Court Claim. BW Legal on behalf of Excel Parking

Coupon-mad

You could email it seeing as you will only get a rubbish reply, saves a stamp. Not Special Delivery, costs you a fiver and more.

Lamilad

Thank you CM I'll email it tonight. Can I just check, re my side note in red above... should the X's say "Northampton" ?
Thanks

Coupon-mad

Well any hearing will be in your local Court, not Northampton which is only a central point.

Lamilad

Ok thanks in that case I'll put Halifax which I think is my local CC.

Lamilad

Ok, so I've emailed my part 18 to BW Legal and copied in Excel. I would like to work on my defence now and get it just right. The submission deadline is one week from today.

Please could someone read my statement above and let me know what changes I need to make. As I've patched this together from other defences I'm concerned that some parts are not relevant to my case. The notes in red highlight the bits I'm not sure about. Thanks

Coupon-mad

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”?)

If you know it wasn't you then leave your defence point as shown: ''The Defendant was not the driver of the vehicle on the dates in question.''

#3 has a final point #g about 'loss'. Remove that, this cannot be argued on whether the charge equates to a loss and gives them an open door to push at, citing the Beavis case, which then puts you on the back foot. So do not talk about loss or disproportionate charge.

For that reason, remove #6 completely. That argument gets you nowhere fast!

#4 and #5 are so similar I would amalgamate them to avoid repetition.

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”?),

yes it could.

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)

Well basically you can see from the postal NTK that they don't use the wording set out in paragraph 8 or 9 of the POFA, Schedule 4 - e.g. no warning of keeper liability or other mandatory wording.

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?)

Yes.

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?)

Change it to the IPC Code of Practice applicable at the time of the alleged parking event. It is for them to show full compliance, so you can look more closely at this point if you get more information from them.

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?)

Yes if they are alleging no payment made.

You could also add a point stating that the claimant has shown no evidence of 'failure to pay and display' by the unknown driver.

And you need to add a statement of truth at the end.

Lamilad

Thank you very much CM. I'm going to get to work on refining my statement based on your feedback. You're a smart cookie and I really appreciate your help.

Lamilad

Hi, I have refined my defence. I have also done additional research and changed the wording on certain paragraphs where I have found better examples. The date of issue was 27/05/16 so I work out the deadline for submission is 29/06/16. I plan to send this via MCOL on the 28th.

Please could I ask the experienced posters to read through this and advise of any changes I need to make before submitting. Many thanks in advance.

[FONT=&quot]Statement of Defence[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]28/06/2016[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-[/FONT]
[FONT=&quot]1. [/FONT][FONT=&quot]The Defendant was not the driver of the vehicle on the date in question.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]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] [/FONT]
[FONT=&quot]4. [/FONT][FONT=&quot]The signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]5. [/FONT][FONT=&quot]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 Services Ltd.[/FONT]
[FONT=&quot]a) [/FONT][FONT=&quot]Excel Parking Services Ltd is not the lawful occupier of the land[/FONT]
[FONT=&quot]b) [/FONT][FONT=&quot]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.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]6. [/FONT][FONT=&quot]No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]7. [/FONT][FONT=&quot]The claimant has yet to respond to part 18 Request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the 20/06/2016.[/FONT]
[FONT=&quot]a) [/FONT][FONT=&quot]A request to explain if Excel Parking Services Ltd are making a claim as an agent of the landowner or making the claim as occupier in their own right.[/FONT]
[FONT=&quot]b) [/FONT][FONT=&quot]A request to explain if the amount claimed by Excel Parking Services Ltd is for a genuine pre estimate of loss for a breach of contract or a contractual sum?[/FONT]
[FONT=&quot]c) [/FONT][FONT=&quot]A request to provide copies of the signs on which Excel Parking Services Ltd rely and confirm the signs were in situ on the date of the event. Also to provide the date the signs were installed.[/FONT]
[FONT=&quot]d) [/FONT][FONT=&quot]A request to confirm that the signs were at the entrance to the site on the date in question. Also to confirm that the signs meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]8. [/FONT][FONT=&quot]The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:- [/FONT]
[FONT=&quot]a) [/FONT][FONT=&quot]The Claimant has no commercial justification[/FONT]
[FONT=&quot]b) [/FONT][FONT=&quot]The Claimant did not follow the IPC or BPA Code of Practice[/FONT]
[FONT=&quot]c) [/FONT][FONT=&quot]The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question[/FONT]
[FONT=&quot]d) [/FONT][FONT=&quot]The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.[/FONT]
[FONT=&quot]e) [/FONT][FONT=&quot]The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]9. [/FONT][FONT=&quot]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, 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.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]10. [/FONT][FONT=&quot]The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "[/FONT][FONT=&quot]Legal representatives costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]11. [/FONT][FONT=&quot]If the driver on the date of the event was considered to be a trespasser 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. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]12. [/FONT][FONT=&quot]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.[/FONT]
[FONT=&quot]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]I believe that the facts stated in this[/FONT][FONT=&quot] Statement of defence, 28/06/2016 (date I intend to send) are true."[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Signed[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot][my name][/FONT][FONT=&quot][/FONT]

Lamilad

The following statement was made by Coupon-mad on another thread. It looks like a really strong point but I'm not sure where to include it in my defence. Suggestions appreciated


Re your point (i) you could add:

This is the position on private land according to the applicable law, as confirmed by the experienced PATAS and POPLA Lead Adjudicator and barrister Henry Michael Greenslade who confirmed in 2015:

''Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver...If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

In fact at this stage you do not need his actual quoted words, you could just keep those for later in your skeleton defence and evidence if it proceeds further. I would drop his name into it at this stage though to back up your defence point.

Coupon-mad

You don't have to include such detail at this stage but could have that printed out later, as part of the defence evidence & exhibits for a hearing. So at this stage as long as you've said 'no keeper liability under the POFA' as a defence bullet point, then you don't need this level of info yet.

BTW, #2 and #9 look like they should be amalgamated as there is repetition of the same point.