Finalising my defence BW Legal Excel Parking

breenr91

Unfortunately I have only a few days left to submit my initial defence to a PCN after Excel and BW Legal County Court Claim.
I understand that the defence submitted via the moneyclaim.gov.uk website is only a holding one and that a full defence comes later, is that right? Hopefully someone here can help, I consider myself a reasonably intelligent person but am finding this whole process really confusing, I'm hearing conflicting accounts of whether a standard defence is better to tailor one to this PCN


Some brief background to the case:
-In July last year my wife and I parked in The Square, Chorlton, Manchester. It has ANPR. I bought both tickets, I got a PCN, she did not.
-I appealed on the grounds that I had indeed paid and there was no evidence to the contrary and lost. Then following a lot of advice I ignored the repeated letters until a County Court Business Centre letter arrived.
-I filled out the AOS so have until 4pm on the 27th September to submit my defence.
-I also found out yesterday that BW Legal are actually pursuing two cases against me for the same incident. One I'm defending, the second one was found against me in default. Though they admit this is an "error" they say they want to pursue the one found against me and drop this active one, hence not allowing me the chance to defend myself. Nice!


Okay so my defence...


First of all on the first page where it says reasons for defence should I tick the box "Yes because I've paid " or "no other reasons"


Secondly here is what I've drafted for the defence...it's a mixture of stuff from other defences and what I've written myself


It is admitted that the Defendant is the registered keeper of the vehicle in question.


However it is denied that the Claimant has authority to bring this claim on the following grounds:-


1. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements. The Protection of Freedom Act 2012 Schedule 4 has not been complied with.


2. 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.


3. Excel Parking Services Ltd are not the lawful occupier of the land. 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.


4. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No evidence has been provided that the registration of the Keeper’s vehicle was not entered into the ticket machine.


5. In the unlikely event that the incorrect registration was entered into the ticket machine by mistake the sum being claimed by the Claimant is disproportionate, unjust and should be struck out.


6. The Claimant has issued two sets of legal proceedings against the Defendant for the same incident.
This was brought to the attention of the Claimant’s solicitor BW Legal by the Defendant, to date no action has been taken to rectify what BW Legal admits was an error on their part. In fact currently the Claimant is pursuing Claim No: C4DP3C5P which was found against the Defendant in default, while proposing to end this Claim No: C4DP3C2P which the Defendant is defending. By doing so they are attempting to deny the Defendant the chance to defend himself in this claim. Not only is this unjust but it has caused a significant amount of stress and anxiety to the client.


7. 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 Claimant claims a sum of £162 as the ‘amount claimed’’ (for which liability is denied) plus The Particulars of Claim include £50 that the claimant has untruthfully presented as legal representative’s costs. In contradiction the claimant's solicitor has, however, described the Principal Debt as £100 and solicitor's costs as a further £104 in correspondence with the keeper. The Claimant is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims court. They are unjustified and should be struck out as unrecoverable.
The defendant also has the reasonable belief that the charges have not been invoiced and/or paid


8. Inadequate Illuminated signs incapable of binding the driver



To summarise:
- There is no evidence the keeper was driving the car at the time the parking charge was issued
- There is no evidence a valid ticket was not purchased
- The Claimant is not the landholder and therefore not in a position to issue this charge.
- The Claimant is pursuing two separate legal actions for the same incident and wishes to deny the Defendant the right to defend himself in this the active case, showing a total disregard for due legal process and fairness.
- Inadequate and unlit signage at the site at the time of the alleged event did not meet accepted code of practice.
- The Protection of Freedoms Act does not permit the Claimant to recover such an inflated amount.
‘Parkingeye v Beavis’ clearly does not apply in this case
-The Claimant or their solicitor has not responded to the part 18 request

Coupon-mad

I understand that the defence submitted via the moneyclaim.gov.uk website is only a holding one and that a full defence comes later, is that right?

Yes it is a bullet point version (no evidence photos etc. are needed yet) but it's not a 'holding' defence. It's just a concise version of everything you intend to rely on.

I also found out yesterday that BW Legal are actually pursuing two cases against me for the same incident. One I'm defending, the second one was found against me in default. Though they admit this is an "error" they say they want to pursue the one found against me and drop this active one, hence not allowing me the chance to defend myself. Nice!

They can easily do that, simply by not paying the hearing fee and dropping this claim shortly.

If they have their eye on the ball (questionable!) I think they will not proceed with this one because they've already gone and thumped you by default. We'll see.

So you have a default CCJ against you, is it past the 28 days for paying it to remove it from the register (no CCJ remains)? Or is it a CCJ you are stuck with and need to get set aside and your defence heard?

See this thread re complaining to your MP, and Theresa May and Sir Oliver Heald. They ALL need to know what has happened to you here...not nice at all:

https://forums.moneysavingexpert.com/discussion/5524754

First of all on the first page where it says reasons for defence should I tick the box "Yes because I've paid " or "no other reasons"

What exact question are you asking about, what does it say?

breenr91

Thanks so much for this reply it's really helpful.

What exact question are you asking about, what does it say?

The question is are you defending this claim because you've paid the Claimant?

Then two options
Yes I've paid
No, other reasons.

My instinct is Yes I've paid as that is the grounds of my appeal but just wanted to check I'm not shooting myself in the foot.

Thanks again for the great advice!

Coupon-mad

'Yes I've paid' ONLY if you are paying off/have paid off the previous default claim.

If that's gone beyond the 28 days though, past the judgment date, maybe you should think twice because paying it off does NOT remove it from the register and it can be better to pay £255 for a set aside of that Judgment...then defend.

breenr91

Sorry it's quite complicated, there are two cases for the same incident. Crazy I know bilirubin I'm trying to sort that at the moment. One has been found against me in default and I'm defending the other. Considering that should I say "yes I've paid"?

Also can anyone cast an eye over my defence, does it look okay? Anything I should add, take out?

yotmon

breenr91 wrote: »

Sorry it's quite complicated, there are two cases for the same incident. Crazy I know bilirubin I'm trying to sort that at the moment. One has been found against me in default and I'm defending the other. Considering that should I say "yes I've paid"?

Also can anyone cast an eye over my defence, does it look okay? Anything I should add, take out?

It is confusing. You mention 2 cases but they are the same incident ? Has the case originally been dealt with by default and you are challenging it, or are there 2 separate incidents. If so, please clarify.

breenr91

Yes BW Legal instigated two cases for the same incident, I only discovered this when a default judgement was made against me in one while I was defending the other one.

BW Legal admit this was an error on their part and say they are considering what to do next. Initially they said they'd drop the case I'm defending and enforce the one that was found against me in default, thus denying me the chance to defend myself.

Coupon-mad

As said earlier, only say 'Yes I've paid' ONLY if you are now paying off/have paid off the previous default claim. You can only say 'I've paid it' if you actually have.