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  • FIRST POST
    • ElParque
    • By ElParque 4th Apr 17, 10:54 PM
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    ElParque
    My Witness Statement is due
    • #1
    • 4th Apr 17, 10:54 PM
    My Witness Statement is due 4th Apr 17 at 10:54 PM
    and my skeleton defence if I have to send that to the court with the WS.

    This was my defence (sent to the court earlier)

    1. It is acknowledged that the defendant, xxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle.

    2. I deny any liability in this claim, and any debt is denied in its entirety. The date of the alleged incident is [pre Oct] /2012 which is nearly 5 years ago. How can anyone be expected to remember where they may have parked a car or if they were driving on one random day five years ago? I certainly do not remember getting a 'ticket' and had I have done I certainly would remember. Further the car in question is one on which, according to my insurance policy, I was not the main driver and indeed, with access to another car, I very rarely drove this car.

    3 It is extremely unreasonable for the claimant to store DVLA data for 5 years then pounce with a claim with no due diligence nor evidence, in the hope that I do not have any paperwork relating to this alleged debt (which I don't). It is even more unreasonable that, having made no attempt whatsoever to contact me for years -and knowing that keepers could not be held liable for parking charges in early 2012 anyway - the Claimant has the audacity to try to ask the court for the right to claim statutory interest at 8% from date of incident (£35.70). The long delay is clearly the fault of the Claimant and should not be used as an excuse to effectively try double recovery.

    4. The claimant may seek to rely on the case of Elliot v Loake and seek to persuade the court that this case created a precedent which amounts to a presumption that the registered keeper is the driver, with no evidence or admission to prove its allegations. In the Elliot v Loake case the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil matter.

    I would bring to the courts attention two recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, (Excel v Mr C C8DP37F1 Stockport 31/10/2016) and (Excel v Mr B C7DP8F83 at Sheffield 14/12/2016)

    Furthermore The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. It can be seen the date of the alleged contravention is 20/01/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.

    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" (POPLA report 2015). It seems Excel Parking Services Ltd think they know better.

    5. The claim form itself also gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way. Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

    In the pre court stage the Claimant’s solicitor did not send me a Letter before Action so I have
    a) No summary of facts on which the claim is based.
    b) No list of the relevant documents on which the claimant intends to rely and
    c) I wasn't offered any form of possible negotiation.

    6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

    7. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a Part 18 request to the claimant's solicitors on xxxxxx. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd, and no proof has been provided.

    8. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

    9. It is submitted that (apart from properly incurred court fees) the added 'contractual costs' of £54 and the £50 legal representative's costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant. I have not been shown any evidence that the deliberately indistinct, almost illegible and unlit signs in the car park refer to these amounts.

    10. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the ParkingEye Ltd v. Beavis case:
    a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
    c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
    d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    e) Absent the elements of a contract, there can be no breach of contract.

    Further, 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. I will include in my evidence, Mr Cutts' own published article '‘Phoney fines and dodgy signs take drivers for a ride'' which is specifically about Excel's signs.

    11. It is expected that this Claimant may try to counter that article about their signs but it is worth noting that the Judge agreed with Mr Cutts, who is something of an expert on clear terms as he manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

    12. It is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel Parking Services, is in the public domain as having attacked the Judge’s integrity in the Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith 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'.

    13. I am aware that the only ticket-machine at this site is prone to be faulty. I therefore ask that the claimant produce evidence that no payment was made that day in relation to the incident and indeed that the ticket machine was working at the time the parking notice was issued.

    14. Excel Parking Services Ltd are not the lawful occupier of the land. 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.

    15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I request the court strike out this claim for the reasons stated above.

    Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.


    Since I posted my defence I have received their 'evidence' which consists of some slightly contradictory statements and partly illegible photos.

    A letter to me says that the parking attendant wasn't able to fix the ticket to the car because the driver drove away but the parking ticket itself says that the driver handed back the ticket to the attendant.

    The letter says that the ticket was issued at 11:05 but the photos of my car show the time as 11:06. If the ticket was issued at 11:05 then the attendant took photos, why wasn't he/she able to fix the ticket to the car? Did they make up the part about handing the ticket to the driver? Is it worth pursuing this line of defence?

    The ticket itself identifies the driver as a male so I know that the driver must have been one of my three sons (all qualified to drive) because it wasn't me (Now that they have told me what happened that day, I'd have remembered this incident). The main driver according to the insurance doc is female though I haven't been able to get a copy of the insurance.

