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  • FIRST POST
    • Lamilad
    • By Lamilad 13th Sep 16, 10:09 PM
    • 885Posts
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    Lamilad
    Claim No.3 Excel / BW Legal
    • #1
    • 13th Sep 16, 10:09 PM
    Claim No.3 Excel / BW Legal 13th Sep 16 at 10:09 PM
    Ok so this now the third active thread I have on this forum and as previously I am seeking the excellent advice from the regulars on here. For those of you who are familiar with my first post, this one is virtually a carbon copy. It's BW Legal on behalf of Excel parking. I'm pretty familiar with the initial steps so I'm hoping preparing my defence on this occassion will be straight forward.

    Particulars of Claim:
    The claimants claim is for the sum of £100 being monies due from the defendant to the claimant in respect of a parking charge notice (PCN) is on 01/09/2015 (issue date) at XX:XX:XX at XXXXXXXXX Retail Park XXXXXXXX.
    The PCN relates to XXXXXXX 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 statutory interest pursuant to section 69 of the county courts act 1984 at a rate of 8% per annum a daily rate of 0.02 from 01/09/2015 to 23/08/2016 being an amount of £7.16.
    The claimant also claims £54.00 contractual costs pursuant to PCN terms and conditions

    Amount claimed: £161.16
    Court fee: £25.00
    Legal representatives costs: £50.00
    Total amount: £236.16

    I've done the AOS... As this is so similar to my first case I plan to use the same skeleton defence but I know the advice on this forum continues to evolve and the regulars find better and better ways to poke holes in the PPC's claims. I'll post my defence below. If it's fine as it then, great! I'll get it submitted. But if there's any additional points/builds I could add in to strengthen it then I'd like to include them. Thanks for all your help so far, guys... and thanks in advice for your help again.
Page 1
    • Lamilad
    • By Lamilad 13th Sep 16, 10:10 PM
    • 885 Posts
    • 1,857 Thanks
    Lamilad
    • #2
    • 13th Sep 16, 10:10 PM
    • #2
    • 13th Sep 16, 10:10 PM
    So here's the defence I used in my original case. All advice, tips, suggestions, builds, add-ins, removals gratefully accepted. Thanks

    Statement of Defence: Claim No. XXXXXXXX; Date: xx/06/2016

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

    However the Claimant has no cause of action against the Defendant
    on the following grounds:-
    1. The Defendant was not the driver of the vehicle on the date in
    question.
    2. The Protection of Freedom Act 2012 Schedule 4 has not being
    complied with.
    a) Notwithstanding that the Claimant claims no right to pursue the
    Defendant as the registered keeper under PoFA, the Claimant has
    failed to meet the conditions of the Act and has never acquired
    any right to pursue the Defendant in this capacity if it cannot
    identify the driver.
    b) The keeper can only be held liable if the Claimant has fully
    complied with the strict requirements including 'adequate notice'
    of £100 charge and prescribed Notice to Keeper letters in time and
    with mandatory wording
    c) The claimant has no right to assert that the defendant is
    liable based on ‘reasonable assumption’. PATAS and POPLA Lead
    Adjudicator and barrister, Henry Michael Greenslade, clarified
    that with regards to keeper liability, 'There is no ‘reasonable
    presumption’ in law that the registered keeper of a vehicle is the
    driver and operators should never suggest anything of the sort'
    (2015).

    3. This case can be distinguished from ParkingEye v Beavis [2015]
    UKSC 67 (the Beavis case) which was dependent upon an undenied
    contract, formed by unusually prominent signage forming a clear
    offer and which turned on unique facts regarding the location and
    the interests of the landholder. Strict compliance with the BPA
    Code of Practice (CoP) was paramount and Mr Beavis was the driver
    who saw the signs and entered into a contract to pay £85 after
    exceeding a licence to park free. None of this applies in this
    material case.

    4. The signage on and around the site in question was small,
    unclear and not prominent and did not meet the British Parking
    Association (BPA) Code of Practice or the Independent Parking
    Committee (IPC) Code of Practice. The Claimant was a member of the
    IPC at the time and committed to follow its requirements. The
    claimant was also formerly a member of the BPA, whose requirements
    they also did not follow. Therefore no contract has been formed
    with driver to pay £100, or any additional fee charged if unpaid
    in 28 days.

