Excel/BW Legal - Defendant is not RK

Matthew87

So here goes, my first post... please be gentle!

I will post all my documents here: https://1drv.ms/f/s!AsLbpETb6Et3j3yADaebkkR-iXRW

I have tried to obscure any personal details - if I have left any, please let me know.

Any page references made below, are in reference to my paginated exhibits document.

28/12/15: Visited Panama Hatty's Grill in Prestwich, Manchester and parked on an Excel car park off Bury New Road (unbeknown at the time!) It was just before 19:00, it was cold, very dark and rainy. We left just after 21:30 and found a PCN (page 16) attached. Shocked, we struggled to see any signs and spent 5 minutes trying to locate the ticket machine (and a sign with text big enough to read in complete darkness!) Eventually found the ticket machine in a dark corner, and took a photo using flash (pages 21 - 22).

11/01/16: Got through the New Year and looked at the PCN in more detail - noticed a timing error (patrol officer had put "Time Seen: 21:04 and Time Issued: 19:25"), so I emailed Excel (page 27) basically saying that rather than go through a lengthy appeal process, could they confirm the PCN would not be taken any further, due to the errors contained within. The email was sent from my email account, with my name at the bottom. I also, rather cheekily, emailed the landowner, but received no response. At no stage did I disclose who the driver was.

04/02/16: My wife, as registered keeper of the vehicle, received a NTK (page 28) from Excel, with a contravention time of 21:25 (even though the PCN said 19:25).

02/03/16: I received a letter from Excel (page 29), referring to 'my appeal' received on 11/01/16. They were "now responding to me on the reasonable basis that you reside at the same address as the registered keeper". All further correspondence was addressed to me.

FROM THIS POINT ON, HAVING READ VARIOUS GUIDES/OPINIONS, I IGNORED EVERYTHING.

18/03/16 - 14/12/16: Various letters, addressed to me, from ZZPS, Wright Hassall, Excel & BW Legal (pages 30 - 38).

14/12/16: Claim Form received from Northampton CCBC.

UPDATED - 15/12/16: Claim acknowledged online.

UPDATED - 21/12/16: Part 18 posted (1st class with proof of postage) and emailed (page 39).

UPDATED - 09/01/17: Defence sent via email

UPDATED - 06/02/17: Received a letter from BW Legal to say that their client intends to continue with the claim.

UPDATED - 07/02/17: Received DQ

UPDATED - 23/02/17: Received BW's DQ which was completed by 'Rohan Krishnarao'. "TBC" in D3 (How many witnesses) and signed by "BW Legal"

UPDATED - 27/02/17: Allocated to Bury County County letter

UPDATED - 02/03/17: Transferred to Manchester County Court letter (Bury closes on 12th May)

UPDATED - 21/03/17: District Judge Obodai has set Court Date = 10:00AM on 02/05/17

NOW:
[STRIKE]1. I know I must 'Acknowledge' online, and not enter anything into the 'Defence' section, but what about the rest? Do I fill in all the personal details section (DOB/Contacts)?[/STRIKE]
[STRIKE]2. Should I send a Part 18 Request to BW Legal? Should I target anything specific (incorrect timings/driver unknown/photos/proof of landowner authority?)[/STRIKE]
3. I've read about 'sealed bundles' etc - is that good practice? Does this go into the Part 18 letter?
4. Does anyone think that the driver of the vehicle has been established? Can it be proven? I'm the Defendant, but not the RK.
5. I'm not after a spoon-feeding (I have read an enormous amount before posting this and will continue to do so!), but any pointers on the specifics of my defence? I haven't come across another case where they pursue someone other than the registered keeper (who hasn't admitted/been identified as the driver!)

