Excel & BW Legal - what is the next step

sct73

Hi I am currently in dispute with BW Legal/Excel parking over a 9 minute overstay, while trying to obtain change from the stores related to the carpark to actually pay for the car parking.

I have submitted my skeleton defense and sent the part 18.
No documentation has ever been received in relation the PCN from Excel or from BW legal. The first notification I have received is the court papers summoning me to court. The car was never parked in a bay in the car park and was never left unattended. The vehicle drove into the car park and after reading the payment machine, a passenger went to two of the local stores to obtain change, both stores refused to change a twenty pound note. At which point the vehicle left the car park.
The only images held of the vehicle are on entering the property and departing the property.

I have sent a part 18 request which has been returned with sections missing.

• Request for copy of contract with landowner - "please find enclosed a witness statement detailing our clients authority to occupy the car park" - not provided
• Request for evidence that the registered keeper was the driver - "as the details of the driver have not been forthcoming to suggest otherwise, our client, in the absence of the drivers details, reasonably presumes you were the driver. It is not for our client to prove that you were the driver on the date of the contravention"
• Request for LBA - not provided
• Evidence of the £50 legal representatives costs and £54 contractual costs - "this request is disproportionate and in any event is irrelevant, unreasonable and unnecessary"

I have submitted the below skeleton defense but am unsure what the next step should be, or if it is worth fighting.

1. It is likely to be a matter of common ground that this claim arises as the result of an alleged infraction brought about by the parking of a ____________ motor vehicle registration number ___________ on ________ at __________ that in turn resulted in the issue of a parking charge notice by the
Claimant.
2. 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.
3. I deny any liability in respect of the claim.
4. In his Particulars of Claim the Claimant fails to disclose the head or heads of action in which these proceedings are based and in any event no cause is disclosed that has a realistic prospect of success. Furthermore the lack of detail prevents my being able to respond in more detail.
5. The Claimant is a well-funded company with a dedicated legal staff and is a serial litigator. I submit that his issuing Particulars of Claim lacking in usable detail or that do not disclose a clear cause of action is not only remiss but smacks of a “Cut and Paste” approach to the issuing of proceedings. I further submit that this demonstrates a disregard for the dignity of the court and little concern for the Claimant’s duties in supporting the court to achieve the overriding objectives.
6. Additionally such scant Particulars leave Defendants to respond to what are at best vague details.
7. Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged event it is averred that the Defendant was not the driver at the relevant time and the Claimant is put to strict proof in this respect.
8. It is denied that the Claimant is the landowner of the property in question or that they have any other right or proprietary interest in the land or any demonstrable intention to occupy it sufficient to support this claim.
9. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner.
10. In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.
11. If it is so pleaded before seeking to rely on the keeper liability provisions of Schedule 4 Protection of Freedoms Act (the “Act”) the Claimant must demonstrate that there was a “relevant obligation” either by way of a breach of contract, trespass or other tort. The Claimant is put to strict proof that such a “relevant obligation” existed.
12. In the absence of strict proof as to the existence or otherwise of a “relevant obligation” the court is invited to strike the matter out.
13. On the other hand it is believed that the Claimant may seek to rely on a rather unique interpretation of the judgment in Elliott –v- Loake and endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations.
14. I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.
15. The reality is that no such precedent was created and that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident which he had previously lied to the police about. Crucially this evidence proved the case to a criminal standard not simply on a balance of probabilities as applies in the instant matter.
16. I will seek to argue a more detailed rebuttal should the Claimant plead the case cited but in any event submit that the case cited be disregarded.
17. If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event were insufficient in terms of their numbers, distribution and wording to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.
18. In due course I will ask the court to consider the frequently overlooked test established by Roskill LJ in the matter of Vine –v- London Borough of Waltham Forest insofar as it relates to the display of signage in conveying an obligation.
19. Although the above case turned on the application of the principle of volenti non fit injuria as opposed to the creation of a contract to park I will submit that the test created is nevertheless relevant and is entirely applicable to the instant matter.
20. I further submit that such is the complexity and density of the text on the Claimant’s signs that the most onerous term – the £100 parking charge notice – is buried amongst a mass of small print and does not even begin to comply with Denning MR’s “Red Hand Rule”.
21. Additionally, any signs which are sited are in blue on yellow, a combination warned against by the British Parking Association code of practice as hard to read.
22. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
23. It is further anticipated that the Claimant may seek to rely on the recent Supreme Court ruling in the case of ParkingEye –v- Beavis. In due course I will seek to demonstrate that the instant matter may be distinguished from that case.
24. The Claimant is put to strict proof of all his assertions.
25. In the above circumstances I respectfully ask that the court dismiss the claim


Any help greatly appreciated please

System

Is this 9 minutes before payment was made. Have you got a copy of the signs as a P&D parking contract only starts after payment and not before.