    They claim that the driver stayed 50 minutes after the expiry of his ticket although the photo evidence they have of the displayed ticket is completely illegible.

    Anyway, all that being said... I have no evidence of the signage at the time and the car park is now run by another firm. I think my main defence is that the case is pre-2012.

    In my defence I refer to some case law. Do I have to print out transcripts/judgements in those cases as part of my WS or evidence or just state the relevant part of the case?

    Parts of my defence seem no longer relevant.

    Any advice as to how to proceed from here?
Page 1
    • Coupon-mad
    • By Coupon-mad 5th Apr 17, 1:14 AM
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    Coupon-mad
    • #2
    • 5th Apr 17, 1:14 AM
    • #2
    • 5th Apr 17, 1:14 AM
    Anyway, all that being said... I have no evidence of the signage at the time and the car park is now run by another firm. I think my main defence is that the case is pre-2012.
    Yes, agreed. You should show as evidence, proof that the POFA was enacted on 1.10.2012.

    In my defence I refer to some case law. Do I have to print out transcripts/judgements in those cases as part of my WS or evidence or just state the relevant part of the case?
    Print them as evidence for the court (you can get away with emailing the other side's solicitors, no printing needed, but copy in one of your OWN email addresses and print out the proof it was received & when and who the recipients were, and put that proof of emailing in your court bundle to bring with you on the day.

    Parts of my defence seem no longer relevant.

    Any advice as to how to proceed from here?
    Which bits?
    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.

    • ElParque
    • By ElParque 5th Apr 17, 2:09 AM
    • 60 Posts
    • 54 Thanks
    ElParque
    • #3
    • 5th Apr 17, 2:09 AM
    I'm just weary of this nonsense and lacking confidence...
    • #3
    • 5th Apr 17, 2:09 AM
    The bits that are not relevant are;

    The machine wasn't broken on the day (if the ticket in my car was from that day)

    I can't get hold of an insurance document for the year in question.

    I have found a photo of the signage but from 2015. Should I use it? It's 3 years after my case. (Can't link it)

    Should I just go all out on the pre-POFA argument? Is that a winning tactic if I can convince the judge of its legitimacy (all things being equal)?
    • Coupon-mad
    • By Coupon-mad 5th Apr 17, 4:29 PM
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    Coupon-mad
    • #4
    • 5th Apr 17, 4:29 PM
    • #4
    • 5th Apr 17, 4:29 PM
    Should I just go all out on the pre-POFA argument? Is that a winning tactic if I can convince the judge of its legitimacy (all things being equal)?
    Originally posted by ElParque
    Yes, that and attacking THEIR evidence on the day, because they have to file their evidence and WS too and it will include signs (maybe they will only have photos from the wrong year, 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.

    • Guys Dad
    • By Guys Dad 5th Apr 17, 4:59 PM
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    Guys Dad
    • #5
    • 5th Apr 17, 4:59 PM
    • #5
    • 5th Apr 17, 4:59 PM
    You wrote
    "The date of the alleged incident is [pre Oct] /2012 which is nearly 5 years ago. How can anyone be expected to remember where they may have parked a car or if they were driving on one random day five years ago? I certainly do not remember getting a 'ticket' and had I have done I certainly would remember."

    If their side says they do remember and you don't , then that does you no good at all.

    All you needed to say was that they identified the driver as male. You are female and were not driving on the day. This was before POFA and it could have been one of 3 or 4 regular male drivers, but none of them can recall the events of 5 years ago.

    Pre-POFA, keeper liability did not exist and if the attendant had a camera, he was in a position to photograph the driver to aid identity.

    But you can not be held liable.
    • ElParque
    • By ElParque 5th Apr 17, 7:30 PM
    • 60 Posts
    • 54 Thanks
    ElParque
    • #6
    • 5th Apr 17, 7:30 PM
    • #6
    • 5th Apr 17, 7:30 PM
    You wrote
    [/I]If their side says they do remember and you don't , then that does you no good at all.

    All you needed to say was that they identified the driver as male. You are female and were not driving on the day. This was before POFA and it could have been one of 3 or 4 regular male drivers, but none of them can recall the events of 5 years ago.

    Pre-POFA, keeper liability did not exist and if the attendant had a camera, he was in a position to photograph the driver to aid identity.

