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  • FIRST POST
    • juke joint
    • By juke joint 7th Jun 16, 12:05 PM
    • 22Posts
    • 16Thanks
    juke joint
    Excel - County Court Claim
    • #1
    • 7th Jun 16, 12:05 PM
    Excel - County Court Claim 7th Jun 16 at 12:05 PM
    Apologies if this has been covered anywhere else - I've exhausted my search and understand capabilities.

    My wife received a parking "fine" from Excel in August last year for parking in a retail park. We'd visited Sports Direct late on a Sunday afternoon. We were the last in the store which was just about to close so we quickly bought some items and left. I can't recall the exact length of time, but it can't have been longer than 15 minutes. Excel say the fine was issued at xx Sports Direct closes at 16:30. We were the only car in what is a fairly large car park and to be honest we both forgot to buy a ticket. We'd usually buy a ticket there - maybe we wrongly assumed it was free on a Sunday - maybe we were distracted by my daughter who wasn't well and wanted to stay in the car.
    So - all the usual letters started coming - and as from previous experience (from an Asda ticket) and the general opinion of most of the forums -and even a staff member at Sports Direct - we chose to ignore all of them.
    Until we got the County Court Claim Form last week demanding Over £200

    Given that we we don't have much of a defence for not paying the original ticket - and have missed all the appeal options - Should we accept part of the amount claimed - and how much should I admit to?
    I'm loath to pay these cowboys anything, but it looks like we lost the lottery this time.
    Last edited by juke joint; 07-06-2016 at 6:15 PM. Reason: Remove identifying details
Page 2
    • Coupon-mad
    • By Coupon-mad 8th Aug 16, 3:36 PM
    • 40,437 Posts
    • 52,331 Thanks
    Coupon-mad
    Ok. After some help I submitted a defence a few months ago and have just got the DQ. I'm getting conflicting advice about if I should agree to use the Mediation Service. I've read this can be seen as accepting liability, but also that it might look better with the judge if there's been an attempt to avoid going to court.
    Originally posted by juke joint
    Who helped you, out of interest? The BMPA? A regular poster here? Can you show us the defence here please (no need to keep it secret)?
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • juke joint
    • By juke joint 10th Aug 16, 11:46 AM
    • 22 Posts
    • 16 Thanks
    juke joint
    Hi
    I've been getting help from Nosferatu on the Pepipoo site.. (that sounds very odd when I read it back) It was an infamous car park in Keighley.

    The defence I posted was...

    It is admitted that Defendant is the registered keeper of the vehicle in question.

    However it is denied that the Claimant has authority to bring this claim on the following grounds:-

    1. The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements.

    2. The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking.

    3. Excel Parking are not the lawful occupier of the land.
    (i) absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

    4. The terms and conditions displayed on the signs at the entrance to the the site in question were unclear and the penalty conditions buried in a tiny font at the foot of the sign. The amount of the penalty was not a core term and by being hidden it was not sufficiently prominent on site/around the areas in question particularly on entrance to the site and was not obvious even after a diligent review of the terms, so no contract has been formed with driver(s) to pay £100, or any additional fee charged if unpaid in 14 days

    5. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.


    6. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

    7. The provision is a penalty and is not saved as such by the Beavis ruling as there is no commercial justification for such a disproportionate amount being charged
    a) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable

    8. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.


    9. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
    • juke joint
    • By juke joint 12th Oct 16, 3:19 PM
    • 22 Posts
    • 16 Thanks
    juke joint
    Court bundle
    Is anyone able to help with a court bundle, based on my initial defence? Our case is due in court in November. Am I right in thinking we just need to have more detail for each point?
    • Coupon-mad
    • By Coupon-mad 12th Oct 16, 6:21 PM
    • 40,437 Posts
    • 52,331 Thanks
    Coupon-mad
    Is anyone able to help with a court bundle, based on my initial defence? Our case is due in court in November. Am I right in thinking we just need to have more detail for each point?
    Originally posted by juke joint
    You can set it out like this poster did, posts 70 & 71 are an example:

    http://forums.moneysavingexpert.com/showthread.php?t=5470683&page=3

    Have your exhibits at the back of a file/bundle as numbered appendices, referred to in the witness statement signed and dated by you.

