Court defence help requested (quite urgent)

deepcomuk

Thanks CouponMad, I'm trying to put something together now. I assume it worth formulating my reply such as 'they say at point #37 such and such, which is not relevant because...' and then just picking their witness statement apart that way?

Hi TheDeep, The original Judgement was for £262 which has now been (is being) set aside. The £1200 claim was by BD Legal for their court costs for submitting evidence and attending court last week. This was thrown out by the Judge so isn't really relevant - I only mentioned it as I thought that if I was to defend the claim proper (rather than just the set aside) and lose that hearing then it would be likely they would also go for further costs at that second hearing of a similar amount. Looking at the fact that the original claim form says £60 as per CouponMad's note I am wondering whether this could even be applicable anyway but for my defense I will make sure that my costs are worked out at £19 per hour as mentioned. Guess the Judge would allow them £161 per hour as they are solicitors but us laymen can only get £19 hmmm.

Umkomaas

At county court level, solicitors' costs are capped at £50, unless the Judge deems the defendant to have acted 'unreasonably'.

I've not seen a private parking case where punitive costs have been awarded on the grounds of 'unreasonableness', even against parking companies where there might be more grounds for consideration.

deepcomuk

Hi CouponMad,

Would you be so kind as to have a quick look over the below as this is what I will be looking to submit. If there are any glaring omissions/changes (I have a couple of unlawful's that I don't know whether to leave in or not) then please let me know. The RK1 pack mentioned was the stuff BD Legal sent previously. The AC1 pack is just the BOP COP as a PDF that you kindly provided the link to:

Introduction
1. I make this witness statement in response to the hearing that took place on 11/10/2106 at 10:00 in order to provide further information towards my defence having now had received a copy of The Claimant’s actual claim towards me.
2. Within this statement I make reference to various documents. Some of these were provided to me in a paginated bundle marked “RK1” as part of the Claimant’s previously supplied Evidence Pack. Others are produced by me in a paginated bundle marked “AC1” attached.

Background
3. As per my original statement I am the Defendant in this matter and understand The Claimant has issued a claim against me for payment of an outstanding parking charge relating to a vehicle for which I was the legal owner and Registered Keeper. I deny all liability for the entirety of the claim.
4. I would like to make the Judge aware that as the owner of a small IT consultancy business the vehicles I own are insured for business use as well as personal and as such are occasionally used by other members of staff when the need arises.

