Court Claim. BW Legal on behalf of Excel Parking

Lamilad

PLEASE HELP!

I have received county court claim forms from Northampton County Court for an un paid PCN. The claimant is Excel Parking Services LTD. The "address for sending documents and payments" is stated as BW Legal.

Particulars of Claim:
The claimants claim is for the sum of £100 being monies due from the defendant to the claimant in respect of a parking charge notice (PCN) is on 25/07/2015 (issue date) at XX:XX:XX at XXXXXXXXX Retail Park XXXXXXXX.
The PCN relates to XXXXXXX under registration XXXXXXX.
The terms of the PCN allowed the defendant 28 days from the issue date to pay the PCN, but the defendant failed to do so.
Despite demand having been made, the defendant has failed to settle their outstanding liability.
The claim also includes statutory interest pursuant to section 69 of the county courts act 1984 at a rate of 8% per annum a daily rate of 0.02 from 25/07/2015 to 26/05/2016 being an amount of £6.14.
The claimant also claims £54.00 contractual costs pursuant to PCN terms and conditions

Amount claimed: £160.14
Court fee: £25.00
Legal representatives costs: £50.00
Total amount: £235.14

Background:
I do not have any specific recollection of this occurrence. I use this car park regularly as does my wife - who also drives my car. Other family members also use my car. I usually pay for my parking but I know I have forgotten on occasion to buy a ticket and I have received other PCN letters from Excel and BW legal.
Following out of date advice I have always ignored all correspondence and chucked all letters in the bin. From reading the Newbies, and other threads on this forum I know I am a complete idiot for doing this so no need to point that out.

So Far:
I have completed the AOS on MCOL and stated that I intend to defend all of the claim. I have also contacted BMPA. They have said I need to write a defense and they will help me refine it. They said the defense will likely be vague as they rarely provide enough information and I should explain it's vague as I haven't been given enough detail. The next stage, they said, is to write a witness statement (but it might not get that far)

Here's where I'm a bit stuck. I don't know where to start with my defense and/or witness statement. I've spent the last few hours reading loads of threads inc the newbies thread so I have a few ideas about points my defense should include but that's about it. I can't seem to find any threads that are a close match for my experience so if anyone can point me in the direction of one that would be much appreciated. I confess I'm very tired after a long day so I'm struggling to take all the info in.

From what I can gather my defense should include the following points:
* As Excel parking is not the land owner they do not have the right to bring a claim against me
* the claim is not a genuine pre-estimate of loss - although I have read that this may not be a valid defense since the Beavis case
* The £54.00 contractual cost is unenforceable
* The contract is not valid as I could not have known the full terms and conditions before parking.
* The detail on the signage on entry to and within the car park is too small to properly read and understand while driving (it really is, I have pics)
... I'm sure there's loads of other stuff too which is where I need guidance.

I'm going to do some more research tomorrow and start drafting my defense. I will post on here when ready but I would really appreciate some pointers to get me started and if possible so example words/ sentences/ paragraphs.

Many thanks in advance. From reading some threads I think it's amazing that the people on here are willing to share their time and knowledge to help the ordinary man/ woman against these PPC scoundrels

Redx

just use the forum search box and suitable search words like BW LEGAL DEFENCE and COURT CASE and find similar ones to yours from this year and any 2016 ones involving CEL and UKPC as well

do that and you will find loads of recent ongoing cases with plenty of initial defences listed and talked about , including drafts etc

plus read the court section in post #1 of the NEWBIES sticky thread, and read the parking pranksters court guide booklet too

ps:- your initial defence is a holding defence, mentioning what the later FULL DEFENCE will contain in detail

so consider the initial defence as a bullet point defence, much shorter than the main defence later, where you will expand upon the legal points you raise now

Lamilad

Thanks Redx.

I've done loads of reading and have pulled together what I think looks like a reasonable defence but I have patched it together by copying paragraphs from other defences and editing/addidng/deleting words to make them suit my case. I'm really not sure I've done this right and there is some stuff in my defence that I don't really understand.

I'll post what I've got so far and I would be really grateful if you and any other experienced users could have a look at it and let me know what changes I need to make - what I need to add, delete, reword etc.

I gather I need to send my part 18 request first to BW Legal so I will do that tomorrow. If there's anything else I need to know or if I've missed anything, please advise. I want to arm myself with as much information and detail as possible to ensure I can put up a proper fight.

Lamilad

My defence is as follows: Please take note of my sub-notes in red. All advice welcome and appreciated. Thanks

[FONT=&quot]Claim Number: *******

Excel Parking Ltd v ******

Statement of Defence

I am xxxxxxx xxxxx , defendant in this matter and deny liability for the entirety of the claim.

1. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.[/FONT]
[FONT=&quot]
2. The Defendant was not the driver of the vehicle on the dates in question. (SHOULD I CHANGE THIS TO “IT IS NOT KNOWN WHO THE DRIVER WAS”?)[/FONT]
[FONT=&quot]
3. The claimant has yet to respond to part 18 Request written and sent by the defendant and delivered to BW Legal on the XX/XX/2016.
a) A request to identify the party who contracted the claimant as they are not the landowner or occupier
b) A request to provide the full legal identity of the landowner or occupier
c) A request to provide a full unredacted copy of the contract with the landowner which demonstrates the claimants authority from the landowner to issue parking charges and litigate in their own name
d) A request for a copy of the original notice to keeper
e) A request to provide original and unedited photographic evidence of the purported contravention
f) A request to provide a breakdown and explanation of how the charge for the purported contravention has risen to £160.14 (IS THIS CORRECT AS THE CLAIM OF £160.14 IS ACTUALLY £100+£54+£6.14?)
g) A request to provide a detailed and itemised breakdown of the losses and or damages suffered by the claimant

4. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Ltd.

