Excel & BW Legal

Mahone1302

Will do, still waiting to go in...

The independent advocate attending on behalf of BWL was 5 minutes late and arrived quite flustered! I asked if she was a solicitor, she confirmed that she was an independent advocate, we know where this is going...

Had a bit of a chat but made it clear that I won't be settling prior to the hearing. To be fair to her she is a very pleasant and polite lady.

Mahone1302

And it's a WIN on POFA non compliance!

Very happy. Also very shocked as.from the moment I walked in the Judge appeared to be suggesting that my evidence was somewhat dated and irrelevant. Even whilst summing up I wasn't entirely sure which way she was going to rule. However she dismissed the claim and awarded me £118 costs.

I'll post a full write up later. Thank you everybody for all of your help.

Coupon-mad

Yay - and another one bites the dust!

Well done! :T

Do tell us in your report, which Judge, which court & what the rep said/did?

She was wrong about your evidence - there was nothing dated or irrelevant about any of it and your case was clearly distinguished from Beavis.

Mahone1302

I'll do a full write up, probably tomorrow morning! I'll also look in to obtaining the transcript. I did question her on the advocate's Right of Audience but she quite dismissively said that she did, something about having RoA because the witness was absent - which I found odd.

Mahone1302

So my case was heard today at 2pm at Worcester Combined Court. Unfortunately I can't recall the name of the Judge, but will be calling the court tomorrow to clarify a few details, so will update then.


I arrived at the court at 1.30pm and booked in with the Usher. I'm reasonably familiar with the court having attended several times (albeit not for Civil matters - it's a combined Civil & Crown court) during the course of my work. The waiting room is shared between all the courts, so isn't separate for Civil & Crown. The waiting room was fairly quiet compared to how I've seen it in the past. I looked around and recognised a few criminal law solicitors & barristers, but couldn't see anybody who I didn't recognise, who looked like they may be a solicitor. I took a seat.


A few minutes later a lady at sat at the table next to me was joined by another lady; well dressed in a suit carrying a briefcase full of papers - clearly a solicitor. They started talking and I heard the word "Parking Eye" a few times. I couldn't hear too much of what was being said but the lady appeared to be running through when she parked in a car park, why she did, why she didn't have a ticket etc. I assumed that the solicitor was the legal rep for the lady and they were discussing her defence - it was a very in depth discussion. A short time later their case was called through and only the two of them went through, nobody else, at which point it dawned on me that the solicitor was probably in fact there to represent Parking Eye. I didn't fancy the other lady's chances at this point - she had no paperwork with her, merely a few pieces of paper in some scrappy envelopes, and appeared to have spilled her guts to the solicitor!


It got to 2pm and still nobody else to be seen who looked like they might be Excel's legal rep. Fast forward to 2.10pm and I was about to go to ask the Usher if Excel's rep had signed in, when a very flustered lady carrying lots of paperwork came walking in to the waiting room and approached the Usher's desk. The Usher pointed her in my direction and she came over and introduced herself - Ms. Tatum, representing Excel. I asked what firm she was with and whether she was a solicitor, but she replied only that she was an "Independent Advocate." I did however see some "Elms Legal" paperwork when she put her folder down the desk. Immediately I'm considering the RoA argument here.


Ms. Tatum and I exchanged the usual pleasantries and then briefly discussed the case. She asked if I was at all willing to settle the matter before the hearing, I explained that I wasn't. She started running through the 'case' and said something like "So in simple terms, your car parked in the car park and overstayed, which you're liable for." I corrected her and said that the driver was liable, and that Excel could have transferred liability to me as the keeper using POFA, but obviously hadn't done that. She said that as the keeper I was ultimately responsible for the use of the vehicle, and I said I didn't feel that the law of agency was relevant, but we'd discuss it in the court room, which is why we were there. We then had a more general chat about parking cases, and she said that it very often appeared to be a lottery, but at worse one side would leave the court with a bit of a bruised ego. She then took a seat elsewhere to read her paperwork. She seemed a little flustered and kept dropping paperwork, her bundle was quite a mess! However to be fair, she was an incredibly polite and friendly lady.



We were eventually called through a little before 3pm. The Judge asked us both to be seated. She apologised for the delay in calling us through and explained that she had been reading the paperwork, she then instantly said to me something along the lines of "Unfortunately Mr. Somner, much of your material is out of date and irrelevant, predating the Beavis case where the Supreme Court quite clearly stated that companies do have a legitimate interest in issuing parking charges for car parks that they manage. I didn't really know what to say, or whether I should even say anything, so I simply nodded and said "Yes ma'am." She then turned to Ms. Tatum and said that based upon that, she felt it would be more suitable to run through the defendants (my) case first, which Ms. Tatum agreed. At this point I felt instantly on the back foot. I felt that the Judge had already made up her mind on my case, and that by having to present my case first, I may miss things.