    5. It is denied that the Claimant has authority to bring this
    claim. The proper Claimant is the landholder. Strict proof is
    required that there is a chain of contracts leading from the
    landholder to Excel Parking Services Ltd.
    a) Excel Parking Services Ltd is not the lawful occupier of the
    land
    b) 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
    locus standi to bring this case.

    6. 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.

    7. The claimant has yet to respond to part 18 Request sent by
    the defendant to BW Legal and Excel Parking Services Ltd on the
    xx/06/2016.
    a) A request to explain if Excel Parking Services Ltd are making a
    claim as an agent of the landowner or making the claim as occupier
    in their own right.
    b) A request to explain if the amount claimed by Excel Parking
    Services Ltd is for a breach of contract or a contractual sum.
    c) A request to provide copies of the signs on which Excel Parking
    Services Ltd rely and confirm the signs were in situ on the date
    of the event. Also to provide the date the signs were installed.
    d) A request to confirm that the signs were at the entrance to the
    site on the date in question. Also to confirm that the signs meet
    the British Parking Association's Code of Practice Appendix B
    (Entrance signs) or the Independent Parking Committee’s Schedule
    1.

    8. The amount is a penalty, and the penalty rule is still engaged,
    so can be clearly distinguished from ParkingEye v Beavis which the
    Judges held was 'entirely different' from most ordinary economic
    contract disputes for the following reasons:-
    a) The Claimant has no commercial justification
    b) The Claimant did not follow the IPC or BPA Code of Practice
    c) The Claimant is not the landholder and suffers no loss
    whatsoever as a result of a vehicle parking at the location in
    question
    d) The amount claimed is a charge and evidently disproportionate
    to any loss suffered by the Claimant and is therefore
    unconscionable.
    e) The Court of Appeal for the Beavis case made a clear reference
    to the fact that their decision was NOT relevant to pay-per-hour
    type car parks.

    9. 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 representative’s costs'. These cannot be recovered in
    the Small Claims Court regardless of the identity of the driver.

    10. If the driver on the date of the event was considered to be a
    trespasser if not allowed to park there, then only the landholder
    can pursue a case under the tort of trespass, not this Claimant,
    and as the Supreme Court in the Beavis case confirmed, such a
    matter would be limited to the landholder themselves claiming for
    a nominal sum.

    11. 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.

    Therefore I ask the court to respectfully strike out this claim
    with immediate effect.

    I believe that the facts stated in this Statement of defence,
    xx/06/2016 are true.

    Signed: XXXXXXXXXXXXXX
    • Lamilad
    • By Lamilad 7th Nov 16, 4:40 PM
    • 885 Posts
    • 1,857 Thanks
    Lamilad
    • #3
    • 7th Nov 16, 4:40 PM
    • #3
    • 7th Nov 16, 4:40 PM
    Seen as I've got so much going on with Excel at the moment I thought I'd check on this case which I'd pretty much forgotten about. Turns out the claim has been stayed due to the claimant failing to respond to my defence. More vexatious and unreasonable behavious from Excel/ BWL.


    I wonder if I can use this to help my other 2 cases....
    • The Deep
    • By The Deep 7th Nov 16, 4:55 PM
    • 7,004 Posts
    • 6,073 Thanks
    The Deep
    • #4
    • 7th Nov 16, 4:55 PM
    • #4
    • 7th Nov 16, 4:55 PM
    The claimant also claims £54.00 contractual costs pursuant to PCN terms and conditions

    I very much doubt that that was in the signs, and is surely an attempt to obtain monies to which they have no entitlement, fraud in my book.

    Complain to Duncan Allen here

    http://www.sra.org.uk/consumers/problems/report-solicitor.page

    Hundreds of others have.
    You never know how far you can go until you go too far.
    • Fruitcake
    • By Fruitcake 7th Nov 16, 5:10 PM
    • 40,304 Posts
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    Fruitcake
    • #5
    • 7th Nov 16, 5:10 PM
    • #5
    • 7th Nov 16, 5:10 PM
    Have the scammers mentioned Elliot vs Loake? I'm assuming you know that a judge has called it Bunkum and not relevant. Info is on the Prankster's blog site.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Lamilad
    • By Lamilad 7th Nov 16, 5:29 PM
    • 885 Posts
    • 1,857 Thanks
    Lamilad
    • #6
    • 7th Nov 16, 5:29 PM
    • #6
    • 7th Nov 16, 5:29 PM
    Have the scammers mentioned Elliot vs Loake? I'm assuming you know that a judge has called it Bunkum and not relevant. Info is on the Prankster's blog site.
    Originally posted by Fruitcake

