Defence for County Court Claim - BW Legal - Excel

SimonFink

I've followed Bargepole's advice, acknowledged the service of the claim but now need to compile my defence.

I've read the defence complied by JackBasta to a Gladstone's claim in Bargepole's linked thread (which I can't link because I'm a newbie but it's entitled 'Northampton Court Claim arrived (MCOL)'

The claimed debt in my case is to BWLegal and dates back to Jan 2012. The Particulars of the claim are;

"The sum of £100 being monies due in respect of PCN issued Jan 2012 at 12:00 at <incomplete address>. The PCN relates to <a car I owned>. The terms of PCN allowed 28 days to pay but the defendent failed to do so. The claim also includes statutory interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% from date of incident being an amount of £xx. The claimant also claims £54 contractual costs pursuant to PCN T&C.

My Questions

1. Does it help my defence to have made a CPR 31.14 request to BW Legal? (I haven't yet done so).

2. My case is simply that they have no evidence as to who was driving and they can't claim from me because though they have previously written to me that they don't rely on the enactment of POFA the incident pre-dates Oct 2012, I can. Do I need to list all the other points in JackBasta's defence to Gladstones' claim?

Coupon-mad

SimonFink wrote: »

My Questions

1. Does it help my defence to have made a CPR 31.14 request to BW Legal? (I haven't yet done so).

2. My case is simply that they have no evidence as to who was driving and they can't claim from me because though they have previously written to me that they don't rely on the enactment of POFA the incident pre-dates Oct 2012, I can. Do I need to list all the other points in JackBasta's defence to Gladstones' claim?

1. You can send a request for further information (e.g. photos and a copy of the PCN and the contract/sign). You won't get it, but you can then later point out this unreasonableness to the Judge. not a silver bullet but in the context of the rest of the woefully inadequate evidence and particulars, it helps you.

2. Yes you need a full defence including mention of unclear signs and the fact they don't own the car park and have sent no evidence of any contravention. e.g. if they are alleging no P&D payment made then that can't be proven merely by two ANPR photos on arrival and exit because the ANPR system is not connected, as such, to the P&D records of VRNs input and payments made that day. So yes, have everything you may need to rely on later, all of it.

It is quite possible this was a machine failure, very common at the Peel Centre if this was there. Or was this one of the many Cavendish Retail Park customer attacks? If you make no suggestions about dodgy signs or other points, you could end up regretting it if you get a Judge who thinks on the balance of probabilities that the keeper can be assumed to be the driver.

If your insurance at the time had more than one driver then say so in your defence, making it clear either that you believe/know you were not driving (if true) or that it is just as likely that other named drivers were driving and as such you can't be held liable on the balance of probabilities. e.g. if you were normally at work at that time of day or if most shopping was not done by you in 2012, say so (do not name the driver but distance yourself from being assumed to have been that person).

Did you read Lamilad's thread? A complete thread from start to winning at court v BW Legal/Excel.

SimonFink

Thanks for that.

I think the incident was in Prestwich in a small car park which used to allow the first hour free. I say I think because the address on the claim is so vague it could be somewhere else! If it is in the car park I think it is in, I could claim that the machine was often not working because it was often not working. I could get more than one witness statement to that effect too. (There are no cameras in there).

As far as being the driver goes, I don't remember getting a 'ticket' and it's five years ago. Can I be expected to know who was driving on one random day five years ago. I think there would have been at least two people on the insurance at the time and anyone else with my permission could have driven the car (and did). I have three adult children. Further my wife who was the main driver of the car, doesn't work on the day of the week that the incident happened and was more likely to have been the driver though she doesn't remember anything.

I was self-employed so I can't claim I was working elsewhere on the day in question.

I know nothing about the signs. Can I still say they were inadequate?

SimonFink

Coupon-mad wrote: »

1. You can send a request for further information (e.g. photos and a copy of the PCN and the contract/sign). You won't get it, but you can then later point out this unreasonableness to the Judge. not a silver bullet but in the context of the rest of the woefully inadequate evidence and particulars, it helps you.

2. Yes you need a full defence including mention of unclear signs and the fact they don't own the car park and have sent no evidence of any contravention. e.g. if they are alleging no P&D payment made then that can't be proven merely by two ANPR photos on arrival and exit because the ANPR system is not connected, as such, to the P&D records of VRNs input and payments made that day. So yes, have everything you may need to rely on later, all of it.

It is quite possible this was a machine failure, very common at the Peel Centre if this was there. Or was this one of the many Cavendish Retail Park customer attacks? If you make no suggestions about dodgy signs or other points, you could end up regretting it if you get a Judge who thinks on the balance of probabilities that the keeper can be assumed to be the driver.

If your insurance at the time had more than one driver then say so in your defence, making it clear either that you believe/know you were not driving (if true) or that it is just as likely that other named drivers were driving and as such you can't be held liable on the balance of probabilities. e.g. if you were normally at work at that time of day or if most shopping was not done by you in 2012, say so (do not name the driver but distance yourself from being assumed to have been that person).