The period before payment is covered by a gratuitous licence to be there and the alleged breach is "de mininis"

sct73

The total duration was 19 minutes, the ten minutes 'free' and then an additional 9 minutes. Four outlets were visited to obtain change but none would provide change for a £20 so the vehicle left the car park to park elsewhere.http://s29.photobucket.com/user/jukejoint65/media/parkingsign.jpg.html

The_Deep

BWL are currently being investigated by the SRA for dozens, perhaps hundreds of threatening letters re car parking.

I you think that they have overstepped the mark, failed to answer your legitimate concerns, or misrepresented the law, (they usually do), report them here: Duncan Allen @

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

The more complaints they get, the more chance this disreputable firm are likely to be sanctionned.

beamerguy

The blood sucking vampires called BWLegal are rather quiet at the moment.

I enjoyed reading their latest lot of rubbish with my morning coffee and later with my evening whisky:)

Maybe tomorrow will produce more rubbish from BWLegal on here

sct73

The_Deep wrote: »

BWL are currently being investigated by the SRA for dozens, perhaps hundreds of threatening letters re car parking.

I you think that they have overstepped the mark, failed to answer your legitimate concerns, or misrepresented the law, (they usually do), report them here: Duncan Allen @

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

The more complaints they get, the more chance this disreputable firm are likely to be sanctionned.

Thanks 'The Deep' I have submitted a complaint. via the SRA portal.
Just wondering what my next step should be. Do I need to update my defense on the courts website, or do I just wait until I hear back from the court? Is there anything else I should be doing while I am waiting to hear from them?

Coupon-mad

Have a look at bargepole's explanation of what happens next, it's the second link I've included under 'Small claim?' in post #1 of the 'NEWBIES PLEASE READ THESE FAQS FIRST' sticky thread. As long as you have submitted your defence on MCOL then you are waiting to hear back.

Oh, and do not reply to any private message from a poster with less than 1000 posts to their name here. We deal with these issues openly on the forum and any pm could be from anyone at all (even the parking firm) and is not recommended to be replied to/read.

sct73

So I have heard back from the court and been provided a court date.

I have read through Bargepole's post but am unsure on how to proceed now. Considering that my issue was that the machine only accepted change, but none of the retail outlets would provide change without purchase.
The vehicle was at no point parked in a bay on site and the driver never left the driving seat. The passenger went from store to store attempting to obtain change for a £20 note, after being unsuccessful the vehicle left the car park in an attempt to obtain change elsewhere.

Coupon-mad

So your next step is Witness Statement and evidence. As IamEmanresu said:

Have you got a copy of the signs as a P&D parking contract only starts after payment and not before.

The period before payment is covered by a gratuitous licence to be there and the alleged breach is "de minimis"

19 minutes is outside of the 10 mins grace period so you will need to show us your WS and evidence and we'll assist. You will need details and evidence of small print on the signs, as your defence says this:

I further submit that such is the complexity and density of the text on the Claimant’s signs that the most onerous term – the £100 parking charge notice – is buried amongst a mass of small print and does not even begin to comply with Denning MR’s “Red Hand Rule”.

And to do that, you can show photos and also Martin Cutts' article about Excel dodgy signs (search this forum for 'Martin Cutts Excel Lateef' because I recall writing some robust wording about how awful Excel's signs are and how Simon Renshaw-Smith was on record as discrediting a county court Judge...have all that in your 'skeleton argument'*).

- the WS is a summary of things that you can state as facts. Are you defending this as keeper in a case where the driver has not been identified? POFA Schedule 4 is needed then, in evidence.

- * the skeleton argument is the legal stuff that expands on the defence, such as mentioning court transcripts you are including as evidence and raising other issue like the Cutts article and the DJ Lateef thing...).

sct73

This is where I am at currently with my defense, can anyone assist with any sections that I need to elaborate on? I have images of the signage both on entering the car park (a sign that contains a considerable amount of information that is expected to be read and inwardly digested, whilst observing the road, whilst travelling at approximately 20mph!) and the signs located near the pay and display machine (a large sign using blue text on yellow background and white text on a blue background).

I am defending this on the basis of contract not accepted (is this the best way to proceed?)

1. It is likely to be a matter of common ground that this claim arises as the result of an alleged infraction brought about by the parking of a ____________ motor vehicle registration number ___________ on ________ at __________ that in turn resulted in the issue of a parking charge notice by the Claimant.
2. 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.
3. I deny any liability in respect of the claim.
No contract was accepted. No change was present in the vehicle and the passenger of the vehicle was unable to obtain change from any of the surrounding stores in an attempt to accept the contract and pay for parking.
The facilities on site allow for payment only by coin. Whilst most other public carparks now offer the ability to pay via text message, mobile app, notes, or credit card. None of these facilities are available at the location in question and retails outlets that share the property refused to change notes to allow for payment.

