Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • claretmad62
    • By claretmad62 29th Jan 17, 6:45 PM
    • 183Posts
    • 159Thanks
    claretmad62
    Excel BW again
    • #1
    • 29th Jan 17, 6:45 PM
    Excel BW again 29th Jan 17 at 6:45 PM
    Hi to all

    Spent quite a bit of time reading others threads, finding it all a big learning curve.


    State of play, Excel along with BW currently chasing my wife for a PCN from early 2012 (pre PoFA) On her behalf I have been corresponding with BW and at the moment we are 20 days into County Court sending our initial defence to the claimant. Been on with the WS, as it's over 5 years ago we've not got a clue who was driving....quite a few people have used my wife's car historically. There seems to be different views on what should be in the WS, and what we should take to the hearing as our court bundle. As it's pretty PoFA, what do you think our plan of defence/ attack should be


    Cheers
Page 13
    • Coupon-mad
    • By Coupon-mad 10th Jun 17, 10:04 PM
    • 48,025 Posts
    • 61,472 Thanks
    Coupon-mad
    I have written something already, to the effect of that's not possible(signage) as my PCN states £60.00 fine discounted to £40.00. Your photos of the sign clearly show £100 & £60.
    Comedy gold. Well done, BW Legal!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • claretmad62
    • By claretmad62 10th Jun 17, 10:13 PM
    • 183 Posts
    • 159 Thanks
    claretmad62
    Nice to hear from you CM.....yes I can't believe they continue with this and still don't look at the PCN they sent out.
    cm62
    • Coupon-mad
    • By Coupon-mad 10th Jun 17, 10:13 PM
    • 48,025 Posts
    • 61,472 Thanks
    Coupon-mad
    Been a bit busy with very long days at work.

    You are right to tear the WS apart, and once you start looking it's easier than it seems when you were first faced with it.
    Last edited by Coupon-mad; 11-06-2017 at 6:09 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • claretmad62
    • By claretmad62 10th Jun 17, 10:25 PM
    • 183 Posts
    • 159 Thanks
    claretmad62
    It's astonishing the amount of time and support you and others give on this forum, I often wish I didn't ask as much as I do, but for the 1st time in my life....something just doesn't come easy. As I said earlier..if I could get a look at Lamilads Excel WS (me and excel at war) thread I could cobble something together using your comnents......I think.
    cm62
    • Coupon-mad
    • By Coupon-mad 10th Jun 17, 11:02 PM
    • 48,025 Posts
    • 61,472 Thanks
    Coupon-mad
    Lamilad might find it quicker than me, perhaps. I'm sure we will.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • beamerguy
    • By beamerguy 10th Jun 17, 11:06 PM
    • 5,507 Posts
    • 7,082 Thanks
    beamerguy
    Just google

    >>>>> me and excel at war

    http://forums.moneysavingexpert.com/showthread.php?t=5490298
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • claretmad62
    • By claretmad62 10th Jun 17, 11:11 PM
    • 183 Posts
    • 159 Thanks
    claretmad62
    Found it on his thread beamerguy, but link now broken
    cm62
    • beamerguy
    • By beamerguy 10th Jun 17, 11:17 PM
    • 5,507 Posts
    • 7,082 Thanks
    beamerguy
    Found it on his thread beamerguy, but link now broken
    Originally posted by claretmad62
    OK, well lami will be along, I'm sure he's still hitting the champers
    celebrating the whooping of Excel and BWLegal

    Or as the scots will say

    "The Muckin' o' Geordie's Byre"
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Lamilad
    • By Lamilad 11th Jun 17, 1:34 PM
    • 696 Posts
    • 1,526 Thanks
    Lamilad
    I'll try have a look a look at their bundle later. Bar a couple of fleeting visits I haven't been able to spend much time on the forum lately

    Here's a link to my WS but I'm not sure it will be much use to you as it challenges a WS written by Excel's own litigation team not BWL.

