Court Claim. BW Legal on behalf of Excel Parking

Umkomaas wrote: »

Prankster has just blogged.

http://parking-prankster.blogspot.co.uk/2016/11/mr-pickups-fun-day-out.html

Cool... Didn't even know he was following my case :cool:

Is Pepipoo on the fritz or is just me who can't get it to load up

So, for those that are interested, I’ve written a summaryof yesterdays events while it's fresh in my memory - although it already seems like a blur.

The judge thanked me for getting my bundle in in-time for the fact it was well laid out and contained useful exhibits. She asked if either of us would like to say anything before we started. I said I was concerned that the person who completed the WS was not here as I had lots of things in their WS I wanted to challenge. The judge shared my concern and looked at Mr P. He said he was familiar with the WS and authorised to answer questions about it.

The judge started by going through the nature of the car park, the way it operates and the way it is managed by Excel. She mentioned signage briefly but could see I was about to jump in with my defence points so said 'we'll come back to signs later' ...We never got back to them.

She went onto the alleged contravention and read out the PCN and FRN. When she got to the bit about pursuing the keeper she read out Henry Greenslade (HG) and thanked me for including it. She then started on my defence - one of the first points was PoFA non compliance; and tbh we never got any further down my defence points. She started reading PoFA S4 P9 and asking question along the way which allowed me to land loads of punches about poFA being the only option in law to pursue me as the RK and them having no case without it.

She asked Mr P if they complied with PoFA and read HG to him again, he said we not relying on it. She got annoyed and said 'I asked if you comply with it' he said Well we don't rely on it but it's up to the defendant to prove we don't comply with it. I said I'd be happy to and pulled out my copy of PoFA with loads of highlighted sections and side notes. The judge could see I was about to go off on one so said we'll go through P9 together and Mr L can explain where you don't comply and why. She thanked me for including PoFA as an exhibit for her.

So 9.(2).(b) I said didn't comply he argued it was implied strongly enough that it did. I said the wording wasn't right. The judge sort of agreed but said she'd reserve judgement.
9.(2).(d) Same responses as above but judge agreed with me
9.(2).(e) I said completely failed. He again said it was implied strongly enough. I countered 'it doesn't say you should imply it, it says you should "STATE" it'. The judge fully agreed with me.
At this point the judge was satisfied they did not comply with PoFA but I still asked to mention 9.(2).(f) which is another total failure. He tried to mention the yellow box on back of PCN which mentions action if not paid in 28 days. I countered that was irrelevant as this was about warning the driver about action the 'day after' 28 days. Judge agreed.

My final nail in his PoFA coffin was "the creditor will (if ALL the applicable conditions under this schedule are met) have the right to recover from the keeper (I shouted the "ALL" bit
This where the judge turned on him. She read HG again and asked if he could prove I was the driver, he stuttered and stammered, she asked if they're not relying on PoFA how can they pursue me as RK he muttered something about me having the chance to tell them who the driver was but as I didn't they had to pursue me. The judge asked why I didn't tell them who the driver was. I said if I knew who the driver was I was under no obligation to give that information to excel. i said it was their choice not to use PoFA wording and not my responsibility to cover their failings. I said if they complied with PoFA I may have a different obligation but it was their fault not mine that I had no obligation. I went on - if someone who I don't know and have no connection with sends me a letter saying I owe them money but have no legal basis for saying such a thing then why would I respond to this? And I certainly wouldn't give them confidential information about my family and friends.

By now the judge was totally on my side. She was cross and asked him very sternly how, if they don't rely on PoFA and couldn't prove I was the driver, could they pursue me as the RK while referring again to HG. He stammered repeatedly but she kept firing this and similar questions at him as well as the HG comment. She asked him to explain his understanding of PoFA and how he could proceed without it. He looked like he was going to throw up. At this point he asked for it to be stood down so he could take advice. The judge said yes I think you should.

On his (late) return he said he hadn’t been unable to get hold of anyone at excel so was non the wiser. He asked if he could submit the forum evidence the judge was reluctant and when I objected she said he couldn't. He asked if he could cross examine me, she said yes and he could ask me about the forum stuff. She firstly said it wouldn't be under oath but then said she would make me take the oath if he wanted, which he did. He asked if I was the driver, I said 'No', he asked who was insured on the vehicle, I said me, my wife are on the policy but anyone else who has fully comp insurance can drive it with my permission such as several of my friends and family members (he didn't like this answer). He said can you tell me who the driver was; I said no; He said are you telling me under oath that you don't know who the driver was? I said No I'm saying that I have no obligation in law to tell you who the driver was. The judge agreed and said anyone could have been the driver, but I didn't have to say who or even if I knew or not. He said if you know will you disclose it, I said I would only have to disclose it if they'd complied with PoFA which through their own choice they had not. He said yes but it would help the court. I replied it would help the court if you'd complied with PoFA before bringing this claim instead of wasting time, The judge smirked and told him to stop asking me who the driver was. He read the forum stuff and said do you agree that proves you have driven to this car park many times and could have been the driver. I said I had no idea what he was talking about. He tried to think of some other questions to ask but they were working against him so he just OK and gave up.

The judge was utterly bamboozled as to why they thought they could pursue the RK without PoFA or evidence. She referred to P.19 in their WS where they state they do not rely on PoFA or keeper liability so my ref to it was irrelevant. She couldn't get her head round this and kept asking how can they state they don't rely on keeper liability and then pursue the keeper. He couldn't answer. She asked why don't they just use PoFA wording and comply with the act. He couldn't answer.

She summarised the hearing - which must have been painful for him. She said as the claim lacked any grounds to pursue the keeper and any proof that he was the driver, it was misconceived and she no option but to dismiss the case.

This a letter someone received from the BPA about PoFA compliance. I think it will be something like this that forms the basis of excel's argument in my next case:

"The Protection of Freedoms Act 2012 is a piece of legislation introduced to provide Keeper Liability. This means if the Operator does not know the name and address of the driver they can hold the keeper liable under this legislation. To do this, they will need to meet the requirements contained within POFA – such as the timescales.

It is not mandatory that an operator issues a parking charge notice using the legislation as they can issue the parking charge under contract law. If there is no mention on the parking charge notice of the Protection of Freedoms Act 2012 then the operator will not be using the legislation and the strict timescales would not be applicable.

When a Notice to Keeper is issued the operator will give the keeper the opportunity to appeal the parking charge or provide the drivers details to transfer the liability within a given timeframe. If the driver’s details aren’t provided the operator will pursue the keeper for payment instead. Please note that even if a charge is issued under contract law and the driver’s details weren’t provided (within the given timeframe) they can still pursue the keeper. If the operator is pursuing the keeper without using the Protection of Freedoms Act 2012 the chances of winning in Court are reduced as they are not relying on the legislation.

Coupon-mad wrote: »

BPA drivel.

Whilst it is true that operators do not have to use the POFA, therefore do not *have to* serve an ANPR camera PCN by day 14, more importantly that means that PPC can't 'pursue the keeper'. They just can't, but it's this sort of misinformation and 'smoke & mirrors' that PPCs are currently running with and it reaps rewards because lots of people pay and some lose (if Juke Joint was real I have no idea how they lost).

If they go down this route and the basis of their claim is breach of contract (nothing to do with pofa) surely they would have to prove I was the driver. As the contract can only exist with the driver not the RK. It's impossible for them to prove I was the driver because I wasn't. They've already shown their standards for evidence are pitiful. I don't see how they can succeed with this approach. HG destroys it!