Huge thanks in advance - these forums seem to offer a great deal of help to people not afraid of going up against the likes of Excel/BW Legal etc. We've had PCNs before, that my wife has 'made' me pay, as they were in her name - but this is a little different, as they're after me

pappa_golf

please read , https://forums.moneysavingexpert.com/discussion/5546325

Matthew87

Believe me PG, that thread has been read back to front! Thank you.

pappa_golf

link to photos ,

https://onedrive.live.com/?authkey=%21AIANp5uSRH6JdFY&id=774BE8DB44A4DBC2%212044&cid=774BE8DB44A4DBC2

traceynob

I am currently going through the process from the same car park, but I'm a bit ahead of you having already submitted defence. If you search for a thread with 'Prestwich' in the title you'll hopefully find mine. Feel free to peruse my defence (think it's post #76) and adapt as required. I now only update the thread when something interesting happens, so will post if/when I get a court date.

My main defence is the appalling signage which was not illuminated at night and therefore does not comply with the ICP Code of Practice.

Matthew87

Thanks Tracey, I've had a good read! My wife's car was parked in almost the exact same spot (from your imgur photos). I'll follow your thread very closely!! If I can be of any use/help to you/your case, please let me know!

Matthew87

Part 18 posted (1st class with proof of postage) and emailed this morning (Fig. 18).

Matthew87

Just a quickie...

Even though I'm not the registered keeper, should my defence say something along the lines of "even if I was, they've failed POFA blah, blah, blah, this case can be distinguished from E v L blah, blah, blah and there is no reasonable presumption RK is driver, let alone someone who isn't the RK"

"Blah, blah, blah" being a very technical legal term

Coupon-mad

Personally, as you appealed and were not the keeper, even though you didn't actually say who was driving, I would give real consideration to putting in a defence as driver. I know what I would advise if you were my relative and it would be to be the driver (unusually) partly because you've already appealed and thus made it 'likely' on the balance of probabilities that our of you and your wife, you were the driver. Excel could end up looking more reasonable than you and you don't want the Judge to pre-Judge you badly.

Advantages of admitting you were driving, in view of your early appeal:
(a) It means you don't have to choose your words carefully at your hearing and can be an honest witness to the fact the signs were unlit, the P&D machine was hidden and you were not given a fair chance to learn of the terms. You can use evidence, photos and other cases to support this very solid argument that there was no contract communicated.

(b) You don't have to worry that the Judge might be against you and bark 'were you driving?' and wonder how to answer that in a way that doesn't give an adverse inference. Excel like to throw stones at Defendants, they have done in two cases I have helped with recently, calling the Defendant a liar, effectively. I would not recommend the identity of the driver is even aired in your case.


Disadvantage:
An admitted driver can't use the POFA Schedule 4 about liability. So your defence would have to home in pretty much solely on signage and the hidden/dark, unlit P&D machine.



Decide now. Either way, have a look at this Excel defence I wrote in post #4:

https://forums.moneysavingexpert.com/discussion/5579529

I am solidly favouring the 'all out attack on signs' style of defence against Excel, meaning you can use Martin Cutts' article and his court transcript as evidence, even though your location was not the Peel Centre. I am deliberately throwing in Simon Renshaw-Smith's quoted words (allegedly) discrediting a Judge in the Cutts case, in an effort to help people like you to disabuse your Judge from the assumption that the 'innocent party' is the Claimant in these cases. I want to open Judges' eyes to who the Claimant is from the outset, which is why I also throw in 'Captain Clampit' and all.

And you must also use a printed out version of the Beavis sign as a comparison, to hand to the Judge to show the extreme difference between Excel's hidden predatory signs/machines and ParkingEye's 'brief, clear and prominent' terms as held to exist at that single retail park in Beavis.

Traceynob can also use these as evidence documents to accompany her Witness Statement (and those who choose to defend as 'keeper' MUST also file as evidence and then take as hard copies, Schedule 4 of the POFA and Henry Greenslade's words 'Understanding Keeper Liability' from the POPLA Annual Report 2015). For those defending as keeper, be aware that you might know more than the Judge about 'keeper liability' and he/she won't build/assist with the evidence for you and will not 'know' about Schedule 4.

