Excel Parking / BW Legal Court Paper

jollymonkeys · 3 September 2016 at 8:22AM

Hi all,

I've been out of the country for some time recently, but wanted to post an update on where things are.

Recently I was offered a date for a mediation call and this was held a couple of weeks ago. I thought I'd give an update on how it went to potentially help other users of this forum, and also have a few questions which I'd appreciate some advice for my own case. The FINE now stands at just over £235.

The call started with the mediator describing the process - time limit of an hour, mediator calls the claimant first, then calls me, and vice versa until either a settlement is reached or there clearly won't be a settlement. The mediator advised that she was impartial and couldn't offer any legal advice.

I was called by the mediator (after she spoke to BW Legal) and she summarised the case as BW Legal saw it - effectively that I parked the car in a retail car park that was managed by Excel and didn't purchase a pay and display ticket. The car park had a number of well placed signs, including a large sign at the entrance. They sent me a PCN as the registered keeper. I appealed on the grounds that the signs were not visible from all areas of the car park, that the charge was disproportionate to any actual loss of income and unconscionable and that although I was the registered keeper of the car Excel had not proved that I was the driver. Excel rejected my appeal and referred to the Parking Eye v Beavis case.

I corrected the mediator in that there was no evidence that I had parked the car.

I informed the mediator of why I hadn't payed the PCN - effectively my defence.

I was immediately informed that was I aware of the Parking Eye v Beavis case. I said I was. I was asked why I thought I would win as this case had gone all the way to the Supreme Court and the judge had ruled that the charge imposed by the parking company was not deemed to be excessive. I stated that in my view this case was different as the defendant had accepted that he was indeed driving the car. In my case, Excel had not identified who the driver was.

The mediator then stated that the PCN issued by Excel would have given me an opportunity to identify who the driver was. Why did I not do this? I responded that this was not my responsibility to do so. If Excel wanted to pursue a payment then surely the onus was on them to clearly identify the driver. I am unsure why they had not done so.

I suggested to the mediator that this line of questioning did not seem particularly "impartial" to me.

I stated that having since visited the car park I understood the fee for parking for up to 3 hours to be £1.30. This, therefore, was clearly the income that Excel had missed out on.

The mediator said that BW Legal would certainly not accept £1.30 as a settlement and so was I prepared to make an offer. I offered £25 on top of the £1.30 to cover the costs of the postage associated with the numerous harassing letters I had received.

The mediator spoke to the claimant, and then called me back. She stated that BW Legal would accept £175. I rejected this.

The mediator then informed me that many companies are taking non-payment of PCNs to court, and that they have a very high success rate as a result of the Parking Eye v Beavis case and the precedent this sets. She also informed me that I would be liable for any additional costs made by the claimant if I lost the case at Court. I asked her what these would be made up of and was told that the claimant would need to pay a £25 fee for taking the case to court that I would be liable for if I lost, and the claimant could also charge for legitimate travel expenses. I suggested that I didn't think that any additional costs could be recovered via a Small Claims Court.

And then that was it. She informed me the case was likely to proceed to a Small Claims Court and would be referred to my local court.

So, would anyone please be able to advise me on the following:

1. I am of the opinion that the difference between the Beavis Case and my own is that I am stating that the driver was not identified, where as in the Beavis case the driver identity was not challenged. Is this correct?

2. Should this case proceed to the Small Claims Court will I be liable for any additional costs? The court handling fee of £25, travel expenses or anything else?

As always, thanks for helping. I've noticed on my return that BW Legal now seem to be taking quite a few people to court, so the likelihood is that this will go all the way.

arthurx1234 · 3 September 2016 at 8:42AM

I suggested to the mediator that this line of questioning did not seem particularly "impartial" to me.

Seems the mediator is on the PPC's side, who employs the mediator? what guidelines are they suposed to work to?

So the lesson is tick NO to mediation?

Good luck with your day in court hope you stick it to the B******s

arthur brexir

beamerguy · 3 September 2016 at 9:01AM

The mediation service are as clueless as some judges when it comes to actually understanding what the Beavis case was all about.

If you read up on the beavis case carefully and then compare it to your case. You need to prepare evidence to support your case which will be different to Beavis

You need to get your own pictures of the signs, their location and they could easily be missed or not read.

This is not a done deal for BW Legal, they also face their day in court and from all accounts despite all their growling and spitting poison, they are not so smart

The prankster comments:--
"BW Legal are therefore early contenders for The Prankster's "Most Incompetent Solicitors of The Year" annual award."
http://parking-prankster.blogspot.co.uk/search?q=bw+legal

It will now depend on the judge ... some are good, others are an apology for a judge.

