Me and Excel - At war!

Lamilad

Ok I've edited a previously used defence statement (shown above) to make it applicable in this case. I've changed some wording, removed a paragraph and added a new one. Please could I have some advice on para. 3 - this is something I've added myself and, as I'm not good with legal wording, it may need changing. I need to submit my defence by 4pm tomorrow (5th Aug). Thanks




Statement of Defence: Claim No. XXXXXXXX; Date: xx/08/2016

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 dates 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 any charges 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. No specific event of or alleged contravention is referred to in the particulars of claim (PoC) which would form the basis of this claim. The PoC refer to “a parking charge notice issued between the dates 30/08/2014 and the 05/12/2015” suggesting the claim is for a single alleged contravention that occurred sometime within a period of 16 months. On that basis, the amount claimed of £687.55 is clearly unconscionable.

4. 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.

5. 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 both the
IPC and BPA during the dates in question and committed to follow their requirements. Therefore no contract has been formed with driver to pay any charge, or any additional fees if unpaid
in 28 days.

6. 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.

7. 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.

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.

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/08/2016 are true.

Lamilad

Quick update. Following advice from Pepipoo I have changed para 3 to read as below. Could anyone recommend any further amends/builds to my defence? I'm going to submit tonight or tomorrow morning to ensure its received in time. Thanks

3. "This indicates a single PCN issued sometime in a 16 month period with a cost of over £600. This is clearly a penalty, and fails to allow the defendant any opportunity to know the specific conduct that was allegeded to give rise to such a charge. I ask the court strikes out the claim for failing to disclose any cause of action. Failing this I ask the court to order Further and Better Particulars of Claim to be issued, and leave to amend my defence as necessary.

Lamilad

Hi just giving this one last 'bump' before I submit my defence in about an hour or so. Just want to see if anyone can recommend any changes/ additions to my statement. Many thanks.

Herzlos

That looks reasonable. I'd maybe add " - Keeper cannot be held liable" to the title in point #2 to really press home that there's no liability.

Coupon-mad

Best of luck and let us know if they proceed.

Lamilad

Thanks CM I really appreciate all your advice. I'll continue to update as things progress. So far I've received the completed DQ from Excel but am still waiting for the one for me to complete. I haven't received a response to my SAR yet.

Lamilad

Just something else to make the regulars aware of... The letter and DQ I've received are in the name of "Vehicle Control Services" I know they are Excel's sister company but the court docs say the claimant is "Excel Parking Services". Is this a !!!! up on their part and something I can use or are they allowed to do this?

Redx

no , they are separate companies and regularly make this mistake

use this info in your defence

if you have an invoice and contract with Currys, you dont have one with PC WORLD

if you have an invoice and contract with SKY UK, you dont have one with SKY ROI

Lamilad

Redx wrote: »

no , they are separate companies and regularly make this mistake

use this info in your defence

if you have an invoice and contract with Currys, you dont have one with PC WORLD

if you have an invoice and contract with SKY UK, you dont have one with SKY ROI

Thanks Redx
I wonder if there's another way I can use this to my advantage. I will send my DQ back to the court and Excel, then when the 14 day deadline has passed i could contact the court saying that excel haven't complied with DQ and now they have missed the deadline. I may be clutching at straws but could this tactic work in my favour, or should I just contact the court on Monday and be upfront about everything?

Lamilad

Update on this: My case has been assigned the court I requested. It will be heard in mid November. Whats interesting is that my first case, which is BW Legal on behalf of Excel will be held at the same court on the same day immediately before this one. Don't know if that's a good thing or not. I'm worried if I lose my first case I may as well not bother sticking around for this.

Excel have responded to my SAR but have returned my cheque and said I didn't make the request properly - even though I used the BMPA template. They want to know specifically what information I want... but I want know everything they have on me. They have also said they will only accept my request if I make it using the form they have sent me but I don't see why I should fill in their form when my request was perfectly valid. I think they're stalling and will continue to deflect my request until it's less than 40 days til the hearing!