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    • Hotchocolate
    • By Hotchocolate 2nd Apr 17, 10:51 AM
    • 42Posts
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    Hotchocolate
    Excel BW Legal 2012 court claim faulty machine.
    • #1
    • 2nd Apr 17, 10:51 AM
    Excel BW Legal 2012 court claim faulty machine. 2nd Apr 17 at 10:51 AM
    Hi all,
    To cut a long story short I have just received my court claim form and am in the process of preparing my defence.

    MCOL is down at the moment but following the great advice on the newbies thread I will be doing my AOS when its back up.

    Background.
    In January 2012 the driver parked on Temple Street Wolverhampton but the ticket machine was faulty and would not accept full registrations. The parking attendant told everyone to just type a single letter, which worked.
    This the driver did and a few weeks later received the PCN from excel.

    Anyway i appealed to excel at the time sending a copy of the ticket purchased but to no avail and after many threats they stopped contacting me. I was prepared to go to court at the time.

    Fast forward to August 2016 and in pops BW legal after payment for the same ticket. I have lost the original but still have the email copy which was sent over.

    No good though court papers landed yesterday.

    Hopefully I can get some tips on my defence im looking at:

    1. Im the registered keeper but not the driver, I have never named the driver.

    2. Ticket purchased and contract variation mutually agreed at the time.

    3. Faulty machine.

    4. Claim form states 'Snow Hill', not correct location.

    5. Im a layperson please be gentle.


    Things like signage may not come into my defence but I will be sending a part 18 request to excel for more information, incuding original pcn, machine fault and maintenence history, list of pcns issued on that day.

    Any help with this much appreciated.
    Last edited by Hotchocolate; 02-04-2017 at 12:25 PM.
Page 3
    • Coupon-mad
    • By Coupon-mad 14th Apr 17, 9:20 PM
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    Coupon-mad
    But they won't get the driver's address. As already covered in depth. Omit it.

    Unless BW legal's business model is based on losing every court case and just going after the low hanging fruit who pay up regardless
    You've actually summed up exactly what it appears to be. The above is what these robo-claim firms do.

    I'm starting to think having faulty machines is very profitable for them.
    Correct. There are so many ways this nasty industry tip the balance against consumers, setting people up for a fall (dodgy signs, lines, machines, timers, predatory tactics, altered photos, pretending a keeper can be liable anyway, despite not using the POFA, are just a few examples).

    And when given the chance, even the bl@@dy Supreme Court couldn't see it for what it was - an unrecoverable penalty against Mr Beavis who was delayed by Staples and committed no crime/contravention worthy of paying £85 to some random, detested stealth camera parking firm.

    So what hope do we have of ending this predatory rip-off in the long term? All we can do is win the battles, like yours, until finally someone in power with the ability to act, actually notices there is a war that needs wining too.
    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.

    • Loadsofchildren123
    • By Loadsofchildren123 18th Apr 17, 12:20 PM
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    Loadsofchildren123
    1. I am the registered keeper for the vehicle XXXXXXX but was not the driver at the time so no contract excists between myself and Excel Parking Services Ltd.
    a) The driver at the time will be providing a witness statement to identify themselves.
    [s]b)[s/]
    2. The event claimed occured before the Protection of Freedoms Act (POFA) was introduced so registered keeper liability does not apply and I cannot be liable for the charge claimed against me.

    2. The driver at the time informed me there was problems with a faulty pay and display ticket machine at the alleged location.
    a) The machine was not accepting full registration numbers.
    b) A parking attendant on site informed the driver to just enter the letter 'A' into the machine in order for it to produce a valid ticket.
    c) There was no other machine on site.
    d) A copy of this ticket has been sent to Excel Parking Services Ltd and will be included with the witness statement.
    [I've deleted this - it's not part of your defence, it's part of the driver's defence, so leave it for them to say this]

    3. The claim form states the PCN was issued at 12:05:05 on 07/01/2012. The parking ticket purchased was valid from 11:49 till 12:49 on 07/01/2012.

    4. The claimant have never disputed a ticket was purchased once it was shwn to them only disputed that a contract breach occured due to a full and correct registration not being entered. They therefore have no losses to claim for.

    5. As the fault with the machine was out of the drivers control I believe the case of Jolley V Carmel Ltd [2000] 2 EGLR 154 applies where it was held that a party who makes 'reasonable endeavours' to comply with a contracts terms should not be penalised for breach when unable to comply with the terms.
    a) Especially as a parking attendant who could reasonably be regarded as an Excel representative was giving instructions to just enter a single letter 'A' into the faulty machine.
    b) As the letter of the contract (Offer/Acceptance/Consideration) is still intact I believe 'de minimis non curat lex'' also applies here, in that the law does not concern itself with trifles as the claimant have suffered no losses.


