Excel & BW Legal - what is the next step

sct73

Coupon-mad wrote: »

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

WS below

CLAIM NUMBER XXXXXXXXX

Excel Parking Services Ltd v (name)

WITNESS STATEMENT


I am xxxxx xxxxxxx, the Defendant in this matter. It is admitted that I was the driver on the material date but I assert that I am not liable to Excel Parking Services Ltd (Excel) for any 'debt' for the following reasons:

1. No documentation has ever been received by the Defendant from the Claimant in this matter, other than a response to a Part 18 request, which was sent to the Claimant by the Defendant. – (The Part 18 request was not however answered in full) This has given the Defendant no opportunity to respond to the initial request for non-payment. The variation between the alleged offence taking place and the initial letter being received from the courts therefore makes recollections of this period somewhat vague.
2. Upon entering the car park it was realised that the only physical monies present was a £20 note. The passenger of the vehicle alighted to investigate the charges for the parking facility as these were not visible on driving into the car park. The Defendant remained in the vehicle whilst the passenger attempted to read and inwardly digest the signpost next to the Pay & Display machine which offered the contract. The signpost consisted of a large amount of small text written in blue text on a yellow background, a combination warned against by the British Parking Association code of practice as hard to read. 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.

3. No contract was agreed by the defendant at any point, this is due to the fact that despite having numerous methods of payment at my disposal (£20 note/debit card/mobile phone/numerous mobile phone apps for other pay & display parking operators) none of the machines in the car park accepted any form of payment other than coins. It is now a common method of practice that pay & display car parks provide an alternative method of payment:-
Coins
Notes
Credit/debit card
Text message
Digital payment via Mobile phone APP
Automated telephone system
As no other method of payment was accepted the passenger of the vehicle was advised to visit the surrounding stores B&M, Sports Direct, Toyland, Sue Ryder in an attempt to obtain change of the £20 in an attempt to pay the required fee of 50p. After attending these retail establishments, the stance of “no change without purchase” was returned. At which point the passenger returned to the vehicle and the vehicle left the premises in an attempt to find alternative parking facilities.

4. The private parking industry is being actively investigated by the Government in 2016/2017 who have vowed to stamp out poor practices. Excel - clampers whose chosen practice became a criminal offence in 2012 - have been notorious before and since the clamping ban, for unfair ticketing, unclear signs, unreliable machines and setting out to 'frighten and intimidate' drivers (those words from the Judge in Excel v Hetherington-Jakeman in 2008).

5. It is common knowledge that there is no fair ‘appeal’ available so this unfair charge would never have been cancelled. The same ‘controlling minds’ run this Claimant’s Trade Body as run the notorious IPC ‘Appeals Service’ in direct competition with the British Parking Association’s version. This is widely seen as a ‘race to the bottom’ which the Department of Communities and Local Government has pledged to end, as part of their response to last year’s consultation, designed to curtail the rogue practices of some IPC and BPA member firms. Such a set-up is incapable of providing any fair means for motorists to challenge parking charges on private land so it is contended that the Claimant and BW Legal - who have filed a robo-claim with no evidence nor scrutiny of any facts nor cause of action - do not come to this matter with clean hands.

6. Excel have shown no evidence that the vehicle was parked in the location during this time, and as such have not shown any breach of contract occurred (such an allegation being specifically denied).

7. No consideration flowed between both parties and any offer of paying at the machine did not exist at that time. The elements of a contract: offer, consideration and acceptance of terms - including an obligation to pay any defined 'parking charge' or defined additional costs - were conspicuous by their absence.

8. I submit that the signs do not provide for a parking charge to be payable to this Claimant as a result of a 'failure to pay' and any alternative methods of payments (paying by phone, or card, or APP) were not prominent and in any case. I put Excel to strict proof of the terms on the signs in place at this location on that day.

9. This Claimant is known for incoherent and sparse signage, 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'' which is specifically about Excel's signs:
http://s3-eu-west-1.amazonaws.com/plcdev/files/126/original/DVLA-BPA-Cutts22Apr2012_1b_mf.pdf

10. 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.

11. 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.’

