Claim Form EXCEL/BW LEGAL is still worth defence?

HarryJelonek · 17 December 2016 at 10:16PM

Hi, I’m Newbie here.
Sorry about my English, but its not my Mother Tongue.
At January2016 I parked at Peel Centre Stockport, bought ticket for 3 hours, but didn’t realise there is just letter E instead of my whole registration number.
After week I received Parking Charge Notice from Excel Parking. I was thinking its just simply mistake, fortunately found this ticket in my car, then send them photo of it.
I realised there is just letter E after month when they sent me a letter that I failed to purchase valid ticket as I entered E rather than required details, so appeal was rejected.
After that I made an appeal to IAS which has been dismissed.
After plenty of notices from BWLegal finally I received Claim Form few days ago.
The main question is:
Is still worth to defence if I used plenty of irrelevant defences to IAS follow my unprofessional searches on internet (simply copied and modified quotes)?
Or should I give up and pay them total amount 235.40?

My appeal to the IAS:
1. When I bought ticket I paid right quote for right period, so the lack of registration number making no loss at all, or is disproportionate, does not represent a genuine pre-estimate of loss.
2. The sum is extravagant and unconscionable and cannot be justified.
3. I have no idea how letter "E" occurred on my ticket, however there shouldn't be possibility to print ticket without registration number, and payment should be rejected.
4. Number and size of information boards doesn't mean they are readable enough. I wasn't able to read it properly on my legal speed when entered parking.
5. Notice refers to a "contravention" which is misleading for implying it to have been issued by statuory authority. The term "contravention" which is usable only in penalty charge notices issued by local authorities is neither correct nor appropriate terminology for a civil parking notice, The IPC Code of Practice Part B 14.1 is clear in its rules that the Operator must not use predatory or misleading tactics to lure drivers into incurring parking charges.

I expect here is a very busy time for everyone just before Christmas, but any suggestion will help me in this matter very much

hoohoo · 17 December 2016 at 11:23PM

There appears to be a malfunction with the ticket machines such that they often do this. As such, it is hardly your fault if Excels system is broken and you can defend on this basis. Judges will support you.

http://parking-prankster.blogspot.co.uk/2016/09/excel-parking-get-gladstonedby-bw-legal.html
http://www.parking-prankster.com/case-law.html - transcript cs033
http://parking-prankster.blogspot.co.uk/2016/10/parkingeye-lose-in-court-unsolved.html
http://parking-prankster.blogspot.co.uk/2016/11/vcs-lose-in-court-keeper-not-liable-for.html

HarryJelonek · 18 December 2016 at 10:09PM

Thank You hoohoo!
I'm going to defence.

Coupon-mad · 18 December 2016 at 11:41PM

HarryJelonek wrote: »

Thank You hoohoo!
I'm going to defence.

Good.

So start with the NEWBIES thread - look at all links under the heading 'Small Claim?' Shows you what to do and by when and example defences including BW Legal ones.

On this forum we've not yet lost one v BW Legal when we've assisted in the defence. Most seem to be stayed as they do not pay the hearing fee, only a few go to a hearing, none lost with a forum defence when the right evidence is taken to court. You will need the transcripts from the Prankster's blogs as evidence in due course, but at this stage you need to do the Acknowledgement of Service first, leaving the defence blank. Then work on the defence.

Look at Lamilad's thread, shows you a case won, from start to finish including an account of the hearing. Please don't ask for a link, not only do I not generally feed links when cases are easy to search for but it's one of those already shown in the NEWBIES thread anyway.

HarryJelonek · 20 December 2016 at 12:49PM

Thank You Coupon-mad I'm really happy that you noticed my thread:)

Yesterday I did Acknowledgement of Service online.

Last night I've spend jumping from site to site online, reading, translating and interpreting information follow sugestion
I feel that my head is going to explode...:)
However I scetched something about Defence:

[FONT=&quot]I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons: [/FONT]

[FONT=&quot]1. I am the registered keeper of the vehicle in question, no. XXXXXXX. [/FONT]
[FONT=&quot]The Claim relates to an alleged debt arising from the vehicle having been parked at Peel Centre-Stockport on XX/01/2016.[/FONT]

[FONT=&quot]2.[/FONT] [FONT=&quot]The car park in question is one where I having parked several times before, so I am familiar with ticket machines located there.[/FONT]

[FONT=&quot]3.[/FONT] [FONT=&quot]On the material date I entered the car park. I went to pay for my ticket. I paid for my ticket and I entered my registration number and obtained the ticket that came out with Reg:E on it. I displayed that ticket.[/FONT] [FONT=&quot]I paid an appropriate sum for me to park in the car park for up to three hours.[/FONT] I[FONT=&quot] did not remain in the car park beyond three hours, and as far as I was concerned had fully complied with the terms and conditions of the car park. [/FONT]

[FONT=&quot]4. After I received PCN issued by Claimant I sent them copy of obtained ticket. They rejected that evidence, despite they were fully aware that the machines Excel use at the Peel Centre seem particularly prone to failure (Claim no. C8DP11F9 & C8DP36F0).[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]5.[/FONT] [FONT=&quot]In addition to the original ‘parking charge’, believed to be £100, for which liability is denied, the Claimant’s legal representatives, BW Legal, have artificially inflated the value of the Claim by adding various ‘Solicitor’s Costs’ of £104.00 which I submit 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. The Court is invited to report BW Legal to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.[/FONT]

[FONT=&quot]I believe the facts stated in this Defence Statement are true[/FONT]

HarryJelonek · 21 December 2016 at 10:52PM

I just realized there may be some mistake on POC made by claimant:

"The Claimant's Claim is for the sum of £100.00 being monies due from the Defendant to Claimant in respect of a Parking Charge Notice (PCN) issued on 24/01/2016 (Issue Date) at HH:MM:SS at Peel - Centre Stockport Anpr Charging Scheme Std(60-100)......etc.