    6. As the claimants legal representative (BW Legal Services Ltd) have constantly in our communications to try and get me to pay this PCN stated I could reasonably be considered the driver and used legal cases [Beavis vs ParkingEye and Elliot vs Loake] to enforce this argument I feel it neccesary to rebut these in this defence statement.
    a) The Beavis case did not concern any presumption of who was driving: in that case the Defendant admitted he was driving, and accepted that a contract had been formed between himself and the Claimant.This case differs from Beavis vs ParkingEye as the car park in this claim was a pay and display car park not a free car park as in the Beavis vs ParkingEye case.
    i) In the Beavis vs ParkingEye case there was an undenied contract.
    ii) In the case of ParkingEye vs Cargius it was held that the Beavis vs ParkingEye case did not apply as parking was paid for rather than free for a limited period.

    b) This case differs from Elliot vs Loake as that was a crimminal case with foresic evidence which identified to help identify the driver who had lied. That cannot apply here as the driver will be supplying a witness statement. There is no presumption at law that the Defendant, as the registered keeper of the vehicle, was its driver at the time.
    c) Barrister, Parking Law Expert and POPLA lead adjudicator Henry Greenslade from 2012 to 2015 stated in POPLA's 2015 annual report:
    "However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.''

    7. A formal request has been made to the claimant for more information which has been acknowldeged by their legal representative (BW Legal Services Ltd), the details I am awaiting are:
    a) Copy of original PCN notification.
    b) Copies of signage at the time.
    c) Sevice, maintenence, faulty history of the pay and display ticket machine.
    d) Lease/parking management agreement with the landholder, believed to be Wolverhampton City Council.

    8. In addition to the original parking charge believed to be £100, for which liability is denied, the claimant's legal representatives 'BW Legal Services Ltd' have artificially inflated the value of the claim by adding various 'Solicitor Costs' of £54.00 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 Services Ltd to the Solicitors Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their code of conduct.

    9. The Court is invited to dismiss the claim, and to allow such defendants costs as are permissible under Civil Procedure Rule 27.14.
    • Loadsofchildren123
    • By Loadsofchildren123 18th Apr 17, 12:36 PM
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    Loadsofchildren123
    I agree with nigelbb - this is YOUR defence, not the driver's. So keep it limited to "I was not driving and cannot be held liable as keeper".


    I wouldn't put them on notice that the driver will be identified. It isn't actually party of your defence anyway. Just do it at WS stage (and in your Directions Questionnaire, which the court will send you as the next stage of the process, say that you intend serving evidence from 2 witnesses).


    I think also delete para 7 because for the purpose of the defence it's irrelevant. This should be included in the WS instead, in the bit where you say you weren't driving. Where you say you weren't driving (in your WS) produce evidence to back that up in order to avoid the court making a finding that you were driving. Eg insurance showing multiple drivers, evidence that you used a different car, a paragraph to say that x number of people regularly used that car and so on.


    Always focus on what is your defence - that you weren't driving and can't be liable as keeper.


    The driver's defence is different, but should be included in the evidence stage - firstly and most importantly promissory estoppel/variation to the contract offered by signage (if any) by the attendant, followed by no loss, inadequate signage that can't have formed a contract either by the manner in which it was obscurely displayed or by forbidding wording (or both), reasonable endeavours as set out in the Jolley case, failure of duty to mitigate losses as set out in VCS v Ibbotson (where the on site attendant smiled at the driver and said hello, and watched him walk off the site which was against the t&cs - court said attendant should have warned the driver as part of the Claimant's duty to mitigate its losses), entrapment as a deliberate ploy (if there was a windscreen ticket or if the parking attendant did anything to record the driver as having parked without authority/against the t&cs).


    I think you should write to BW to ask them to identify the parking attendant and confirm that he will be providing evidence and will attend court for the final hearing.
    • The Deep
    • By The Deep 18th Apr 17, 12:48 PM
    • 6,679 Posts
    • 5,663 Thanks
    The Deep
    Does it really matter who, (perhaps RK, perhaps not) was driving?

    Somebody paid and the machine issued a faulty ticket On the basis of that ticket the PPC are alleging that the RK was the driver and bilked?

    What evidence do they have of either? Do they think that the Parking Weasel can identify the driver? Is the PW willing to perjure himself and tell the judge that the machine was acting correctly?

