Claim No.3 Excel / BW Legal

Lamilad

Ok so this now the third active thread I have on this forum and as previously I am seeking the excellent advice from the regulars on here. For those of you who are familiar with my first post, this one is virtually a carbon copy. It's BW Legal on behalf of Excel parking. I'm pretty familiar with the initial steps so I'm hoping preparing my defence on this occassion will be straight forward.

Particulars of Claim:
The claimants claim is for the sum of £100 being monies due from the defendant to the claimant in respect of a parking charge notice (PCN) is on 01/09/2015 (issue date) at XX:XX:XX at XXXXXXXXX Retail Park XXXXXXXX.
The PCN relates to XXXXXXX under registration XXXXXXX.
The terms of the PCN allowed the defendant 28 days from the issue date to pay the PCN, but the defendant failed to do so.
Despite demand having been made, the defendant has failed to settle their outstanding liability.
The claim also includes statutory interest pursuant to section 69 of the county courts act 1984 at a rate of 8% per annum a daily rate of 0.02 from 01/09/2015 to 23/08/2016 being an amount of £7.16.
The claimant also claims £54.00 contractual costs pursuant to PCN terms and conditions

Amount claimed: £161.16
Court fee: £25.00
Legal representatives costs: £50.00
Total amount: £236.16

I've done the AOS... As this is so similar to my first case I plan to use the same skeleton defence but I know the advice on this forum continues to evolve and the regulars find better and better ways to poke holes in the PPC's claims. I'll post my defence below. If it's fine as it then, great! I'll get it submitted. But if there's any additional points/builds I could add in to strengthen it then I'd like to include them. Thanks for all your help so far, guys... and thanks in advice for your help again.

Lamilad

So here's the defence I used in my original case. All advice, tips, suggestions, builds, add-ins, removals gratefully accepted. 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

Lamilad

Seen as I've got so much going on with Excel at the moment I thought I'd check on this case which I'd pretty much forgotten about. Turns out the claim has been stayed due to the claimant failing to respond to my defence. More vexatious and unreasonable behavious from Excel/ BWL.


I wonder if I can use this to help my other 2 cases....

The_Deep

The claimant also claims £54.00 contractual costs pursuant to PCN terms and conditions

I very much doubt that that was in the signs, and is surely an attempt to obtain monies to which they have no entitlement, fraud in my book.

Complain to Duncan Allen here

http://www.sra.org.uk/consumers/problems/report-solicitor.page

Hundreds of others have.

Fruitcake

Have the scammers mentioned Elliot vs Loake? I'm assuming you know that a judge has called it Bunkum and not relevant. Info is on the Prankster's blog site.

Lamilad

Fruitcake wrote: »

Have the scammers mentioned Elliot vs Loake? I'm assuming you know that a judge has called it Bunkum and not relevant. Info is on the Prankster's blog site.

No, they haven't responded to my defence. I am, however, going to use info from the Prankster's blog to slam dunk E vs L in my other 2 cases.

Lamilad

So this is my lesser known 3rd case. As many will know, a lot has happened since I last updated this thread.

So why am I updating now?... Well, after my most recent success against Excel in Feb I posted a case report which ended with the comment:
"Is this the end for me and Excel? I'm not banking on it!"

How right I was... Lamilad vs Excel, Part 3 is taking place on 30th May 2017 at Skipton Court.

There'll be no hiding away this time... I intend to highlight and expose Excel and BW Legal's stupidity and incompetence for the world to see. I am a product of the forums... This time 9 months ago I didn't even know what PoFA meant, and this week I successfully dealt with my first case as a Lay Rep! That's what the amazing people on these forums can do, they not only advise... They educate!

Anyway, round 3 - how has this happened? I'm more than a little curious about that myself.......

This case was stayed back in Oct '16 after the claimant failed to respond to my defence. Then out of nowhere the DQ lands on my doormat. This was 14th Feb - Valentine's day (I think Excel are secretly in love with me... it would certianly explain their obsession with me). Interestingly, this was just 5 days after I'd spanked them in court and took them for costs [malicious intent and vendetta are words that spring to mind]

I rang the court who said Excel had paid to lift the stay on 13th Feb. I found this hard to believe so I asked for proof they had paid. I was told to I would have to put this request in writing, which I duly did. I sent the DQ back and awaited my response, which never came. During this time I received notice that the case had been transferred to Skipton. I rang the CCBC again who now refused to discuss the case as it was now with Skipton. They did tell me that the claimant had not paid to lift the stay but had sent notice of their intent to continue and this was OK because they had 6 months, 19 days to choose to proceed with the case.

I was flabbergasted by this statement as it was contrary to everything I had been told by CCBC previously. In fact, I have an email from CCBC team leader Ben Battisson which states:
[FONT=Arial, Helvetica, sans-serif]"The claimant has 33 days to respond to the defence and confirm whether or not they intend to proceed with the claim.[/FONT][FONT=Arial, Helvetica, sans-serif][FONT=Arial, Helvetica, sans-serif]Failure to respond by the deadline would result in the case being stayed. A “stay” prevents the claimant from proceeding further, without submitting an application for consideration by a District Judge to have the stay lifted. There is a £100 administration fee for this application."
[/FONT][/FONT]
So, I rang Skipton who confirmed the claimant had not paid the fee but had filed an application which had resulted in a district judge lifting the stay. I then emailed Skipton with a series of questions, amongst which...
'Why has the case been allowed to proceed without the appropriate fee being paid'?
'Where has this 6 months, 19 days come from'?

I spoke to them today and they have passed my email to District Judge Skalskyj-Reynolds for consideration. I should hear something soon. Today I received the notice of allocation to the small claims tracks signed by District Judge Lingard

So that's everything up to now, I think it's fair to say I'll be pushing the 'unreasonable and vexatious behaviour' angle this time. In my mind this case has zero prospect of success, but we're all aware of decisions being made in small claims which defy explanation, so I'm leaving nothing to chance. My bundle will be airtight!

Just because I've started throwing my weight around the forum a little bit doesn't mean I think I'm an expert.... far from it!.... 'Advanced Newbie', perhaps!

So, like before, any help, advice, opinions, suggestions, recommendations, plots, ploys, hints, tips or tricks are, as always, very welcome.

Let battle commence....

claretmad62

Astonishing Lamilad, and given what has happened to me today as you aware ....are things beginning to change with regards to Skipton Courts approach to Excels ludicrous claims

Fruitcake

I admire your tenacity and wish you well in your endeavours. I'm sure you will be in touch with the likes of the Prankster and bargepole, may they all live for a thousand years, who will guide you as necessary.

I cannot offer anything other than my support. I cannot understand why someone who has been beaten twice by a wily amateur would attempt a third attempt unless they are mentally unbalanced, vindictive, stupid, or masochistic.

... or stupider than stupid.

beamerguy

oh lamilad, most of us did not know there is a third one.

I rather think that Skipton court are about to teach Excel and BWLegal a lesson especially when you take into account what
claretmad62 quoted today regarding an order to Excel

Yes they have malicious intent and a vendetta and that is the act of simple children

I think you are brilliant and a person to be highly respected on this forum

As Fruitcake says, Excel and BWLegal are mentally unbalanced, vindictive, stupid, or masochistic.
We all know that .... maybe the courts think the same

Coupon-mad

Lamilad is in touch with me and bargepole, which is generally known by now.