug 2019 - 09:54
Post #1509712

Theres no clarification needed - the words used throughout a court process are consistent. You have to very carefully read all forms you get. Failing to do so CAN mean you just lose, instantly.

Posted by: RainyDay2019 Tue, 22 Oct 2019 - 16:06
Post #1524207

Hi all,

Sorry for the long update, I haven't received any information until recently.

On the 11th of September I received a General Form of Judgement or Order from the County Court - in short, Excel Parking had failed to file the Directions Questionnaire with the CCBC by the specified date, and were ordered to file the DQ within 7 days.
I then did not receive any correspondence until today.

The court believe the case is suitable for mediation, however a hearing date has been arranged for next year. I assume I do not need to contact the court unless I want to undertake mediation, as specified in the letter?
Additionally, was I meant to receive a DQ from Excel?
Is there anything I need to prepare in advance of the hearing?

Posted by: nosferatu1001 Wed, 23 Oct 2019 - 06:29
Post #1524311

"General Form of Judgement or Order from the County Court"
OK so you told us why there was an order, but what did the Order ORDER Excel to do?

Yes of course you should have a copy from them, same as every thread yo uhave looked at tells you, you give them a copy of the DQ, you get one from them.

So have you had your hearing transferred to YOUR local court? Youve failed to tell us thatvital bit of into.

When is your WS and evidence deadline? Have you started your WS yet?

Posted by: RainyDay2019 Wed, 23 Oct 2019 - 16:48
Post #1524483

Apologies for the missing information.

The order ordered Excel to file the DQ on or before 7 days from service of the order, otherwise the claim will be struck out without further order of the court.
I have not received a copy of Excel's DQ.
Yes, my hearing has been transferred to my local court.
The hearing has been scheduled for February 4th 2020.
WS has to be submitted 14 days before the date of the hearing.
I have yet to start my WS

Posted by: nosferatu1001 Thu, 24 Oct 2019 - 06:31
Post #1524604

So its likely Excel filed it. Just add the fact you didnt get a copy of their DQ to your list of why Excel have behaved badly,

Get started on your WS. Sooner the better. Youve got SO many threads to get ideas on, but remember - a WS recites facts, and supports those facts with exhibits (documents)

Posted by: RainyDay2019 Wed, 30 Oct 2019 - 17:12
Post #1526346

Hi all,

Just another update.

I have received a letter from Excel: They are willing to accept a reduced settlement charge of £125.
This letter was actually sent to my old address, not my new one, which I had updated them on in my DQ. Can I use this as additional evidence as to why they have behaved badly? I have checked, and I sent my DQ to them recorded delivery, they accepted and signed for my DQ the day after it was sent.

Thank you

Posted by: nosferatu1001 Thu, 31 Oct 2019 - 08:37
Post #1526457

DId you state your address was your new ADDRESS FOR SERVICE, as every thread states to do?
Yes or No

If NO then its arguable they can still usethe "Old" one, as they dont know it is now not useable.

Posted by: RainyDay2019 Thu, 31 Oct 2019 - 16:54
Post #1526590

Yes I did, I specified so in my DQ, and also sent a letter with the DQ to Excel, specifically noting my new address for service and that it should be updated in their records accordingly.

Posted by: RainyDay2019 Thu, 9 Jan 2020 - 13:19
Post #1541596

Hi all,

I have made an initial draft of my witness statement if I could get some feedback.
Also I received Excel's Witness Statement over the Christmas period (again to the wrong address) if I should post that as well.

IN THE COUNTY COURT AT XXX CLAIM NO: XXXXX
BETWEEN
Excel Parking Services Ltd
(CLAIMANT)
-AND-
XXXX
(DEFENDANT)

WITNESS STATEMENT OF XXXXX


I XXXXX WILL SAY AS FOLLOWS:

