I absolutely concur with @DWMB2 above. What the mediator said was not only legally incorrect, but also well beyond their remit. The Small Claims Mediation Service (SCMS) is not there to advise, pressure, or prejudge a case — especially not by misrepresenting the burden of proof or the legal framework.
"The burden would be on you to prove you didn’t breach the terms and conditions..."
This is legally wrong. In a civil claim for breach of contract — such as a private parking claim — the burden is on the claimant to prove:
• That a contract existed,
• That the terms were breached,
• That they suffered a loss or were entitled to a set amount as a result.
The defendant need not prove a negative (i.e. that they didn’t breach anything). They are entitled to deny the allegations and put the claimant to strict proof.
SCMS mediators are not legally trained, not judges, and not permitted to offer:
• Legal advice,
• Legal assessments of either party’s case,
• Predictions of court outcomes,
• Threats or pressure to settle.
They are supposed to facilitate discussion and pass offers between parties in a neutral, confidential setting. Anything more is a misconduct of role.
I strongly advise you to email the following complaint to the HMCTS Small Claims Mediation Service at scmreferrals@justice.gov.uk and also CC in yourself:
To: HMCTS Small Claims Mediation Service
scmreferrals@justice.gov.uk
Subject: Formal Complaint – Misconduct by Mediator During Mediation Call
Dear Sir/Madam,
I wish to raise a formal complaint regarding the conduct of the mediator assigned to my recent small claims mediation call in relation to a parking charge dispute.
During the call, the mediator made the following statement:
“The burden would be on you to prove you didn’t breach the terms and conditions of the parking, not on them.”
This is both legally incorrect and entirely beyond the scope of what a Small Claims mediator is authorised or qualified to say. In civil proceedings, it is well established that the burden of proof lies with the claimant, who must demonstrate that a contract existed, that its terms were breached, and that they are entitled to the sum claimed. A defendant is under no obligation to disprove a breach, and any suggestion otherwise misrepresents the legal framework.
Furthermore, the mediator advised that the only way to avoid court was to offer a settlement on the day, thereby implying that refusal to settle would automatically lead to adverse consequences. This was clearly an attempt to pressure me into making a payment, contrary to the intended voluntary nature of the mediation process.
The call lasted no more than four minutes, during which the mediator:
• Misstated the law regarding burden of proof;
• Asked me to explain my defence in a way that felt more like cross-examination than facilitation;
• Made a second call to advise that the claimant would now proceed to court, again implying that a refusal to settle was ill-advised.
Such conduct undermines the integrity of the mediation process. Small Claims mediators are not legal advisers and should not make legal pronouncements or strategic suggestions. Their role is to act as a neutral facilitator of discussion between parties, and not to coerce or mislead unrepresented litigants.
I request that this matter be investigated and that the mediator concerned be reminded of the limits of their authority and the importance of impartiality. I also ask that a record of this complaint be retained in case the issue arises in future proceedings.
I look forward to your acknowledgment and to confirmation that this matter is being properly reviewed.
Yours faithfully,
[Full Name]
[Case Reference Number / Claim Number]
[Date of Mediation Call]
Please let us know the response.
All normal.
Having received your own N180 (make sure it is not simply a copy of the claimants N180), do not use the paper form. Ignore all the other forms that came with it. you can discard those. Download your own here and fill it in on your computer. You sign it by simply typing your full name in the signature box.
https://assets.publishing.service.gov.uk/media/673341e779e9143625613543/N180_1124.pdf
Here are the answers to some of the less obvious questions:
• The name of the court is "Civil National Business Centre".
• To be completed by "Your full name" and you are the "Defendant".
• C1: "YES"
• D1: "NO". Reason: "I wish to question the Claimant about their evidence at a hearing in person and to expose omissions and any misleading or incorrect evidence or assertions.
Given the Claimant is a firm who complete cut & paste parking case paperwork for a living, having this case heard solely on papers would appear to put the Claimant at an unfair advantage, especially as they would no doubt prefer the Defendant not to have the opportunity to expose the issues in the Claimants template submissions or speak as the only true witness to events in question.."
• F1: Whichever is your nearest county court. Use this to find it: https://www.find-court-tribunal.service.gov.uk/search-option
• F3: "1".
• Sign the form by simply typing your full name for the signature.
When you have completed the form, attach it to a single email addressed to both dq.cnbc@justice.gov.uk and info@dcblegal.co.uk and CC in yourself. Make sure that the claim number is in the subject field of the email.
Here is the defence and the draft order. You only need to edit your name, the claim number and sign the defence by typing your full name for the signature. There is nothing to edit in the draft order. When done, save them as PDF files and attach them to an email addressed to claimresponses.cnbc@justice.gov.uk and CC in yourself. The claim number must appear in the email subject field and in the body of the email put "Please find attached the defence and draft order in the matter of Civil Enforcement ltd. v [your full name] Claim No.: [claim number]".
