PRE POFA Parking Fine BW Legal/ Excel

Coupon-mad

Sheffield is the closest court to me.

That is annoying, it being their home court.

Nraw100

Hi Coupon-Mad . Do you think it will make a difference being in Sheffield where Excel are based ? I have written my defence and am about to send it off. I think I can send by post recorded delivery - is this correct ?

Lamilad

Do you think it will make a difference being in Sheffield where Excel are based ? I have written my defence and am about to send it off

Don''t you think you should post it on here first for critique/further advice? I know my initial draft changed quite a lot after receiving advice from others

I think I can send by post recorded delivery - is this correct ?

Yes, but why don't you save yourself the cost and email your defence to the court (in pdf format):
Court email is:
[EMAIL="ccbcaq@hmcts.gsi.gov.uk"]ccbcaq@hmcts.gsi.gov.uk[/EMAIL]

Put your claim no in the subject line. Copy yourself in to ensure its sent ok and ring the court to confirm receipt.

Umkomaas

Sheffield should not give advantage to either you or them.

Unless you're right up against your deadline to submit your defence, post it up here for review and critique.

Nraw100

OK will do in a minute when I have anonymised it

Nraw100

Here goes. Any comments gratefully received.

STATEMENT OF DEFENCE

Claim number

In the County Court

Excel Parking LTD – BW Legal (Claimant)

V

(Defendant)
Not having been in court before I have responded to the court summons online saying I would defend my case. It is not cost effective to employ a solicitor in this case so I have had to arrange this defence myself, please excuse me if I fail to use the correct legal terms.
It is acknowledged that the defendant, xxxxxx, residing at xxxxxxx was the registered keeper of the vehicle.
I deny the claim for the following reasons;
1. I state once again I was the registered keeper of the vehicle but as already stated to BW Legal twice, I was not the driver at the time of the contravention, which on the papers is stated as 21 September 2012. Neither BW Legal nor Excel Parking has provided proof that I was the driver. As I have already told BW legal twice, I am unable to identify who the driver was due to the significant amount of time that has passed – nearly 5 years.
2. The date of the alleged incident is 21/09/2012, which is nearly 5 years ago. I am perplexed as to why the Claimant waited until now, almost 5 years after the alleged contravention, to bring proceedings. How can anyone be expected to remember where he or she may have parked a car on one random day five years ago? I am unable to identify the driver not only due the significant time passed but also due to the fact that I have many friends and family whom could have used my car. Many Insurance policies provide third party liability cover for policyholders to allow them to drive a vehicle belonging to someone else. Nor am I under any obligation to name a driver even if I knew who it was, which I don’t.

3. Furthermore The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. It can be seen the date of the alleged contravention is 21/09/2012, which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.

4. In a letter to me dated xxxxxx BW Legal stated that their client Excel does not rely on POFA 2012. In that case they must provide evidence I was the driver at the time of the alleged contravention on 21/9/2012. I have seen no such evidence.

5. Furthermore Excel do not use the keeper liability provisions of POFA 2012 and so attempt to rely on the assumptions that the keeper was the driver (Excel v Mr B C7DP8F83 Sheffield 14/3/2016). Again Excel must provide evidence I was the driver.

6. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, also 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" (POPLA report 2015).

7. The claim form itself gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending this claim that has caused significant time and distress and has denied me a fair chance to defend this claim in an informed way. Therefore, 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.

8. In the pre court stage the Claimant’s solicitor did send me a Letter of Claim but it did not comply with the Practice Direction on pre-action conduct. It was missing the following;
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which the claimant intends to rely.
c) How the “charge amount” of 100 pounds has been calculated and justified.
d) Any form of possible negotiation or ADR offered.

9. Excel is known for unfair and unacceptable practices at its car parks. I have not been told or shown any evidence of which car park this case refers to. The correspondence I have received refers to “Broomhill – Sheffield Anpr Charging Scheme Std (60-100)”. I have no idea what location or car parking area (I assume it is some kind of car parking area) this refers to? I have therefore done a Google search on Excel and Broomhill and discovered significant problems with a roof top car park in Broomhill.

10. As I have not been shown any evidence of which car park this case refers to I can only make assumptions that the car park above is the car park in question. Assuming this is the car park, I am aware from publicity and through a local councillor and Life Peer that the ticket-machines at this site in 2012 were prone to be faulty. I will include in my evidence articles and commentary that will show this.

11. Problems arose at the car park, above shops in Fulwood Road, because of the way Excel monitored vehicles, which are filmed on entry and exit. Motorists were asked to key in their number plate when buying a ticket - but, in some cases, they have mixed letters 'I' and 'O' with numbers one and zero. If the registration number on a ticket does not match exactly that on a vehicle, as seen by the cameras, Excel's computer system automatically posted a £100 fine. Fines have also been issued when vehicles have driven onto the car park but the ticket machine has been broken, or where motorists over-stayed by a few minutes because they thought the time they had paid for was from when the ticket was purchased. Excel's system counted from the time the vehicle entered the car park.

12. Please note that registration number of the car at the time was xxxxxxx (It has a O in it) . The driver of the car at the time, which was not me, may well have been caught out by the unfair practices named above, assuming this was the car park.