    https://www.dropbox.com/s/1ywkfurts8e25ms/My%20WS.docx?dl=0
    • claretmad62
    • By claretmad62 11th Jun 17, 2:10 PM
    • 183 Posts
    • 159 Thanks
    claretmad62
    It was the "me and excel at war" thread. Was the WS from BW on that...you put it up at one point but link now gone. Can you email it to me ?
    cm62
    • claretmad62
    • By claretmad62 11th Jun 17, 2:14 PM
    • 183 Posts
    • 159 Thanks
    claretmad62
    Sorry just looked again, it was from Anita Dile....Excel I think
    cm62
    • Lamilad
    • By Lamilad 11th Jun 17, 2:29 PM
    • 696 Posts
    • 1,526 Thanks
    Lamilad
    The link above is from the at war thread. BWL were not involved in that case.
    • claretmad62
    • By claretmad62 11th Jun 17, 4:01 PM
    • 183 Posts
    • 159 Thanks
    claretmad62
    Cheers, thanks Lamilad....when you've a spare minute....if you could link their WS. I know it's Excel, but assume they are very similar in the way they are put together.
    cm62
    • Lamilad
    • By Lamilad 11th Jun 17, 9:18 PM
    • 696 Posts
    • 1,526 Thanks
    Lamilad
    Nabeela Ahmed states "I have conduct of this action" which invites you to challenge RoA of whichever rep turns up.

    In P8 they say it was the RK and/or the driver who didn't purchase a PDT...

    So, on one hand they're saying it was the RK OR the driver that breached the terms.... Err No! It can be ONLY the driver that was involved in any alleged 'breach'

    On the other hand they say it was the RK AND the driver that breached the terms....
    Hmmm, ok so they there are now TWO beaches are there? And the RK has somehow breached a contract that was only offered to the driver. - incoherent nonsense!

    You will dispute 9 & 10. They claim the site benefitted from "highly prominent signs" yet can't prove it. NA states she is instructed that signs (which are from a different time) were the same at the material time. The fact she is "instructed" is not good enough, it is NOT proof. The claimant is being held to strict proof - that is their burden and they must discharge it with solid, relevant evidence.

    P11 is disputed for the reasons you have already stated - the fact they claim the signs say one thing (£100/60 charge) whereas their NTK states another (£60/40). Both cannot be true and either one being wrong (which one definitely is) is fatal to their claim. The fact they have stated something in their WS which they know is not true, and signed it with a statement of truth means they are knowingly and deliberately giving false evidence to the court. So you need to mention 'contempt of court' and 'perverting the course of justice'
    • Lamilad
    • By Lamilad 11th Jun 17, 10:17 PM
    • 696 Posts
    • 1,526 Thanks
    Lamilad
    In p12 they state there was 'adequate signage for the T&Cs to have sufficiently been brought to the attention of any motorist using the car park'..... This is where you go all out attack on their woeful signage

    Firstly you state that this point is irrelevant as you were not the driver, you were not there for any T&Cs to be 'brought to your attention, whether 'adequately proclaimed or not. You were not the driver, you did not see any T&Cs, you did not enter into any contract, and you are not liable for any charge.

    You have viewed the pics of signs included in the claimant's bundle and notwithstanding you were not the driver and have no liability as the RK, and that the claimant has failed to prove that these were the signs on display at the material time - you have made the following observations which prove that, in any case, the claimant's signs are incapable of forming a contract:

    The defence submits that the wording on the signs was so small, illegible and insignificant that it would not be noticed by a reasonable person.

    It is established in law that a contract cannot be formed unless the terms are sufficiently brought to the attention of the person to whom the contract is being offered

    In their bundle the claimant shows several pictures and photographs of the signs they claim “clearly and prominently” state the T&C’s for parking. It is plain to see that the text is tiny and illegible. Even in these ‘close up’ pictures the T&C’s are unreadable as is the PCN charge of £100.

    The defence submits that the T&C’s for parking including the PCN charge of £100 would not have been sufficiently brought to the attention of the driver and therefore cannot be incorporated into any contract as a core term.

    This Claimant is known for incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' £53.50 costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park.

    Mr Cutts' own published article '‘Phoney fines and dodgy signs take drivers for a ride'' which is specifically about Excel's signs is Exhibit ?

    It is worth noting that Mr Cutts manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

    It is also worth noting that Simon Renshaw-Smith – previously known as 'Captain Clampit' (as evidenced by a simple google search) who runs Excel, attacked the Judge’s integrity. He wrote to Stockport MP Andrew Gwynne: ‘The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts.’

    Mr Cutts encounter with Excel was discussed in the BBC television programme “Watchdog” which was heavily critical of Excel’s signage and tactics. I enclose the link here as Exhibit

    It is clear to see from the link above, and Exhibit ?, that the nature, style and design of the Excel signs is essentially the same in this case as it was then.

