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  • FIRST POST
    • ElParque
    • By ElParque 4th Apr 17, 10:54 PM
    • 60Posts
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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 3
    • Lamilad
    • By Lamilad 20th Apr 17, 2:07 AM
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    Lamilad
    It happened on a rainy day in January at 11am.

    By adduce the PE sign, do you mean include it in the exhibits or include and refer to it in the WS?
    Originally posted by ElParque
    Include it in the the exhibits which you will submit with your WS. No need to mention it in your WS as you will do so in your SA.

    Don't include the Beavis transcript.
    • ElParque
    • By ElParque 20th Apr 17, 2:27 AM
    • 60 Posts
    • 54 Thanks
    ElParque
    I'm going to email the WS and exhibits to BW Legal. Do I need to scan everything into one document or can I send them as individual pdfs?
    • Lamilad
    • By Lamilad 20th Apr 17, 12:31 PM
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    Lamilad
    Either is fine. Just keep an eye on the size of the file as there is a maximum size your email will send and also what their email will receive

    You may have to send it in 2 or 3 emails. Or upload all the docs in to a separate folder on Dropbox and include the link in the email.
    • ElParque
    • By ElParque 20th Apr 17, 1:37 PM
    • 60 Posts
    • 54 Thanks
    ElParque
    It was about 13mb. I used a PDF merging programme to make the exhibits into one file. I did as advised and sent it to myself too.

    Thanks for your help. I went with your WS draft more or less exactly as it was (so obviously if I lose I'll be issuing a CCC against you for half my losses...) ;-)

    I should get their WS soon, I suppose. Then the SA to get ready... Jeez!

    I have to say that had I known how many 100s of hours I'd spend on this and known about the case of the defendant who entered no evidence and simply relied on the no presumption of being the driver, I'd have just done that and no more!
    Last edited by ElParque; 20-04-2017 at 1:38 PM. Reason: spelling
    • ElParque
    • By ElParque 20th Apr 17, 5:28 PM
    • 60 Posts
    • 54 Thanks
    ElParque
    Got the WS from Excel.

    Here is a link to it.

    https://www.dropbox.com/s/7zv9n5kczmec1fn/edited_Defence%20of%20BWlegal.co.uk_20170420_16372 9.pdf?dl=0

    or

    https://1drv.ms/b/s!AmEbXcoBUcVYgQqxo4Nohs6CNsBz

    I'd like to sort out my Skeleton Argument as early as possible (for peace of mind). I'm trying to avoid being up all night the night before the hearing (as I have been for the last three nights getting my WS together)!

    Cheers
    Last edited by ElParque; 20-04-2017 at 6:05 PM. Reason: not sure if link is working
    • Lamilad
    • By Lamilad 20th Apr 17, 11:08 PM
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    Lamilad
    Same template, copy and paste cr*p we've seen many times from Leigh Shelvis... Lots of words that say nothing.

    The photos of your PDT do not show the expiry time so in your SA you need to mention there is no proof that a contravention has even occurred and the claimant must be held to strict proof.

    As their photo does not prove anything then you ask them to call in the witness (the parking attendant) who you assume is sitting in the waiting room as there is no way a professional legal organisation with vast knowledge of court procedures would not have a witness - crucial to their case (as the only person who can attest to a contravention actually occurring) - in attendance.

    Explain that if you cannot cross examine this individual then there is no proof of any contravention, therefore, no cause of action and this case should be dismissed without the need for further discussion.

    It might be worth bringing this to the judges attention as a preliminary matter before you even go in.
    Last edited by Lamilad; 20-04-2017 at 11:10 PM.
    • Lamilad
    • By Lamilad 20th Apr 17, 11:14 PM
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    Lamilad
    Also, as Leigh Shelvis has stated "I have conduct in this matter" then whichever rep turns up for them on the day clearly does not - therefore has no rights of audience.

    This is definitely something that will need bringing to the judge's attention as a preliminary matter
    • ElParque
    • By ElParque 21st Apr 17, 12:32 AM
    • 60 Posts
    • 54 Thanks
    ElParque
    Same template, copy and paste cr*p we've seen many times from Leigh Shelvis... Lots of words that say nothing.

