Court defence help requested (quite urgent)

Fruitcake

To post pics, upload them to a web hosting site such as tinypic or photobucket, then post the URL here but change http to hxxp. Someone here will then change it to a live link.

Make sure to redact images and ensure no other pics or personal information appear on the hosting site, which must not be in your real either.

Once the regulars have seen them they will be able to give you a better idea as to how they think you should proceed and hopefully what your chances are likely to be in court.

1postie

I hate to say it I agree with Iam, £100 to see the back of it. Its wrong but makes it go away

Coupon-mad

deepcomuk wrote: »

Thanks IamEmanresu, I thought that might be the easiest option but it just seems a little unfair to have to give them anything considering the circumstances (plus the Judge only put me back to the level I was before paying for the set aside so I'd still but ultimately out of pocket). I was half hoping that someone would look at the notice to the registered keeper that I shared and realise that it wasn't correctly worded and was therefore inadmissible for POFA or something but I guess that isn't the case.

Well in fact Excel have never complied with the POFA so if there is no evidence as to who was driving then they can't hold you liable. We don't even need to see the PCN to know it's not compliant!

In 2014 they were in the BPA and Excel did not have the wording copied correctly from paragraph 9 of Schedule 4 of the POFA, in their PCNs. In the Summer of 2014 they stopped bothering with the flawed paragraph they had mucked up, and had a blank space instead. Neither PCN was complaint and now they do not bother at all.

Another consideration - if you are now up to see this through despite the half-victory you've got so far, is that the Peel Centre machines are known to be faulty and sometimes produce a ticket with no VRN on it or even a code like QQ as shown here:

http://parking-prankster.blogspot.co.uk/2016/09/excel-parking-get-gladstonedby-bw-legal.html

Clearly the driver would not have put that in! And anyway, I am aware from a contact, of a 'PP' one as well, same car park, same machine glitch. Cannot be a coincidence. Must have happened to other people...

So presumably the Judge's Directions might say that if you can't settle the dispute then both parties must exchange full evidence bundles by a certain date? Or was that not yet stipulated? You need evidence from Excel about what they are alleging, including a printout showing payments made at that time that the PCN showed the car in the car park. Maybe there isa mismatched payment with no VRN or a silly code...

Finally, don't forget Excel v Martin Cutts in your defence, and the comments of DJ Lateef (in the Cutts case, that he won) about the woefully inadequate, illegible and wordy signage at the Peel Centre. Excel did change the signs a tiny bit but they are no better even now, still a blue & yellow 'wall of words'. See this:

http://www.manchestereveningnews.co.uk/news/greater-manchester-news/motorist-wins-18-month-ticket-battle-870812

maxtag's defence about the Peel Centre is worth a look as it goes into detail about the fact that District Judge Lateef found the signage at the Peel Centre unacceptable in Excel v Cutts. That defence points out that the signs cannot have improved since then because the numbers of PCNs Excel issue are hugely increasing...puts them on the spot about the Peel Centre PCN numbers (Excel can be questioned about that):

https://forums.moneysavingexpert.com/discussion/comment/71227110#Comment_71227110

Signage has always been shown to be woeful at the Peel Centre, high up, in yellow & blue (I think someone said the P&D machines are not obvious and are painted in a dark colour). The overall effect to lots and lots of victim drivers, is not obviously a P&D car park. Or maybe yours was a machine glitch - who knows? So if you defend, you can require Excel to produce the machine records of payments and explain what they are alleging. No payment? Wrong VRN? Small typo? (could be their keypad with a dodgy key, not proven to be the fault of the driver).

IMHO this is likely to be the turning point in favour of Defendants at some hearings, if Defendants can use the Cutts decision and Martin Cutts' own well-publicised blogs. Plus some pics of the current wordy signs and some facts about Excel issuing more and more PCNs, so surely the signs are STILL FAILING.

Add to that, a comparison with the signs in the Beavis case, to show the difference in that case, where the £85 charge itself was in the most prominent/large lettering and was considered to be evident throughout the site. If you do defend this, as part of your exhibits, have a printed out version of the ParkingEye sign in the Beavis case as well as things like case law (the Parking Prankster's blog website has Excel v Cutts which you can print out).