The Defendant’s response to the Claimant’s claim
5. Whilst it has been confirmed that The Defendant was the Registered Keeper of the vehicle in question on the date of the alleged contravention, at no point has it been determined who the actual Driver of the vehicle was at that time.
6. The vehicle was owned by the Defendant but was occasionally used by other members of staff employed within the Defendant’s company. The digital calendar used to store the information as to van & car usage within the company only covers a proceeding 12 month period from the present so The Defendant cannot determine with 100% surety the driver’s identity on 01/10/2014.
7. At no point prior to the first hearing had the Defendant received any Parking Charge Notice (the ‘PCN’), Liability Notice (the ‘LN’) nor County Court Claim Form and as determined by the Judge at the first hearing these were deemed not to have been correctly served.
8. As the Defendant didn’t receive a correctly served PCN this in itself should be enough to dismiss the case as a PCN must be served within 14 days as per the February 2014 British Parking Association Code of Practise (the ‘BPA CoP’), Appendix C, Schedule 4, Section 9.5 (Attached in bundle ‘AC1’).
9. By their own admission in their witness statement, point #34, Excel Parking are not relying on the POFA or Keeper Liability yet have provided no evidence as to who was driving. The Defendant is under no legal obligation to identify the driver so unless The Claimant can prove that The Defendant was the driver at the time of the alleged incident rather than just making an assumption they can only bring a claim under Keeper Liability (as The Keeper is all that The Claimant has determined). As such the Defendant cannot be held liable without reference to Keeper Liability statute.
10. Further, the BPA CoP states in paragraph 21.5 “If you want to make use of the Keeper Liability provisions in Schedule 4 of the 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)”. The Claimant was a member of the BPA in October 2014 yet the Notice to Keeper/PCN referenced does not meet the strict requirements set out in Paragraph 9, hence The Claimant cannot seek to make the Registered Keeper liable.
11. The Claimant suggests in point #39 that in the absence of driver details being provided, they are proceeding on the reasonable presumption that the Registered Keeper was the Driver. Due to the Defendant never receiving any previous paperwork there was no opportunity to identify the Driver nor is the Defendant legally obliged to do so. In addition, The Claimant’s reference to Elliott v Loake is not applicable in this case as this was a criminal case where forensic evidence was used to prove the identity of the Driver, not a case based on Presumption.
12. The Claimant goes on to suggest, point #40, that if someone else was driving the vehicle then surely the Defendant could identify said person. Whilst this is likely to have been the case in October 2014 had the PCN been correctly served and received, surely it is a stretch to expect the Defendant to identify the driver with 100% accuracy 2 years after the alleged contravention.
13. Other Excel Parking machines are known to be faulty so it is possible the ticket was incorrectly printed. In Claim no. C8DP11F9 – Excel v Mrs S – 09/09/2016, Oldham Court, The Claimant’s claim was dismissed after the Judge determined that the machine printed a ticket with an invalid registration number of QQ due to a fault.
14. In point #55, The Claimant states that the PDT machines are linked to the ANPR system. This cannot be the case as if the PDT machine was linked to the ANPR then machine errors with the Vehicle Registration Number would not be possible. They are two separate systems. The Claimant’s Witness Statement even admits that the machines will accept just one digit – thereby causing any hapless motorist that accidentally makes an error in VRN entry, prone to incur a PCN. Yet, that would be a charge that is not recoverable, at least according to the Judges in the case of Claim C8DP11F9, Excel vs Mrs S (09/09/16).
15. Excel Parking have produced no evidence as to the tickets purchased at the machine on the day in question around the time of the alleged incident so it is impossible to verify if a ticket was printed with a fault code (QQ). As such The Claimant has not produced ANY evidence to suggest that the car was ‘parked without displaying a valid ticket’ as per the stated reason for the alleged contravention on the PCN.
16. In point #61 The Claimant admits that the signage states that “Parking Charge Notices will be issued for ‘failure to make a 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 incorrectly when paying. If that happened (again, the Claimant have shown no evidence of this) then it is not in contravention of the contract as drafted on the sign anyway.
17. Looking at the photographs in the RK1 evidence bundle provided by the Claimant it is impossible to determine is ‘Parking without displaying a ticket’ is even a contravention in the terms and conditions. It is therefore unlikely that the Notice to Keeper matches the contract terms so again deeming it invalid.
18. In Excel v Martin Cutts, DJ Lateef commented that the signage at another Excel Parking managed car park, the Peel Centre in Stockport, was woefully inadequate, illegible and wordy. Having looked at the RK1 evidence bundle provided by The Claimant it is extremely difficult to make out the terms and conditions that the Defendant is supposed to have contravened so it can be argued that the signage at George Street, Wakefield is of that same standard as the Peel Centre.
19. The Claimant admits that to manage parking on private land they must belong to an Accredited Trade Association and must adhere to the Scheme’s code of Practice in order to access Keeper Details from the DVLA. It has been shown above that the BPA’s Code of Practise in relation to the Notice to Keeper has not been adhered to, as such there is a possibility that the Keeper Details in this instance were obtained from the DVLA unlawfully.
20. The BPA CoP Schedule 4, Paragraph 4 states that only the sum on the Notice to Keeper can be claimed. No debt collector/legal fee additions can be claimed, plus neither are mentioned on the signage that is referenced as the basis of the contract. As such The Claimant’s claim for £100 as the Parking Charge for contravening the Terms and Conditions is incorrect as this can only be £60 as per the Notice to Keeper.
21. The Liability notice is a document that The Claimant should never have attempted to serve as they have no right to hold The Defendant liable as Registered Keeper using the Notice to Keeper provided, hence no right to follow it with a liability notice. The Claimant is aware that they should not be telling a Keeper they were ‘liable’ in a non-POFA case as they stopped this practise at the end of 2014. It was misleading at best, potentially unlawful, and contrary to the DVLA rules about saying a keeper is liable when they are not, as well as being again the BPA CoP.

Conclusion
22. It is submitted that the claim is entirely without merit and that the Court should strike out the claim under its own initiative. The Defendant therefore requests that the Court finds in his favour.

Signed....

Andy.

Coupon-mad

deepcomuk wrote: »

Thanks CouponMad, I'm trying to put something together now. I assume it worth formulating my reply such as 'they say at point #37 such and such, which is not relevant because...' and then just picking their witness statement apart that way?

... Looking at the fact that the original claim form says £60...

First, don't call the NTK the 'original claim form' because it's a driver-only (non POFA) NTK, not a claim form.

You previous witness statement was good, the one that got it set aside - except scrap any mention of there being 'no loss' or no GPEOL'.

Yes you should pick their witness statement apart.