    Unless the answer to both those questions is yes, the PPC has nothing.
    Last edited by The Deep; 18-04-2017 at 12:50 PM.
    You never know how far you can go until you go too far.
    • Loadsofchildren123
    • By Loadsofchildren123 18th Apr 17, 12:54 PM
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    Loadsofchildren123
    Your post #36:
    add to the defence this wording:


    10. The Defendant's position is that this Claim is a complete waste of the court's valuable time and is an abuse of process. The Claimant has since 2012 been aware that the driver paid for and displayed a ticket for the entire period the vehicle was parked. The only matter in dispute concerns the information that was entered onto the ticket. This is of course a matter between the driver (who was not the Defendant) and the Claimant. However, what is relevant is that the Claimant admits that the driver paid for the entire period of parking. Therefore, it Claimant has not suffered any loss whatsoever. It is vexatious of the Claimant to seek to pursue a claim where it has suffered absolutely no loss and where the sole dispute is over whether the correct information had been entered onto the ticket.


    11. The Defendant believes that his data has been wrongfully retained for a period of in excess of 5 years and reserves his position in relation to a claim for damages for breaches of the Data Protection Act.




    That reminds me: at paragraph 8 above, you need to say that £x has already been paid by the driver towards the cost of the parking, and the Claimant should have deducted that from the amount it now says is owed by the Defendant (the registered keeper of the vehicle). [the amount they should have deducted is whatever the driver paid on the day - although POFA wasn't enacted at the time, it is now, and it says that whatever has already been paid MUST be deducted from anything a keeper is ordered to pay - para 4(5) - if POFA doesn't apply and you are liable as driver, then still this payment should be deducted
    • Loadsofchildren123
    • By Loadsofchildren123 18th Apr 17, 1:05 PM
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    Loadsofchildren123
    Does it really matter who, (perhaps RK, perhaps not) was driving?

    Somebody paid and the machine issued a faulty ticket On the basis of that ticket the PPC are alleging that the RK was the driver and bilked?

    What evidence do they have of either? Do they think that the Parking Weasel can identify the driver? Is the PW willing to perjure himself and tell the judge that the machine was acting correctly?

    Unless the answer to both those questions is yes, the PPC has nothing.
    Originally posted by The Deep

    RK appealed the ticket, didn't identify himself as driver and says he wasn't driving.


    RK's case that he wasn't driving and can't be liable as the parking event was pre-POFA.


    I agree all the stuff about the faulty machine and what the attendant says is a good defence. However, it's the driver's defence, not his, although it's clearly relevant.


    My fear is that if he just denies he was the driver, but then puts in all that evidence, he looks like he was and the court may well make a finding that he was. So really he either has to say I know who the driver was and this is what they told me (which is then treated as hearsay: judge may think he was the driver if he knows all of this info and may be irritated by the refusal to be open and identify the driver, even though he has no obligation to do so) or he has to produce that evidence from the horse's mouth by putting a statement in from the driver.


    IMO his defence is simple: wasn't driving, can't be liable as keeper. Putting evidence in from the driver is designed to avoid a finding in THIS claim that the OP was driving, but it is of course also to put the PPC off then pursuing the driver afterwards in a new claim. Particularly if the DJ makes any adverse comments about the PPC's position viz a new claim v. the driver.


    I have no hesitation in saying that the PW is likely to perjure itself and claim the machine was working. They perjure themselves all the time and don't care - they think as it's small claims the court won't care and won't be inclined to go down that route.
    • Loadsofchildren123
    • By Loadsofchildren123 18th Apr 17, 1:24 PM
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    Loadsofchildren123
    Change para 1:


    1. The Defendant admits that he is the registered keeper of the vehicle XXXXXXX.
    2. The Defendant admits that at [time] on [date] the vehicle was parked in [site]. However, he denies that he was driving the vehicle at the time, and therefore no contract can exist him and the Claimant, and there is no cause of action against him in contract and/or trespass.



    then you need to introduce the discrepancy between the PCN and the Claim form which state two different sites:
    3.The parking charge, which forms the basis of this Claim, was brought to the Defendant's attention by the driver of the vehicle at the relevant time, and related to parking in [site]. However, the Particulars of Claim identify a completely different location, and state that the vehicle was parked at exactly the same time and on exactly the same date in [second site]. The Defendant denies that the vehicle was ever parked in [second site]. Due to the fact that his vehicle was never parked in [second site], as claimed, this Claim is bound to fail.


    Then I'd suggest your defence follows from the original para 6 onwards, as I've amended it.


    There are some typos but I haven't changed those, I've only changed material things. You also need to refer to yourself as the Defendant, in the third person, rather than as "I".
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