    And here below, is another (different) example of a full defence, referencing exhibits using a numbering system and referring to a lever-arch file (you can hand-deliver the local court's copy and make sure it is nicely presented - in a file, double line spaced in Times New Roman 12 font is recommended). You can see this one is written by what appears to be a legally qualified person and isn't a 'forum effort':

    http://parking-prankster.blogspot.co.uk/2016/08/parkingeye-discontinue-two-cases.html

    Oh, and on this forum and/or on pepipoo do not reply to any private message from a poster with less than 1000 posts to their name here. We deal with these issues openly on the forum and any pm could be from anyone at all (even the parking firm) and any private message about this is not recommended to be replied to/read.

    Nosferatu appears trustworthy on pepipoo though, a regular poster.

    On here, others might have more to add to the above. Bargepole, hoohoo, IamEmanresu or the Parking Prankster might have more tips.
    Last edited by Coupon-mad; 14-10-2016 at 10:22 AM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • juke joint
    • By juke joint 14th Oct 16, 7:59 AM
    • 22 Posts
    • 16 Thanks
    juke joint
    Thankyou. This is very helpful.
    Also. Should I be expecting to get any paperwork from BW Legal before our court appearance or would that follow me submitting g the full defence?
    • IamEmanresu
    • By IamEmanresu 14th Oct 16, 9:19 AM
    • 978 Posts
    • 1,717 Thanks
    IamEmanresu
    Should I be expecting to get any paperwork from BW Legal before our court appearance
    A court bundle should be with you 14 days before. If one hasn't arrived then call the court to see if they have received a copy or check your spam filter in case they have emailed it to you.
    General Election coming up? Your MP worried about his/her job? Give them something to do and get them to sort out these parking cowboys. Search "Theyworkforyou" for the name of your MP.
    • juke joint
    • By juke joint 17th Oct 16, 4:49 PM
    • 22 Posts
    • 16 Thanks
    juke joint
    We managed to find out the landowner recently so I wrote a letter to him explaining that as a loyal customer of his we shouldn't be getting this level of harassment for spending money in his store. I didn't expect anything to come of it, but within a few days they wrote back to say they'd be getting the case put on hold. Just had a call to say they will be trying to cancel the proceedings as what Excel are doing is unacceptable. We still haven't received the court bundle from BW/Excel and it's due (as is ours) in a few days so I'm hoping they can sort this, but it all sounds very promising.
    • Half_way
    • By Half_way 17th Oct 16, 7:11 PM
    • 2,945 Posts
    • 3,941 Thanks
    Half_way
    We managed to find out the landowner recently so I wrote a letter to him explaining that as a loyal customer of his we shouldn't be getting this level of harassment for spending money in his store. I didn't expect anything to come of it, but within a few days they wrote back to say they'd be getting the case put on hold. Just had a call to say they will be trying to cancel the proceedings as what Excel are doing is unacceptable. We still haven't received the court bundle from BW/Excel and it's due (as is ours) in a few days so I'm hoping they can sort this, but it all sounds very promising.
    Originally posted by juke joint

    A Good result, however you should ask them for a written and signed confirmation, as you are extremely concerned that this is will end up in court.
    Excel will be claiming that they have the landowners authority to take this to court, if the landowner says they dont then that pretty much !!!!es on Simmon Rensahw-Smiths fire.
    You should also be looking to get this struck out, and to make a claim against Excel for their unreasonable behaviour, even more so if after telling and providing excel with the infomration that the landowner wants this cancelled, but excel are going to carry on regardless of their principal wishes.

    You need to make it clear that you are being perfectly reasonable in this and that:

    The Landowner wants the action being carried out by their agents this cancelled

    You do not want to clog up the courts and waste valuable court time, as well as public money

    Excell parking are being unreasonable in continuing to pursue this matter and as such you want full costs - i believe that these can be found here https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27 maybe some one else can elaborate.

    but above all you must get it in writing that the landowner wants this cancelled, or doesn't wish this to go to court in front of a judge.
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
    • juke joint
    • By juke joint 19th Oct 16, 2:38 PM
    • 22 Posts
    • 16 Thanks
    juke joint
    Sports Direct have just said Excel are refusing to drop our case. This has set our prep for defence back a week and it's due in tomorrow!
    Can someone send me a summary of the points in my defence that relate to the Beavis case? Am on train on phone so it easy for me to find.
    • Coupon-mad
    • By Coupon-mad 19th Oct 16, 3:09 PM
    • 40,437 Posts
    • 52,331 Thanks
    Coupon-mad
    Well you said your wife's defence (Because she's the Defendant) looked like this:

    The defence I posted was...

    It is admitted that Defendant is the registered keeper of the vehicle in question.

