Excel/BW Legal Court papers received

doublinedancer

I would very much appreciate your comments on a court case I am preparing against Excel though BW Legal. Just sent in the Acknowledgement of Service today.
The story so far:
On the 31st August 2015 received a ticket for unloading in Bryant Street Car Park. This was the fourth in a matter of a few weeks. Two were cancelled after much correspondence, one went to IAS and Excel didn’t present evidence and we now have the forth which has been issued with genuine court papers.
Wrote to them twice pointing out the previous IAS result and they offered to settle for a £10 admin fee. On principle told them I wasn’t interested.
The client had telephoned to Excel at one point and it was agreed that the driver would announce his arrival and the staff would phone the registration through so avoiding further harassment.
My evidence will be based on the following which was the basis for the IAS Challenge:
13...
(2)..
(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b)a copy of the hire agreement; and
(c)a copy of a statement of liability signed by the hirer under that hire agreement.

As we are a limited company we cannot be the driver. The original NTK served to the registered keeper is not compliant with POFA 2012, missing 9(2)(e) and 9(2)(f). This means condition 14(1)(a) is not fulfilled as the NTK was not compliant in the first place. 14(2)(a) was also not fulfilled as the documents in 13(2) were not provided to us. 14(2)(a) was also not fulfilled as the Notice to Hirer is deficient.
The Notice to Hirer is not compliant as conditions 14(5)(a), (b) and (c) are not met.
As there is no driver liability, we are not the registered keeper, and there was no hirer liability there is no cause of action against us, and then the following which will be expanded upon in the usual fashion.

[*]The amount charged does not represent a genuine pre-estimate of loss
[*]No landowner contract nor legal standing to form contracts or charge drivers
[*]No contract with registered keeper as per ‘The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013’
[*]The keeper is not liable for this charge under POFA 2012
[*]Excel are trying to enforce an unfair contract as per ‘Unfair Terms in Consumer Contracts Regulations 1999’ & OFT ‘Unfair Contract Terms Guidance’
[*]Incorrect information on PCN.
[*]The PCN breaches the AOS code of practice in a number of areas
[*]VAT
[*]Information to be provided by distance contract.
[*]ANPR Equipment
[*]Predatory Tactics

This will be my first time in court so I would be grateful of any advice members can offer.

The_Slithy_Tove

Loads and loads of BWLegal/Excel cases right here on this forum and also in Pepipoo.com. Check out all the currently running threads on this, and you should get a good idea on how to defend this. The exact circumstances under which you got the charge is not really important.

Throw away your current "defence" and start again (you've clearly copied old stuff as the pre-estimate of loss is a non starter nowadays).

doublinedancer

Busy researching now slithy. thanks. Lot more complicated than I thought. The GPEOL and other points was a part of my appeal to IAS.


Am no preparing to submit a Part 18 Request for further information to both Excel and BW Legal.


Thanks

Redx

start with this one for free

https://forums.moneysavingexpert.com/discussion/5505546

now search for the rest yourself both on here and over on pepipoo

use 2016 threads only , and no including pre BEAVIS points like not a gpeol , we are wayyyyyy past that

doublinedancer

Thanks Redx, busy now and over the weekend. Purchased Parking Pranksters book as well.
Saw this and sent it to both Excel and BW Legal


PART 18 REQUEST FOR FURTHER INFORMATION

Re: claim ref C3DP0C8G

We write with regards to the above mentioned County Court Claim. Please answer the following questions:

1. Is EXCEL Parking Services Limited making a claim as an agent of the landowner or is EXCEL Parking Services Limited making the claim as occupier in its own right?
2. Is the action founded on a contractual charge, a breach of a contract or trespass ?
3. Is it Excel's position that the defendant was the driver and, if not the driver, has no liability ?
4. Does Excel assert that the signs displayed at the time met the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1 (Please indicate)
5. Can Excel confirm that it is able and will produce for the court an unredacted copy of its signed contract with the land-owner along with evidence of the design, positioning and content of the signs ?

PLEASE TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU.
I also require that answers to these questions be verified by a Statement of Truth by an authorised signatory of BW Legal/Excel Parking Ltd.


We have had several tickets at this site whilst we have been delivering, one having gone to IAS where you have failed to present evidence.


There has also been an agreement with the Chinese Buffet and youselves to have them phone you with our vehicles registration number. If the Chinese Buffet have failed to do this then we have acted in good faith.


