bw legal/excel clain form recieved

keepswimming

i ve found a very interesting point raised on another site by a very helpful person who graciously gives good advice all the time. so should I include this in my defence;-

Excel/BWL have a habit of stating that the date of issue of the PCN was the date of the parking event, not the date on the notice

It's therefore personally reasonable to have as point #1

The claimant states that a Parking Notice was issued on (date)
The Defendant denies that a Parking Notice was issued on this date
The Statement of Truth is fatally flawed and the claim should be struck out ab initio
The Particulars of Claim do not include any reference number for the Parking Notice or date of the parking event and the Defendant does not consent to an amendment of the Statement of Case

Coupon-mad

keepswimming wrote: »

i ve found a very interesting point raised on another site by a very helpful person who graciously gives good advice all the time. so should I include this in my defence;-

Excel/BWL have a habit of stating that the date of issue of the PCN was the date of the parking event, not the date on the notice

It's therefore personally reasonable to have as point #1

The claimant states that a Parking Notice was issued on (date)
The Defendant denies that a Parking Notice was issued on this date
The Statement of Truth is fatally flawed and the claim should be struck out ab initio
The Particulars of Claim do not include any reference number for the Parking Notice or date of the parking event and the Defendant does not consent to an amendment of the Statement of Case

Yes I would include that in your defence. And I would add 'a purported' here:

4. The case against the defendant is based on a purported “reasonable assumption” by Excel Parking Services and their legal representative, BW Legal, that the keeper was the driver.

keepswimming

Thanks for the advice, I ll edit and repost

keepswimming

I ve revised my defence and was wondering if anyone could have a read and let me know if its good to go, thank you.

keepswimming

the defence has been moved further down the post

beamerguy

That is a good defence.

Regarding Beavis, up and till the Beavis case in 2015, there was no ruling especially back in 2011
The Beavis case is completely irrelevant to your case as at the time of your ticket, it did not exist

This is just one of the failings of BWLegal and, even quoting the Loake case has no bearing on you as that was a criminal case which required forensic evidence to establish the driver ..... and that is something BWLegal do not have.

Therefore, BWLegal are deluded, believing things that are not real or true and menacing.

Unsure who took this video, was it about Excel or BWLegal.??

It's certainly all about crazzies

https://www.youtube.com/watch?v=xE8Nr-mDa-Q

Coupon-mad

I would add in points 9, 10 and 11 from here (post #4):

https://forums.moneysavingexpert.com/discussion/comment/71851974#Comment_71851974

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.

keepswimming

that was a good read thank you for the link, ok so here we go again, I ve added the points you suggested, so does it the new addition fit where it is?

second question, when I submit this, do I submit the links in the article (web addresses) and supplement that with physical copies of the articles/documents?

again thanks

keepswimming

1. I am xxxxxx the defendant in this matter and litigant in person, and the registered keeper of the vehicle in 2011.

2. The claimant states that a Parking Notice was issued on (date)
The Defendant denies that a Parking Notice was issued on this date
The Statement of Truth is fatally flawed and the claim should be struck out ab initio
The Particulars of Claim do not include any reference number for the Parking Notice or date of the parking event and the Defendant does not consent to an amendment of the Statement of Case

3. I deny any liability in this claim, and any debt is denied in its entirety.

4. I was not the driver on the date of the alleged contravention XX/XX/2011, and after such a long time the driver cannot be known. This was over 5 and a half years ago, I am puzzled as to why the Claimant waited this long to bring proceedings, and bewildered that the claimant includes “interest” dating from the date of the alleged incident.

5. The case against the defendant is based on a purported “reasonable assumption” by Excel Parking Services and their legal representative, BW Legal, that the keeper was the driver.

PATAS and POPLA lead adjudicator and barrister Henry Michael Greenslade, clarified that with regard 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).

6. 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/2011 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.

7. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.

8. Automatic Number Plate Recognition (ANPR) Accuracy and Usage on the Square carpark Chorlton !!! hardy is subject to numerous inaccuracies, not only does the car park have a road running through it, there are also two entry point at each end of the road. The car park and APNR system has caused many issues for people living near the car park that have wrongly received multiple Parking Charge Notices (PCN), but anyone who unknowingly drives through the car park has received PCN’s also.
Any driver at the time of the of the alleged contravention may not have even parked in the car park
This is a known issue to Excel parking, and evidence of these faults can be found in these two newspaper articles, I would also bring to the courts attention the dates of the articles and the fact one of these dates is around the same time as this alleged contravention.

http://www.manchestereveningnews.co.uk/news/greater-manchester-news/residents-in-chorlton-pile-up-5000-868526

http://www.manchestereveningnews.co.uk/news/greater-manchester-news/carer-fined-after-using-chorlton-11121699
(I’ve included the link but I will add an appendix and separate document with the articles. - I also have maps of the car park detailing the layout, and google street view showing entrances to the carpark - dated courtesy of google.

9. The claimant may also seek to rely on the case of Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) this case can be easily distinguished from Parking Eye v Beavis which was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes.

10. The signage on and around the site in question was unclear with small illegible lettering and not prominent and did not meet the British Parking Association (BPA) Code of Practice, which at the time of the alleged contravention Excel parking was part of BPA and would have had to follow with this code of practice.

Any terms of contract on the signage (wording, clarity and positioning) were insufficient, hence incapable of binding the driver as there was no offer known nor accepted, Absent the elements of a contract, there can be no breach of contract.

In reference to the British Parking Association Code of Practice, in which it states under appendix B, entrance signage:-
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"
As can be seen from the supplied evidence, the signs clearly do not follow this CoP and use Blue, white and yellow which hinder any easy recognition of the actual content of the signs.

11. 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:

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

12. 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.

13. 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
(Should I include pictures of signs with this defence.)

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 Protection of Freedoms Act 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. Even if they have been incurred, the Claimant has described them as "Legal representatives’ costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

His Honour Judge Moloney refused to award solicitor costs in the test case Parking Eye v Beavis & Wardley.

It is clear BW Legal have altered the claim amount, in this case on their notice of County court claim letter (exhibit CF1) there is a breakdown of cost claimed which is completely different to the actual court claim form (exhibit CF2). BW Legal costs have increased from £54.00 to £104.00. I respectfully suggest that this increase is erroneous and nothing more than an effort to generate more income and amounts to a penalty which is wholly disproportionate to any alleged loss suffered by the claimant How can the amounts of the principal debt alter?

16. 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.
The term I believe 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 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.

17. In addition, the claimant has ignored the Part 18 request sent by the defendant on xx/xx/2016 by sending a letter referring to the date of the email and saying that the appeal has been denied. The Part 18 request asked the following information:
(I have yet to receive a reply to my part18 and they still have a week I think so the above point hasn’t been finished as it may or may not be included)

15. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

I believe that the facts stated in this Statement of defence are true.

Signed:

Coupon-mad

second question, when I submit this, do I submit the links in the article (web addresses) and supplement that with physical copies of the articles/documents?

Include the links as a URL within your word document defence, but not any physical copies or extra pages of photos - they come later, at 'Witness Statement' stage.

Bargepole explains what happens when and all the paperwork/which boxes to tick on your N180 form (next thing) in his summary linked in the NEWBIES thread under 'Small Claim?' where I have written 'IMPORTANT!'