Excel Parking / BW Legal Court Paper

Coupon-mad

jollymonkeys wrote: »

Hi all,

I thought I should update the forum with how this progressed. Before I start though I would like to thank those of you who helped me through the process. It's not the easiest thing to do, and the research required takes an awful lot of time but the pointers provided here helped enormously.

I had to go to court a couple of days before Christmas. I'm not sure how much information would be useful and so I've tried to summarise what I think are the important points:

1. My defence was based around 3 key themes:

a) Excel had not identified who the driver of the car was
b) The signs at the car park were unclear, did not comply with regulations and were completely different to those in the Beavis case
c) There are sections of the car park where it appears you can park for free for certain lengths of time without any reference to the terms and conditions which apparently apply to the rest of the car park.

2. My witness statement referred to the fact that my initial and only response to the original PCN had stated that the PCN did not comply with the Protection of Freedom of Act 2012. The solicitor stated that Excel were not relying on the POFA to pursue their claim against me. The judge asked why not, and the solicitor was unable to answer this.

3. The solicitor (a solicitor local to the court I attended) was allowed to ask me a few questions:

a) I was asked whether I was driving the car. I responded that I wasn't going to identify who was driving the car as I didn't believe it was my responsibility to do so.
b) I was asked that if I hadn't been driving the car why didn't I complete the bottom section of the PCN asking me to identify who was driving the car. Again I reiterated that it wasn't my responsibility to identify the driver. Surely the onus was on the party pursuing the claim to identify the driver.
c) I was asked why I had taken the time to develop a full witness statement including photos of the car park if I hadn't been driving. I almost laughed at this and said that I wasn't going to appear in court without having undertaken enough research to be able to defend myself and point out the inadequacies of the claimants case and the car park
d) I was asked whether I wanted to produce a valid pay and display parking ticket for the day in question. I said no.
e) I was asked if I wanted to identify the driver. I said no.

4, The judge asked a few questions:

a) Did I want to identify the driver? I responded no thank you.
b) Had I ever visited the car park? Yes - clearly I had as I needed to visit it to take photos for my witness statement
c) Could anyone else have used my car on the day in question? Yes

5. The judge then summarised his thoughts. Effectively the claimant was relying on there being a contract between me and the parking company and me having breached the terms and conditions of the contract. However, the judge stated that this was putting the cart before horse. Until the driver of the car had been identified there couldn't be a contract between the parking company and any individual. As other people could have driven my car it was not certain that I was the driver and as such there couldn't have been a contract between the parking company and myself. The judge stated that they could consider the signage and layout of the car park, but in effect it was irrelevant. No contract and so no breach. Case dismissed.

I'm not sure if I just got lucky, but either way it's finished now!

I hope this helps other people in the same situation.

Great stuff!

Could you tell us the claim number, date of hearing and Judge/Court please, so other people can use this case to refer to as one where the Judge dismissed the case based of the fact Excel do not bother with the POFA?

Or if you are up for it, ask the Parking Prankster to Blog about your case (with claim number, Court and Judge & date - but your name being anonymous). In these cases the Prankster blogged about cases seen on the forums (no claim numbers) but it is better if we can please have those details:

http://parking-prankster.blogspot.co.uk/2017/01/pofa-or-not-pofa-that-is-question.html

Was it Stockport Court? They don't seem too bad, by accounts in 2016.

Very well done for seeing this through with a witness statement and evidence all done as per the Court instructions and on winning your case!

One last question:

Did Excel produce any evidence from the machine data that no pay & display ticket was purchased or that the VRN was keyed in wrong (or their own machine flaw happened again and produced a duff ticket)? Just ANPR photos as 'evidence' show nothing - all cars get their VRN image captured, hundreds per day, even if all pay & display. Defendants should point this out at Excel hearings where the allegation is not paying & displaying, as well as evidence from transcripts available from the Parking Prankster, which prove that Excel machines are prone to errors, drop-out and spitting out dodgy 'QQ' or similar tickets creating a PCN through no fault of the driver who has paid and keyed the VRN in properly.

:T

beamerguy

Brilliant, I loved this though ...

"The solicitor stated that Excel were not relying on the POFA to pursue their claim against me. The judge asked why not, and the solicitor was unable to answer this"

Does anyone know the answer ??

Good result and yet another one up the duff for Excel:rotfl:

And the sensible Judge said what we all know

" Until the driver of the car had been identified there couldn't be a contract between the parking company and any individual."

PLEASE as coupon mad said, let the Parking Prankster blog this which will help others who are being harassed by EXCEL and BWLEGAL
prankster@parking-prankster.com

Coupon-mad

Well done on your win, perhaps you could let the Mediator, (post 42), know

Very good point, Castle! This is why Mediation is NOT worth even trying:

jollymonkeys wrote: »

Recently I was offered a date for a mediation call and this was held a couple of weeks ago. I thought I'd give an update on how it went to potentially help other users of this forum, and also have a few questions which I'd appreciate some advice for my own case. The FINE now stands at just over £235.