    The photos of your PDT do not show the expiry time so in your SA you need to mention there is no proof that a contravention has even occurred and the claimant must be held to strict proof.

    As their photo does not prove anything then you ask them to call in the witness (the parking attendant) who you assume is sitting in the waiting room as there is no way a professional legal organisation with vast knowledge of court procedures would not have a witness - crucial to their case (as the only person who can attest to a contravention actually occurring) - in attendance.

    Explain that if you cannot cross examine this individual then there is no proof of any contravention, therefore, no cause of action and this case should be dismissed without the need for further discussion.

    It might be worth bringing this to the judges attention as a preliminary matter before you even go in.
    Originally posted by Lamilad
    So you suggest I wait until the day then attempt to approach the judge before the case begins to argue this point because it nullifies their whole case? If the point is that persuasive, should I make it in my SA and send that to the judge per-hearing?

    Re the rights of audience, are you saying that if Leigh Schlevis doesn't attend in person, whoever they send has no right of audience? (I've printed off McShane v Lincoln though I'm not sure I fully understand it.).
    • Coupon-mad
    • By Coupon-mad 21st Apr 17, 12:45 AM
    • 48,133 Posts
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    Coupon-mad
    This case by Matthew87 shows his WS and also a Leigh Shelvis cut & paste WS:

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

    Worth a read, IMHO.


    So you suggest I wait until the day then attempt to approach the judge before the case begins to argue this point because it nullifies their whole case? If the point is that persuasive, should I make it in my SA and send that to the judge per-hearing?
    No. RoA is not the same thing as saying 'why isn't the witness here?' And if you tip them off in the SA or WS that you are going to want Leigh Shelvis there, maybe they'll turn up (which you don't want).

    Re the rights of audience, are you saying that if Leigh Schelvis doesn't attend in person, whoever they send has no right of audience? (I've printed off McShane v Lincoln though I'm not sure I fully understand it.).
    No, the RoA argument has nothing to do with Leigh Shelvis. It's about questioning the RoA of whichever random rent-a-rep turns up, before they even speak. Explained in a cautionary tale here, about what a defendant should have said when it was found the rep wasn't an exempt person, so had no RoA because the Claimant (parking firm director/employee) was not there with them. Should have objected:

    http://parking-prankster.blogspot.co.uk/2017/01/parkingeye-win-and-are-awarded.html
    Last edited by Coupon-mad; 21-04-2017 at 12:47 AM.
    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 21st Apr 17, 1:09 AM
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    • 54 Thanks
    ElParque
    This case by Matthew87 shows his WS and also a Leigh Shelvis cut & paste WS:

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

    Worth a read, IMHO.
    ]
    Originally posted by Coupon-mad
    Yes, I'm following this case!

    http://parking-prankster.blogspot.co.uk/2017/01/parkingeye-win-and-are-awarded.html[/url]
    by
    No, the RoA argument has nothing to do with Leigh Shelvis. It's about questioning the RoA of whichever random rent-a-rep turns up, before they even speak. Explained in a cautionary tale here, about what a defendant should have said when it was found the rep wasn't an exempt person, so had no RoA because the Claimant (parking firm director/employee) was not there with them. Should have objected:

    [url
    Yes, I read about that case and have printed off the Law Society Gazette article and the McShane judgement although I don't understand it fully, I have to admit!
    • Lamilad
    • By Lamilad 21st Apr 17, 1:12 AM
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    • 1,526 Thanks
    Lamilad
    So you suggest I wait until the day then attempt to approach the judge before the case begins to argue this point because it nullifies their whole case? If the point is that persuasive, should I make it in my SA and send that to the judge per-hearing?
    Originally posted by ElParque
    you cannot approach the judge before the hearing. Any preliminary matters will have to be documented and handed to the clerk, approx 30 mins before the hearing, with the instruction to pass them on to the judge. I would mention that there is no proof of contravention in your SA, the go in to no cause of action in the PM

