Me and Excel - At war!

Lamilad

Ok, so I already have one thread on the go after receiving a CC claim from BW Legal/Excel parking a couple of weeks ago. I have now received papers for another claim and this one is big! Strangely this has come directly from Excel - no mention of BW and the specifics of the claim are different.

I received a letter from Excel dated 1st July which quoted a claim number. It said 'detailed' POC were enclosed and a copy had also been filed at the court. Enclosed was a 7 point list describing the POC with a statement of truth.

Today I received the court papers, not from Northampton (as before) but from MCOL. The POC are different from the list Excel sent and very different from the other claim I'm dealing with. Breakdown of claim is:

Amount Claimed: £627.55
Court Fee: £60.00
Legal rep costs: £0.00
Total amount: £687.55

Point 2 of the excel POC reads:
"The claim is for the sum of £627.55 being monies due from the defendant to the claimant in respect of a parking charge notice issued between the dates 30/08/2014 and the 05/12/2015 in the car park known as ******** Retail Park"

The is no reference to any dates or specific PCNs in the court POC.

I find it strange that they can bring a claim against me without actually referring to anything specific - just a range of dates - it doesn't even say how many PCNs they're talking about. I am the RK of the vehicle but not the driver.

As with my other claim I will send a part 18 then submit a defence but I'm guessing I can't send the same defence due to the POC being very different. I will upload pics of the correspondance received so far. I would really appreciate some advice about what my part 18 and defence should focus on. It would be especially helpful if anyone could advise how to modify my previous defence so it becomes suitable for this case. My other thread is here:
https://forums.moneysavingexpert.com/discussion/5478608

I think excel have declared war on me as I am receiving letters galore from them/ BW/ DCBL for other 'contraventions' in the same car park - all threatening court action. I fear defending myself is going to become a full time job

PLEASE HELP!

fil_cad

Go give them hell, stand up to the bandits. :money:

Lamilad

The links to the correspondance are as follows:

http://i1249.photobucket.com/albums/hh508/...zps5bdjw9mw.jpg
http://i1249.photobucket.com/albums/hh508/...zpszecuyqbr.jpg
http://i1249.photobucket.com/albums/hh508/...zps7qsjjg3k.jpg

Coupon-mad

Usual defence points apply, certainly including the fact that a registered keeper of a family car (with more than one possible driver) cannot possibly be expected to know who was driving on an unidentified number of occasions over the course of a year between 2014 - 2015. And including 'no keeper liability' due to Excel not using POFA wording as set under that statute, which would have provided a parking firm with their only lawful means of pursuing a registered keeper in the absence of evidence of who was driving each time.

And 'no standing' as they do not own the car park and only act as agent on behalf of the landowner with no comparable legitimate interest as was the case in the Beavis case, where ParkingEye paid £1000 a week for the right to form contracts with drivers and pursue them (conversely, I think that Excel are paid BY their landowners to 'run' car parks, just like any other employed contractor). This arrangement differs fundamentally from the PE v Beavis case and gives Excel no locus standi.

And non-prominent signs in that car park which MUST HAVE changed between 2014 and 2015...because on 1.1.15 Excel changed ALL their signs and the wording of their alleged contracts, when they jumped from the BPA to the IPC!

I find it strange that they can bring a claim against me without actually referring to anything specific - just a range of dates - it doesn't even say how many PCNs they're talking about. I am the RK of the vehicle but not the driver.

Agreed. All of that can go into your defence, if this is a real claim form (does it have a claim number top right, a seal and a password for MCOL near the bottom right?)

Read other defences on here and on pepipoo forum, where I know you are posting as well:

http://forums.pepipoo.com/index.php?showforum=60

Go back about 10 pages on each forum and you will read lots of defences discussed. Show us your draft defence, like in your other thread.

You could reasonably email Excel (email at the bottom of their letters) with a part 18 request and give them a week to provide full and more detailed particulars including dates, alleged contravention details and times of each parking event because the absence of this in the claim smacks of a deliberate tactic to make it difficult for a litigant-in-person to defend meaningfully. And if they do not provide the details, dates and times then you will ask that the claim is struck out and/or seek leave to provide an updated defence later (any fee for this, then being pursued from Excel as part of your costs schedule, due to their conduct being wholly vexatious and unreasonable, with vague particulars being provided by a claimant known to be a serial litigant with no problem in accessing legal advice regarding claims).

P.S. The poster here called 'IamEmanresu' usually makes the suggestion that people should send the parking firm a SAR. Sounds like a good idea in your case. Excel HAVE to reply. It won't be before your defence goes in but it will have to be before the next stage, if they proceed.

Not sure how Excel think they can lump BPA signs/contract PCNs (from 2014) in with (2015 onwards) IPC version signs and contract PCNs. You can seize on that, I'm sure. See what pepipoo say, and others here.

Half_way

Why did you receive a parking charge notice in the first place?
Have you contacted Star retail park?
As above, follow the advice in the sticky and the advice above, but also give the retail park some aggro, depending on why you got a charge, and the t name of the retail aprk then the amount of aggro you can give the retail park for taking on Excel to act their agents can be determined.

One things for sure, if you pay your cards right Simon Renshaw-smith wont be benefiting from this.

Lamilad

Half_way wrote: »

Why did you receive a parking charge notice in the first place?
Have you contacted Star retail park?
.

It's a good point Halfway. Excel haven't actually said why the unknown number of PCNs were actually issued. What ever the alleged contravention is, they haven't stated it. Seems very sloppy.