The call started with the mediator describing the process - time limit of an hour, mediator calls the claimant first, then calls me, and vice versa until either a settlement is reached or there clearly won't be a settlement. The mediator advised that she was impartial and couldn't offer any legal advice.

I was called by the mediator (after she spoke to BW Legal) and she summarised the case as BW Legal saw it - effectively that I parked the car in a retail car park that was managed by Excel and didn't purchase a pay and display ticket. The car park had a number of well placed signs, including a large sign at the entrance. They sent me a PCN as the registered keeper. I appealed on the grounds that the signs were not visible from all areas of the car park, that the charge was disproportionate to any actual loss of income and unconscionable and that although I was the registered keeper of the car Excel had not proved that I was the driver. Excel rejected my appeal and referred to the Parking Eye v Beavis case.

I corrected the mediator in that there was no evidence that I had parked the car.

I informed the mediator of why I hadn't payed the PCN - effectively my defence.

I was immediately informed that was I aware of the Parking Eye v Beavis case. I said I was. I was asked why I thought I would win as this case had gone all the way to the Supreme Court and the judge had ruled that the charge imposed by the parking company was not deemed to be excessive.

I stated that in my view this case was different as the defendant had accepted that he was indeed driving the car. In my case, Excel had not identified who the driver was.

The mediator then stated that the PCN issued by Excel would have given me an opportunity to identify who the driver was. Why did I not do this? I responded that this was not my responsibility to do so. If Excel wanted to pursue a payment then surely the onus was on them to clearly identify the driver. I am unsure why they had not done so.

I suggested to the mediator that this line of questioning did not seem particularly "impartial" to me.

...The mediator then informed me that many companies are taking non-payment of PCNs to court, and that they have a very high success rate as a result of the Parking Eye v Beavis case and the precedent this sets...

Did you get your costs, jollymonkeys?

jollymonkeys

Coupon-mad wrote: »

Great stuff!

Could you tell us the claim number, date of hearing and Judge/Court please, so other people can use this case to refer to as one where the Judge dismissed the case based of the fact Excel do not bother with the POFA?

Or if you are up for it, ask the Parking Prankster to Blog about your case (with claim number, Court and Judge & date - but your name being anonymous). In these cases the Prankster blogged about cases seen on the forums (no claim numbers) but it is better if we can please have those details:

http://parking-prankster.blogspot.co.uk/2017/01/pofa-or-not-pofa-that-is-question.html

Was it Stockport Court? They don't seem too bad, by accounts in 2016.

Very well done for seeing this through with a witness statement and evidence all done as per the Court instructions and on winning your case!

One last question:

Did Excel produce any evidence from the machine data that no pay & display ticket was purchased or that the VRN was keyed in wrong (or their own machine flaw happened again and produced a duff ticket)? Just ANPR photos as 'evidence' show nothing - all cars get their VRN image captured, hundreds per day, even if all pay & display. Defendants should point this out at Excel hearings where the allegation is not paying & displaying, as well as evidence from transcripts available from the Parking Prankster, which prove that Excel machines are prone to errors, drop-out and spitting out dodgy 'QQ' or similar tickets creating a PCN through no fault of the driver who has paid and keyed the VRN in properly.

:T

Hi, and apologies it's taking so long to respond. Work and life in general has been crazy since the turn on the year.

I've tried to answer the questions as best I can.

Could you tell us the claim number, date of hearing and Judge/Court please

The claim number was C0DP33Q9
The date of the hearing was 19 December 2016
The Judge was District Judge Dignan

Was it Stockport Court? They don't seem too bad, by accounts in 2016.

Yes it was Stockport Court.

Did Excel produce any evidence from the machine data that no pay & display ticket was purchased or that the VRN was keyed in wrong (or their own machine flaw happened again and produced a duff ticket)?

That's a good point. They didn't produce any evidence at all - simply stated that there was no evidence that I had purchased a pay and display ticket, and asked me to provide the evidence that I had a ticket. I informed them that I didn't need t provide that evidence as they hadn't provided any evidence of who the driver was.

I suppose it could be argued that the car may have driven out of the car park and then re-entered between the time of the initial entry and final entry and that Excel are simply picking and choosing which images of the VRN they present in the PCN.


I'm happy for the Parking Prankster to blog about this if it will help. I'll try contacting them via their website.

jollymonkeys

Did you get your costs, jollymonkeys?

I haven't pursued my costs Coupon-Mad. I'm not sure if it's worth doing.