Introduction
1. I, XXX of XXXX, am the defendant in this case. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.
2. It is admitted that I was the registered keeper of the vehicle in question at the time of the incident.
3. I am not liable to the Claimant for the sum claimed, or any amount at all and this in my Witness Statement in support of my defence as already filed.
4. I am unrepresented consumer who has never attended the country court before. I make this witness statement in readiness for the hearing scheduled for Xth February 2020.
5. Within this statement I make reference to documents included as evidence.
XXXXX
6. On the DATE, I entered the XXXXXX car park at TIME. This was my first time using the car park since it had been leased to the Claimant. I was aware that I was required to pay for parking in order to park onsite.
7. I proceeded to the ticket machine to pay for a ticket. Another customer was at the machine in front of me. She then stated out loud that she did not know her registration number and left the machine.
8. I proceeded to use the machine after she walked away. I inserted £1.00 and entered my vehicle registration number XXXXX and printed my ticket [EXHIBIT X].
9. Upon approaching my vehicle, I noticed that my vehicle registration number had not been printed on the ticket, only ‘R’. The Claimant has incorrectly stated in the Witness Statement that I, the defendant, entered ‘R’. The logs provided in the evidence presented by the Claimant in the Witness Statement reflect that the ticket with ‘R’ was purchased.
10. Unsure of how to proceed, I left the ticket on my windscreen as I could not see any members of staff / supervisors for the car park.
11. I left the car part at TIME to drive home.
12. Upon arriving home, I made two calls at TIME and TIME to the Claimant’s helpline that was displayed on site [EXHIBIT X] to explain the situation and to enquire whether I would receive a parking fine. In the Witness Statement the Claimant has stated that no call was made, hence the Charge Notice being issued.
13. I spoke to a member of staff and explained the situation. He assured me I would not receive a fine and that he would ‘take care of it’. I gave him my vehicle registration number.
14. On DATE I received a Notice to Keeper [EXHIBIT X].
15. I submitted an appeal to the Claimant on DATE [EXHIBIT X].
16. The Claimant rejected my appeal on DATE.
17. I submitted a further appeal to the IAS on DATE, which was rejected on DATE.
18. [DATE] I received a DEMAND FOR PAYMENT with additional £60 ‘Debt Collection Costs’, bringing the total outstanding balance to £160 [EXHIBIT X].
19. [DATE] I received a LETTER BEFORE CLAIM, with additional £25 Court Fees, bringing the total outstanding balance to £185 [EXHIBIT X].
20. I wrote to the Claimant with regard to SAR [EXHIBIT X]. I did not receive a reply.
21. On DATE, I submit a Directions Questionnaire to the XXX County Court and the Claimant [EXHIBIT X].
22. On DATE, I receive a letter from XXX County Court that the Claimant has failed to file their Directions Questionnaire [EXHIBIT X].
23. The Claimant submits their Directions Questionnaire to the XXX County Court on DATE, however I did not receive a copy.
24. on DATE a letter addressed to me is delivered to my old address [EXHIBIT X]. I had informed both the XXX County Court and the Claimant of my new address of service. This had been sent to the Claimant alongside my Directions Questionnaire [EXHIBIT X] which was accepted and signed for by the Claimant on DATE [EXHIBIT X].
25. On DATE the Claimant’s Witness Statement was delivered, again to the wrong address [EXHIBIT X].
26. I dispute that the Claimant has incurred £60 losses to pursue an alleged £100 debt, the costs of which are not in any case recoverable. Judge Wall in Excel Parking Services v Hetherington-Jakeman [2008] offered that the penalty issued by Excel Parking Services was “…a payment of a sum of money that is intended to effectively frighten or intimidate someone into making a payment promptly. It is a figure far beyond any costs that could realistically or reasonably be incurred by the claimants in trying to run [their] system.”
27. The Defendant refers to the Consumer Rights Act 2015 :
62 (4): A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
62 (6) : A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.
65 (2) : Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice.
As specified in Consumer Rights Act 2015 Part 1 of Schedule 2, a term of consumer contracts may be regarded as unfair:
A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.
62 (1) An unfair term of a consumer contract is not binding on the consumer.
28. The Defendant wishes to rely on Excel Parking v Mrs S [2016] in which Judge Barrow stated:
“I am satisfied that [the Defendant] entered the correct registration number and I accept her evidence on that. I am satisfied that the ticket then produced is the ticket that she has produced to the court. It was through no fault of hers that this ticket displayed the letters “QQ” instead of her registration number. She obtained a ticket. She made the payment to obtain that. She displayed that ticket. It shows the relevant time of entry. It shows the amount that she has paid and it shows the registration number that the ticket machine produced. It would have been unreasonable to expect the defendant to do anything further beyond that as far as I am concerned. The registration number is not accurately reflected but that is through no fault on the part of the defendant and I find on the balance of probabilities that the defendant had inputted the correct registration number and she had then displayed the ticket that was issued and so to all intents and purposes had fully complied with the terms and conditions applicable to this car park.”


Summary

29. It is the Defendant’s position that the claim discloses no cause of action and is without merit.
30. The Defendant had no way of foreseeing that the previous customer would not know their number plate, and that they had entered any information into the ticket machine before leaving and relies on Frustration of contract.
31. The Defendant made every effort to resolve the issue regarding the incident and relies on Promissory Estoppel.
32. The Defendant wishes to rely on the Consumer Rights Act 2015 and Excel Parking v Hetherington-Jakeman [2015] and submits that the penalty charges reported by the Claimant are excessive and unreasonable regarding the context of the situation.
33. The Defendant wishes to bring attention to the Claimant’s poor behaviour during the timeline of these events, failing to submit a copy of their Directions Questionnaire to the Defendant, failing to properly acknowledge the Defendant’s new ADDRESS FOR SERVICE, and thus not serving the Defendant with any court documents as required by the court.
34. I believe the facts of this witness statement are true


STATEMENT OF TRUTH
Date:
Signed:
XXXXXX

Posted by: nosferatu1001 Thu, 9 Jan 2020 - 14:17
Post #1541622

Between October and now, how many times did you tell them the new address for service?

