Excel & BW Legal

Coupon-mad

Include in evidence from the parking Prakster's case law pages, the transcripts of:

Excel v Lamoureux

and the HIGHER LEVEL 'APPEAL' DECISION in

Excel v Smith.

Mahone1302

Thanks, will do.

Is the WS content right or should some of it be better placed in the skeleton argument?

Umkomaas

The skeleton argument is basically your checklist as to the points you want to cover at the hearing, if the Judge allows. Think of it like a shopping list - bullet points, not a whole raft of lengthy text.

I wouldn’t be putting new stuff in a SA that wasn’t previously covered in the Defence or WS. You only submit the SA a couple of days prior to the hearing (as well as your cost schedule), and you copy it to the claimant’s solicitors at the same time.

Mahone1302

My WS is nearly complete, just polishing it up and reading the above mentioned transcripts. Should I have received anything from BW/Excel yet? I've noted in a few other cases that Defendant's are able to refer to the Claimant's WS in their own WS, obviously having received it first!

Mahone1302

I've been reading Lamoureux v Excel and note that several times the High Court decision of R (Duff) v Secretary of State for Transport is mentioned, and that it clearly states there is no presumption in law that a keeper of a vehicle is the driver. I've read the Judgement (https://www.11kbw.com/wp-content/uploads/Duff-judgmentTC.pdf) but can't see any mention of this at all?! Am I missing something?

Mahone1302

Okay, I think this is pretty much done. In terms of evidence so far I will be using POFA 2012 Sch 4, Excel v Lamoureux, IPC CoP and some photographs I took of the signage.


In the County Court at xxxx
Claim No. xxxx
Between
Excel Parking Services Ltd (Claimant)
and
xxxx (Defendant)

---

Witness Statement

---

1. I am xxxx, of xxxx, the Defendant in this matter. I will say as follows:


2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief. I am unrepresented, with no experience of Civil 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.


3. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.


4. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this alleged event occurred almost three and a half years ago, it is unreasonable to expect a keeper to recall who might have been driving.


5. Having not heard about this matter in 18 months, suddenly in October 2018 I received a letter out of the blue, followed soon after by a court claim. I have researched this and discovered that Excel are issuing robo-claims for archive 'parking charges' in their thousands.


6. The Claimant has been given an option in law to hold a registered keeper liable for unpaid parking charges. To do this the claimant must follow the strict requirements of Schedule 4 of the Protection of Freedoms Act (POFA) 2012, with regards to the content of their Notice to Keeper. Paragraph 6(1)(b) states that a Notice to Keeper must be issued in accordance with Paragraph 8.


6.1. Paragraph 8(2) of the aforementioned Act provides the aforementioned requirements in sections (a) to (i) inclusive. The Notice to Keeper issued by the Claimant fails to comply with sections a, e and f.


6.2. Section (a) mandates that a compliant Notice to Keeper would state the period of parking, however the notice merely states the time and date of the contravention, rather than the period of parking.


6.3. Section (e) requires the notice to state that the creditor (the Claimant) does not know the name and address of the driver, and invite the keeper to either pay the unpaid charge or notify the creditor of the name and address of the driver. The notice issued by the Claimant does not state this.


6.4. Section (f) mandates that the Notice to Keeper should warn the keeper that if within 28 days of the notice being issued, the charge is not paid and the drivers name and address are not known, the creditor will have the right to recover the unpaid amount. Again, the notice issued by the Claimant does not state this.


6.5. Rather than following the requirements outlined above, the Notice to Keeper instead states “Should the Registered Keeper either provide an unserviceable name and address of the driver OR the named driver denies they were the driver, we may pursue the Registered Keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver.”


6.6. The Claimant has failed to adhere to these strict requirements, as such their Notice to Keeper is non compliant and they can not rely upon the aforementioned keeper liability provisions. There are no other provisions in law to do this. In pre-action correspondence with the Claimant’s legal representative (dated 16 December 2016 and 9th November 2016) they have specifically stated that the Claimant does not rely upon the Protection of Freedoms Act 2012, but instead presumes the Defendant to be the driver as per Elliot v Loake 1982.


7. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent Alternative Dispute Resolution service offered by the BPA) Lead Adjudicator from 2012 – 2015. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.


8. Elliott v Loake [1982] has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.


9. A similar case to this one was heard at Skipton County Court on Thursday 17th November 2016, no. C3DP56Q5, involving the same Claimant, and a Mr Lamoureux. Again the Claimant had not adhered to the strict requirements of POFA 2012, as such the claim was dismissed.


10. The Claimant are members of the Independent Parking Committee (IPC) and as such are required to abide by the IPC Code of Practice. Part E Schedule 1 prescribes the signage characteristics that must be adhered to. The signage at the Claimant’s car park fails to adhere to these on numerous counts; the text size can not be easily read, as is demonstrated by the attached high resolution photos of the signage, which were taken by the Defendant on a visit to the car park on 13/06/2016 at midday. Such signage is not sufficient to provide a legally binding contract.


11. The Claimaint has added an unrecoverable £54 legal costs on to their claim, being unrecoverable in a small claims court, as per CPR 27.14. In addition, Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012: “The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).” The Notice to Keeper sent to myself on 10 December 2015 quite clearly states £100, not £154.


12. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.


13. The Supreme Court Judges did not disagree with the court of Appeal about ordinary economic contracts and found that such disputes may still be determined by using Lord Dunedin's 'four tests' for defining an unrecoverable penalty, which continues to have useful application in such cases where the facts could be distinguished from the Beavis case, where the Judges held:


- at 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.
In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''


- and, continued Lord Neuberger: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was “unconscionable” or “extravagant”. The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''


- and at 99: ''…deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract...the question whether a contractual provision is a penalty turns on the construction of the contract.’’


- Lord Mance at 143: ''The qualification and safeguard is that the agreed sum must not have been extravagant, unconscionable or incommensurate with any possible interest in the maintenance of the system.’’


- Lord Mance at 152: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable.''


14. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.


15. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.


Statement of Truth


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


Signature
Date

Mahone1302

I know you guys are very busy however I need to get this filed within the next 2 days and would be very grateful if somebody could give me a final opinion on whether my WS seems okay. Also if anybody can help with my question on post #96?


Thanks again!

Mahone1302

Updated a bit more. You may see at number 12 in my WS I mention a case that was struck out St Albans - I was hoping to find a transcript for this but with the info I have I simply can't, so not sure whether to mention this case at all without an evidence to back it up?:

---

Witness Statement

---

1. I am xxxx, of xxxx, the Defendant in this matter. I will say as follows:

2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief. I am unrepresented, with no experience of Civil 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.

3. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

4. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this alleged event occurred almost three and a half years ago, it is unreasonable to expect a keeper to recall who might have been driving.

5. Having not heard about this matter in 18 months, suddenly in October 2018 I received a letter out of the blue, followed soon after by a court claim. I have researched this and discovered that Excel are issuing robo-claims for archive 'parking charges' in their thousands.

6. The Claimant has been given an option in law to hold a registered keeper liable for unpaid parking charges. To do this the claimant must follow the strict requirements of Schedule 4 of the Protection of Freedoms Act (POFA) 2012, with regards to the content of their Notice to Keeper. Paragraph 6(1)(b) states that a Notice to Keeper must be issued in accordance with Paragraph 8.

Schedule 4 of the Protection of Freedoms Act (POFA) 2012 attached – Exhibit A.

6.1. Paragraph 8(2) of the aforementioned Act provides the aforementioned requirements in sections (a) to (i) inclusive. The Notice to Keeper issued by the Claimant fails to comply with sections a, e and f.

6.2. Section (a) mandates that a compliant Notice to Keeper would state the period of parking, however the notice merely states the time and date of the contravention, rather than the period of parking.

6.3. Section (e) requires the notice to state that the creditor (the Claimant) does not know the name and address of the driver, and invite the keeper to either pay the unpaid charge or notify the creditor of the name and address of the driver. The notice issued by the Claimant does not state this.