Many are complaining to the SRA about the shoddy conduct of BW Legal

bargepole · 3 September 2016 at 9:54AM

If your defence relies on the fact that Excel haven't proved you were driving, this is unlikely to succeed in court.

If you weren't driving, and can assert, preferably with evidence, that you were elsewhere at the material time, then the fact that Excel NTKs don't comply with Schedule 4 of POFA 2012 should mean that they can't hold you liable as keeper.

But absent such evidence, the Judge may well make a finding of fact that, on balance of probabilities, you were the driver, and therefore liable for the charge.

jollymonkeys · 3 September 2016 at 10:27AM

Thanks Bargepole. Unfortunately, I do not have that evidence. However, I have just carefully read Schedule 4 of POFA 2012 in order to refamiliarise myself with it.

Paragraph 4 states the following:

"(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2)The right under this paragraph applies only if—

(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met"

Paragraph 6 states the following:

"6 (1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or

(b)has given a notice to keeper in accordance with paragraph 9."

Looking back through my papers, I don't think I ever received a Notice to Keeper. I received a Parking Charge Notice which talks about the Driver needing to comply with certain terms and conditions, and then states that if I was not the Driver I need to complete a form on the reverse of the notice giving the driver's full name and address.

After contesting the PCN with Excel, I did not receive a Notice to Keeper. So does this not contravene paragraph 6(1)a?

Paragraph 7 goes on to state the following:

"7 (1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;

(c)inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—

(i)specified in the notice; and

(ii)no later than the time specified under paragraph (f);"

In neither the PCN to the driver, nor any subsequent letters or debt collection letters has the amount of the unpaid parking charges been specified. As a result, could it not be argued that the original Notice to Driver (or PCN) does not comply?

So I think there are two further areas to go at here:

1. I did not receive a Notice to Keeper as stipulated within paragraph 6(1)(a) of Schedule 4 of POFA 2012

2. The original PCN (which I am taking to be the Notice to Driver) does not comply with the conditions stipulated in paragraph 7(2)(c) of Schedule 4 of POFA 2012

bargepole · 3 September 2016 at 10:56AM

jollymonkeys wrote: »

So I think there are two further areas to go at here:

1. I did not receive a Notice to Keeper as stipulated within paragraph 6(1)(a) of Schedule 4 of POFA 2012

2. The original PCN (which I am taking to be the Notice to Driver) does not comply with the conditions stipulated in paragraph 7(2)(c) of Schedule 4 of POFA 2012

I think you're missing the point here. The whole purpose of POFA is to provide a means of transferring liability to the keeper, where the identity of the driver is unknown.

But if the Judge finds that you probably were driving, POFA goes out the window, and it becomes a simple matter of contract law. As held in Beavis, the signs were seen, or should reasonably have been seen, by the driver, and by the act of parking the driver accepted the contractual terms. When the terms were breached, i.e. by not paying the stated tariff, the driver became liable for the advertised charge for breach.

A stronger argument would be that the signage at that location is badly situated, and that the signs themselves are so densely packed with text in different fonts as to make them difficult to read. As such, they do not pass the tests set out in Beavis for clear signs sufficient to form a contract.

Google Excel v Martin Cutts, Stockport County Court 2011, for more on this.

jollymonkeys · 5 September 2016 at 9:27PM

Thanks again Bargepole. I'm a touch confused by this. Are you suggesting that even if BW Legal / Excel can't prove who the driver was, the Judge can decide that if it was likely that I was the driver I become liable?

I shall look at the Excel v Martin Cutts case as suggested, and compare it to the pictures of the signs I have.

Would you be able to help me with my second questions above?

2. Should this case proceed to the Small Claims Court will I be liable for any additional costs? The court handling fee of £25, travel expenses or anything else?

Thanks for your help.

beamerguy · 5 September 2016 at 9:47PM

jollymonkeys wrote: »

Thanks again Bargepole. I'm a touch confused by this. Are you suggesting that even if BW Legal / Excel can't prove who the driver was, the Judge can decide that if it was likely that I was the driver I become liable?

I shall look at the Excel v Martin Cutts case as suggested, and compare it to the pictures of the signs I have.

Would you be able to help me with my second questions above?

2. Should this case proceed to the Small Claims Court will I be liable for any additional costs? The court handling fee of £25, travel expenses or anything else?

Thanks for your help.