Issue date of PCN they sent to me is 29/01/2016
It seems that they used contravention date instead of issue date on POC.

Is this matter worth consideration?

Coupon-mad · 22 December 2016 at 1:46AM

Yes I would include that fact where you state that the Particulars of Claim are incoherent and lacking in any facts or concise, clear details that could identify a cause of action.

I would say a BW Legal defence needs more than you have there. Here is a defence written by bargepole for a specific issue of a faulty machine (Claimant was PCN (NW) using CSB Solicitors LTD):

https://www.dropbox.com/s/dykc9qeqd271y7p/PCG_Defence1.docx?dl=0

This was the case in question:

http://forums.moneysavingexpert.com/showthread.php?t=5340304

that defence was specific to a faulty P&D machine but please note, it was created for that specific case, can't be a template for other cases where different circumstances are likely to apply. However you can use the same case law but with different wording such as this:

I submit that the alleged contractual requirement regarding the VRN created by the Claimant’s signage, is voidable under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126, for the reason that it became impossible for me to ensure that the machine had recorded the correct VRN, through no fault of mine. This was a fault of the machine over which I had no control and in fact I did enter the correct VRN, so there was no breach from my actions. In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154, it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

You can see from that linked version how to set it out: numbered, double line-spaced in Times New Roman font 12.

Show us your new draft with the above paragraph added. And add an introduction at the start that says:

The Particulars of Claim are incoherent and lacking in any facts or concise, clear details that could identify a cause of action. In addition, the particulars mention a Parking Charge Notice (PCN) ''issued on 24/01/2016 (Issue Date)'' but I am not aware of any PCN from the Claimant with that date of issue. This is indicative of a robo-claim from BW Legal who have issued tens of thousands of generic claims for VCS and Excel Parking companies this year with no due diligence nor scrutiny of material facts, not least checking that there is a cause of action when in fact, these machines at the Peel Centre are already known by both Excel and BW Legal to be faulty. There is nothing in the particulars which could give rise to a claim in law.

HarryJelonek · 22 December 2016 at 9:00PM

Thank you Coupon-mad for such incredible work!

Yesterday I cited just part of Particulars of Claim, contained wrong issue date of PCN.

I should be quoting the whole POC which contains more details, but I was so exicited that I found something wrong so decided to send it to share on forum ASAP. My fault which may lead to some changes at introduction. Apologise for that.

"The Claimant's Claim is for the sum of £100.00 being monies due from the Defendant to Claimant in respect of a Parking Charge Notice (PCN) issued on 24/01/2016 (Issue Date) at HH:MM:SS at Peel - Centre Stockport Anpr Charging Scheme Std(60-100).
The PCN relates to under registration XXXXXXX.
The terms of the PCN allowed the Defendant 28 days from the Issue Date to pay the PCN, but the Defendant failed to do so.
Despite demand having been made, the Defendant has failed to settle their outstanding liability.
The Claim also includes Statuory Interest pursuant to section 69 of the Country Courts Act 1984 at a rate 8% per annum a daily rate of 0.02 from 24/01/2016 to 08/12/2016 being an amount of £6.40 .
The Claimant also claims £54.00 contractual costs pursuant to PCN Terms and Conditions."

Coupon-mad · 23 December 2016 at 12:21AM

That's OK, those are still incoherent particulars. It fails to state anything about any alleged contravention or the contract breached.

So start your defence with an introduction headed up 'PRELIMINARY MATTERS' using the wording I gave you there that starts 'The Particulars of Claim are incoherent and lacking in any facts...'

And add the extra point I gave you based on bargepole's other one. I re-wrote that defence point to suit your situation.

Oh, and where you state '(Claim no. C8DP11F9 & C8DP36F0)' I would add the name or initials of the Defendant, the name of the Claimant (Excel of course), the Court and the dates of those decisions too.

hoohoo · 23 December 2016 at 7:21AM

I would also throw in battle of the forms for good measure.
https://en.wikipedia.org/wiki/Offer_and_acceptance#Battle_of_the_forms
http://www.lexology.com/library/detail.aspx?g=02062339-d6cf-4778-898a-272c97caf071

The claimant uses ANPR and so they can reasonably be expected to know if any vehicle is or is not in the car park. By allowing me to enter a numberplate which they know or reasonably should know was not in the car park, they have accepted a contract variation. This is the parking equivalent of the "Battle of the forms". Butler Machine Tool Co Ltd v Ex-Cell-O Corp Ltd [1977] EWCA Civ 9 shows that in these circumstances the contract variation is deemed to be accepted.

The claimant did not have to accept the monies paid against the entry of a plate which was not in the car park, but having done so, they have accepted a variation of contract.

The case of Excel Parking v Mrs S. C8DP11F9 is persuasive that when a ticket with an invalid number plate is issued in an ANPR car park it is the operator's responsibility.

(the transcript is here http://www.parking-prankster.com/case-law.html CS033)

Coupon-mad · 23 December 2016 at 12:51PM

Nice one hoohoo, will have to remember that.

Claim Form EXCEL/BW LEGAL is still worth defence?

Comments

Categories

Get our FREE Weekly email full of deals & guides - and it’s spam-free