4. In his Particulars of Claim the Claimant fails to disclose the head or heads of action in which these proceedings are based and in any event no cause is disclosed that has a realistic prospect of success. Furthermore the lack of detail prevents my being able to respond in more detail.
No documentation from the claimant has ever been received by the defendant. The first notification the defendant has received were the papers advising of court action, received from the court office themselves. Providing no opportunity to rebut the case held against them prior to the case being put before the court.
A section 18 request was submitted to the claimant and was returned with severe lack of detail, again preventing the defendant to respond fully.
Request for copy of contract with landowner – was met with the response "please find enclosed a witness statement detailing our clients authority to occupy the car park" – this was not provided
Request for evidence that the registered keeper was the driver - was met with the response "as the details of the driver have not been forthcoming to suggest otherwise, our client, in the absence of the drivers details, reasonably presumes you were the driver. It is not for our client to prove that you were the driver on the date of the contravention"
Request for LBA – no information provided
Evidence of the £50 legal representatives costs and £54 contractual costs - was met with the response "this request is disproportionate and in any event is irrelevant, unreasonable and unnecessary" – the defendant wishes to seek evidence that these claimant has actually incurred these specific costs that are being demanded.

5. The Claimant is a well-funded company with a dedicated legal staff and is a serial litigator. I submit that his issuing Particulars of Claim lacking in usable detail or that do not disclose a clear cause of action is not only remiss but smacks of a “Cut and Paste” approach to the issuing of proceedings. I further submit that this demonstrates a disregard for the dignity of the court and little concern for the Claimant’s duties in supporting the court to achieve the overriding objectives.

6. Additionally such scant Particulars leave Defendants to respond to what are at best vague details.

7. Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged event it is averred that the Defendant was not the driver at the relevant time and the Claimant is put to strict proof in this respect.
8. It is denied that the Claimant is the landowner of the property in question or that they have any other right or proprietary interest in the land or any demonstrable intention to occupy it sufficient to support this claim.
9. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner.
10. In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.
11. If it is so pleaded before seeking to rely on the keeper liability provisions of Schedule 4 Protection of Freedoms Act (the “Act”) the Claimant must demonstrate that there was a “relevant obligation” either by way of a breach of contract, trespass or other tort. The Claimant is put to strict proof that such a “relevant obligation” existed.
12. In the absence of strict proof as to the existence or otherwise of a “relevant obligation” the court is invited to strike the matter out.
13. On the other hand it is believed that the Claimant may seek to rely on a rather unique interpretation of the judgment in Elliott –v- Loake and endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations.
14. I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.
15. The reality is that no such precedent was created and that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident which he had previously lied to the police about. Crucially this evidence proved the case to a criminal standard not simply on a balance of probabilities as applies in the instant matter.
16. I will seek to argue a more detailed rebuttal should the Claimant plead the case cited but in any event submit that the case cited be disregarded.
17. If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event were insufficient in terms of their numbers, distribution and wording to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.
18. In due course I will ask the court to consider the frequently overlooked test established by Roskill LJ in the matter of Vine –v- London Borough of Waltham Forest insofar as it relates to the display of signage in conveying an obligation.
19. Although the above case turned on the application of the principle of volenti non fit injuria as opposed to the creation of a contract to park I will submit that the test created is nevertheless relevant and is entirely applicable to the instant matter.
20. I further submit that such is the complexity and density of the text on the Claimant’s signs that the most onerous term – the £100 parking charge notice – is buried amongst a mass of small print and does not even begin to comply with Denning MR’s “Red Hand Rule”.
To read, digest and fully understand the complete signage, in order to agree to accepting the offer of contract would take a considerable amount of time. The signage is displayed in a very small text consisting of numerous separate sections with the onerous term buried at the bottom of the sign.
It is trite law that a party attempting to exclude or limit legal liability, by incorporating an exemption clause into an unsigned contract, must take reasonably sufficient steps (at or before the time of contracting) to give notice of the clause to the other party.[1] The more unreasonable or unusual the clause, the greater the insistence by some judges that the clause be drawn to the attention of the other party in an explicit way, such as being printed in red ink with a red hand pointing to it. The genesis of the so-called red hand rule is to be found in Spurling v Bradshaw Ltd,[2] where Lord Denning said: [T]he more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient.
[1] See Parker v South Eastern Railway Co (1877) 2 CPD 416.
[2] [1956] 1 WLR 461.
The onerous term of the £100 parking charge notice is not drawn attention to and is in fact, as previously stated, buried at the bottom of the sign amongst a considerable amount of other text.
21. Additionally, all signs which are sited are predominantly in blue text on yellow, a combination warned against by the British Parking Association code of practice as hard to read.
22. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
23. It is further anticipated that the Claimant may seek to rely on the recent Supreme Court ruling in the case of ParkingEye –v- Beavis. In due course I will seek to demonstrate that the instant matter may be distinguished from that case.
24. The Claimant is put to strict proof of all his assertions.
25. In the above circumstances I respectfully ask that the court dismiss the claim

Coupon-mad

Defense draft

It's not a defence next (you've written that) it's a WS and evidence.