    But you can not be held liable.
    Originally posted by Guys Dad
    I'm all for being able to decide on one's own gender but still I'm not sure anyone would necessarily believe I was female. The point is that one of my kids must have been driving the car that day. If the evidence from the attendant can be believed then my wife was not the driver. That's all we know.
    • Guys Dad
    • By Guys Dad 5th Apr 17, 7:42 PM
    • 9,994 Posts
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    Guys Dad
    • #7
    • 5th Apr 17, 7:42 PM
    • #7
    • 5th Apr 17, 7:42 PM
    Sorry - wrong conclusion drawn from paragraph "The ticket itself identifies the driver as a male"
    • ElParque
    • By ElParque 14th Apr 17, 3:31 PM
    • 60 Posts
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    ElParque
    • #8
    • 14th Apr 17, 3:31 PM
    How do I find Judgements from court cases?
    • #8
    • 14th Apr 17, 3:31 PM
    Or where do I find them?

    I'm trying to find judgements or transcripts from Excel v Mr C C8DP37F1 and Excel v Mr B C7DP8F83 to use as evidence in my case. (I referenced them in my defence).
    • ElParque
    • By ElParque 14th Apr 17, 3:59 PM
    • 60 Posts
    • 54 Thanks
    ElParque
    • #9
    • 14th Apr 17, 3:59 PM
    Witness Statement - I'm lost
    • #9
    • 14th Apr 17, 3:59 PM
    Do I need any more than this?

    WITNESS STATEMENT

    1. I, xxxx, xxxxxam the defendant in this claim. The facts in this statement come from my personal knowledge.

    2.As the keeper of the car at the centre of this claim, in early August 2016 I received a letter from BW Legal threatening to pursue me for a £100 PCN and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions. Because this correspondence and subsequent claim came many years after the date of the alleged incident and because Excel Parking Services (EPS) have now been kicked off the car park in question I am unable to produce anything other than a photo of the signage at the car park from 2015 (see exhibit 5) but, unless the signs were clearer in 2012 than they were in 2015 it can be seen from my evidence that no such reference to £54 legal costs is made on the signs in the car park. I think it unlikely that EPS changed their signage between 2012 and 2015 to remove the reference to the £54 costs.

    3. The incident occurred more than five years ago. There were 5 people in my family who could have been driving the car on the day in question. Anyone with a car insurance policy could have driven the car with my permission. My evidence (exhibit 1 and 2) shows that according to the insurance policy I was not the main driver of the car and indeed I very rarely did drive the car. I cannot remember the incident. I have no idea who was driving.


    I believe that the facts stated in this Witness Statement, are true.

    Signed: Date: 11/04/17
    • Coupon-mad
    • By Coupon-mad 14th Apr 17, 4:15 PM
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    Coupon-mad
    (EPS) have now been kicked off the car park
    Not 'kicked off' in a legal submission - no slang! Also having 'exhibit 5' followed by exhibit 1 and 2, makes no sense? This is your chance to file your evidence in your favour, so there is MORE to throw at this.

    I'm trying to find judgements or transcripts from Excel v Mr C C8DP37F1 and Excel v Mr B C7DP8F83 to use as evidence in my case. (I referenced them in my defence).
    I would use Excel v Cutts (a case scrutinising the typically awful Excel signs in 2011) and Excel v Lamoureux (proving that Excel cannot hold a keeper liable outwith the POFA). Both transcripts are available by Googling 'Parking Prankster case law'.

    I would also have as evidence, Henry Greenslade's wording 'Understanding Keeper Liability' easily found by Googling 'Annual Report 2015 POPLA'.

    And I would have as evidence, Martin Cutts' own article 'Dodgy signs and phoney fines take drivers for a ride' (all about Excel's signage and written for the Plain Language Commission).

    And I would have as evidence, the FOI request on 'whatdotheyknow' - the response from the DVLA which confirms that Excel were banned in 2012 from getting data, for a 'serious breach' of the BPA Code of Practice in suggesting that:

    (a) the keeper can be assumed responsible
    and
    (b) the keeper is liable for a charge (pre-POFA)

    both of which were not true and not allowed. Excel have just waited a few years and are now suing people using the same allegations, in the hope that people and courts don't know that they were temporarily sanctioned/banned for 3 months in 2012 by the DVLA, for saying exactly that!

    All of this is covered in other pre-POFA witness statements I am sure, with links because I've posted them before, several times. Try searching 'Excel Martin Cutts DVLA 2012 banned keeper responsible' or similar.