6.4. Section (f) mandates that the Notice to Keeper should warn the keeper that if within 28 days of the notice being issued, the charge is not paid and the drivers name and address are not known, the creditor will have the right to recover the unpaid amount. Again, the notice issued by the Claimant does not state this.

6.5. Rather than following the requirements outlined above, the Notice to Keeper instead states “Should the Registered Keeper either provide an unserviceable name and address of the driver OR the named driver denies they were the driver, we may pursue the Registered Keeper for any Parking Charge amount that remains outstanding on the assumption that they were the driver.”

6.6. The Claimant has failed to adhere to these strict requirements, as such their Notice to Keeper is non compliant and they can not rely upon the aforementioned keeper liability provisions. There are no other provisions in law to do this. In pre-action correspondence with the Claimant’s legal representative (dated 16 December 2016 and 9th November 2016) they have specifically stated that the Claimant does not rely upon the Protection of Freedoms Act 2012, but instead presumes the Defendant to be the driver as per Elliot v Loake 1982.

Aforementioned correspondence attached – Exhibit B.

7. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent Alternative Dispute Resolution service offered by the BPA) Lead Adjudicator from 2012 – 2015. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

POPLA Annual Report 2015 attached – Exhibit C.

8. Elliott v Loake [1982] has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.

9. A similar case to this one was heard at Skipton County Court on Thursday 17th November 2016, no. C3DP56Q5, involving the same Claimant, and a Mr Lamoureux. Again the Claimant had not adhered to the strict requirements of POFA 2012, as such the claim was dismissed.

Transcript of Claim No. C3DP56Q5 attached – Exhibit D.

10. The Claimant are members of the Independent Parking Committee (IPC) and as such are required to abide by the IPC Code of Practice. Part E Schedule 1 prescribes the signage characteristics that must be adhered to. The signage at the Claimant’s car park fails to adhere to these on numerous counts; the text size can not be easily read, as is demonstrated by the attached high resolution photos of the signage, which were taken by the Defendant on a visit to the car park on 13/06/2016 at midday. The text is also small yellow squared block capitals on a sky blue background, which is not easy to read. Such signage is not sufficient to provide a legally binding contract.

IPC CoP attached – Exhibit E.
3 x Photos attached – Exhibit F/1, 2 and 3.

11. The Claimaint has added an unrecoverable £54 legal costs on to their claim, being unrecoverable in a small claims court, as per CPR 27.14. In addition, Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012: “The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)© or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).” The Notice to Keeper sent to myself on 10 December 2015 quite clearly states £100, not £154.

12. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

13. The Supreme Court Judges did not disagree with the court of Appeal about ordinary economic contracts and found that such disputes may still be determined by using Lord Dunedin's 'four tests' for defining an unrecoverable penalty, which continues to have useful application in such cases where the facts could be distinguished from the Beavis case, where the Judges held:

- at 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.
In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

- and, continued Lord Neuberger: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was “unconscionable” or “extravagant”. The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

- and at 99: ''…deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract...the question whether a contractual provision is a penalty turns on the construction of the contract.’’

- Lord Mance at 143: ''The qualification and safeguard is that the agreed sum must not have been extravagant, unconscionable or incommensurate with any possible interest in the maintenance of the system.’’

- Lord Mance at 152: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable.''

14. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

15. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

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

Signature
Date

Umkomaas

There is no transcription and reproduction of a case unless the defendant pays for such. Unless you can quote the actual case reference, I don’t think there’s any more weight likely to be attached to it than a para arguing the moon is made of cheese.

Mahone1302

Thanks for the reply Umkomaas. However I'm now a little confused!



I mentioned the St Albans Case as I've seen it in numerous defences/WS on other threads here, but none of them mention the case no?


Not sure what is meant by " There is no transcription and reproduction of a case unless the defendant pays for such."? Should I not be referring to, and using as evidence, a transcript of Excel v Lamoureux (which I downloaded from the Parking Prankster)?