    No, they haven't responded to my defence. I am, however, going to use info from the Prankster's blog to slam dunk E vs L in my other 2 cases.
    • Lamilad
    • By Lamilad 16th Mar 17, 9:45 PM
    • 885 Posts
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    Lamilad
    • #7
    • 16th Mar 17, 9:45 PM
    • #7
    • 16th Mar 17, 9:45 PM
    So this is my lesser known 3rd case. As many will know, a lot has happened since I last updated this thread.

    So why am I updating now?... Well, after my most recent success against Excel in Feb I posted a case report which ended with the comment:
    "Is this the end for me and Excel? I'm not banking on it!"

    How right I was... Lamilad vs Excel, Part 3 is taking place on 30th May 2017 at Skipton Court.

    There'll be no hiding away this time... I intend to highlight and expose Excel and BW Legal's stupidity and incompetence for the world to see. I am a product of the forums... This time 9 months ago I didn't even know what PoFA meant, and this week I successfully dealt with my first case as a Lay Rep! That's what the amazing people on these forums can do, they not only advise... They educate!

    Anyway, round 3 - how has this happened? I'm more than a little curious about that myself.......

    This case was stayed back in Oct '16 after the claimant failed to respond to my defence. Then out of nowhere the DQ lands on my doormat. This was 14th Feb - Valentine's day (I think Excel are secretly in love with me... it would certianly explain their obsession with me). Interestingly, this was just 5 days after I'd spanked them in court and took them for costs [malicious intent and vendetta are words that spring to mind]

    I rang the court who said Excel had paid to lift the stay on 13th Feb. I found this hard to believe so I asked for proof they had paid. I was told to I would have to put this request in writing, which I duly did. I sent the DQ back and awaited my response, which never came. During this time I received notice that the case had been transferred to Skipton. I rang the CCBC again who now refused to discuss the case as it was now with Skipton. They did tell me that the claimant had not paid to lift the stay but had sent notice of their intent to continue and this was OK because they had 6 months, 19 days to choose to proceed with the case.

    I was flabbergasted by this statement as it was contrary to everything I had been told by CCBC previously. In fact, I have an email from CCBC team leader Ben Battisson which states:
    "The claimant has 33 days to respond to the defence and confirm whether or not they intend to proceed with the claim.Failure to respond by the deadline would result in the case being stayed. A “stay” prevents the claimant from proceeding further, without submitting an application for consideration by a District Judge to have the stay lifted. There is a £100 administration fee for this application."

    So, I rang Skipton who confirmed the claimant had not paid the fee but had filed an application which had resulted in a district judge lifting the stay. I then emailed Skipton with a series of questions, amongst which...
    'Why has the case been allowed to proceed without the appropriate fee being paid'?
    'Where has this 6 months, 19 days come from'?

    I spoke to them today and they have passed my email to District Judge Skalskyj-Reynolds for consideration. I should hear something soon. Today I received the notice of allocation to the small claims tracks signed by District Judge Lingard

    So that's everything up to now, I think it's fair to say I'll be pushing the 'unreasonable and vexatious behaviour' angle this time. In my mind this case has zero prospect of success, but we're all aware of decisions being made in small claims which defy explanation, so I'm leaving nothing to chance. My bundle will be airtight!

    Just because I've started throwing my weight around the forum a little bit doesn't mean I think I'm an expert.... far from it!.... 'Advanced Newbie', perhaps!

    So, like before, any help, advice, opinions, suggestions, recommendations, plots, ploys, hints, tips or tricks are, as always, very welcome.

