Excel & BW Legal

Mahone1302

Ive had confirmation from the CCBC that my defence has been received and today I've had a DQ through from BWLegal. Am I right in thinking that I don't need to worry about filing a DQ until the court request one?

I've also completed a SAR to Excel about a week ago. Not even had an acknowledgement though.

ShakeItOff

From reading other threads on here, the court will send you a DQ separately, and BW Legal doing so is trying to chance their arm at a papers hearing on the hope you don't spot it (might not have the terminology quite right - basically, no court hearing).

Check the privacy page for Excel about whether they would need proof of identity, as the SAR clock may not start until that is provided, where they have indicated that they may need it.

KeithP

Mahone1302 wrote: »

...today I've had a DQ through from BWLegal. Am I right in thinking that I don't need to worry about filing a DQ until the court request one?

Do points 7 and 8 in the list in post #66 above go some way towards answering that?

Mahone1302

DQ filed a few days ago, checked MCOL today and it appears that the case has been transferred to my nominated court. I've also had the SAR response from Excel which is basically a few photographs of my vehicle in the car park in question, some photos of the signage, copies of the NtD and NtK, some emails between BWLegal and Excel, and all of the letters sent from BWLegal to me and my responses to them. No evidence of who the driver was.


Any idea what is the rough timescale from now until the hearing, or does it vary hugely?

nosferatu1001

Varies hugely

Have you read the rest of the newbies thread, so youre sure of the next steps?

Mahone1302

I have, albeit it's a little overwhelming and full of information, but I'm fairly sure I get the jist. I've had a letter from CCBC informing me that it has been transferred to my nominated county court and further instruction will follow. I understand that I need to now produce a witness statement and relevant exhibits prior to the court hearing.

What sort of history do Excel actually have with going to court?

beamerguy

Mahone1302 wrote: »

I have, albeit it's a little overwhelming and full of information, but I'm fairly sure I get the jist. I've had a letter from CCBC informing me that it has been transferred to my nominated county court and further instruction will follow. I understand that I need to now produce a witness statement and relevant exhibits prior to the court hearing.

What sort of history do Excel actually have with going to court?

Excel and VCS (same setup) and BWlegal .......
https://forums.moneysavingexpert.com/discussion/5672664/bwlegal-the-list-of-failures-growing

Scroll down to read the failures and take note of ....

BWLEGAL ADD ON A FAKE £60 ?
In addition to the 'parking charge', the Claimant's legal representatives, BWLegal, have artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. >>>> thanks to bargepole

And the latest today
https://forums.moneysavingexpert.com/discussion/5968089/court-report-the-ppcs-and-the-harm-they-do

Mahone1302

The date is set! 29th April for court. Now in the process of putting together my WS.


I've also had a letter since, from BW Legal, offering to allow me to pay a reduced amount to settle out of court. I am aware that Gladstones do this when they're about to discontinue, is this the same for BWL or are they likely to continue to court?

Coupon-mad

BWL seem to always do this now. Ignore it. Let's see your WS and evidence.

Mahone1302

Time has been very tight lately, however I've managed to make a start on the WS. See below - ignore the numbering, I'm not going to bother to number it correctly until it's complete. I still need to add some bits about the signage. I'm a little confused however as to what needs to go in to a WS, and what would go in to any other documentation. I will of course provide print outs of POFA Sch4, POPLA Annual report etc etc.


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:


1. 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.


2. 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.


1. 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.


23. 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.


xx. 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 2012, with regards to the content of their Notice to Keeper. 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.



29. 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.



xx. 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 2015: “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.

46. 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''.


17. 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.''


47. 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.


7. 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