Yes the judge can use "probability" ..... crazy but yes. So you must steer your case away from this

Coupon-mad · 5 September 2016 at 9:58PM

Are you suggesting that even if BW Legal / Excel can't prove who the driver was, the Judge can decide that if it was likely that I was the driver I become liable?

A Judge *could* come to that conclusion if they believed that, on the balance of probabilities, you were the driver. i.e. a Judge might decide you should pay, as driver. Especially if you do not rehearse beforehand, defending this very frankly and honestly as the 'registered keeper' without starting to talk about how the signs looked 'on the day'. You can of course talk about the signs, generally, as you have inspected them and filmed them/taken photos and researched, since getting the claim!

But on the other hand, a Judge might not run with Excel's argument that it can be assumed that the keeper was the driver - it is down to the Judge's opinion based on the facts as he/she sees them, from the evidence submitted. You can counter their view by using Henry Greenslade's wording from the POPLA Annual Report 2015 (search this forum for 'Henry Greenslade presumption').

One thing is fairly clear - a Judge could not look to the POFA to hold you liable AS KEEPER unless they are clueless because, as you know, Excel do not use the POFA wording (and it's not just the small omission of the unpaid parking charge). Excel do not even attempt to use any POFA wording these days and in older NTKs, they never got it right, used to misstate the mandatory '28 day period' for keeper liability, for starters.

Do not argue at a hearing about the 'amount of the charge' unless you are very familiar with the Beavis hearings and can draw several quotes from the Court of Appeal and the Supreme Court that support the view that the case does not apply in a P&D car park. That's more complicated than going for the unclear signs/Cutts case argument, pointing out how many PCNs Excel now issue per annum, a huge increase on 2010, proving surely that their signs have not improved since the Cutts case.

If it goes to a hearing, you would be risking paying the sum of the parking charge at £100, plus court fees (filing fee and hearing fee) and interest at 8%, so maybe £175 tops, which you've already rejected so you may as well fight on!! Not the added costs that are taking this (ostensibly) over £200! So, even if you lose you would almost certainly pay less than is being demanded now.

If this was the Peel Centre, have a look at this thread by maxtag and read up on the Excel v Cutts case and DJ Lateef's words, to use it to your advantage:

http://forums.moneysavingexpert.com/showthread.php?p=71227110#post71227110

If you have a court date now, you will also have been told the very last date by which you must serve to the court and the claimant's solicitors, your witness statement and defence. Are you now prepared for that next stage? Nearly there.

Then if the hearing goes ahead and they do not discontinue, you then take to court in good time on the day, your fully printed-out (and sealed in a bag, folder, string etc.) defence bundle. Have this with you in triplicate, with your 'exhibits' (evidence, such as a printout of Schedule 4, plus printouts of DJ Lateef's words in the Cutts case, plus Martin Cutts' own Blog articles on his website for the 'Plain Language Commission' which is persuasive stuff as regards clarity of terms). Use all of that.

Maybe a video of how the retail park looks on approach and driving in to park, how the payment machines are not obvious from certain bay areas/painted in a dark colour, how the wording cannot possibly be read nor are the signs drawn to a driver's attention (Lord Denning's red hand rule).

If it's the Peel Centre, get a picture of the specific, different, KFC parking sign, offering free parking for 15 minutes with NO CAVEATS, no warnings, no obligations and no charge. Obviously if a car can park there for 15 mins with NO ONEROUS TERMS then the car must be allowed added grace periods to drive in and get there and park, then at the end, to drive out past the cameras.

And take to court in your exhibits, a copy of the Beavis sign, as a comparator:

http://parking-prankster.blogspot.co.uk/2016/01/new-popla-staying-cases-to-consider.html

One aspect of the Beavis case HELPS you, in terms of the sign being clear, unfussy, and with the £85 in large lettering. You are not arguing that the charge was 'disproportionate' or not related to any 'loss' - do not get into that argument because that's where you could come unstuck, since the Beavis case Judges at the Supreme Court, decided that a charge of £85 was commercially justified in a retail park.

All of those last things are for the hearing itself. Have you got a court date and are you ready to submit your witness statement, as Defendant keeper and have all your ducks starting to be lined up in a row?

BTW, you coped well with 'Mediation' and that's why we advise AGAINST it every time!!

jollymonkeys · 20 September 2016 at 9:11PM

As usual Thank you Coupon Mad.

So I've just received a court date, and therefore it looks like this is going all the way. Strangely the judge has recommended that this goes down the mediation route first. This has already happened so I'll need to ring the court and clarify this.

I'm going to ensure all my photos are in order and do as much research as I can based on your advice above before submitting my witness statement.

Excel Parking / BW Legal Court Paper

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