Please refer to the following where the many arguments and evidence have been provided.


XL0939724A: XL09636307; XL1014228A: XL09528450.


Should you feel you wish to pursue this case we will be happy to meet you in court where we will be requesting costs. We would cite too the many cases lost in court so far and have no reason to doubt the outcome of this case.

doublinedancer

Hi Everyone,





I have plagiarised several previous cases and added my own stuff and this is the result. I have never done anything for court before so please excuse the inclusion of everything I can think of. It’s probably far too long but I’ve no idea what would be irrelevant. I'd be very grateful of your comments.





The claim is issued on the 24th August.





Claim Number:


Ref: Charge Notice No:


Site No: EXC0011.





The defendant denies any liability to the claimant.





A Preliminary Request for Clarification – CPR Part 18 which has been sent on the 2nd September to both Excel and BW Legal has so far failed to gain any response from either party. We are given to understand that a reply should be expected within 14 days.


Excel have issued a Parking Charge Notice to ******* on the 31st August 2015. The registered keeper has received no correspondence whatsoever regarding this PCN and no transfer of liability has taken place. We were the keeper delivering goods to a new client whose delivery entrance is located in Bryan House car park. This vehicle has been used on previous occasions at this site and Excel have not contacted the DVLA to ascertain that we were still the keeper of the vehicle.





The facts of the case are this:


A new customer, the Chinese Buffet has their delivery entrance in the car Park of Bryan House in Wigan and at challenge a copy of the delivery note has been provided.





The grounds for our appeal are as follows:





1. No landowner contract nor legal standing to form contracts or charge drivers


2. No contract with registered keeper as per ‘The Consumer Contracts (Information, Cancellation& Additional Payments) Regulations 2013’


3. The keeper is not liable for this charge under POFA 2012


4. Excel are trying to enforce an unfair contract as per ‘Unfair Terms in Consumer Contracts Regulations 1999’ & OFT ‘Unfair Contract Terms Guidance’


5. Incorrect information on PCN.





******** are not the driver merely the keeper of the vehicle and ********are the registered keeper.


Excel are in direct conflict with the strict criteria laid down by POFA 2012 which states:





POFA 2012 states:


There can be no liability as there is no “named person” as required 13(2)(a) no copy of the hire agreement, 13 (2)(b) and no copy of a statement of liability signed by the hirer under that hire agreement which would identify the driver.





Hire vehicles.





13(1)This paragraph applies in the case of parking charges incurred in respect of the parking of a vehicle on relevant land if— .





(a)the vehicle was at the time of parking hired to any person under a hire agreement with a vehicle-hire firm; and .





(b)the keeper has been given a notice to keeper within the relevant period for the purposes of paragraph 8(4) or 9(4) (as the case may be). .





(2)The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given— .





(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; .





(b)a copy of the hire agreement; and .





(c)a copy of a statement of liability signed by the hirer under that hire agreement. .





(3)The statement of liability required by sub-paragraph (2)(c) must— .





(a)contain a statement by the hirer to the effect that the hirer acknowledges responsibility for any parking charges that may be incurred with respect to the vehicle while it is hired to the hirer; .





(b)include an address given by the hirer (whether a residential, business or other address) as one at which documents may be given to the hirer; .


(and it is immaterial whether the statement mentioned in paragraph (a) relates also to other charges or penalties of any kind).





As we are a limited company we cannot be the driver. The original Excel Parking Charge Notice served to the keeper is not compliant with POFA 2012, missing 9(2)(e) and 9(2)(f). This means condition 14(1)(a) is not fulfilled as the NTK was not compliant in the first place. 14(2)(a) was also not fulfilled as the documents in 13(2) were not provided to us. 14(2)(a) was also not fulfilled as the Notice to Hirer is deficient.





The Notice to Hirer is not compliant as conditions 14(5)(a), (b) and (c) are not met.


As there is no driver liability, we are not the registered keeper, and as there was no hirer liability there is no cause of action against us.





The vehicle in question is a trade vehicle and, as such, has different drivers from day to day. The keeper rarely, if ever, is the driver any more than a lorry displaying "Mr Kipling" on the side is ever driven by the said Mr Kipling. Any attempt to assume that the keeper was the driver at the time is inaccurate and the company named is not the driver.