5. Excel Parking Ltd are not the lawful occupier of the land.
(i) Excel Parking Ltd is not the lawful occupier of the land
(ii) absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

6. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking on the site in question; (b) the amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable; © the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; (IS THIS RELEVANT AS THE ALLEGED CONTRAVENTION IS FOR NOT BUYING A TICKET, NOT FOR OVERSTAYING?) and (d) the clause is specifically expressed to be a parking charge on the Claimant's signs.

7. - The signage on the site in question is unclear, unremarkable and not prominent on site so no contract has been formed with driver(s) to pay £1[FONT=&quot]00[/FONT], or any additional fee charged if unpaid in 28 days. This distinguishes this case it from the Beavis case

8. The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper is unaware of the PCN and was not the driver (SHOULD THIS SAY “AND IT IS NOT KNOWN WHO THE DRIVER WAS”?), as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time/with mandatory wording. (NOT SURE I UNDERSTAND THIS BIT)

9. As the POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100 which at the time, made it a condition that any charge issued must be based upon a GPEOL, the amounts claimed are excessive and unconscionable. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60 to each PCN and that those sums formed part of the contract in the first instance. (NOT SURE ABOUT THIS £60; THEY’VE ADDED £54+6.14+£50 LEGAL COSTS SO DO I CHANGE THE £60 TO £110.14?)

10. It is not believed that the signage on site at the time included any stated additional costs or surcharges nor even that the £100 was legible on each occasion. No sum payable to this Claimant was accepted nor even known about by any driver; they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

11. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. (CAN I SAY THIS AS EXCEL IS IPC NOT BPA + I’VE NO REASON TO BELIEVE THEY HAVEN’T COMPLIED?)

12. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and Excel Parking Ltd have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

13. If the driver/s on each occasion were considered to be trespassers if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum. (IS THIS RELEVANT TO MY CASE?)

14. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

In my opinion, there is a better alternative than legal proceedings, namely that we utilise the services of a completely independent ADR service suited to parking charges. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

Therefore I ask the court to respectfully strike out this claim with immediate effect[/FONT][FONT=&quot]. [/FONT]

Lamilad

Just something else I've picked up on in another thread is that Excel apparently do not comply with Pofa and so cannot hold me liable as the RK. They can only pursue the driver. This has been described as a potential 'slam dunk' defence. Can anyone advise further on this and if/how I should include it in my defence statement? Many thanks.

Coupon-mad

Well yes, it is obvious from the PCN if you read it! Talks about the driver being liable, doesn't use any wording from the POFA Schedule 4 warning about keeper liablility. You wouldn't need any forum/legal knowledge to spot it, stands out like a sore thumb when you look at Schedule 4 and compare.

Of course you use that in a defence and it's used in example defences here all the time. Try searching 'defence POFA keeper liability' or something similar as keywords, to find wording someone has used already in a defence. You do not have to go into detail yet.

hoohoo

Lamilad wrote: »

Just something else I've picked up on in another thread is that Excel apparently do not comply with Pofa and so cannot hold me liable as the RK. They can only pursue the driver. This has been described as a potential 'slam dunk' defence. Can anyone advise further on this and if/how I should include it in my defence statement? Many thanks.

Its a slam dunk if you were not the driver and can provide reasonable proof of this (which will depend on the judge - some might accept just your word).

If you dont know who the driver was, this will again depend on the judge.

Marktheshark

They will drop the part 18 stuff on your lap at court before you go in.
Seal your court bundle with red tape, ribbon or string, leave anything they drop on you in the waiting room, do not accept it, ignore it.
State to the judge your evidence bundle was sealed at the deadline for submissions.

Lamilad

Marktheshark wrote: »

State to the judge your evidence bundle was sealed at the deadline for submissions.

Thanks Mark. I will ensure that is done. Although I'm hoping they don't take it that far.

hoohoo wrote: »

Its a slam dunk if you were not the driver and can provide reasonable proof of this (which will depend on the judge - some might accept just your word). If you dont know who the driver was, this will again depend on the judge.

Thanks, Hoohoo. I was hoping it would be up to them to prove I was driving.

Coupon-mad wrote: »

You do not have to go into detail yet.

Thanks Coupon-mad. Should I thin my statement out into basic bullet points?

Lamilad

I found this part 18 request on Anthony94 's thread which I have edited. Please could someone let me know if it's ok to send or advise what changes I need to make/ things I need to add? Also will I be able to email it to BW Legal or does it have to be posted? Many thanks

IN THE XXXX COUNTY COURT CLAIM NO: [should the X's say Northampton?]

BETWEEN:

Excel Parking Services Ltd [Claimant]

and

{MY NAME} [Defendant]

PART 18 REQUEST FOR FURTHER INFORMATION

To: Excel Parking Services Ltd

Please answer the following questions:
1. What is the basis of the claim. Is Excel Parking Services Ltd making a claim as an agent of the landowner or making the claim as occupier in their own right?
2. Is the amount claimed by Excel Parking Services Ltd for a genuine pre estimate of loss for a breach of contract or a contractual sum?
3. If the contract has been conveyed by the use of signage on site, please provide copies of the signs on which you rely and confirm these are the signs in situ on the date of the event. Please also provide the date these signs were installed, for example, a works schedule, maintenance record or invoice for the work.
4. Were there signs at the entrance to the site on the date in question? Did these meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1 (Please indicate)
TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU.
I also require that answers to these questions be verified by a Statement of Truth by an authorised signatory of Excel Parking Services Ltd

Lamilad

Hi I have an email address for BW Legal so I could email the part 18 (above) but is it OK to do this or should i send it special delivery? Thanks