Finally, think it over - but stay on this thread for help. Do not reply to any offer to help by private message, especially of it comes from a non-regular without hundreds/thousands of posts to their name.

Just wanted to give you the other perspective - food for thought, especially if you suspect you might not even have been the driver or cannot recall (they will have no evidence).

Fruitcake

deepcomuk, you are obviously far more court savvy than most people who come here for help, so I believe you have the ability, and a good chance, of winning the next court battle.
The regulars here will help you however they can. Of course it is your decision, but if you give in and pay the scammers you will have gained nothing in reality.

Good luck with whatever you decide to do.

Half_way

If you have experience and are happy to fight then by all means do so.
One aspect is getting the landowner involved if possible, which is what the question posted earlier about whos car park was it.

Was this the Peel Centre? if so then this place has some history that may be extremely useful, however without knowing whos car park it was may hamper things a little.

As for Paying these shysters, all that will do is swell the coffers of Simon Renshaw Smith and further the aims of the Parasitic parking companies

System

This was George Street in Wakefield. Hearing was on 11th. Judge was DJ Ellington (?). Wakefield has an abnormally high number of set asides but few come back for round 2.

Coupon-mad

IamEmanresu wrote: »

This was George Street in Wakefield. Hearing was on 11th. Judge was DJ Ellington (?). Wakefield has an abnormally high number of set asides but few come back for round 2.

Ah OK, I know you know about the court cases across the Country, IamEmanresu, thanks.

If the OP is up for the fight he needs to come back (shame it's not the Peel Centre but it's possible the same machine glitch occurs in other Excel car parks). We'll see.

deepcomuk

Hi Couponmad, thanks for your response.

My witness statement and BD Legal's witness statement (plus the POFA and the evidence pack they prepared) are uploaded to my onedrive account here:

hxxps://1drv.ms/f/s!ApKoU1fgsvSC7lJXNg9nb6e5yFYv

Basically that is all the evidence they have provided to the court and interestingly the Judge didn't even accept it at the first hearing because they only produced it an hour beforehand. It will obviously be valid for a second hearing however. Ultimately the Judge has given me until Tuesday to submit a further witness statement for my defence to their original parking ticket claim (even though the hearing wouldn't be until January) so if the POFA is invalid and I can say something like 'according to XYZ previous cases the POFA should be deemed invalid and here is why' then I would be willing to go to a second hearing.

I also find the photos of the 'terms and conditions' that they are claiming are pretty illegible in the photos so I'm not sure if picking those apart would hold any sway. I think if this was an evidence pack submitted to POPLA then I would stand a fairly good chance but as Iam has stated the court system might go either way so I need something concrete here I think.

Andy.

Coupon-mad

so if the POFA is invalid and I can say something like 'according to XYZ previous cases the POFA should be deemed invalid and here is why' then I would be willing to go to a second hearing.

100% that is not a POFA NTK. The statutory wording is in paragraph 9 of the POFA Schedule 4 but don't get bogged down - BW Legal admit Excel is NOT TRYING TO BE COMPLIANT. They admit it's not a POFA NTK.

It has no warning wording about 'keeper liability' under the POFA after 29 days from service - and it says if they are not told who was driving they intend to pursue the keeper 'on the assumption that they were the driver'. That bit is the same wording as they use now.

Anyway, like I said, BW Legal admit it's not a POFA NTK at #34 of their Witness statement: ''the claimant does not seek to rely on POFA or keeper liability''. They then spout some rubbish abut being able to pursue the keeper anyway but why do they think the POFA Schedule 4 was introduced then?

It was to provide a statutory platform under which a parking firm could hold a keeper liable - because otherwise, they COULD NOT!

At #39 they trot out 'Elliott v Loake' (again). You will need to read through that Judgment (criminal case) to understand why it is not relevant at all and was a case where there was significant forensic evidence that the defendant WAS driving and because of that evidence, he was guilty. It was not a case that relied upon any assumption, nor is it applicable to a contract law case where the POFA is the only statute that allows for keeper liability in any shape or form.

And again, why was the POFA Schedule 4 enacted, then, how do BW Legal explain it? It would never have been needed if this is all a parking firm has to do to pursue a keeper: throw mud and hope it sticks?! Assume who was driving? No! Not lawful, not possible.