The Penalty Charge Notice is non- compliant with paragraph 9(2)(h) of schedule 4 of POFA 2012 in that it does not identify the creditor. The operator is required to specifically “identify” the creditor not simply name them on it. This would require words to the effect of “The creditor is…..” The keeper is entitled to know who the party with whom any purported contract was made. The operator has failed to do this and thus have not fulfilled the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.





******have received a total of four Parking Charge Notices from Excel when delivering to this site. All have been challenged and three have been cancelled however with this particular charge Excel have offered to settle for a sum of £10. We were reluctant to agree as this would set a precedent for them to charge £10 for every time we entered the car park to deliver. One appeal went to IAS and Excel have failed to present evidence and therefore the charge has been cancelled. We enclose herewith a copy.


We enclose a photograph of the Chinese Buffet delivery entrance which is a roller shutter door. If the vehicle disappears through those delivery doors, then it is not parked in the car park. Excels failure to install anpr cameras to cover all exits and entrances is not our responsibility. They need cameras on both those delivery doors in order to prove that the vehicle has not entered in order to deliver.





One of our employees has visited the site shortly after the issue of these Notices and spoken to *******, one of the supervisors at the restaurant. She has immediately telephoned to Excel whilst our employee was there and she was informed that the delivery driver could go into the clients delivery entrance and inform the restaurant of his arrival who would then contact Excel and inform them. We reserve the right to present a statement to the court as to the validity of this truth.

doublinedancer

If Excel choose not to invoke the POFA legislation then they can only pursue the driver who has not been named. It therefore follows that there can be no liability on *******.
No landowner contract nor legal standing to form contracts or charge drivers

Excel are not the owners of this land and as such they cannot form a contract with the driver, We wish Excel to provide the court with a full un-redacted copy of their contract with the landowner which allows them to form such a contract. A witness statement as to the existence of such a contract is not sufficient. We believe there is no contract with the landowner that gives Excel the legal standing to levy these charges nor pursue them in the courts in their own name as creditor.

We reject strongly that any contract was ever entered into by the driver when entering the site.

Wigan Council have on record that the landowner as:
TRB Estates Limited
Suite 201
Merchants Court
Derby Street
Liverpool
L2 1TS

We require Excel to show that they have authority to bring action against us in their own name but this would seem to be difficult given that the above registered company appears to have ceased trading some time ago.
Signage:

The only information regarding commercial vehicles on any of the signs is a small picture of a truck with the legend No Lorries. HGV’s buses/coaches or caravans.

There is no further information advising delivery drivers how to proceed but it has been claimed I n previous correspondence to use the helpline number in order to register the registration number. Our company delivers to many outlets which have car park control. Even Parking Eye who regulate the Marriott Hotel group as well as many other car parks allow for pre-registration of vehicles with each hotel and when a vehicle is not on that list due to replacement vehicles for servicing or breakdown, they allow proof of delivery to be presented and cancel the PCN.

This is clearly the intent of the landowners who require deliveries daily and our delivery drivers do not abuse the parking privilege’s and fulfill an important supply chain function to the client.

We enclose herewith colour photographs of the sign at the entrance to the car park.

You will note that the signing bears absolutely no reference to delivery drivers procedures for carrying out their essential supply to the shops whose delivery entrances are situated in the car park. Loading/unloading is not considered parking in the normal sense and we know that it is not the landowners wishes to restrict or abolish this vital supply to his clients, the said businesses described herein.

It is our opinion, given the that the omission of the facility for delivery drivers to carry out their business is done purposely as a method of generating revenue and which is further confirmed by the content of their many rejection letters.

There are striking similarities between this case and the well renowned Peel Centre which has identical signing: We offer some key phrases from that case where the courts have found in favour of the defendant.
Inadequate Illuminated signs incapable of binding the driver – this distinguishes this case from the Beavis case:

(a) This case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage (see Appendix F IPC Code of Practice) 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 was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes, and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

(b) The Beavis judgement relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgement:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”

Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.

Coupon-mad

Looking good in terms of research but it is indeed too long. You don't need the detail yet and with this first defence you don't enclose your evidence/photos/copies of documents (that's for court hearing stage).

So chop it down to numbered bullet points and I would have the fact the vehicle was delivering, therefore authorised, as point #1 and the fact that a Ltd company can't be the driver, as post #2, then the fact Excel can't hold anyone except an individual driver liable (due to their choice of PCN wording which avoids the POFA Schedule 4) as point #3...etc.