I did not see ANY printout evidence of payments made that day?? Weird. You MUST mention that in your defence - that without that list, where is the evidence that no payment was made/or alternatively that a typo or keypad error occurred?

How can you/the Judge possibly know what happened based on two photos and some distant unreadable signage pics?!

Mention that the contravention as stated on the PCN 'not displaying' does not match the circumstances drafted on the sign according to BW Legal at #61 'not paying'. Not the same thing at all - a badly drafted sign then, not least because it's got a shedload of words & colours and small print! Neither is proven.

I did not see any close up picture of terms making it a clear obligation to input a VRN which was stated to run the clear, transparent risk of paying a penalty (needs to meet the test of fairness and transparency in the UTCCRs as applied at the time in 2014 and not hide the 'commercial intent' behind keying in a VRN, or it can be held an unfair unenforceable term, being a 'misleading omission' under the CPUTRs 2008*)

And include as your exhibits:

- the relevant misleading omission section of the CPUTRs*

- a full print of Schedule 4 of the POFA in case the Judge doesn't see why it's not a POFA version of a PCN (even though BW Legal admit it is not).

- a part-page print of the applicable BPA CoP with the relevant bits highlighted (do not accidentally look at the CURRENT CoP, I've shown you the Feb 2014 one which applied to this event and para 21.5 is paramount).

- DJ Lateef's damning words about Excel signs like these (never mind this was at the Peel Centre, the blue/yellow garish and wordy signs fail in the same way:

http://nebula.wsimg.com/1bb26d17be44123a662f3e1910ea8cf9?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

- The Plain Language Commission's damning indictment of Excel signs like these:

http://s3-eu-west-1.amazonaws.com/plcdev/files/126/original/DVLA-BPA-Cutts22Apr2012_1b_mf.pdf

- the Blogs about these two cases (below) which call into question the reliability of Excel's machines in recording a VRN - in part or in full - even if a driver does key it in:

C8DP11F9 - Excel v Mrs S - 09/09/2016, Oldham Court

C8DP36F0 - Excel v Ms C - 17/10/16, Stockport Court.

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

http://parking-prankster.blogspot.co.uk/2016/10/bw-legal-how-to-winlose-claim.html


Remember that Excel's legal rep can't (but might well try to) ambush you on the day with a printout of the VRNs entered in the machine that day - so DO NOT accept any papers outside the courtroom and have your 'bundle' sealed in a bag.




* http://www.legislation.gov.uk/ukdsi/2008/9780110811574/regulation/6

Coupon-mad

Haven't had time to look at your WS yet - but take a look at my reply above and start gathering your own paginated bundle of exhibits as suggested. You have loads of persuasive stuff you could use. And be ready to rebut 'Elliott v Loake' as inapplicable, wholly dissimilar due to the fact that case relied on evidence of who WAS driving, not an assumption. No assumption can be made.

Oh, that reminds me, your evidence also needs as an exhibit, BARRISTER, PARKING LAW EXPERT, AND POPLA LEAD ADJUDICATOR AT THE TIME FROM 2012 TILL 2015, Henry Greenslade's words from POPLA 2015:

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

Print out Page 12 and 13 'KEEPER LIABILITY' and in particular, highlight these sentences/paragraphs:

''The only presumption that anyone else is liable for such a charge is under
Schedule 4 of the Protection of Freedoms Act 2012.''

''Nevertheless, there appears to be continuing misunderstanding about Schedule
4. Provided certain conditions are strictly complied with, it provides for recovery
of unpaid parking charges from the keeper of the vehicle. Whether or not the
keeper is the owner is not relevant. Unlike the statutory schemes, under Schedule
4 there is no concept of ‘owner liability’.''

However keeper information is obtained, there is no ‘reasonable presumption’ in
law that the registered keeper of a vehicle is the driver. Operators should never
suggest anything of the sort. Further, a failure by the recipient of a notice issued
under Schedule 4 to name the driver, does not of itself mean that the recipient
has accepted that they were the driver at the material time. Unlike, for example,
a Notice of Intended Prosecution where details of the driver of a vehicle must
be supplied when requested by the police, pursuant to Section 172 of the Road
Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to
name the driver.''

deepcomuk

Thanks Couponmad. I changed point 11 a little before seeing your notes:

11. The Claimant suggests in point #39 that in the absence of driver details being provided, they are entitled to proceed on the reasonable presumption that the Registered Keeper was the Driver. Due to the Defendant never receiving any previous paperwork there was no opportunity to identify the Driver nor is the Defendant legally obliged to do so. Furthermore, the entitlement to proceed without identifying the driver is the basis of Schedule 4 of the Protection of Freedom Act 2012 (‘POFA’) and as The Claimant is not seeking to rely on POFA The Claimant is not entitled to make the Registered Keeper liable. In addition, The Claimant’s reference to Elliott v Loake is not applicable in this case as this was a criminal case where forensic evidence was used to prove the identity of the Driver and not merely just the Presumption of a parking company.