Are you defending as Keeper or Driver? You identify the driver in 6 - did you mean to do so? Simple yes or no. If NO then obviously you need to edit your post now.

A witness statement, as you hoepfully know, is written in the first person. I. Not "the defendant".

Posted by: RainyDay2019 Fri, 10 Jan 2020 - 09:14
Post #1541832

I've only notified them once, when I sent them the DQ.
Yes, i am defending as driver.
Apologies, while reading Excel's WS they were referred to as the Claimant so I was a bit confused, will amend accordingly, thank you!

Posted by: The Rookie Fri, 10 Jan 2020 - 09:31
Post #1541833

Excel are the Claimant what else do you think they are, or who do you think is the claimant?

You are the defendant, but you write the WS in the first person, i.e. I or We, not 'the defendant'!

9. No need to say what the logs say, that's not your evidence, finish with what your ticket said.

11. Car park, not part I assume.

24. start with a capital letter

Posted by: nosferatu1001 Fri, 10 Jan 2020 - 10:40
Post #1541854

So you hsould have told them again. given they ignored it once, they are unlikely to realise without you at least prompting them!
Did you telll their DPO your ADDRESS FOR SERVICE and instruct them to ERASE your old address? nope, so do that smile.gif

If youre defending as driver why:

- in 2) do you not state this, you only state you are the RK

Is this really frustration of contract?

Do you need the full timeline of when they rejected appeals etc? How does that support your defence or undermine their claim? I would summarise it far more than that.

For 26 do you not have a more recent case, such as the supreme court case, the CRA2015 AND POFA which, while youre not using Kepeer protection is the ONLY guidance from MPs as to what they think parking charges should be set at, and what can be recovered?


Posted by: RainyDay2019 Sun, 12 Jan 2020 - 12:45
Post #1542243

QUOTE (nosferatu1001 @ Fri, 10 Jan 2020 - 11:40) *
So you hsould have told them again. given they ignored it once, they are unlikely to realise without you at least prompting them!
Did you telll their DPO your ADDRESS FOR SERVICE and instruct them to ERASE your old address? nope, so do that smile.gif

If youre defending as driver why:

- in 2) do you not state this, you only state you are the RK

Is this really frustration of contract?

Do you need the full timeline of when they rejected appeals etc? How does that support your defence or undermine their claim? I would summarise it far more than that.

For 26 do you not have a more recent case, such as the supreme court case, the CRA2015 AND POFA which, while youre not using Kepeer protection is the ONLY guidance from MPs as to what they think parking charges should be set at, and what can be recovered?


I thought it would be frustration of contract because of the unforeseen circumstances that occurred for the reg number to have not been printed properly.

In regard to 26, is this what you refer to from POFA:


4(5)

The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper


I have found a more recent case (2017) however there does not appear to be a transcript available, can I only refer to the case if I have access to the transcript?

Posted by: The Rookie Mon, 13 Jan 2020 - 08:13
Post #1542413

That's not frustration of contract, that's a failure of their machine.

Posted by: ostell Mon, 13 Jan 2020 - 08:49
Post #1542419

And they issued a ticket for a vehicle which they knew was not in the car park.

Posted by: nosferatu1001 Mon, 13 Jan 2020 - 13:36
Post #1542491

Yep, frustration is more like - someone fell ill and so they couldnt leave the car park.

I also pointed you at the CRA2015 AND the PE V Beavis supreme court case.

Posted by: RainyDay2019 Tue, 4 Feb 2020 - 15:52
Post #1547751

Hello All,

So the hearing took place today, and the Judge dismissed Excel's claim!
I would like to thank everyone for their help during this entire process, I could not have achieved this on my own!

A few pointers:




In closing, I would like to again say thank you for everyone's help!

Posted by: nosferatu1001 Tue, 4 Feb 2020 - 16:08
Post #1547755

Nice one! Did you get your costs?

Posted by: RainyDay2019 Tue, 4 Feb 2020 - 16:25
Post #1547761

No I didn't ask about costs. Honestly, I just wanted this done so I could move on from it.

Posted by: Jlc Tue, 4 Feb 2020 - 17:52
Post #1547784

Understand but it appears you had an open goal. Next time hey?

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