    Let battle commence....
    Last edited by Lamilad; 16-03-2017 at 9:48 PM.
    • claretmad62
    • By claretmad62 16th Mar 17, 10:47 PM
    • 189 Posts
    • 173 Thanks
    claretmad62
    • #8
    • 16th Mar 17, 10:47 PM
    • #8
    • 16th Mar 17, 10:47 PM
    Astonishing Lamilad, and given what has happened to me today as you aware ....are things beginning to change with regards to Skipton Courts approach to Excels ludicrous claims
    • Fruitcake
    • By Fruitcake 16th Mar 17, 10:47 PM
    • 40,304 Posts
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    Fruitcake
    • #9
    • 16th Mar 17, 10:47 PM
    • #9
    • 16th Mar 17, 10:47 PM
    I admire your tenacity and wish you well in your endeavours. I'm sure you will be in touch with the likes of the Prankster and bargepole, may they all live for a thousand years, who will guide you as necessary.

    I cannot offer anything other than my support. I cannot understand why someone who has been beaten twice by a wily amateur would attempt a third attempt unless they are mentally unbalanced, vindictive, stupid, or masochistic.

    ... or stupider than stupid.
    Last edited by Fruitcake; 16-03-2017 at 11:26 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • beamerguy
    • By beamerguy 16th Mar 17, 10:53 PM
    • 5,955 Posts
    • 7,670 Thanks
    beamerguy
    oh lamilad, most of us did not know there is a third one.

    I rather think that Skipton court are about to teach Excel and BWLegal a lesson especially when you take into account what
    claretmad62 quoted today regarding an order to Excel

    Yes they have malicious intent and a vendetta and that is the act of simple children

    I think you are brilliant and a person to be highly respected on this forum

    As Fruitcake says, Excel and BWLegal are mentally unbalanced, vindictive, stupid, or masochistic.
    We all know that .... maybe the courts think the same
    Last edited by beamerguy; 16-03-2017 at 10:58 PM.
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Coupon-mad
    • By Coupon-mad 16th Mar 17, 11:04 PM
    • 50,012 Posts
    • 63,416 Thanks
    Coupon-mad
    Lamilad is in touch with me and bargepole, which is generally known by now.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • beamerguy
    • By beamerguy 16th Mar 17, 11:09 PM
    • 5,955 Posts
    • 7,670 Thanks
    beamerguy
    Lamilad is in touch with me and bargepole, which is generally known by now.
    Originally posted by Coupon-mad
    Great .... that is very bad news for Excel and BWLegal
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Lamilad
    • By Lamilad 16th Mar 17, 11:38 PM
    • 885 Posts
    • 1,857 Thanks
    Lamilad
    Lamilad is in touch with me and bargepole, which is generally known by now.
    Originally posted by Coupon-mad
    Indeed it is. It's also fair to say most on here and Pepipoo will know my real identity, but i have no issue with that, I have nothing to hide!

    I will keep this thread updated as the case progresses and post as much detail as is appropriate. But as others will understand from my previous case i will not be posting any thing too specific such as my WS or evidence bundle.

    I'm looking forward to receiving their WS, though probably not as much as CM - she absolutely obliterated their last excuse for one.
    • Lamilad
    • By Lamilad 21st Apr 17, 6:26 PM
    • 885 Posts
    • 1,857 Thanks
    Lamilad
    If Excel/ BWL think they're walking away from this unscathed they've got another think coming...

    https://www.dropbox.com/sh/m06caxr2jwdrpvt/AABOBxL3eVmxSqEw_Z5vGNXla?dl=0
    Last edited by Lamilad; 21-04-2017 at 6:52 PM.
    • Umkomaas
    • By Umkomaas 21st Apr 17, 6:41 PM
    • 14,537 Posts
    • 22,876 Thanks
    Umkomaas
    If Excel/ BWL think they're walking away from this unscathed they've got another think coming...

    https://www.dropbox.com/sh/k9dvxphtiqkxvml/AABXEexzgDBE-k1E24fhA_2Ea?dl=0
    Originally posted by Lamilad
    Running scared by the look of things. I expect their jugular is now in your crosshairs?