Matthew87

Thanks CM, I shall continue with my first draft and may well return for some more advice, before posting it. Thanks again

Matthew87

So here's the first draft of my defence. I will put a .pdf version in my OneDrive (see post #4), with the proper formatting etc.

I welcome any criticisms, no matter how small (I'm often a stickler for spelling/grammatical errors!)

1. I am XXXX, the defendant in this matter and litigant in person.
2. I deny any liability in this claim, and any debt is denied in its entirety.
3. 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.
4. The Claimant has no cause of action against the Defendant on the following grounds:
5. The Claimant has not complied with pre-action protocol, under the Practice Direction as a compliant ‘Letter before County Court Claim’ was not issued.
6. The Particulars of Claim ('the Particulars') do not disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The Particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct.
7. Practice Direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that "a legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer". The claim is signed by ‘BW Legal Services Limited’. This therefore does not comply with the requirements.
8. The Particulars fail 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 me from being able to respond in more detail, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way.
9. I have asked questions in the form of a Part 18 request but have not received any response.
10. The Claimant is a well-funded company with a dedicated legal staff and is a serial litigator. I submit that his issuing of Particulars 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.
11. The Claimant has no locus standi to bring this case.
12. It is denied that the Claimant is 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, they do not have the authority to issue charges on this land in their own name and they have no right to bring action regarding this claim.
13. The Claimant is therefore put to strict proof that at the time of the alleged event they were 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.
14. In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.
15. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking can only be an event falling under the tort of trespass.
16. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).
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, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice (CoP) of the Independent Parking Committee’s Accredited Operators Scheme.
18. As a member of the Independent Parking Committee (IPC), the Claimant is able to access registered keeper details from the DVLA. However, IPC membership requires the Claimant to comply with their CoP which they have failed to do with respect to their signage in this case. The Claimant has previously been suspended by the DVLA from accessing registered keeper details due to failure to comply with the CoP.
19. The Claimant was also formerly a member of the BPA, whose requirements they also did not follow.
20. The signage was inadequate in terms of the following:
20.1. Lack of illumination of signage (and the car park) during the hours of darkness
20.2. Lack of clarity and prominence of terms and conditions
20.3. Illegible text due to font size, density, colour and complexity
20.4. Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
20.5. Lack of relevant terms and conditions, such as the fees for parking
20.6. Inadequate positioning of signs, for example, at unsuitable heights
21. The car park would have been in darkness at the time stated in the particulars. The IPC's CoP states that "if parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge."
22. The Claimant’s site signs have no illumination, nor do they benefit from light columns or other secondary sources within the car park. Additionally, as the car park is set back from the road, they do not even benefit from secondary lighting from street lights.
23. The only ticket machine on site (which contains the key terms and conditions), is hidden in a very dark corner, often blocked by cars.
24. In due course I will ask the court to consider the frequently overlooked test established by Roch LJ in the matter of Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 insofar as it relates to the display of signage in conveying an obligation.
25. It was established that where terms on a parking sign are not seen/known, then there can be no contract. The case was won by the consumer on appeal where the Judges also found that clear entrance signs are expected.
26. 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.
27. Any ‘charge’ or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.
28. 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”.
29. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.
30. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
31. It is denied that the signs on display fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs.
32. The Claimant is therefore put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
33. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
34. This Claimant is known for incoherent and sparse signage, incapable of forming a contract.
35. 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 Mr Cutts’ attention to the terms and conditions of using the car park.
36. 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
37. It is expected that this Claimant may try to counter that article about their signs but it is worth noting that Mr Cutts manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.
38. It is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel, attacked the Judge’s integrity. He wrote to Stockport MP Andrew Gwynne stating that "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."
39. 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.
40. 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.
41. 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 £1 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.
42. The Claimant is attempting to claim additional charges such as debt collection/legal fees of £54.00 and legal representative's costs of £50.00. The Protection of Freedoms Act 2012 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 Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.
43. The Claimant is put to strict proof of all his assertions.
44. Save as expressly mentioned above, the Particulars of Claim are denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
45. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.