But I'll go through and add to my exhibit bundle/witness statement some of your further points.

Much appreciated.
Andy.

Coupon-mad

Will have a look later!

I admire your stance on fighting this - and after all, if you'd never had to get a set aside we'd have encouraged you to defend this claim...so now you are defending this claim.

The exhibits will be imperative to this I think, especially if Excel do not cough up any list of VRN keyed in. Make sure you serve your whole evidence on both the court and BW Legal too, in time, which may mean a trip to the Court in person.

deepcomuk

Yeah I've got to get this into the court tomorrow (based on the Judge's I'll give you '14 days to submit a revised defence') so I need to print everything out first thing at the office and then I'm going to hand deliver it to the court as well as pop a copy in the post to BD Legal.

I'm guessing he will have a look over it at some point and then a second hearing will be scheduled. I've not heard/seen anything from the court since the first hearing so not sure as to the protocol with this but I guess we will find out.

Having looked at the pictures in the Claimants evidence pack I did notice that the signs are more prominent than the ones at Peel Centre (T's and C's are illegible but the signage is bigger) so I wondered whether to even mention the Cutts case? For now its in as :

21. In Excel v Martin Cutts - 2010, DJ Lateef commented that the signage at another Excel Parking managed car park, the Peel Centre in Stockport, was “woefully inadequate, illegible and wordy”. She also said that “The key issue was whether Excel had taken reasonable steps to draw to Mr. Cutts’ attention the terms and conditions of using the car park”. Having looked at the RK1 evidence bundle provided by The Claimant it is extremely difficult to make out the terms and conditions that the Defendant is supposed to have contravened so it can be argued that the signage at George Street, Wakefield is similar to that of the Peel Centre. Additionally, large parts of the sign are Yellow lettering on a Blue background, a combination warned against by the Independent code of practise as hard to read.

But as the main point at Peel seemed to be the lack of the words 'pay and display' on the main signs which George street pics show I didn't know whether to just drop it out or not. Just thinking that if BD Legal get the chance to a rebuttal on my defence which I'm sure they will they will probably make a 'this is nothing like Peel street' argument.

deepcomuk

Hi TheDeep.

Looking at the statement of costs that BD Legal submitted for the first hearing (which were dismissed) there statement mentioned interim application/fast track trial.

If it was originally done via MCOL and was only moved to my local court for the hearing regarding the set aside would it still be classed as Small Claims track with 27.14 being applicable or will it somehow have been re-classified and have different cost rules become relevant?

Is there any way to check as it was not mentioned on the court paperwork I have seen and I've seen nothing since the first hearing.

Finally, Excel were told to repay me the £255 set aside costs within 14 days which expires Wednesday. I guess if a cheque doesn't arrive by Wednesday then they are in breach of the Judge's ruling and leave themselves open to Small Claims court action themselves?

Coupon-mad

It will still be small claims track because it's a simple contract matter and under £5000.

Finally, Excel were told to repay me the £255 set aside costs within 14 days which expires Wednesday. I guess if a cheque doesn't arrive by Wednesday then they are in breach of the Judge's ruling and leave themselves open to Small Claims court action themselves?

If Excel should win then they will want to claw that back, so be aware they are fighting for that too. They will try hard but if you do not know who was driving and can stand there and say it's too long ago to have any recollection and certainty (if asked) then they really have no case against you IMHO.

Henry Greenslade says it like it is and he's a barrister and THE expert, Lead Adjudicator of the ADR that Excel had to accept at the time.

Hmmm... a hard one to call about DJ Lateef so maybe drop her words completely and just state something general about the signs being wordy and that the evidence provided makes it almost impossible to make out the terms, as only the tariffs are in large letters. Any driver cannot be assumed to have accepted a risk of paying £100 as that sum isn't legible.

You can add one more exhibit then, I suggest this instead of DJ Lateef's words - include a printout colour image of the 'Beavis sign' to hold up as a comparison of what constitutes a brief & clear sign with the parking charge in the largest lettering and the terms clearly stated in few words:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s1600/Parking%2Bsign_001.jpg

Compare and contrast!

OK so what does your final draft look like?

BTW you can email your defence plus all exhibits to Excel and to BW Legal (the PCN gives the email addy for Excel). That way they cannot claim your defence arrived late.


HTH