    As well as the wording on signs in question being small, unclear and ‘not prominent’, it also did not comply with the British Parking Association (BPA) Code of Practice (“CoP”). The Claimant was a member of the BPA at the time and committed to follow its requirements – as referred to in paras 38-42 of their WS. The fact they did not follow those requirements means no contract was formed with driver

    The defence refers to Exhibit ??, extracts from the BPA code of practice regarding signage, and specifically to paras 18.3 and 18.6.

    Referring again the images of signs in the claimants bundle it is clear that the claimant does NOT comply with the BPA CoP

    The Supreme Court Judges in the case of ParkingEye [PE] v Beavis [2015] (“Beavis case”) held that a CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.

    The BPA CoP also states that there should be strong colour contrast between text and background. Black on white is recommended as a good example.

    The dominant colours on Excel signs are blue and yellow against a background packed with confusing patterns and symbols. The defence refers to Exhibit ? which states that the colours used in Excel’s parking signs actually makes them very difficult to read.

    Excel’s signs are a mass of confusing and contradictory words. The icon showing the PCN charge of £100 is hidden away at the bottom of the sign in the small print. It is not prominent nor obvious.

    Last edited by Lamilad; 11-06-2017 at 10:21 PM.
    • Lamilad
    • By Lamilad 11th Jun 17, 10:32 PM
    • 696 Posts
    • 1,526 Thanks
    Lamilad
    Now it's time for you to rely on the Beavis case - which, for once, they don't seem to be doing.....

    The defence relies on the case of ParkingEye [PE] 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 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.

    There are many significant and crucial differences. In the Beavis case one of the key factors was the clear and prominent signage in the car park. The parking charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There could be no doubt of the £85 charge.

    The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

    Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

    Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”

    Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

    Regarding the sign referred to in the Beavis case, which I enclose as Exhibit ???. When this is compared to the excel car park signs in the claimants bundle, the defence submits that no reasonable person would agree that their terms are similarly “brief, clear and prominently proclaimed”.


    Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample and the charge clear.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA CoP, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

    Indeed in the Consumer Rights Act there is a 'Requirement for transparency':

    1. A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

    2. A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    As above the Beavis case signs are not similar to the signs in this appeal at all. I submit that the persuasive case law is in fact Exhibit E – 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently being found that they were not bound by them.

    This judgment is binding case law from the Court of Appeal.

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established
    Last edited by Lamilad; 11-06-2017 at 10:38 PM.
    • Lamilad
    • By Lamilad 11th Jun 17, 10:37 PM
    • 696 Posts
    • 1,526 Thanks
    Lamilad
    I presume you already know how to rebut their reliance on EvL and AJH films for which you will be referring to the recent Daz Clayton case?
    • Umkomaas
    • By Umkomaas 11th Jun 17, 10:49 PM
    • 13,571 Posts
    • 21,270 Thanks
    Umkomaas
    I presume you already know how to rebut their reliance on EvL and AJH films
    AJH Films here -

    http://parking-prankster.blogspot.co.uk/2017/06/motorist-wins-appeal-cps-vs-ajh-films.html
    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.
    • Lamilad
    • By Lamilad 11th Jun 17, 10:49 PM
    • 696 Posts
    • 1,526 Thanks
    Lamilad
    You also need to point out (though it is glaringly obvious) that most of their WS is reliant on their assumption that the RK was the driver. This has already been denied and they have offered nothing in terms of proof or persuasive argument to suggest otherwise.

    The have completely failed to discharge their burden of proof yet they constantly refer to the defendant as if they know she was the driver e.g. 'the defendant failed to purchase a PDT'...... 'The defendant breached the T&Cs.......'

    This is a blatant attempt to mislead the court and the fact EvL cannot be relied upon renders most of their WS completely irrelevant.
    • claretmad62
    • By claretmad62 12th Jun 17, 7:40 AM
    • 183 Posts
    • 159 Thanks
    claretmad62
    Thanks Lamilad, Umkomaas, sorry didn't respond....early night.
    Will go over everything tonight taking into account all your comments,
    cm62
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

376Posts Today

4,351Users online

Martin's Twitter
  • Byebye! I'm about to stop work & twitter, to instead spend glorious time with Mrs & mini MSE. Wishing u a lovely summer. See u in 10 days.

  • WARNING Did you start Uni in or after 2012? The interest's rising to 6.1%; yet it doesnt work like you think. See https://t.co/IQ8f0Vyetu RT

  • RT @JanaBeee: @MartinSLewis Boris is the anomaly (coffee), the others are versions of normal (beer). Lots of same candidates = vote share d?

  • Follow Martin