Excel Parking, BW Legal and now what looks like court papers

Xanthanan

Doh, I did wonder if I was being dim, I even swapped 19 & 20 around after second guessing myself last night! I will swap them back around in the post above as it seems silly to repost the entire thing again.


So is it fair to say that the basic defence is acceptable in its current form and I can submit it to the MCOL site or would I be better to wait for any further comments, update it as necessary and submit the final version on Sunday evening?

Coupon-mad

I reckon wait and see if anything else is added.

Xanthanan

I spotted this on another defence as I was looking around and considered it to be quite a good line, is it worth adding somewhere near the top (lets call it No. 5.5) of my defence?

As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

Coupon-mad

Yes, that is worth including IMHO.

Xanthanan

Thank you, added as item 6 to the doc in post #30

Xanthanan

OK basic defence submitted into MCOL and I have been able to print out a PDF version of the 'form'

One thing I wasn't prepared for is the online MCOL defence submission box has a maximum of 122 lines so my overly long defence text needed trimming and unnecessary carriage returns removing. I actually spotted that items 5 & 9 (see post #30) were pretty much duplicate so I amalgamated them both as point 5 using the text from point 9 and with various minor trims to other points I managed to just fit within the 122 line limit. Heres what was eventually submitted:

1. I am the Defendant, xxx xxx xxx, DOB xx/xx/19xx, and reside at xxxxxxxxxxxx, xxxxxxxxxx, xxxxxxxxx and I am the hirer of the vehicle on the day of this event.
2. Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.
3. The claimant has failed to identify the driver of the vehicle and I believe the burden of proof is with the claimant to prove who the ‘parking contract' was made with. The claimant is widely known to ignore correct use of POFA. I can produce clear evidence that POFA was not followed in this case.
4. The claimant has also failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).
5. The Claimant has not complied with the pre-court protocol. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states "parking charges" which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The defendant wrote via email to the Claimants representative on the xxth xxxxx 20xx with a Part 18 request to identify the heads of action on which the claim is based and a number of other questions but the representative simply made a broad statement repeating the original claim text rather than providing specific answers. The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action.
6. As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.
7. The Claimant's solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims. I believe the term for such conduct is ‘roboclaims' which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.
8. The first PCN I received from the claimant was sent by post and arrived on xx/xx/20xx, some 70 calendar days after the ‘offence' date of xx/xx/20xx. The documentation contained none of the supporting evidence required by POFA Schedule 4 items 13 & 14 and clearly exceeds the maximum number of days between some of the POFA regulated ‘events' which invalidates their claim completely.
9. The Supreme Court Judges in the Beavis case held that a CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.
10. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.
11. It is submitted that the Claimant is merely an agent acting ‘on behalf of' the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name. This was requested but not supplied in the part 18 request and reply.
12. Even if this is produced, it is submitted that there is no contract offered on the signage to drivers who enter with no intention to park, simply to load and/or unload. Therefore no contract has been formed with the driver and any assumption by the claimant of alleged 'unauthorised' parking can only be an event falling under the tort of trespass.
13. Furthermore I believe that the recent appeal decision in June 2016 by Judge Charles Harris QC at Oxford County Court in the case of Home Guard Services (T/A '14 Services') and Laura Jopson further reinforces that loading and unloading activities have a right of way to tenants properties adjacent to the car park. The circuit Judge found that at that location, Laura Jopson (as well as people making deliveries/loading/unloading) have a right of way...and that Home Guard Services' regulations disregarded these rights.
14. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).
15. This case can be easily distinguished from the Beavis case which the Judges held was 'entirely different' from most ordinary economic contract disputes and the claimant has not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
16. The Claimant did not comply with the CoP regarding 'grace periods' as their contract notice clearly states that they only allow 10 minutes for entry but have no indication of subsequent grace periods to exit the car park. I strongly believe that the vehicle has not exceeded Excel's published grace period of 10 minutes plus a CoP mandated exit period which I would reasonably presume to also be 10 minutes.
17. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.
18. I ask that the claimant shows the advertising consent for the signs and the renewal, not just a signed statement to the court as not having these is a criminal offence.
19. I request the court strike out the claim for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16, due to their template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.
20. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.

Xanthanan

The basic defence was submitted as above and I received a letter from the court saying the claimant had 28 days to indicate if he wished to proceed. Since then it has gone rather quiet but I did get a letter directly from BW legal saying that their client intended to continue with the claim around 25 days after the defence was confirmed. However, since then (exactly a month ago) I have seen nothing from the court to confirm that the case is proceeding and have started to wonder if they didn't do it in time and its been stayed. MCOL doesn't appear indicate anything new since the defence submission.

Is it an idea for me to contact the court and ask whats going on?

Coupon-mad

Yes you can do that, to put your mind at ease either way and to know where you are. Quite possibly it is proceeding and the delay is with the court.

Did you read Lamilad's thread? He won on Thursday v Excel, citing no compliance with the POFA and showing Henry Greenslade's words from the POPLA Annual Report as his ace card. It was also blogged by the Parking Prankster here:

http://parking-prankster.blogspot.co.uk/2016/11/mr-pickups-fun-day-out.html

Xanthanan

Thank you again for quick and very helpful replies.

I have downloaded the POPLA report and the section on keeper liability is very interesting and does touch briefly on hirers of vehicles which is my particular involvement. It makes it pretty clear that the keeper (be it owner, hirer or registered keeper) cannot be 'reasonably presumed' to be the driver with which the parking company has their 'contract' with.

This afternoon I spoke to a rather stressed sounding helpdesk agent for MCOL and they have confirmed that my case has been stayed. However, having read through Lamilad's thread he had similar which all got reversed when the courts re-activated his case after discovering a letter that came from the claimant (or their solicitor) which was supposedly lost (left unopened) in an overworked court system. I realise that could happen to me even a month after the auto-stay so am not holding my breath. Also I realise they could pay the fee to reactivate the case at any time.

I did try to ask if that 'lost letter' scenario could also happen to me but the overworked agent pretty much misunderstood my question twice and then said goodbye, oh well, he certainly sounded like he wanted to get finished for the day!

Marktheshark

If you were a bit keener now is the time to smell blood and counter claim for your full expenses and time.
You have them on the ropes now.