In fact when the POFA Bill was being read, the BPA lobbied for the power for PPCs to insist on being told who was driving and this was deliberately and robustly rejected out of hand by Lynne Featherstone MP and others who commented (Hansard has the record of that Bill going through Parliament). The House of Commons was adamant that a parking firm would be given no such power and so keepers have the protection of knowing that they are in no way obligated to name a driver (and you couldn't because you never received any documents at all in two years). You also have the protection in the Act of knowing that you cannot be held liable (as confirmed in the BPA CoP) unless a parking firm has followed the Schedule.

Excel admit they don't, so it's game over.

Also that NTK asks for £60. ''charge now payable'' = £60. Clear as day.

Even if a clueless Judge decided that was a compliant NTK (no way) then the POFA Schedule 4 paragraph 4 says that only the sum on the NTK can be claimed (no debt collector or legal fee additions, which would not have been on the sign either so cannot have been incorporated into the contract). So even if a Judge was minded to consider that NTK as a valid one to hold you liable with no evidence of driver (again...pfffffft!!) then it's £60 not £100 because that's what the POFA sch4 para 4 says.

Any liability notice is a document that Excel should never have served, they had no right to hold the registered keeper liable using that NTK so had no right to follow it with a liability notice. They stopped issuing those soon after that date at the end of 2014, in fact, when they realised they should not be writing to tell a keeper they were 'liable' in a non-POFA case! It was misleading at best, unlawful and contrary to the DVLA rules about not saying a keeper is liable when they are not - and against the Feb 2014 BPA CoP which applied at the time:

http://www.britishparking.co.uk/write/Documents/BPA_CodeofPractice_February_2014_v4..pdf

21.5 ''If you want to make use of the Keeper Liability
provisions in Schedule 4 of POFA 2012 and you have
not issued and delivered a parking charge notice to the
driver in the car park where the parking event took
place, your Notice to Keeper must meet the strict
requirements and timetable set out in the Schedule
(in particular paragraph 9)''.


And where is the evidence that the car was 'parked without displaying a valid ticket'? They do not appear to have produced a printout of the payments made during that hour after arrival. Have they shown NOTHING? At the very least you would expect a list of payments made with the VRNs partially redacted, proving that there were no payments made where the VRN matched yours, or nearly matched yours, or had a single letter of a VRN (as they admit their crappy machines will print a ticket in that scenario and the driver would not have a clue and would not have contravened the requirement to PAY).

Is 'parking without displaying' even a contravention on the sign - does the NTK match the contract terms? Well I can't read those signs (busy small print in Blue & yellow exactly like DJ Lateef found unacceptable at the Peel Centre!).

But helpfully, at #61 BW Legal admit that the signs state a completely different contravention: ''Parking Charge Notices will be issued for 'failure to make payment within 10 minutes...'' Failure to make payment (as drafted on that sign) has not been evidenced and cannot morph into 'not displaying' (also not evidenced) nor can it arise from a typo or single digit being entered when paying. If that happened (and Excel have shown no evidence) then it's not in contravention of the contract as drafted on the sign, anyway.

The 'PDT' machines are NOT 'linked' to the ANPR system in any way, if they were then machine errors with VRNs would not be possible. They are two separate systems and the Witness Statement even admits that the machines will accept just one digit - thereby causing any hapless motorist that happens to, to incur a PCN, then. Yet that would be a charge that is not recoverable, according to the Judges in the cases of the 'QQ' and 'P' tickets as Blogged recently by the Prankster (same sort of machines but at the Peel Centre).

The_Deep

For how much was the original award? Not I am guessing for more than £200, so where did that extra £1,000 come from.

I would make a formal complaint to the SRA that the solicitors are attempting to obtain monies for which their client has no entitlement. They know the rules and this may well be attempted fraud. Lots of firms dealing with PPCs are already being investigated.
http://www.sra.org.uk/consumers/problems/report-solicitor.page

Also, familiar yourself with the rules about litigants behaving irresponsibly under CPR 27.14(2)(g). Claim time spent on this at £19 an hour, but not more than that. You have them by the goolies, squeeze them until their eyes water.