    However it is denied that the Claimant has authority to bring this claim on the following grounds:-

    1. The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements.

    2. The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking.

    3. Excel Parking are not the lawful occupier of the land.
    (i) absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

    4. The terms and conditions displayed on the signs at the entrance to the the site in question were unclear and the penalty conditions buried in a tiny font at the foot of the sign. The amount of the penalty was not a core term and by being hidden it was not sufficiently prominent on site/around the areas in question particularly on entrance to the site and was not obvious even after a diligent review of the terms, so no contract has been formed with driver(s) to pay £100, or any additional fee charged if unpaid in 14 days

    5. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.


    6. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

    7. The provision is a penalty and is not saved as such by the Beavis ruling as there is no commercial justification for such a disproportionate amount being charged
    a) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable

    8. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.


    9. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

    So all your wife needs to add is her witness statement really, you can't rush anything else out so your wife will have to stick to the above defence.

    Witness statement info here:

    http://www.bmpa.eu/static_witness_statement.php

    The BMPA do assist people so your wife could contact them but you have so little time! You could email them to ask for general advice.

    I notice you said you were there too:

    We'd visited Sports Direct late on a Sunday afternoon.
    So, you could also sign a witness statement to corroborate the facts, if you are planning to turn up with her to any hearing (SHE MUST ATTEND). Your wife is named on the claim form, you said (misspellings are nothing special). Do not state in either statement, which of you was driving.

    Have you got the evidence bundle from the other side yet? Maybe they will drop it.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • juke joint
    • By juke joint 19th Oct 16, 7:48 PM
    • 22 Posts
    • 16 Thanks
    juke joint
    Hi
    Not got their eveidence bundle yet. My wife has completed a witness statement to say she was a passenger. We have not stated who the driver was. would me saying she wasn't the driver make the judge presume I was?
    We were just looking through the Beavis court notes and wondering if we should include any of it as exhibits in our bundle to support points 7 and 8 from our skeleton defence above?

    We also have an email from Bradford Council stating their signage had no planning permission and is technically unlawful as well as statements from Sports Direct (the land owners) instructing Excel to drop the case!
    • juke joint
    • By juke joint 19th Oct 16, 7:56 PM
    • 22 Posts
    • 16 Thanks
    juke joint
    BTW - found out the deadline is Monday so will probably post in next day or two.
    • Coupon-mad
    • By Coupon-mad 19th Oct 16, 7:59 PM
    • 40,437 Posts
    • 52,331 Thanks
    Coupon-mad
    Hi
    Not got their eveidence bundle yet. My wife has completed a witness statement to say she was a passenger. We have not stated who the driver was. would me saying she wasn't the driver make the judge presume I was?
    We were just looking through the Beavis court notes and wondering if we should include any of it as exhibits in our bundle to support points 7 and 8 from our skeleton defence above?

    We also have an email from Bradford Council stating their signage had no planning permission and is technically unlawful as well as statements from Sports Direct (the land owners) instructing Excel to drop the case!
    Originally posted by juke joint
    Great - yes include all of it, why not. Your initial defence covered those bases so you are entitled to expand on it.

    Here is a legally-written example of how to argue that no planning permission/advertising consent means that the court should not be supporting the claimant's case arising from that unlawfulness:

    http://parking-prankster.blogspot.co.uk/2014/03/parkingeye-drop-two-claims-after-being.html

    HTH
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Castle
    • By Castle 19th Oct 16, 8:00 PM
    • 1,062 Posts
    • 1,318 Thanks
    Castle
    Is this the same car park:-
    http://forums.pepipoo.com/index.php?showtopic=109279
    • juke joint
    • By juke joint 19th Oct 16, 8:17 PM
    • 22 Posts
    • 16 Thanks
    juke joint
    Yes. That's the one! Excel reckon they can't cancel ours as it's already in the court process. Which I think is a load of tosh and will !!!! off the judge!

    So do you think I should definitely include my witness statement despite how it may implicate myself as the driver?
    • Coupon-mad
    • By Coupon-mad 19th Oct 16, 8:42 PM
    • 40,437 Posts
    • 52,331 Thanks
    Coupon-mad
    No in fact I would not. Now you've pointed out that it could implicate you!

    I would 100% use that email though, to show the landowners interest is in fact in cancelling these PCNs and the entire contract, it seems. Therefore your case is the polar opposite of the Beavis case where the 'legitimate interest' of the landowner was persuasive to the Judges, so they moved the goalposts, saving the Beavis case charge alone, from being deemed an unrecoverable penalty.