    Always change to 'SHOW POSTS' when searching this forum.
    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.

    • Coupon-mad
    • By Coupon-mad 14th Apr 17, 4:45 PM
    • 48,261 Posts
    • 61,746 Thanks
    Coupon-mad
    Just to add, read through Matthew87's WS and evidence he has just posted about:

    http://forums.moneysavingexpert.com/showthread.php?t=5573407&page=2

    Remember the Judge won't do this for you. The evidence is what you file now and bring with you, so add more!
    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.

    • Fruitcake
    • By Fruitcake 14th Apr 17, 5:24 PM
    • 39,741 Posts
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    Fruitcake
    Follow the links in order to find proof that the part of the POFA 2012 relating to private parking charges was enacted on the 1st of October 2012, starting with item 3 of the first link.

    http://www.legislation.gov.uk/uksi/2012/2075/contents/made

    http://www.legislation.gov.uk/uksi/2012/2075/article/3/made

    Item 3 (c), recovery of unpaid parking charges, Schedule 4, Section 56.

    http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
    Last edited by Fruitcake; 14-04-2017 at 5:27 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
    • ElParque
    • By ElParque 17th Apr 17, 7:15 PM
    • 60 Posts
    • 54 Thanks
    ElParque
    My Witness Statement - Updated.

    WITNESS STATEMENT

    I, xxxxxxxxxx of xxxxxxxxxxxxxxxx, am the defendant in this claim. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

    1. Whilst I was the Registered Keeper of the vehicle concerned, I was not the main driver of the car and indeed very rarely drove it. I have no idea who was the driver at the time of the incident and nor is there is any evidence of the driver's identity. As this event has been resurrected from so many years ago, I think it extremely unrealistic to expect me to recall who might have been driving the car on one particular day back then.

    Exhibit 1 - Proof of main driver.

    2. As I am unable to recall who was the driver at the time of the supposed event I therefore put Excel to strict proof that any contract can exist between them and me.

    3. At the time in 2012, the car insurance covered more than one family member, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

    Exhibit 2 - Driving Licences of my wife and sons.

    4. There was no requirement upon me as keeper to respond to what appeared to be junk mail, in early 2012, and in any event was not a matter where a registered keeper could be in any way legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis in law.

    5. Having not heard about this matter in years, suddenly in August 2016 I received a letter and a court claim out of the blue and I have researched this and discovered that Excel are issuing robo-claims for archive 'parking charges' in their thousands.

    6. I am no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused me significant distress and an inordinate amount of time to deal with, such that I intend to report Excel to the Information Commissioner for misuse of my data, obtained from the DVLA in 2012.

    7. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for five years then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £264.70 ( including the legal insult of five years' interest), for what was apparently an unproven £100 charge, allegedly incurred by another party, if incurred at all.

    8. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.

    9. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. This is exactly what they have done in my case.

    Exhibit- FOI Request 139931

    10. The claimant has failed to properly respond to my request made on xxxxxxxxxxx by royal mail postal service, requesting any documentation and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner’s behalf. My request was not actioned appropriately (I received a number of indistinct colour photos of my car, a photocopy of the original PCN and copies of letters supposedly sent to me 5 years ago, without further information).


    I believe that the facts stated in this Witness Statement are true.



    Signed xxxxxxxxxxxxxxxx


    Dated xxxxxxxxxxx



    My exhibits are

    1. Email from August 2011 indicating that I was not the main driver

    2. Email confirming there were three cars parked nightly at 16 Parkhill Drive at that time

    3. Photos of driving licences of my three children.

    4. Protection of Freedom Act 2012

    5. Photo of sign from the car park

    6. EXHIBIT IL2 – POPLA ANNUAL REPORT 2015

    7. Phoney Signs and Dodgy Fines by Martin Cutts

    8. POPLA Annual Report 2015 by Harry Greenslade

    9. EXCEL v Cutts 2011

    10. ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case').

    11. Excel v Ian Lamoureux 17 Nov 2016


    My Skeleton Argument will discuss how these exhibits are relevant. I've struggled to understand the distinction between the WS and the Skeleton! Have I got it right?
    • ElParque
    • By ElParque 17th Apr 17, 10:00 PM
    • 60 Posts
    • 54 Thanks
    ElParque
    How do I find the judgement in the case that parking Prankster refers to in a blog namely
    Excel v Mr B C7DP8F83 at Sheffield 14/12/2016

    Apparently it shows how Elliot v Loake is inapplicable. I can't find it!
    • ElParque
    • By ElParque 18th Apr 17, 10:05 AM
    • 60 Posts
    • 54 Thanks
    ElParque
    I should say that my court date is May 4 so I really do need to get my WS and exhibits sorted by tonight. I intend to deliver the docs to court in person tomorrow and email BW Legal at the same time.