The Judge asked me to present my argument. I first asked whether Ms. Tatum, being an independent advocate and not from BWLegal, had RoA in the court. The Judge very quickly and dismissively said that yes she did, and mentioned something about her being able to talk as the Witness was not there themselves. I move on to my argument - I explained that my belief was that operators have two ways in law in which they can hold somebody liable for unpaid parking charges; either by identifying and pursuing the driver, or by transferring liability to the keeper by following the strict requirements of POFA 2012. The Judge asked me to expand on this, so I explained the requirements of a compliant NTK as per Sch4 Paragraph 8(2)(a) - (i). It then became apparent that Ms. Tatum didn't have a copy of this, even though I had provided one in my exhibits accompanying my witness statement. In fact she didn't appear to have any of the exhibits! It would seem that BWLegal had sent her my WS, but not my exhibits. The Judge noted down some relevant parts of Paragraph 8 and then handed that page to Ms. Tatum to use. I then explained that I felt that Excel had failed to comply with (a)(e) and (f) and referred to their NTK and explained how it was non compliant. Ms. Tatum jumped in to defend the NTK, saying that it was compliant as it said this, that and the other, referring to a specific part of BWLegal's WS. The Judge said that she would have her chance to talk when I had finished. I then explained that in two pre-action letters (exhibited in my bundle), BWLegal had clearly stated that Excel were not using POFA. The Judge decided to have a look at the section of BWLegal's WS which Ms. Tatum mentioned, but said it wasn't relevant as it merely said that an NTK had been issued, and not that it was in anyway compliant. :rotfl:



The Judge asked if I had any other evidence to give, so I referring to Henry Greenslade's comments on the POPLA Report 2015. Ms. Tatum jumped in to point out that the court wasn't bound by Mr. Greenslade's comments. The Judge acknowledged this but again pointed out that Ms. Tatum would get her chance to speak when I had finished. The Judge again asked if I had anything more to say, so I moved on to Excel v Lamoureux and Excel v Smith, explaining that in both cases the Judges state that POFA is route for PPC's to hold Keeper's liable, and that Excel v Smith was a higher level appeal which also rubbished the idea of the law of Agency being applicable in these cases.


The Judge again asked if I wanted to present any more evidence. At this point I ran through the chain of events, I explained that I did not dispute that my car was parked in the car park on the day in question - it clearly was, the pictures clearly show my vehicle parked in a bay in Excel's car park. I explained that at the time of the event I was in a long term relationship and my partner could well have been driving my vehicle, as she had implied permission to do so and was insured to do so. I also explained that other people have often been given permission to drive my vehicle too. I explained how my relationship broke down in December 2015 meaning that I moved out of the family home, and it wasn's until I was handed a bundle of letters in June 2016 that I discovered the PCN, which I admitted was not the fault of Excel. The passage of time meant that I couldn't recall who had been driving my vehicle on an unremarkable day in November 2015, and in any event the NTK was not POFA compliant and I was under no obligation to name the driver. I pointed out how Excel's car park was situated directly next to my place of work, which had it's own car park that I could use for free - so why would I use Excel's car park?


I then moved on to signage. Before I could say anything the Judge immediately said that she wouldn't find against Excel here, as signage was irrelevant due to Beavis. She said that I could go ahead and talk about it anyway if I so wished, so I did. I referred to the IPC CoP and the design of the very basic entrance sign, and how Excel's was entirely different and very wordy, meaning it couldn't be read whilst driving. I then referred to their other signs around the car park, which were all very tall signs, with the bottom being 6ft off the ground, meaning they were very high up and when combined with their very small lettering, incredibly hard to read. I felt that the signage was insufficient to form a contract. The Judge stated that the Beavis case had ruled that signage was sufficient to form a contract; I disagreed stating that the Beavis signage was unusually clear, but I had no further evidence to give. By this point I wasn't feeling massively confident, the Judge hadn't appeared to positively respond to anything I had said.