I am going to contact the land owners and give them some grief as I use that car park regularly and spend a lot of money in the shops.

Lamilad

Coupon-mad wrote: »

You could reasonably email Excel (email at the bottom of their letters) with a part 18 request and give them a week to provide full and more detailed particulars including dates, alleged contravention details and times of each parking event because the absence of this in the claim smacks of a deliberate tactic to make it difficult for a litigant-in-person to defend meaningfully. And if they do not provide the details, dates and times then you will ask that the claim is struck out and/or seek leave to provide an updated defence later (any fee for this, then being pursued from Excel as part of your costs schedule, due to their conduct being wholly vexatious and unreasonable, with vague particulars being provided by a claimant known to be a serial litigant with no problem in accessing legal advice regarding claims).

P.S. The poster here called 'IamEmanresu' usually makes the suggestion that people should send the parking firm £10 and a SAR:

https://bmpa.zendesk.com/hc/en-us/articles/206890469-Subject-Access-Requests

Sounds like a good idea in your case. Excel HAVE to reply. It won't be before your defence goes in but it will have to be before the next stage, if they proceed.

Not sure how Excel think they can lump BPA signs/contract PCNs (from 2014) in with (2015 onwards) IPC version signs and contract PCNs. You can seize on that, I'm sure. See what pepipoo say, and others here.

Thanks Coupon-mad, solid advice as always! Sounds like I will be able to use my other defence after all with only minor editing. I will definitely do the SAR using BMPA's template, will be interesting to see what comes back. I'll get the part 18 sent off in the next couple of days then I should have a response by the time I submit my defence - although they still haven't responded to the P18 in my other case.


On a slightly separate note, I want to complain to the relevant authority about excel's conduct in this matter. The fact they're claiming a large sum of money whilst providing virtually no details, other than a range of dates; and the fact during these dates they're signs changed from BPA to IPC. Can anyone advise which authority I should complain to? I'm doing the same with BW Legal re my other case using a letter from LoveNorfolk's thread. I'm sending this complaint to the SRA and CSA but I'm guessing this won't be relevant for Excel as they aren't solicitors?

Coupon-mad

Excel merely report to the IPC. Good luck with that!

Lamilad

Coupon-mad wrote: »

Excel merely report to the IPC. Good luck with that!

Don't think I'll bother wasting a stamp. Annoying that they can operate like this with impunity, answering to no-one! :mad:

Lamilad

I've just got back from holiday which is why I haven't updated for a while. I was hoping to spend a bit of time working on this while I was away but the internet was rubbish. So that leaves me with about a week to get my defence sorted and submitted - Issue date was 4th July so I work out the deadline is 6th Aug (28 days + 5 for service) - Is that right.

Due to limited time I'm going to have rely heavily on my other defence statement and hope that it is suitable for this case too (obviously with some editing) I'll post it here shortly. Please can anyone give me advice on what needs to be edited/ added/ removed and particularly how I can incorporate a strongly worded paragraph (as per CMs comments above) about the fact the PCNs cover dates where excel was members of both BPA and IPC and would have had different signs. Many Thanks

Lamilad

The defence from my other case is as follows. I will obviously change all the references to BW Legal. I'll also remove the part 18 stuff as I haven't sent one (yet). All advice and feedback will be gratefully received. Thanks

Statement of Defence: Claim No. XXXXXXXX; Date: xx/06/2016

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:-
1. The Defendant was not the driver of the vehicle on the date in
question.
2. The Protection of Freedom Act 2012 Schedule 4 has not being
complied with.
a) Notwithstanding that the Claimant claims no right to pursue the
Defendant as the registered keeper under PoFA, 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.
b) 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 and
with mandatory wording
c) The claimant has no right to assert that the defendant is
liable based on ‘reasonable assumption’. PATAS and POPLA Lead
Adjudicator and barrister, Henry Michael Greenslade, clarified
that with regards to keeper liability, 'There is no ‘reasonable
presumption’ in law that the registered keeper of a vehicle is the
driver and operators should never suggest anything of the sort'
(2015).

3. 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 landholder. 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.

4. 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.

5. It is denied that the Claimant has authority to bring this
claim. The proper Claimant is the landholder. Strict proof is
required that there is a chain of contracts leading from the
landholder to Excel Parking Services Ltd.
a) Excel Parking Services Ltd is not the lawful occupier of the
land
b) 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. 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.

7. The claimant has yet to respond to part 18 Request sent by
the defendant to BW Legal and Excel Parking Services Ltd on the
xx/06/2016.
a) 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.
b) A request to explain if the amount claimed by Excel Parking
Services Ltd is for a breach of contract or a contractual sum.
c) 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.
d) 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.

8. 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:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landholder and suffers no loss
whatsoever as a result of a vehicle parking at the location in
question
d) The amount claimed is a charge and evidently disproportionate
to any loss suffered by the Claimant and is therefore
unconscionable.
e) 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.

9. 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 'Legal representative’s costs'. These cannot be recovered in
the Small Claims Court regardless of the identity of the driver.

10. If the driver on the date of the event was considered to be a
trespasser if not allowed to park there, then only the landholder
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 landholder themselves claiming for
a nominal sum.

11. 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.

Therefore I ask the court to respectfully strike out this claim
with immediate effect.

I believe that the facts stated in this Statement of defence,
xx/06/2016 are true.

Signed: XXXXXXXXXXXXXX