    Terrific resolve on your part Lami.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Coupon-mad
    • By Coupon-mad 21st Apr 17, 11:19 PM
    • 50,012 Posts
    • 63,416 Thanks
    Coupon-mad
    If Excel/ BWL think they're walking away from this unscathed they've got another think coming...

    https://www.dropbox.com/sh/m06caxr2jwdrpvt/AABOBxL3eVmxSqEw_Z5vGNXla?dl=0
    Originally posted by Lamilad
    Go for it!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Loadsofchildren123
    • By Loadsofchildren123 23rd Apr 17, 8:18 PM
    • 1,060 Posts
    • 1,849 Thanks
    Loadsofchildren123
    Had you made a DPA counterclaim? If so that obviously still stands. If not, then you write in and say you want to seek costs pursuant to 27.14(2)(g). You could ask for that to be dealt with on paper, or by a hearing.
    • Lamilad
    • By Lamilad 24th Apr 17, 12:04 AM
    • 885 Posts
    • 1,857 Thanks
    Lamilad
    Had you made a DPA counterclaim? If so that obviously still stands. If not, then you write in and say you want to seek costs pursuant to 27.14(2)(g). You could ask for that to be dealt with on paper, or by a hearing.
    Originally posted by Loadsofchildren123
    I didn't counter-claim, but I really really wish I had done. Unfortunately I acknowledged this back in August '16 when I was still a 'wide-eyed Newbie'

    I spoke to Bargepole about issuing my own claim against Excel and/or BWL for either breach of DPA or harassment or, frankly, anyhting that might stick; but he advised that it would be difficult to establish a cause of action for any such claim

    My points of attack would have been based on (among other things) the following:

    * DQ completed by VCS not Excel

    * Issuing 6 separate claims against me - 5 individual and 1 bundled claim. All involving the same car park and the same alleged contravention. potentially making me do all the work 6 times over and taking considerable time off work to attend court.

    * Reviving this (third) claim after leaving it stayed for 5 months

    * Proceeding with this claim just 2 (working) days after the second judgement where it was held as a fact that I, personally, had not driven to that car park since 2011.

    * Proceeding with this claim despite Judge S-R severely reprimanding Jake Burgess - on record - about pursuing 'not the driver' claims where they do not/can not rely on PoFA; and instructing him to "go back to his company" and inform them that they must either comply with PoFA or have proof of the driver if they are to pursue such claims.

    * Excel admitted, in response to the 'request for special directions' (written by Bargepole) that issuing the 3rd, 4th, 5th and 6th claims was "an administrative oversight".... and then they still attempted to proceed with the 3rd claim.

    * Despite Excel agreeing to 'stay' the 3rd, 4th, 5th and 6th claims pending the outcome of my second case in Feb, and judge S-R making an order of the same; Excel/BWL still tried to obtain default judgements against me for the latter 3 cases in January - CCBC informed me of this during a recent phone call.

    * continuing to process my data despite the judgement in my 2nd case removing any prospect of success in all of the other cases, and despite me sending them a section 10 notice in Nov '16

    Bargepole is helping me put together a costs schedule to claim costs up to the point of discontinuance, so, hopefully, they won't get away scot free.

    Still, I'm keeping my options open, and on Coupon-Mad's advice will be sending a formal complaint to the ICO informing them of everything that happened and asking them to investigate how Excel and BWL have used my data - not to mention VCS who despite having nothing to do with me or any of my cases, completed the DQ in the second claim.

    Depending on what comes back from them, a DPA claim may still be on the cards.
    • Loadsofchildren123
    • By Loadsofchildren123 24th Apr 17, 4:39 PM
    • 1,060 Posts
    • 1,849 Thanks
    Loadsofchildren123
    I agree that a harassment claim would be very difficult.

    However, what you could have used that info for (and still could perhaps) is to get an order against them, by showing them to be a vexatious litigant, that they are not permitted to issue any further claims against you without prior leave of the court. Do you want me to look up the CPR Rule for you? If you have to write in and seek costs, then why don't you shove that in to the letter, nothing lost if it doesn't work - you'd need to provide chapter and verse on what you've said above.

    The DPA case seems to be a good one though, and if you keep the value down then the issue fee isn't much. As you know, I'm now involved with these muppets.
    • Lamilad
    • By Lamilad 24th Apr 17, 5:20 PM
    • 885 Posts
    • 1,857 Thanks
    Lamilad
    However, what you could have used that info for (and still could perhaps) is to get an order against them, by showing them to be a vexatious litigant, that they are not permitted to issue any further claims against you without prior leave of the court. Do you want me to look up the CPR Rule for you?
    That would be brilliant, thank you! Definitely like the sound of the order you mentioned.... Would this effectively be an injunction?
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