    Re the rights of audience, are you saying that if Leigh Schlevis doesn't attend in person, whoever they send has no right of audience? (I've printed off McShane v Lincoln though I'm not sure I fully understand it.).
    Don't worry too much about this right now. Swot up on it a few days before your hearing so as not to divert your energy and attention from your SA
    • ElParque
    • By ElParque 28th Apr 17, 3:28 PM
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    ElParque
    I know this issue IS discussed in lots of threads but I'm trying to narrow down the meaning and possible use of questioning the RoA of the person who turns up in court next week at my hearing.

    Am I right in thinking that if the person who turns up in court isn't

    1) the named solicitor conducting the case
    2) a solicitor who works as an employee or partner of the firm of solicitors involved in the case
    3) an employee of the parking company, ie the claimant

    then they would have no right of attendance unless they are

    a) a barrister

    and/or unless

    1) the case is being held in private
    2) they are being supervised on the day by one of those persons above, in person

    Any clarification with this would be useful!

    Cheers

    (Apols for earlier posting this in a new thread but it's now here!)
    • DoaM
    • By DoaM 28th Apr 17, 3:34 PM
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    DoaM
    OP - I've responded in your other thread, to agree that this topic deserves its own thread. That would make it easier for NEWBIES to read and understand in future.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • ElParque
    • By ElParque 28th Apr 17, 3:51 PM
    • 60 Posts
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    ElParque
    In the email which accompanied the WS from BW Legal, Leigh Schlevis wrote "We confirm that the Claimant will not be in attendance at the hearing, but will be represented by an instructed advocate"

    Is this relevant?

    No mention of CPR27.9 from them.
    • DoaM
    • By DoaM 28th Apr 17, 4:10 PM
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    • 2,756 Thanks
    DoaM
    To my knowledge ... this is OK if the advocate is from BWL. If they are from Elms Legal or similar then no RoA may apply as they are not employed by the solicitor having conduct of the case. (They may be engaged and instructed, but they're not employed).
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • ElParque
    • By ElParque 1st May 17, 10:52 PM
    • 60 Posts
    • 54 Thanks
    ElParque
    Landlord's Contract
    Amongst the claimant's WS was this signed contract supposedly between a representative of the landlord and Excel.

    It is here...

    https://1drv.ms/b/s!AmEbXcoBUcVYgQ9lfre5rr8ofoFa

    The document is dated in 2015 and refers to a contract dated in 2009. The events in my case occurred in 2012.

    I intend to challenge this document (if it comes to it) by asking to see a copy of the 2009 contract the document refers to.

    Any other ways to challenge it?
    • Coupon-mad
    • By Coupon-mad 1st May 17, 11:34 PM
    • 48,133 Posts
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    Coupon-mad
    Signature looks altered?

    And there is no such ATA as the Independent blah blah...
    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 2nd May 17, 12:10 AM
    • 60 Posts
    • 54 Thanks
    ElParque
    Ata?
    What does ATA stand for?

    Actually, you've just helped me here by highlighting this line. At the time of the event in question, Excel weren't in the IPC, They were members of the BPA!!! So, this document shows nothing!

    HA HA HA
    • ElParque
    • By ElParque 2nd May 17, 12:37 AM
    • 60 Posts
    • 54 Thanks
    ElParque
    Independent Parking Committee
    Signature looks altered?

    And there is no such ATA as the Independent blah blah...
    Originally posted by Coupon-mad
    Do you mean they aren't Independent? This ATA did exist in 2015 though it's now called something else.
    • Umkomaas
    • By Umkomaas 2nd May 17, 4:52 AM
    • 13,586 Posts
    • 21,303 Thanks
    Umkomaas
    Have you carried out a search on 'RPI Pension Fund'? I can't find anything and I'm 4 pages in on Google search results.

    I admit it gets clogged up with 'Retail Price Index' references, but other than that, I can't find anything called 'RPI Pension Fund'. But please do your own search to check, for certainty.
    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.
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