Court Claim. BW Legal on behalf of Excel Parking

eightdip

Hi all,

Just wanted to post in here as I had a very similar situation to the original poster in that BW legal were chasing me in reference to an unpaid Excel Parking services PCN.

They didn't originally post the PCN within the 14 day period required by PoFA 2012 and the case went to court with that as my main defence. It was judged that as I hadn't said at any point who the driver of the vehicle was, it was reasonable to suggest that I was the driver and thus PoFA did not apply to the case as that act is apparently only applicable for the Registered Keeper.

IMPORTANTLY however, the judge did add that if I had at any point in my original defence (whether on appeal to Excel or at point of court proceedings) said that I was not the driver at the time, I would have won the case. By me not saying one way or another, I was destined for a loss.

My personal advice would be to say you weren't the driver throughout the case, but not offer them an alternate driver. Simply state "I was not the driver at the time". That way the claimant can only chase you as a keeper and so has to abide by PoFA 2012. In my case they would have lost as they were late sending the PCN.

Hope this helps someone, I know everything is pretty case by case but I'm sure there are others in my situation.

Unfortunately I only found this thread after having submitted my witness statement so could not rely on using the quote from Henry Greenslade as used in the OP's case.

cleb1

Hi Coupon mad, I wonder if you could help me. I've got a case in a fortnight and I note that you raised no evidence of 'failure to pay and display' by the unknown driver.


I'm being really dumb here but can you please elaborate on how they would adduce evidence of failure to pay and display? Do you mean a list of all payments made at the time of entry on the ticket (and therefore evidence that the VR in question was missing?).


Also regarding POFA, I was the registered keeper but not the driver. I have said this in my defence and witness statement and quoted Greenslade. Non-compliance with schedule 4 is one of my main defences.


I note that people have said that Excel either need to identify the driver or if not, serve a POFA compliant notice to keeper. I have quoted sections 6 and 9 of schedule, i.e. there has been a breach of 9(2)(b) which states that "the notice must inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking" I have stated that this is impossible, since they have not identified the driver. I have also highlighted a breach of 9(2)(c) which states that the notice must "describe the parking charges due from the driver, the circumstances in which the requirement to pay arose (including the means by which the requirement was brought to the attention of the driver". There was no mention of how the requirement to pay was brought to the driver's attention, therefore I have stated that this has been breached. Finally, 9 (2)(e) stated that the notice must state that "the creditor does not know the name of the driver and a current address for service of the driver". This too has been breached. However, I suspect that they will say how would they identify individual drivers and know the difference between who is the registered keeper/driver and currently I don't have a response to this?


I have quite a lot more info in my statement and am happy with arguing that, but am a bit hazy on these two points.


Can coupon mad or anybody else assist please?


I am being quite vague on here and not typing exact copies of my witness statement as ~I note that Excel may be reading.


Thanks,

Lamilad

cleb1 wrote: »

Can coupon mad or anybody else assist please?

Thanks,

Why are you posting on here rather than your own thread?
https://forums.moneysavingexpert.com/discussion/5506858

Posting across threads is poor forum etiquette. Plus you won't get the answers you need as the regulars:
A) Can't see the background to your case
Won't respond to questions on 'hijacked' threads

CM mainly posts late afternoon/evening. Lookout for when she's active (posting on the forum) then bump your thread. I'm sure she will help you.

Lamilad

eightdip wrote: »

Hi all,

Just wanted to post in here as I had a very similar situation to the original poster in that BW legal were chasing me in reference to an unpaid Excel Parking services PCN.

They didn't originally post the PCN within the 14 day period required by PoFA 2012 and the case went to court with that as my main defence. It was judged that as I hadn't said at any point who the driver of the vehicle was, it was reasonable to suggest that I was the driver and thus PoFA did not apply to the case as that act is apparently only applicable for the Registered Keeper.

IMPORTANTLY however, the judge did add that if I had at any point in my original defence (whether on appeal to Excel or at point of court proceedings) said that I was not the driver at the time, I would have won the case. By me not saying one way or another, I was destined for a loss.

My personal advice would be to say you weren't the driver throughout the case, but not offer them an alternate driver. Simply state "I was not the driver at the time". That way the claimant can only chase you as a keeper and so has to abide by PoFA 2012. In my case they would have lost as they were late sending the PCN.

Hope this helps someone, I know everything is pretty case by case but I'm sure there are others in my situation.

Unfortunately I only found this thread after having submitted my witness statement so could not rely on using the quote from Henry Greenslade as used in the OP's case.

Hi eightdip, such a shame you didn't find the forum sooner. With forum help 99% of cases are won against Excel/VCS/BW Legal.

The judge erred in your case and clearly doesn't have a good understanding of pofa/ keeper liability. It doesn't matter whether you know you weren't the driver or if you can't remember. Without pofa compliance the claimant has to prove you were the driver or at least put forward a very convincing argument to make the judge believe that on the 'balance of probabilities' (BoP) you were the driver.

The burden of proof always lies with the claimant. It is not for the defendant to prove they were not the driver. In some cases defendants have won by not even submitting evidence but simply holding Excel to strict proof as to who was driving.
http://parking-prankster.blogspot.co.uk/2016/12/excel-lose-at-sheffield-elliot-v-loake.html

If the claimant cannot rely on pofa then they CANNOT hold the RK liable. Henry Greenslade's comment may have convinced the judge that no 'assumptions' can be made'.... and if you'd adduced my transcript it could have been persuasive.

Bigboy351

Hi gents just wondering if Parking companies not complying with a 14 day notification on an parking overstay is a legitimate reason for winning a case?

waamo

Bigboy351 wrote: »

Hi gents just wondering if Parking companies not complying with a 14 day notification on an parking overstay is a legitimate reason for winning a case?

You need to do 2 things. 1 is to read the thread at the top of the forum that tells Newbies to read it first. Then 2 start your own thread for advice.