    You can say that to sue people against the wishes of the landowner is the very essence of an 'unconscionable' (BEAVIS BUZZWORD) charge. You did have something about landowner authority in your defence so that email is the icing on that cake.
    Last edited by Coupon-mad; 19-10-2016 at 8:45 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • juke joint
    • By juke joint 20th Oct 16, 12:26 PM
    • 22 Posts
    • 16 Thanks
    juke joint
    Pofa
    Also - what is the best response if Excel say they don't need to comply with POFA for post 2012 incidents such as ours?
    • Coupon-mad
    • By Coupon-mad 20th Oct 16, 1:06 PM
    • 40,437 Posts
    • 52,331 Thanks
    Coupon-mad
    Well, they don't have to, of course, and may PPC don't bother as the deadlines and ooohhh...copying statutory wording seems to tax their brain cells too much!

    But they then leave themselves with no lawful route to hold a keeper liable for the actions of an unidentified driver.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • juke joint
    • By juke joint 8th Nov 16, 4:23 PM
    • 22 Posts
    • 16 Thanks
    juke joint
    Just to update this thread.. I attended court (Skipton) with my wife.. the Excel rep (presumably from BW Legal) was there and asked if we wanted to make an offer. Given that we had just found out the Judge had recently awarded them full costs for a similar case we were tempted, but not when they quoted £160.

    So.. we went in (after waiting an hour) and two hours later we lost... Have to pay £259..

    My wife typed up a summary...



    1) Excel do have the right to regulate. Defendant cannot require the Claimant to prove their status to issue / enforce parking charges. Queen is the only landowner / the Crown. Balance of probability that Excel are entitled. Can choose not to produce the lease. Judge doesn’t accept the Sports Direct are the landowners. “they are just one of the shops on the Retail Park.” The letters I attached to my bundle (stating opposed to Excel’s actions) do not assert that they are the landowner. If they were the landowner, they would evict Excel, not negotiate with them.

    2) Registered keeper liability. No evidence for alledged breaches of POFA 2012. The driver agrees to be contractually bound through the signage & letters T&Cs. Reasonable assumption that RK was the driver. Excel can rely on PCN notice. Defendant must face the consequences of not naming the driver. Clear from PCN letter & signage T&Cs. State VEHICLE OR DRIVER. Entitled to pursue RK.

    3) Which aspects of POFA are breached? None. Judge read through all the conditions in S.4 and said all were met, (not exactly sure where she was reading from within S.4). Satisfied that conditions met and Excel can pursue RK. Whether or not the Claimant chooses to rely on POFA the conditions were not breached.

    4) Illegally placed signage & cameras does not mean any contract is void or unenforceable. Criminal conduct is not proved by Bd Council letter. Judge questioned the authority of Daniel Speedy, Enforcement Officer. The Council’s assertion has not been tested in a court of law or tribunal. No provable criminal act in relation to signs or cameras. No testing out of criminal conduct. “Even if proved, I would not accept the argument that contract would be rendered unenforceable”.

    5) Signage sufficiently clear. 10 mins grace to leave and not be bound by its terms. “Obvious and simple info is apparent to the public”, doesn’t accept any overload of info.

    6) The point of Beavis was that it accepted circa £80 is an acceptable sum. Excel run on a similar business model so Beavis is applicable. Also Codes of Practice say it’s an acceptable sum.

    7) Judge said - “I’ve seen these arguments many, many times before. I know where these things arise. These arguments are not (promungated?) or successful. If I knew these arguments had found favour in a higher court I would be bound to follow”

    £100 initial charge
    £54 contractual costs
    £50 court fee
    £50 hearing fee
    £5.96 interest

    TOTAL £259.96

    Legal fees £50 disallowed for unreasonable behaviour of defendant, which I had to argue for.


    So - just to clarify she also ignored all the Elliot v Loake that was quoted and basically said it didn't matter if Excel followed POFA or not. They had the right to use it or not and they could assume the RK was the driver either way.

    And Excel provided a copy of a lease agreement which was basically a single page on their letter head signed by themselves with no mention of any other party and legible date. This was accepted by the "judge."


    Massive waste of time and money.
    • pappa golf
    • By pappa golf 8th Nov 16, 4:34 PM
    • 5,356 Posts
    • 4,887 Thanks
    pappa golf
    sorry to hear that , the judge was a fool!

    take heed in knowing , out of your £259.96 , after they have paid the court costs = £196.96 and it will have cost them in excess of £200 to organise this and pay for legal services .

    tiz a scam ,
    Have YOU had to walk 500 miles?
    Were you advised to walk 500 more?
    You could be entitled to compensation.
    Call the Pro Claimers NOW.
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