Defence for County Court Claim - BW Legal - Excel

SimonFink

I now have both a mobile number and a home address for the landowner. I emailed him 6 days ago to ask him to cancel the notice but have had no reply. I'm going to call him tomorrow.

I don't want to make empty threats to call him as a witness if the case gets to court but under what circumstances could I call him? I'd like to persuade him that it'd be easier to cancel the charge than to have to go to court to answer to x, y or z?

Coupon-mad

You can tell him that he is liable for the actions of his agent five years ago and now...trouble is it is likely to an empty threat because in small claims it isn't likely IMHO that a Judge will let you insist on 'calling' a person who Excel will argue is peripheral at best (not part of the contract). It would be considered excessive I think.

SimonFink

I've compiled the following defence albeit I was tempted to just stick to the fact this is a pre-POFA case because I'm slightly concerned I may be tripped up by the parts of my defence which relate to anything else! I wasn't driving the car. I didn't get a 'ticket' and it's five years ago!

DEFENCE

1. It is acknowledged that the defendant, xxx, residing at xxx is the registered keeper of the vehicle.

2. It is denied that any monies from a parking charge notice as stated on the Particulars of Claim is owed and any debt is denied in its entirety. The date of the alleged incident is XX/XX/2012 which is nearly 5 years ago. How can anyone be expected to remember where they may have parked a car on one random day five years ago? I certainly do not remember getting a 'ticket' and had I have done I certainly would remember. Further the car in question is one on which I was not the main driver for insurance purposes.

3 It is extremely unreasonable for the claimant to store DVLA data for 5 years then pounce with a roboclaim with no due diligence nor evidence, in the hope that I do not have any paperwork relating to this alleged debt (which I don't). It is even more unreasonable that, having made no attempt whatsoever to contact me 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 (£35.70). The long delay is clearly the fault of the Claimant and should not be used as an excuse to effectively try double recovery.

4. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the particulars of claim, it can be seen the date of the alleged incident is XX/XX/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.

PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015). It seems Excel Parking think they know better.

5. The claim form itself also gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way. Therefore, 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.

In the pre court stage the Claimant’s solicitor did not send me a Letter before Action so I have
a) No summary of facts on which the claim is based.
b) No list of the relevant documents on which the claimant intends to rely and
c) I wasn't offered any form of possible negotiation.

6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

7. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a Part 18 request to the claimant's solicitors on 18/12/2016. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd, and no proof has been provided.

8. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

9. It is submitted that (apart from properly incurred court fees) the added 'contractual costs' of £54 and the £50 legal representative's costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant. I have not been shown any evidence that the deliberately indistinct, almost illegible and unlit signs in the car park refer to these amounts.

10. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the ParkingEye Ltd v. Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.

11. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I request the court strike out this claim for the reasons stated above.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

Coupon-mad

A good start!

I didn't notice anything suggesting that you are aware that Excel machines are prone to faults which cause people who pay to still get a PCN. Put them to strict proof that no payment was made. I would add that now, because you can evidence it later.

I would just suggest you also look at this one by keepswimming in post #41:

https://forums.moneysavingexpert.com/discussion/comment/71856196#Comment_71856196

Some of his points (e.g. #3, #6, #11, #12, #13 and #14) could be used in your case too.

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.

SimonFink

The Keepswimming defence is excellent. Thanks for pointing out this for me. My defence is now amended as indicated below.


Amendments and additions in bold


1. It is acknowledged that the defendant, xxx, residing at xxx is the registered keeper of the vehicle.

2. I deny any liability in this claim, and any debt is denied in its entirety. The date of the alleged incident is XX/XX/2012 which is nearly 5 years ago. How can anyone be expected to remember where they may have parked a car on one random day five years ago? I certainly do not remember getting a 'ticket' and had I have done I certainly would remember. Further the car in question is one on which I was not the main driver for insurance purposes.

3 It is extremely unreasonable for the claimant to store DVLA data for 5 years then pounce with a roboclaim with no due diligence nor evidence, in the hope that I do not have any paperwork relating to this alleged debt (which I don't). It is even more unreasonable that, having made no attempt whatsoever to contact me 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 (£35.70). The long delay is clearly the fault of the Claimant and should not be used as an excuse to effectively try double recovery.

4. The claimant may seek to rely on the case of Elliot v Loake and seek to persuade the court that this case created a precedent which amounts to a presumption that the registered keeper is the driver, with no evidence or admission to prove its allegations. In the Elliot v Loake case the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil matter.

I would bring to the courts attention two recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, (Excel v Mr C C8DP37F1 Stockport 31/10/2016) and (Excel v Mr B C7DP8F83 at Sheffield 14/12/2016)

Furthermore The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. It can be seen the date of the alleged contravention is XX/XX/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.

PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015). It seems Excel Parking think they know better.

5. The claim form itself also gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way. Therefore, 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.

In the pre court stage the Claimant’s solicitor did not send me a Letter before Action so I have
a) No summary of facts on which the claim is based.
b) No list of the relevant documents on which the claimant intends to rely and
c) I wasn't offered any form of possible negotiation.

6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

7. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a Part 18 request to the claimant's solicitors on 18/12/2016. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd, and no proof has been provided.

8. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

9. It is submitted that (apart from properly incurred court fees) the added 'contractual costs' of £54 and the £50 legal representative's costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant. I have not been shown any evidence that the deliberately indistinct, almost illegible and unlit signs in the car park refer to these amounts.

10. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the ParkingEye Ltd v. Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.

Further, 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.

11. 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.

12. 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'.

13. I am aware that the only ticket-machine at this site is prone to be faulty. I therefore ask that the claimant produce evidence that no payment was made that day in relation to the incident and indeed that the ticket machine was working at the time the parking notice was issued.

14. Excel Parking Services Ltd are not 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, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I request the court strike out this claim for the reasons stated above.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

SimonFink

Slightly panicking because of lack of time to get this defence to the court on time! I want to follow Bargepole's advice to post it but it's got to be in by 5th January.

Is there anyone around who can look at my Second Draft and suggest amendments?

I'm very grateful for all help!

Matthew87

Just double check your dates, in my case (I think, please someone correct me if I'm wrong!):

Issue Date: 09 DEC 2016
Day of service (+5): 14 DEC 2016
Defence deadline (+28): 11 JAN 2017

SimonFink

I'm just wondering if any of the experts on here have time to take a look at my defence (above) and advise if I should amend it or whether it's good to go as it is.

I'd like to post my defence today (as Bargepole advises) to make sure it's in on time.

Very grateful thanks in advance.

The_Deep

As this is pre POFA, and they have been warned that E V L will not fly, you may have a very good case for a counter claim of unreasonable behaviour under CPR27.14(2)(g)

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27.

SimonFink

Would I need to mention my intention to counter-claim at this stage? Ie In my defence?

Other than the possible addition of a counter-claim, do you think my defence is good to go?