    Cheers
    • ElParque
    • By ElParque 18th Apr 17, 11:57 AM
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    ElParque
    Skeleton Argument
    Here is my Skeleton Argument. Is it a good idea to include it with my WS or should I wait until I've seen the claimants WS before submitting it? Or should I simply turn up in court with it?

    All advice very gratefully received!


    Skeleton Argument

    .
    • The date of the alleged contravention occurred before the enactment of Schedule 4 of the Protection of Freedoms Act 2012 (the POFA) which took effect from 1st October 2012, therefore the Keeper cannot be held liable in law.

    POFA APPENDED AS EVIDENCE:


    • In 2012, the year of this alleged parking event, Excel were sanctioned by the DVLA for stating or implying in signs or documents that a registered keeper could be held 'liable for the payment of charges' and/or had any 'legal responsibility' to name the driver. It is contended that this is exactly what Excel are now doing in this claim, conduct which was identified in 2012 as 'a significant breach' of their Trade Body Code of Practice with the British Parking Association. So serious a matter was this, Excel were banned from obtaining data by the DVLA for three months.

    FOI RESPONSE* FROM DVLA APPENDED AS EVIDENCE

    • The vital matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous PARKING ON PRIVATE LAND APPEALS (POPLA) Lead Adjudicator, in 2015 in the Annual Report where he stated:

    “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. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass."

    POPLA ANNUAL REPORT 2015 APPENDED AS EVIDENCE:

    • Therefore, where an operator is unable to transfer the liability for the charge using the POFA, no lawful right exists to pursue unpaid parking charges from the keeper of the vehicle. In this case because of the indisputable fact that the event pre-dated the law I contend the operator is unable to transfer liability and pursue me, the keeper . This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

    The judge in the very recent case of Excel v Ian Lamoureux held that without using POFA and with no evidence as to the identity of the driver, the claim against Mr Lamoureux was misconceived and so was dismissed..

    EXCEL v Ian Lamoureux 17 Nov 2016 appended as evidence



    • The Claimant places reliance on its provision of signage at the site and upon the content of that signage. It is contended that the signs that were in place at the location were unclear and wordy, yet with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract, as was found in many cases involving Excel signs at and around that time.

    • Judge DJ Lateef's damning findings about Excel retail park signage in 2011 in Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) included these observations from her visit in person: “The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park”. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in early 2012.


    • I produce an article from the Plain Language Commission which talks about the actual signs used by Excel at the time of the incident. They are shown to be indistinct and inadequate. Excel insisted at the time, on BBC 1's watchdog programme and in written answers to the program that their signs comply with BPA standards. (The BPA is a self-governing body run by its members and in their interests). Despite the supposed adequacy of the signage, Excel were unable to explain why they had issued 11,000 PCNs at one car park and had not taken any steps to make the signs clearer. The conclusion might be drawn that they have no interest in issuing fewer PCNs because that's how they make their money. Indeed, the less clear their signage is the more likely drivers are to not understand them and to end up with an invoice for supposed contravention.

    • It is expected that this Claimant may try to counter that article about these signs but it is worth noting that this was within months of the Cutts case and it is also relevant 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, so he is something of an authority on clear, legible terms. And the Judge agreed with him.


    • Conversely, it is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel, attacked the Judge’s integrity. He reportedly 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.’



    APPENDED AS EVIDENCE: EXCEL V CUTTS 2011

    'Phoney fines and dodgy signs take drivers for a ride' Plain Language Commission,

    Edition 1 – 19 April 2012. Pages 24 -30 and 38 - 40

    PHOTO OF SIGNAGE AT THE SITE TAKEN IN 2015.



    • The original PCN I received recently by this Claimant states a Full Charge of £100.00 (£60.00 discounted) however the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at quadruple recovery:
    1. £100.00 Principal debt, 2. Contractual Costs pursuant to PCN T&C - £54.00
    3. Interest - £35.70 4. Legal Representatives Costs £50.00, 5. Court Costs £25
    6. Outstanding balance to pay now £264.70


    • It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in this Claimant's undue haste to issue robo-claims in their thousands, scraping the barrel of archive cases to bring to court, under excuse of jumping on the bandwagon started by the (completely different and complex) case in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case').

