The defendant visited the Peel Centre with one other person in 2015. Neither could remember who was driving, and the photographs provided by Excel were no help. A valid parking ticket was purchased by the other person. Unfortunately, they absent mindedly entered their own registration number instead of the correct registration. Excel were informed of this, but refused to cancel the charge.
Ms X filed a defence on four points
1. Keeper liability did not apply
2. The claimant has accepted new terms. By accepting monies when the claimant knew, or could reasonably be expected to know, the registration entered did not belong to a car in the car park, the claimant has by its action accepted by performance a revised contract. This is the car park equivalent of the ‘battle of the forms’ Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd  1 WLR 401, Court of Appeal
3. Correctly applying the case law from ParkingEye v Beavis, the charge is a penalty and unfair consumer charge
4. The additional charges claimed had no basis
The Defendant represented herself. Excel were represented by Mr Pickup.
In Court the DDJ concentrated on the Keeper Liability argument.
The notice to keeper was served out of time and did not contain paragraphs 9.2.e and 9.2.f. The DDJ asked Ms X to show where in the Protection of Freedoms Act 2012 were the consequences of serving the Keeper Liability Notice out of time. She commented that Ms X had provided no evidence as to when the notice was received and could not show it was not delivered the day after issue. Ms X referred to S9( (1)(2c, 2f) and (6), which shows the notice is presumed delivered 2 days after posting and presented copies of these pages (7&8) of the Act. This was not accepted as Ms X did not have the complete Act with her.
The Judge said that as this argument was not given in detail in the Defence or Witness Statement it would not be admissible. She offered to adjourn the case and allow Ms X to resubmit her Defence and witness statements or continue that day if she agreed to drop this part of the Defence.
The Claimant's solicitor was requested to seek instructions from his principals as to whether they would agree to an adjournment and what costs would be claimed.
Ms X pointed out that her defence stated Keeper Liability did not apply and her legal argument gave the reasons.
The parties adjourned for lunch and to consider their positions.
After lunch the DDJ immediately declared her ruling on the Keeper Liability issue. The Protection of Freedoms Act 2012 was not relevant to the case and so Keeper Liability was not an issue she needed address. The onus was on the Claimant to prove the Defendant was driving the vehicle.
It was quite proper for legal arguments not to be included in the defence or witness statement and that point 4(a) of the defence covered the issue.
Further the Claimant confirmed they had received a copy of the defence and had raised nothing in the Allocation Questionnaire to require further particulars of that assertion.
The DDJ asked the Claimant's solicitor to agree they would not pursue Keeper Liability and then the case could proceed. Such an undertaking on this was given. The Claimant's solicitor asked for an adjournment for instructions from his principals before the case proceeded.
The DDJ then gave her judgment.
She said the case was most unusual.
The DDJ said the onus was on the Claimant to submit further evidence that the Defendant was on the balance of probability the driver of the vehicle on that occasion and Claimant may wish to consult Counsel on the issue as well as give consideration to (d) of the Defence (no basis for any additional charge), or they may be content to proceed without Counsel.
The Claimant was to file Skeleton Argument dealing with legal arguments for Defence excluding Para (1) 5 – 6 in 5 weeks time
Ms X was told she need not alter her witness statement, evidence, defence or arguments but could if she choose provided they were in by the set dates
The Judge adjourned the matter to a future date
There was no order as to costs and the judge did not reserve the new hearing to herself.
There were other Excel cases that day and Mr Pickup told Ms X he wins most parking cases quickly.
The Next Hearing
Excel did not bother to comply with the judgment and the claim was struck out by DJ Lateef.
The Prankster is so familiar with the Protection of Freedoms Act he sometimes forgets other people are not, which includes judges and motorists. Excel are of course perfectly aware and for years have stated they do not rely on the Act. It is therefore rather two-faced to pretend the Act applies when faced with another party who is not so conversant with the Act.
The Prankster suspects the DDJ had a quick read of the Act over lunch and realised that Excel's claim was bogus.
DDJs have online access to statutes in the courtroom, but notwithstanding this, it would seem good practice to file a copy in your bundle so there is no wiggle room.
There really was no good reason to adjourn the case. Given the size of the claim it would be a complete waste of court time to come back for another visit, given that Excel had already submitted all the evidence they had on the matter.
The Parking Prankster