Excel Parking Parked in a restricted / prohibited area

[szela]

Good afternoon I'm Patrick

2018 I was use car park Bryan house P&D I payed for ticket etc.

Received a parking charge for parked in a restricted / prohibition area. My defense should rest on that there were no painted lines in the parking lot, no marked places to park and where not to park.
I have proof of this in the form of photos taken after.
If the operator of the parking lot does not fulfill his obligations in the form of painting parking places, how may require that cars be parked in the right places


"The Claim is for a breach of contract for breaching the terms and conditions set on private land.
The Defendant's vehicle, XXX XXX, was identified in the Bryan House Pay & Display on the 05/05/2018 in breach of the advertised terms and conditions;
namely Parked in a restricted / prohibited area.
At all material times the Defendant was the registered keeper and/or driver.
The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations.
The sign was the offer and the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct.
The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the Defendant has failed to settle the outstanding liability. The Claimant seeks the recovery of the parking charge notice, contractual costs and interest."


Amount caimed £160
Court fee £25
Legal repredentative's £50
costs
Toatal amount £235

As I looked on forum and cannot find problem like myself I decide to open new topic.
Can any help me write defence or give me advice or maybe link to case like my

Thanks
Patrick

[ostell]

Edit so that the identity of the driver cannot be inferred, use "the driver ..."etc . The driver parked, ther registered keeper received thepaperwork.

You will find many parking defences around.

Have a look at this for the large amount

So you have an incomplete particulars of claim, they need to decide is they are claiming against the driver or the keeper and they need to specify what the alleged breach was.

SAR to Excel to get all the docs

CPR 31.14 request to the solicitor

[szela]

Many thanks for your help I send CPR to Excel and CPR 31.14 request to the solicitor.
Do I need wait for they respond before I start write my defend?

[szela]

Hi As I was recomended I send 12th April CPR to Excel and CPR 31.14 request to the solicitor. What I should do now as I didn't receive anything back from them ? Should I still waiting or I should I start write defence ?

[ostell]

You have to start your defence. The court will not wait. Somebody on here has just lost a good case because they delayed.

[szela]

Can one of good people look on my defence please
I need some advice what I missed in my defence and what I should delete.




The claim is denied in its entirety except where explicitly
admitted here. I assert that I am not liable to the Claimant for
the sum claimed, or any amount at all, for the following reasons,
any one of which is fatal to the Claimant's case.
i. The driver parked in a restricted / prohibited area, the registered keeper received the paperwork.
ii. Restricted / prohibited area wasn't mark on parking lot
iii. The parking lot was in a bad technical condition, there were no parking lines
iv. Identity of the driver cannot be inferred
v. The claimant need to specify what the alleged breach was.
vi. The signage does not offer a contract with the motorist
vii. The Claimant has no standing to bring a case
viii. Abuse of process - breach of the CPRs, two statute laws and going behind the Beavis case
1. The claim is for breach of contract. However, it is denied any
contract existed.
2. The Claimant states, 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.
vii. 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. 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.
7. 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.
8. This case is clearly (c). 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.’
9. Excel therefore have no standing to bring this case. Only the
landowner has the right to do this.
10. In ParkingEye v Beavis, clauses 3.11 and 8 were redacted from
the contract given to the judges. Therefore any judgment would not
have been able to take these clauses into account.
viii. Abuse of process - breach of the CPRs, two statute laws and
going behind the Beavis case
11. In addition to the 'parking charge', the Claimant has
artificially inflated the value of the Claim by adding costs which
have not actually been incurred by the Claimant, and which are
artificially invented figures in an attempt to circumvent the
Small Claims costs rules using double recovery
12. The purported added 'costs' are disproportionate, a
disingenuous double recovery attempt, vague and in breach of the
Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.
13. The arbitrary addition of a fixed sum purporting to cover
'administration/recovery costs' is also potentially open to
challenge as an unfair commercial practice under the CPRs, where
44.3 (2) states: ''Where the amount of costs is to be assessed on
the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in
issue. Costs which are disproportionate in amount may be
disallowed or reduced even if they were reasonably or necessarily
incurred; and
(b) resolve any doubt which it may have as to whether costs were
reasonably and proportionately incurred or were reasonable and
proportionate in amount in favour of the paying party.
14. The standard wording for parking charge/debt recovery
contracts is on the Debt Recovery Plus website - ''no recovery/no
fee'', thus establishing an argument that the Claimant is
breaching the indemnity principle - claiming reimbursement for a
cost which has never, in fact, been incurred. This is true,
whether or not they used a third party debt collector during the
process.
15. Whilst quantified costs can be considered on a standard basis,
this Claimant's purported added 'costs' are wholly
disproportionate, are not genuine losses at all and do not stand
up to scrutiny. This has finally been recognised in many court
areas. Differently from almost any other trader/consumer
agreement, case law and two statute laws hold that, when it comes
to parking charges on private land, the parking firm's own
business/operational costs cannot be added to the 'parking charge'
as if they are additional losses.
16. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is
the authority for recovery of the parking charge itself and no
more, since that sum (£85 in the Beavis case) was held to already
incorporate the costs of an automated private parking business
model including recovery letters. There are no losses or damages
caused by this business model and the Supreme Court Judges held
that a parking firm not in possession cannot plead any part of
their case in damages.
17. In summary, the Claimant's particulars disclose no legal basis
for the sum claimed and it is the Defendant's position that the
poorly pleaded claim discloses no cause of action and no liability
in law for any sum at all. The Claimant's vexatious conduct from
the outset has been intimidating, misleading, harassing and indeed
untrue in terms of the added costs alleged and the statements
made.
Statement of Truth:
I believe that the facts stated in this Defence are true.

[szela]

Anyone have a time to look on my defence, please

[ostell]

You could reference the Wilkinson case as a reference, in that the case was struck out because of the abuse of process.

[szela]

Many Thanks for your help.
Today I received Notice of proposed allocation to the small claims track.
Do I should agree for mediation service ?
Today I received as well SAR form Excel

[MIKE770]

Agree mediation

[szela]

Hi guys I agreed mediation as you recommend.
Today I received below letter is that good or bad they change legal representative ?
I thing is a good sign if they will accept £175 not £235 like was befoure

[szela]

Hi my mediation appointment has been booked.
Can any one tell my roughly how meditation will be look like. In meditation I will denied any an accusation. Excel can not require a car be parked correctly if there is no parking lines.Mediation probably will push to pay some money to excel.
What is the best option for me ?
Do I should refuse to pay any money and go to court?

Many Thanks

[MIKE770]

ostell

[ostell]

How can I help? No NTK or other items have been posted, no indication of the original NTK content, THE OP failed to edit first post as requested

Mediation is the mediator talking to you and excel in turn to see if you can come to some agreement. You could say that if the breach was for not parking between the lines then there are no lines so you haven't breached.