13. As stated I am aware from publicity that the ticket-machines at this site in 2012 were prone to be faulty. I therefore ask that the claimant produce evidence that no payment was made that day in relation to the incident and indeed that the ticket machine was working properly and fairly at the time the parking notice was issued

14. In 2012, the year of this alleged parking event, Excel were sanctioned (banned) by the DVLA for stating or implying in signs or documents that a registered keeper could be held 'liable for the payment of charges' and/or had any 'legal responsibility' to name the driver. It is contended that this is exactly what Excel are now doing in preparing a vexatious and wholly unreasonable 'jumping on the Beavis bandwagon' claim. Implying that a keeper could be liable/responsible for the actions of a driver was identified by the DVLA as 'a significant breach' of the Trade Body Code of Practice, which was with the British Parking Association at the time. So serious a matter was this, Excel was banned from obtaining data by the DVLA for three months.

15. It is also unreasonable that, knowing that keepers could not be held liable for parking charges in early 2012 anyway – that the Claimant asks the court for the right to claim statutory interest at 8% from date of incident (£32.58). The long delay is clearly the fault of the Claimant and should not be used as an excuse to effectively try double recovery.

16. The claimant may seek to rely on the case of Elliot v Loake and seek to persuade the court that this case created a precedent that amounts to a presumption that the registered keeper is the driver, with no evidence or admission to prove its allegations. In the Elliot v Loake case the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil matter.

17. I would also bring to the courts attention two recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, (Excel v Mr C C8DP37F1 Stockport 31/10/2016) and (Excel v Mr B C7DP8F83 at Sheffield 14/12/2016)

18. The claimant may also seek to rely on the case of Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) this case can be easily distinguished from Parking Eye v Beavis which was dependent upon an un-denied 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 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. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

19. The claimant may also seek to rely on the case of CPS v AJH Films. This turned on the point of the law of agency, and found that the driver was an employee of AJH Films on company business & was deemed to have entered into a contract on behalf of the company. This case has no application in law in 'ordinary' motorist cases where the Registered Keeper is a private individual.

20. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. From my research I believe the term for such conduct is ‘robo-claims’. This is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. 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. 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.

21. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

22. It is submitted that (apart from properly incurred court fees) the added 'contractual costs' of £54 and the £50 legal representative's costs are simply numbers made up and are an attempt again at double recovery by the Claimant.

23. Again as I have not been shown any evidence of which car park this case refers to I have also no knowledge that the signs in the car park referred to the amounts claimed. Again this claimant is known for unfair and unacceptable practices in its signage that is incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' £53.50 costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park. I will include in my evidence, Mr Cutts' own published article '‘Phoney fines and dodgy signs take drivers for a ride’’ that is specifically about Excel's signs.

It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. It is argued that at the time in September 2012 the signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the ParkingEye Ltd v. Beavis case:

a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.

24. It is expected that this Claimant may try to counter that article about their signs but it is worth noting that the Judge agreed with Mr Cutts, who is something of an expert on clear terms as he manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

25. It is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel, is in the public domain as having attacked the Judge’s integrity in the Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: ‘The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts'.

26. I am yet to have knowledge of all documents provided to the court. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd and then to BW Legal, and no proof has been provided. 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 right to bring action regarding this claim.

27. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I request the court strike out this claim for the reasons stated above.


Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.





Signed by the defendant

Lamilad

[strike]]Not having been in court before I have responded to the court summons online saying I would defend my case. It is not cost effective to employ a solicitor in this case so I have had to arrange this defence myself,[/strike]

"As an unrepresented Litigant in Person with no legal knowledge or experience of court process please excuse me if I fail to use the correct legal terms."

[There's no such thing as a "summons" in small claims]

Lamilad

[strike]It is acknowledged that the defendant,[/strike] I [strike]xxxxxx, residing at xxxxxxx[/strike] was the registered keeper of the vehicle at the material time but I was not the driver.

[STRIKE]1. I state once again I was the registered keeper of the vehicle but as already stated to BW Legal twice, I was not the driver at the time of the contravention, which on the papers is stated as 21 September 2012. Neither BW Legal nor Excel Parking has provided proof that I was the driver. As I have already told BW legal twice, I am unable to identify who the driver was due to the significant amount of time that has passed – nearly 5 years.[/STRIKE]

"It is wholly unreasonable for the claimant to wait 5 years before bringing this claim against the defendant. I submit that this is a deliberate tactic intended to make it as difficult as possible for the defendant to defend himself by asking him to recall specific details about an unremarkable event that happened to someone else on an unremarkable day, over 5 years ago. I further submit that this allows the claimant to add 'maximum' interest, thereby unreasonably inflating their claim."

beamerguy

In point 25, may I suggest you add

And Mr Simon Renshaw-Smith said..."The recent decision by Deputy District Judge Lateef, .......

Just in case the judge is a bit bleary eyed, it needs to SHOW that SRS SAID THIS and not you.

I am sure the courts throughout the land know all about SRS childish attack.


I look forward to your win and another blog by the Prankster

Nraw100

Thanks both I will amend and send off. You guys are great.