Did you read Lamilad's thread? A complete thread from start to winning at court v BW Legal/Excel.

I can't find that thread! Could you possibly link it?

I will use the poor signage defence too because it seems the signage IS rubbish in the car park in question - according to a thread I just read on here!

Coupon-mad

I'll give this one link but it's best not to ask for links, better for you to learn how the forum can work for you to find all the info already here. Put 'Lamilad' into the search this board function, or do a members search and put in Lamilad and click on 'see posts' and you find this thread:

https://forums.moneysavingexpert.com/discussion/5478608

This goes into your honest defence and later, in your Witness Statement. What you have written here sounds very reasonable:

I don't remember getting a 'ticket' and it's five years ago. Can I be expected to know who was driving on one random day five years ago. I think there would have been at least two people on the insurance at the time and anyone else with my permission could have driven the car (and did). I have three adult children. Further my wife who was the main driver of the car, doesn't work on the day of the week that the incident happened and was more likely to have been the driver though she doesn't remember anything.

You also need to make it clear that no keeper liability can apply in a pre-POFA PCN.

You should also state at the start of the defence that it is unreasonable in the extreme for a claimant to store DVLA data for 5 years, then pounce with a roboclaim with no due diligence nor evidence, in the hope that a defendant might have moved house or not have any paperwork (which you don't). It is even more unreasonable that, having made no attempt whatsoever to contact you for years -and knowing that keepers could not be held liable for parking charges in early 2012 anyway - the Claimant has the audacity to try to ask the court for the right to claim statutory interest at 8% from date of incident. The long delay is clearly the fault of the Claimant and should not be used as an excuse to effectively try double recovery.

'Double recovery' also crops up in your defence point objecting the the added sum (legal/admin costs) because that sum has not been shown to be stated in large lettering on signs and appears to have been made up out of thin air.

I think JackBasta's defence had all of this because it was a good one, but you do need to add your explanation to distance yourself from being unfairly 'presumed' to have been driving when in fact, you can truthfully say it is more likely you were not.

You'll need evidence (later on, not now, for now it is just a defence statement) to support that if you can get it, e.g. your old insurance document or email, or even just a copy of all your family's driving licences (with the names redacted to stop the claimant coming after one of them) just to back up your story of several adult drivers in the family.

Matthew87

Is the location on your claim form "Bury New Road - Prestwich Manchester 60 100"?

SimonFink

Matthew87 wrote: »

Is the location on your claim form "Bury New Road - Prestwich Manchester 60 100"?

Yes! Is it the car park on Fairfax Road?

Matthew87

It certainly is

Two recent threads that may be helpful (I can't post links):

- Excel/BW Legal - Defendant is not RK - Matthew87 (Me!); and
- Excel signage in Prestwich impossible to read, IAS thinks not....! - traceynob

SimonFink

I've read those threads. Yours is really excellent. Your case is different from mine. My PCN was apparently incurred at 11 am so I can't claim the car park was dark but mine was pre-POFA so I have that extra 'defence'.

I'm not sure how useful it would be for you to know something about the ticket machine in that car park but I do have information that might help if it's not too late for you to claim that the machine might have been broken. I can't say more here.

I live one mile from that car park. If you want to meet up for a coffee to discuss our cases, I'm up for that. (Is that allowed? Sounds somehow dodgy in this daft new-age world but we could park inthe car park and get a coffee in Costa. Or we could talk on a fone?)

Coupon-mad

You can send a private message to each other and traceynob, take it off forum together. Just click on their username and send a pm.

SimonFink

This is my Part 18 Request sending by email today - I'm a week behind having been laid low for a week with proper manflu which resulted in my effectively missing Xmas ;-(

IN THE COUNTY COURT BUSINESS CENTRE
CLAIM NO: xxxxxxx

BETWEEN:

Excel Parking Services Ltd [Claimant]

and

xxxxxxxx xxxxx xxxx [Defendant]

PART 18 (CPR) REQUEST FOR FURTHER INFORMATION

To: Excel Parking Services Ltd

Made by the defendant to the Claimant on 27 December 2016

Please answer the following questions;

1. What is the basis of the claim. Is Excel Parking Services Ltd making a claim as an agent of the landowner or making the claim as occupier in their own right?

2. Please supply me with copies of the PCN and NTK which were apparently issued on and after xx January 2012. Please supply photos of the parked car, if they exist. Also, supply detail as to where is precisely "Bury New Road, Prestwich, Manchester 60 100"

3. If the contract has been conveyed by the use of signage on site, please provide copies of the signs on which you rely and confirm these are the signs in situ on the date of the event. Please also provide the date these signs were installed, for example, a works schedule, maintenance record or invoice for the work.

4. Were there signs at the entrance to the site on the date in question? Did these meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1 (Please indicate)

5. Does Excel Parking Services Ltd's contract with the land-owner include the authority to take legal action. If so, please provide a copy of it or say if it will be produced in court.

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU.

I also require that answers to these questions be verified by a Statement of Truth by an authorised signatory of Excel Parking Services Ltd


Signed Defendant


Defendant's address xxxxxxx xxxxxxx