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Final Demand Letter
RainyDay2019
post Wed, 29 May 2019 - 10:02
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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!
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RainyDay2019
post Wed, 30 Oct 2019 - 17:12
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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
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nosferatu1001
post Thu, 31 Oct 2019 - 08:37
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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.
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RainyDay2019
post Thu, 31 Oct 2019 - 16:54
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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.
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RainyDay2019
post Thu, 9 Jan 2020 - 13:19
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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
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nosferatu1001
post Thu, 9 Jan 2020 - 14:17
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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".
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RainyDay2019
post Fri, 10 Jan 2020 - 09:14
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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!
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The Rookie
post Fri, 10 Jan 2020 - 09:31
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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


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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nosferatu1001
post Fri, 10 Jan 2020 - 10:40
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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?

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RainyDay2019
post Sun, 12 Jan 2020 - 12:45
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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?
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The Rookie
post Mon, 13 Jan 2020 - 08:13
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That's not frustration of contract, that's a failure of their machine.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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ostell
post Mon, 13 Jan 2020 - 08:49
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And they issued a ticket for a vehicle which they knew was not in the car park.
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nosferatu1001
post Mon, 13 Jan 2020 - 13:36
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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.
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RainyDay2019
post Tue, 4 Feb 2020 - 15:52
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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:

  • Excel did not serve their evidence to the court, only their Witness Statement, which did not impress the Judge. He required 10 minutes in the beginning just to go through their evidence.
  • The Judge dismissed the claim due to the fact that a ticket had been purchased regardless of the vehicle reg number displayed, and that clearly the ticket was purchased with the intent to comply by the terms of the car park
  • He addressed that as the member of staff on the telephone had said I would not receive a fine, this would be considered a waiver of the terms. He commented that Excel made no mention of the phone call in their WS. Their legal rep commented that I had not mentioned the call in my initial appeal [I did not mention the call until I re-appealed].
  • He made a point to address the £60 debt recovery charges. And that for every case similar to this one, no company had ever given a full breakdown of the costs incurred to arrive at a total of £60. He asked that the legal rep pass this on to Excel.
  • The legal rep attempted to respond to this by noting that in the demand for payment letters that £60 debt recovery charges would be incurred, however the Judge dismissed this as it still did not provide a breakdown of the costs incurred.
  • As such, he commented that even if the claim had not been dismissed, he would still have questioned the £60 charge.
  • Additionally, he questioned why this case had even been pursued to the full extent in which it had, due to the context of the charges.
  • Finally, both the Judge and Excel's legal rep commented that my WS was meticulous and professional, and that previous examples they had seen looked like they had just been copied from the internet [!!!]. So for those wondering, I would definitely recommend taking extra care when writing your WS, and referring to your evidence appropriately!



In closing, I would like to again say thank you for everyone's help!
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nosferatu1001
post Tue, 4 Feb 2020 - 16:08
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Nice one! Did you get your costs?
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RainyDay2019
post Tue, 4 Feb 2020 - 16:25
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No I didn't ask about costs. Honestly, I just wanted this done so I could move on from it.
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Jlc
post Tue, 4 Feb 2020 - 17:52
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Understand but it appears you had an open goal. Next time hey?


--------------------
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, SAR=Subject Access Request

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