The Judge then moved on to Ms. Tatum, and asked her to present her case. Now I can't really remember much of what she said. She mentioned that she felt the NTK was sufficient to comply with POFA, and that regardless, I had been given the chance to name the driver. I seem to remember that she also tried to suggest that Excel's claim was reasonable as how else would they enforce unpaid parking charges? She said that I had "admitted" that the car park was directly next to my place of employment and thus gives me a reason to need to park in the locality. The Judge quickly jumped in and countered this, saying that I had said to the contrary, that I had access to a free car park at my place of employment. Ms. Tatum suggested that if my work car park was full, I would need to park elsewhere. She mentioned some case law, some of which I've heard on here before, some I hadn't. It didn't seem particularly relevant. She made mentioned of the signage being clear and there being lots of signs in the car park, ironically referring to BWLegal's exhibited pictures of the signs, in which the writing was illegible. I can't recall if she mentioned anything else, however she put her case forward very eloquently and I was feeling beaten by this point, purely on performance as opposed to facts.


The Judge then moved on to summing up. One of the Judge's first sentences seemed, I if I remember correctly, to suggest that I hadn't convinced her that Excel didn't have authority to issue PCN's. At this point I very much felt that I had lost this one. She continued summing up, and focused largely on the fact that private PCN's have a legitimate purpose as they allow PPC's to manage car parks and to they need to be able to hold keeper's liable for unpaid parking charges, otherwise how would they effectively manage the parking. She then referred to the Excel v Lamourex case and explained that she wasn't bound by the rulings of Skipton CC, however it was an interesting case and particularly interesting that it was a previous case where again, it was being argued that Excel were not complying with POFA. At this point I start to feel a glimmer of hope. She moved on to POFA and talked through the requirements of in terms of the NTK's. She then compared the wording to that used in the Excel NTK, and how it wasn't sufficient. She said that Excel hadn't complied with POFA, even by their own admission, and thus couldn't use that route to hold my liable. She then moved on to how Excel had to prove that on the balance of probabilities, I was the driver, but hadn't done that in this case, thus she dismissed their claim.


To say I was a little bit shocked is an understatement. I genuinely thought from the moment the Judge first rubbished my case, that I was on to a loser. However I was incredibly happy.


The Judge asked if I had any costs, however Ms. Tatum quickly jumped in and said that her client had instructed her to apply for leave to appeal, which the Judge refused. I passed the Judge and Ms. Tatum my schedule of costs. Ms. Tatum instantly took exception to my claiming of around £170 for loss of earnings, and the Judge explained that she could only award £95, and that she would do. Ms. Tatum suggested that this was excessive as the case hadn't started until 2pm and I could have worked a part day. I explained that my shift today was due to start at 2pm. The Judge asked what I did, I told her, and said that I had been required to book a full shift off, so she said that she was awarding the full £95, also my £18 travel costs and £5 parking. She pointed out that she wouldn't award costs for unreasonable conduct, litigant in person etc as PPC's could legitimately make such claims. I wasn't in the mind to argue, so accepted this. She then dismissed us both from the court room. Both Ms. Tatum and I left the court immediately, having a brief chat on the way out where she explained that Excel would be in touch to pay my costs.


So that's the day as best I remember. It may well be a little mixed up, some bits may be missing and some bits that are in there may not have even happened :rotfl:

onlyfoolsandparking

I thoroughly enjoyed reading that and for what its worth I feel you presented your case in a first class manner, I understand your trepidation in thinking you were on a loser (I would have felt the same) but you couldn't have done anything better imo.


Well done, that is a great example of how to use this forum, learn how best to play the game and ultimately get the win in Court.

Mahone1302

What ever happened to the Parking Pranksters blog? I used to read that a lot for court reports etc, but it hasn't been updated since April 2018? Also I see to recall a couple of regulars on this forum, who don't seem to post anymore - fairly certain one of them was the Prankster himself?

Quentin

PP has moved on

beamerguy

Mahone1302 .... great read and a big well done to you :T

I suspect the judge was on your side all along because of the quick turnaround in your favour. They have to be seen to be doing their job ?

Excel and BWLegal are no doubt well known to the courts now with their charade.

Excel v Lamoureux and Excel v Smith whilst not a precedence, are very persuasive for a fellow judge to take notice of.

Excel and BWLegal will remember the days when Mr Lamoureux (lami), ripped them apart and spat them out again

BWLegal are not that smart, sending a green horn to court.

I have added this case in post #1 here ....
https://forums.moneysavingexpert.com/discussion/5672664/bwlegal-the-list-of-failures-growing

I understand the Prankster is busy on projects at the moment but we all miss his amazing blogs and wish he would return

Umkomaas

Excellent report, excellent win. Well done :T