IN THE COUNTY COURT
Claim No: [Claim Number]
BETWEEN:
Excel Parking Services Ltd
Claimant
- and -
[Defendant's Full Name]
Defendant
DEFENCE
1. The Defendant denies any liability for this claim.
2. There is a lack of precise detail in the Particulars of Claim (PoC) in respect of the factual and legal allegations made against the Defendant such that the PoC do not comply with CPR 16.4.
3. The Defendant is unable to plead properly to the PoC because:
(a) The contract referred to is not detailed or attached to the PoC in accordance with CPR PD 16(7.5);
(b) The PoC do not state the exact wording of the clause (or clauses) of the terms and conditions of the contract (or contracts) which is/are relied on;
(c) The PoC do not state with sufficient particularity the exact time when the breach occurred and how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred;
(e) The PoC do not state exactly how the claim for statutory interest is calculated;
(f) The PoC do not state what proportion of the claim is the parking charge and what proportion is damages;
(g) The PoC states that the Claimant is suing the defendant as the driver or the keeper. The claimant obviously knows whether the defendant is being sued as the driver or the keeper and should not be permitted to plead alternative causes of action.
4. The Defendant has attached to this defence a copy of an order made at another court which the allocating judge ought to make at this stage so that the Defendant can then know and understand the case which they face and can then respond properly to the claim.
Statement of truth
I believe that the facts stated in this Defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Signed:
Date:
Draft Order for the defence (https://www.dropbox.com/scl/fi/gmpkg6f843yga1sw1iwdo/short-defence-order.docx?rlkey=ppd7dwlale9j25111548n2e1j&st=anelpjne&dl=0)
Welcome. Please show us the N1SDT Claim Form you received. Only redact your personal details, the claim number, your VRM and the MCOL password. Leave everything else showing, especially the Particulars of Claim (PoC) and all dates, especially the issue date.
Has Excel issued the claim themselves or have they used a bulk litigator such as Elms Legal or DCB Legal? You will know this by the name in the address for correspondence to send to, if it is not blank.
You have not shown us the original Notice to Keeper (NtK) that was received or the wording you put in your appeal. It helps us to advise accordingly if that information is provided.
This scam by Excel Parking is well known. Your photo of the sign has cropped the terms on the right side which will show the clause requiring payment within 5 minutes of entering the car park although they are repeated in minuscule text near the bottom of the sign. That clause is considered a "penalty clause", (although interpreted by some judges as simply a clause that simply "penalises" the driver. Either way it is easily defended.
Under English law, a penalty clause is one that imposes a detriment on a party for breaching a contract, where that detriment is not a genuine pre-estimate of loss or is disproportionate to any legitimate interest of the other party. A clause that "penalises the driver if they breach it", inherently suggests the clause imposes a penalty for non-compliance. This aligns with the essence of a penalty clause.
Any assertion that the clause "is not a penalty clause" but "penalises the driver" conflates the clause's punitive nature with its enforceability. If the clause's purpose is to penalise rather than compensate for actual loss, it is, by definition, a penalty clause.
In light of Cavendish Square v Makdessi and ParkingEye v Beavis, the clause should be examined as follows:
1. Legitimate Interest:
• Does the 5-minute limit serve a legitimate interest of the parking operator (e.g., ensuring prompt payment or turnover of parking spaces)?
While there may be some legitimate interest, the clause's effect of penalising non-compliance, particularly given the practical impossibility of compliance, suggests it is disproportionate.
2. Proportionality:
• Is the detriment imposed (e.g., a fine or charge) out of proportion to the legitimate interest?
The time limit starting from the ANPR camera entry, combined with the impracticality of complying, means that the clause is unreasonable and therefore, punitive.
3. Practical Feasibility:
• The clause requires actions (finding a space, reading terms, setting up payment) that are almost impossible to complete within 5 minutes. This undermines the fairness of the clause and its enforceability.
Argument as to why the Clause is a Penalty
• The strict 5-minute timeframe effectively sets up drivers to fail, especially considering the logistical realities of parking and reading extensive contractual terms.
• The operator suffers no tangible loss if the payment is made later, undermining any argument that the charge represents a genuine pre-estimate of loss.
• The clause appears to deter breaches rather than protect a legitimate interest, making it punitive and unenforceable.
How to Challenge the Clause if it goes to court
• You would highlight the practical impossibility of complying with the clause, rendering it inherently unfair.
• You would argue that the charge imposed is not a genuine pre-estimate of loss and is disproportionate to any legitimate interest.
• You would refer to Consumer Rights Act 2015, which requires terms to be fair and transparent. An unachievable requirement is neither.
So, if the clause penalises the driver for breaching it and imposes an unachievable requirement, it is inherently a penalty clause, as its purpose is punitive rather than compensatory or proportional to any legitimate interest.