    • I counter the argument re the relevance of the Beavis case in case the claimant should make it. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in my case.

    THE BEAVIS CASE SIGN IS APPENDED AS EVIDENCE;

    • The claimant cannot rely on Elliot v Loake ('EvL') to claim that the driver and the keeper can be 'assumed' to be the same, since this was a criminal case and referred to the owner, not the keeper. In any event, in EvL there was overwhelming forensic evidence from other sources that the defendant was the driver at the time. By contrast, in my case this Claimant has not offered any evidence to the driver's identity and cannot make any lawful assumption.

    • The Claimant had no locus standi at the time of this parking event and at best, were contractors of a principal, the landowner. They have failed to show a cause for action by way of sight of a copy of the contract they have with the landowner to assign the right to enter into contracts with the public and to make claims and take civil action against drivers in their own name, in 2012.

    • In any event, this Claimant fails to fulfil the requirements of CPR16.2 for particulars of claim in that they have neglected to set out any facts or state what it is they are claiming monies for. Their particulars of claim just state "monies due in respect of a parking charge notice" and do not say whether the sum is due as a contractual sum, damages for breach of contract or money due for something else, such as a liability for a failure of duty of care or trespass under common law tort.


    • It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.


    I believe that the facts stated in this Skeleton Defence are true.

    Signed


    Dated
    • Fruitcake
    • By Fruitcake 18th Apr 17, 12:19 PM
    • 39,741 Posts
    • 79,535 Thanks
    Fruitcake
    How do I find the judgement in the case that parking Prankster refers to in a blog namely
    Excel v Mr B C7DP8F83 at Sheffield 14/12/2016

    Apparently it shows how Elliot v Loake is inapplicable. I can't find it!
    Originally posted by ElParque
    http://parking-prankster.blogspot.co.uk/2016/12/excel-lose-at-sheffield-elliot-v-loake.html

    But this one is better.

    http://parking-prankster.blogspot.co.uk/2016/10/excel-parking-youve-been-gladstoned.html

    Ms Kauser kept coming back to the fact that as Mr C was in the car, even if he wasn't driving, he knows who was, and if he's not prepared to name the driver, it's a reasonable inference that he was driving, quoting Elliott v Loake as case law.

    Bunkum, said Mr Wilkie, Elliot and Loake is a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here.
    Last edited by Fruitcake; 18-04-2017 at 12:24 PM.
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    • ElParque
    • By ElParque 18th Apr 17, 9:38 PM
    • 60 Posts
    • 54 Thanks
    ElParque
    Sorry to mither but could one of the very wise members of this board take a look at my WS above and advise me of any changes that need to be made? I need to print all the stuff off tonight and take it to court tomorrow!

    If you are able to, thanks in advance!
    • Lamilad
    • By Lamilad 19th Apr 17, 8:58 AM
    • 700 Posts
    • 1,533 Thanks
    Lamilad
    1. Whilst I was the Registered Keeper of the vehicle concerned, I was not the main driver of the car and, indeed very rarely drove it. In fact, i very rarely drove this vehicle I have no idea who was the driver at the time of the incident and nor is there is any evidence of the driver's identity. As this event has been resurrected from so many years ago, I think it extremely unrealistic to expect me to recall who might have been driving the car on one particular day back then. The claimant has provided​ no evidence as to who was driving at the material time

    Exhibit 1. Proof of main driver.

    2. As I am unable to recall who was the driver at the time of the supposed event I therefore put Excel to strict proof that any contract can exist between them and me. As there is no evidence of who was driving the claimant is held to strict proof on this matter

    3. At the time in 2012, the car insurance covered more than one family member, person who I have no obligation to name to a private parking firm and as already stated the defendant very rarely drove the vehicle in question and was not the driver at the material time. It remains the burden of the Claimant to prove their case.
    Last edited by Lamilad; 19-04-2017 at 9:01 AM.
    • ElParque
    • By ElParque 19th Apr 17, 9:19 AM
    • 60 Posts
    • 54 Thanks
    ElParque
    Thanks for that Lamilad. I was going to produce as exhibits, the driving licences of my three sons, an email showing and that there were 3 cars between the 5 of us and an email recently obtained confirming that my wife was the main driver of the car.

    Would you say that these exhibits are unnecessary?
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