12. I submit that the alleged contract is voidable in any case under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126, for the reason that it was impossible for me to use their machines, through no fault of mine. It was an event over which I had no control even though I had money with me and fully intended to pay the required fee of 50p. In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154, it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

13. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually clear, prominent signage forming an unambiguous offer with the parking charge itself in 'large lettering'. That case also turned on unique facts regarding the location and the interests of the landowner. Indeed, in the Judges' findings at the Court of Appeal stage it was clear that pay and display car parks operate under a far less 'complex' area of law where the tariff due is a tangible financial contract and, as with any other 'ordinary' case with an identifiable sum argued as not having been paid, however small that sum might be, Lord Dunedin's four tests for a penalty would still have application.

14. I submit that this charge is an unenforceable penalty with no commercial justification. The Beavis case confirmed that the 'penalty rule' is certainly 'engaged' in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this unreasonable claim. The Beavis case is not a silver bullet allowing any parking charges in any circumstances and the Supreme Court confirmed it related only to that unique car park 'free parking licence/no tariff' arrangement.

15. If the court believes there was a contract - which is denied - this is just the sort of 'simple financial contract' identified at the Court of Appeal stage in Beavis (and not rebutted at the Supreme Court) as one with an easily quantifiable loss (the 50p tariff) where any sum pursued for breach must not be disproportionate. The Consumer Rights Act 2015 further supports this view, insofar as to seek damages by escalating a claim to an extent which is disproportionate to a quantified small sum 'in debt' is defined as an unfair term, and therefore, unrecoverable.

16. I have seen no evidence that Excel either own or have title in this private land or have authorisation from the landowner to pursue parking charges in the courts in their own name, despite previously requesting this evidence from the Claimant. I put the Claimant to strict proof of same.

17. This Claimant has added unrecoverable sums to the original parking charge and these were not stated on the signage so cannot be incorporated into any alleged contract after the event. It appears that they have plucked a figure out of thin air in an aim for double recovery: '£54 contractual costs pursuant to PCN terms and conditions' means nothing at all because even if that sum was clearly stated on the 'PCN' that was posted in response to my Part 18 request and could only be read too late. In fact it is submitted that the sum on the PCN - if deemed by the court to be recoverable as 'damages' for a 50p tariff due is certainly not above £200.

18. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under CPR 27.14.


I believe the facts stated in this Defence Statement are true.

NAME

DATE

Coupon-mad

OK, so you need to append numbered evidence, such as your case law (can't just cite case law and not supply the relevant pages as numbered exhibits). Have a look at Stuart Hamilton's recent winning thread where I showed the WS, which referred to exhibits by number.

Then you have the task of finding that case law online and discovering which bit to highlight among all the words!

sct73

Are there any suitable locations which have the legal cases for reference and suitable sections which may be relevant to these kind of cases?

If not, I am sure that would be helpful to future users as I bet many of the cases reference the same sections of the same cases!

I've done some googling but keep on coming up with text that is quoting sections of the case but I'm not finding the case or the right sections I need

Redx

try parking pranksters website and the BMPA website for starters

sct73

So I am in court tomorrow and have just been reading through the documents. I have spotted a big discrepancy in the amounts being claimed by BW LEGAL

A letter from BW Legal stated the claim was for the following

Principal Debt £100
Interest £8.94
Court Fees £25
Legal Fees £104

TOTAL £237.94

Whilst the letter from the courts dated the same date states that the claim is for the following

Amount Claimed £162.94
Court fees £25
Legal Costs £50

TOTAL £237.94

Is it too late to include this in my case as completely made up figures??

Coupon-mad

You can raise it as an issue when you get a chance to question their evidence, when it's 'your turn'. But that's not your main defence.

Are you defending this as keeper without the driver being identified, I can't recall? If so, be completely familiar with the POFA Schedule 4 and have it and you other evidence ready to grab quickly. And be rehearsed on only talking about the driver in the third person and no sudden interjections like 'but how could I have seen the terms?' if there is any possibility of saying something wrong. Read Lamilad's thread, he won twice recently.

Have you got all your evidence organised and know what to discuss first if the Judge gives you the floor to run through your defence? Then what to say next, then after that, what order you will say things in?

Don't discuss the case outside the court room, politely say no to the Excel rep. Do you know about taking a copy of the Law Gazette and the cases that you can use to challenge the Right of Audience of the rep they ask to rock up? When you first get into the courtroom, find out who they've sent and challenge their Right of Audience as explained here (let the Judge decide but be aware of the issue to raise):

http://parking-prankster.blogspot.co.uk/2017/01/parkingeye-win-and-are-awarded.html

HTH