Excel signage in Prestwich impossible to read, IAS thinks not....!

Half_way

If they are still bleating about Beavis then the Supreme court tweeted this
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hoohoo

At the beginning...

1. The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings.
2. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct
4. Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’.
5. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part22/pd_part22
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16

Fruitcake

The Parking Prankster has just blogged about a case where the initial claim is "lacking" enough information to make a claim and has been dismissed before court. Look for You've been Gladstoned.

Compare yours to that one, and the other one the court threw out not long ago also mentioned by the Prankster because the claim was incoherent.

I believe you need a statement of truth at the end of your defence.

Coupon-mad

Show us the next draft once you've added the above comments.

This is certainly worth defending, not least because we have noticed that no cases where we've assisted with a defence in BW Legal cases, appear to have got out of the starting blocks. Don't want to speak too soon but they seem to be dropping them. And there is an absolute defence for a keeper v Excel or VCS because they only pursue people as if they were the driver.

With no evidence, they are stuffed if a person never names the driver and defends as keeper. Maybe that's why so many cases here are not proceeding (it seems). We've certainly never seen one go to a hearing yet on here, even though we know BW Legal have tried at least one (case won by bargepole, as blogged by the Parking Prankster). So it's not as if no BW Legal cases have gone to a hearing in England at all, but I think I'm right that no defended MSE forum cases have.

It seems BW Legal are looking for weak defences, or people who will pay up, or ignorers to get a CCJ by default. They are not looking for a well-defended case, so call their bluff!

traceynob

Statement of Defence

1 The claim arises from the Claimant issuing an invoice or ‘Parking Charge Notice’ for £100 to the Defendant’s vehicle xxxxxx on xx/xx/2015. The defendant has from the outset denied any liability in respect of the claim and has repeatedly requested that the Claimant provide evidence of any legal basis to their claim which the Claimant has to date failed to do.

2 The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct. The particulars also fail to describe how the amount claimed has been calculated.

3 Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.

4 The Claimant has, since February 2015, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refusing to respond to reasonable requests to provide the evidence necessary to support their claims. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee into a demand for £240.88.

5 The Claimant has further failed to comply with Practice Direction by refusing to respond to the Defendants request to use an independent form of dispute resolution.

6 As a member of the Independent Parking Committee (IPC), Excel Parking are able to access registered keeper details from DVLA. However, IPC membership requires Excel to comply with their Code of Practice which they have failed to do with respect to their signage in this case. Excel have previously been suspended by the DVLA from accessing registered keeper details due to failure to comply with the Code of Practice.

7 It is denied that the Claimant is the landowner of the land in question or that they have any other right or proprietary interest in the land.

8 The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

9 In the absence of strict proof, I submit that the Claimant has no case and invite the court to strike the matter out.

10 If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the IPC Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following;
• Lack of illumination of signage (and the car park) during the hours of darkness
• Lack of clarity and prominence of terms and conditions
• Illegible text due to font size, density, colour and complexity
• Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
• Lack of relevant terms and conditions, such as the fees for parking
• Inadequate positioning of signs, for example, at unsuitable heights

11 As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.

12 In the absence of any signage that contractually bound the Defendant then there can have been no contract, the Claimant has no case, and as such, the court is invited to dismiss the claim.

13 Even had the terms and conditions been sufficiently prominent, terms which are unfair are not legally binding. Terms which are considered unfair include requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation. It is also unfair to impose disproportionate sanctions for breach of contract. A charge of £100.00 for failing to pay a sum of £1.00 which was not prominently displayed in the first place can be considered a disproportionate sum.

14 It is anticipated that the Claimant may seek to rely on the Supreme Court ruling in the case of Parking Eye v Beavis. This case can be easily distinguished from ParkingEye v Beavis as Excel Parking have not demonstrated any commercial justification for the amount being charged and the wording of the notices was not clear.

15 The Claimant is attempting to claim additional charges such as debt collection costs of £54.00 and legal costs of £50.00. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

16 The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The keeper can only be held liable if the claimant has fully complied with the strict requirements. The Claimant has not established whether the Defendant was the driver on the night in question and have not clarified whether they are pursuing the Defendant as Keeper or as Driver.

17 The Claimant is put to strict proof of all his assertions

18 Considering all the above circumstances, I respectfully ask that the court dismiss the claim.

I believe the facts stated in this defence are true.

The_Deep

I would say that they haven't a snowball's chance. Surely they will not contest that.

I hope that you have prepared a schedule of costs to hand to the judge when you prevail. See CPR14.27.(2)(g) for costs with unreasonable behaviour.

Coupon-mad

Looks like you have covered all the bases, good stuff!

DoaM

Please edit post #76 to remove identifiable info (e.g. vehicle reg).

Were Excel barred/suspended from accessing keeper data? (I know UKPC have been, but have Excel?)

Umkomaas

Have a read of this latest Prankster blog. Two court cases on Peel Centre parking.

http://parking-prankster.blogspot.co.uk/2016/10/bw-legal-how-to-winlose-claim.html

'Preparation, preparation, preparation'.

traceynob

Looks like this is going to court, received Directions Questionnaire today :-(

I'll quietly get on with preparing the defence bundle but I've just got a couple of questions for now;

1 Excel is pursuing my son as he is the registered keeper, although they have no evidence as to who was driving on the night in question and I am in fact the main driver named on the insurance. I would like to attend the court as a lay representative to speak on my son's behalf, how do I do this?

2 I note that a few people have recently beaten Excel in court, e.g. lamilad, how do I get hold of transcripts? I'm not really relying on POFA but it would be good to have it up my sleeve if the poor signage/lighting arguments don't do the trick.....

Thanks