Coupon-mad

You would have had to have asked on the day, for your missed leave or half a day's work, & travel etc. Well done though!

beamerguy

Here is the Pranksters blog

Excel lose claim -- no keeper liability

http://parking-prankster.blogspot.co.uk/2017/01/vcs-lose-claim-no-keeper-liability.html

Another failure for EXCEL with the help of their incompetent mates BWLegal

Leely71

Hi jollmonkey


Are you able to provide the reference of the case details? I am in exactly the same situation now....in fact awaiting on the "mediation" call

Thanks

Lisa

.

jollymonkeys wrote: »

Hi all,

I thought I should update the forum with how this progressed. Before I start though I would like to thank those of you who helped me through the process. It's not the easiest thing to do, and the research required takes an awful lot of time but the pointers provided here helped enormously.

I had to go to court a couple of days before Christmas. I'm not sure how much information would be useful and so I've tried to summarise what I think are the important points:

1. My defence was based around 3 key themes:

a) Excel had not identified who the driver of the car was
b) The signs at the car park were unclear, did not comply with regulations and were completely different to those in the Beavis case
c) There are sections of the car park where it appears you can park for free for certain lengths of time without any reference to the terms and conditions which apparently apply to the rest of the car park.

2. My witness statement referred to the fact that my initial and only response to the original PCN had stated that the PCN did not comply with the Protection of Freedom of Act 2012. The solicitor stated that Excel were not relying on the POFA to pursue their claim against me. The judge asked why not, and the solicitor was unable to answer this.

3. The solicitor (a solicitor local to the court I attended) was allowed to ask me a few questions:

a) I was asked whether I was driving the car. I responded that I wasn't going to identify who was driving the car as I didn't believe it was my responsibility to do so.
b) I was asked that if I hadn't been driving the car why didn't I complete the bottom section of the PCN asking me to identify who was driving the car. Again I reiterated that it wasn't my responsibility to identify the driver. Surely the onus was on the party pursuing the claim to identify the driver.
c) I was asked why I had taken the time to develop a full witness statement including photos of the car park if I hadn't been driving. I almost laughed at this and said that I wasn't going to appear in court without having undertaken enough research to be able to defend myself and point out the inadequacies of the claimants case and the car park
d) I was asked whether I wanted to produce a valid pay and display parking ticket for the day in question. I said no.
e) I was asked if I wanted to identify the driver. I said no.

4, The judge asked a few questions:

a) Did I want to identify the driver? I responded no thank you.
b) Had I ever visited the car park? Yes - clearly I had as I needed to visit it to take photos for my witness statement
c) Could anyone else have used my car on the day in question? Yes

5. The judge then summarised his thoughts. Effectively the claimant was relying on there being a contract between me and the parking company and me having breached the terms and conditions of the contract. However, the judge stated that this was putting the cart before horse. Until the driver of the car had been identified there couldn't be a contract between the parking company and any individual. As other people could have driven my car it was not certain that I was the driver and as such there couldn't have been a contract between the parking company and myself. The judge stated that they could consider the signage and layout of the car park, but in effect it was irrelevant. No contract and so no breach. Case dismissed.

I'm not sure if I just got lucky, but either way it's finished now!

I hope this helps other people in the same situation.

Leely71

Hi does anyone have case references with details of defendant against excel, so that I can refer to these.

My defence is centred around Non Admittance that I was the driver on the day, and that excel have failed to meet the conditions of The Protection of Freedoms Act 2012.

All the poor signage and lack of full T&Cs around the Peel centre.

Thank you all in advance

Coupon-mad

Leely71 wrote: »

Hi does anyone have case references with details of defendant against excel, so that I can refer to these.

My defence is centred around Non Admittance that I was the driver on the day, and that excel have failed to meet the conditions of The Protection of Freedoms Act 2012.

All the poor signage and lack of full T&Cs around the Peel centre.

Thank you all in advance

Yes the actual court transcripts of any cases available, are hosted by the Parking Prankster's case law page within his Blog website. Google it if you can't see it from the previous link.

You should also include in your Witness Statement (WS - the next stage) that they have provided no evidence that the driver failed to pay & display. ANPR pics have nothing to do with the P&D machine records, Excel will pretend it is all one system but it is not - at best, one is linked to the other but ANPR pics are taken of every VRN captured, including those cars registered as having paid. ALL vehicles captured are in those pics, so in the absence of evidence of the payments at ALL machines (and I think there are three) the contravention isn't even proven anyway.

You need to start your own thread. BUT:

First, I think you need to read post #2 of the NEWBIES thread near the top of this board. You do know what happens and NOT to make an offer, and how to put together a WS and evidence before the hearing? If not, then you desperately need to read that thread before posting a new thread of your own to discuss your case and your WS and evidence.

You should not have been doing mediation, why did you do that it's not advised. Pointless in a parking case.