bw legal/excel clain form recieved

keepswimming

thanks guys, I ve done some work and not far off getting everything together, just want to append evidence and post WS statement for review and edit, happy to PM anyone if required so not to show my hand. (or doesn't matter as they get there copy next week too)

thanks

Lamilad

keepswimming wrote: »

thanks guys, I ve done some work and not far off getting everything together, just want to append evidence and post WS statement for review and edit, happy to PM anyone if required so not to show my hand. (or doesn't matter as they get there copy next week too)
thanks

Yeah it doesn't matter. Post it up here for maximum feedback

keepswimming

here is my WS, its a rough draft at the min, and it looks part skeleton argument too. can you please read and suggest any areas to change, thanks

keepswimming

EXCEL (Claimant)
v
******** (defendant)

Claim no:

Witness statement of Mr *******, defendant

1. I am (NAME) the defendant in this matter and the facts in this Witness statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

2. It is admitted that I was the registered keeper of the vehicle concerned, but the defendant denies being the driver at the time of the supposed event. There is no evidence of the driver and as this event has been resurrected from almost 6 years ago, it is impossible to expect a keeper to recall who might have been driving. The defendant therefore puts Excel to strict proof that any contract can exist between the Claimant and themselves.

3. As keeper there was no requirement for me to respond to the brightly colored alarmist notices that appeared to be junk mail in July/August 2011. This was not an offence or fine from an Authority like a council, and there was no reason or obligation as registered keeper to ‘appeal’ to what appeared to be junk mail impersonating a parking ticket yet with no basis in law. A registered keeper could not in any way be legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the colorful letter. (Exhibit X)
4. Two further letters where received in 2011 (Exhibit X,X) again with the same colorful and threatening appearance, the last letter stated court action was the next step. As no further correspondence was received, the natural conclusion was drawn that these notices were indeed junk mail or some sort of scam.

5. Having not heard about this matter in years, suddenly in 2016 I received a letter and a court claim out of the blue, I am no more liable now than I was then (Exhibit X), but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, during my research I discovered that Excel are issuing robo-claims for archive 'parking charges' in their thousands. It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in their undue haste to issue these claims.

6. My data from the DVLA was supplied for the single strict purpose of enquiring who was driving, not for storing for five years then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or that I will be so scared that I will pay over £260 including the legal insult of five years' interest, for what was apparently an unproven £60 charge, allegedly incurred by another party, if incurred at all.

7. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretenses - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.

8. The claimant has finally respond to my request made on XXX by royal mail postal service, requesting information and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner’s behalf. My request was not actioned appropriately (I received a reply several weeks after I had requested the information and after my defense was submitted, stating the contract was privileged information). See exhibits XX

9. As I have seen no copy of the contract the Claimant has with the landowner to assign the right to enter into contracts with the public and to make claims and take civil action against drivers in their own name, in 2011. The Claimant can have no locus standi at the time of this parking event, at best they were contractors of a principal, the landowner.
10. The original PCN posted years ago by this Claimant, Excel Parking Services Ltd (Excel) states 'liability lies with the driver'.

11. The date of the alleged contravention occurred before the enactment of Schedule 4 of the Protection of Freedoms Act 2012 (POFA) which took effect from 1st October 2012, therefore the Keeper cannot be held liable in law. (Exhibit X) The Claimant has stated in its part18 reply (Exhibit X) that it intends to rely on Elliot v Loake (1982) and Combined parking solutions Ltd V AJH Films Ltd [2015] EWCA Civ 1453, both to wrongly suggest ‘keeper liability’.
12. The claimant cannot rely on the case of Combined parking solutions Ltd V AJH Films Ltd (CPS V AJH Films). The principle of employers' vicarious liability is long established in English Law (employers are liable for the actions of employees) Nothing of which applies to this case.
If the owner of a private vehicle was liable for the actions of a driver, Parliament wouldn't have found it necessary to pass POFA and set conditions to pursue the registered keeper. (exhibit court case AJH)

13. The claimant cannot rely on Elliot v Loake (1982) to claim that the driver and the keeper can be 'assumed' to be the same, this was a criminal case and referred to the owner, not the keeper. In EvL there was overwhelming forensic evidence from other sources that the defendant was the driver at the time. By contrast, in my case this Claimant has not offered any evidence to the driver's identity and cannot make any lawful assumption. (evidence evl and evidence any lost cases due to above)


14. The matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated:

“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. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass." (Exhibit X, POPLA ANNUAL REPORT 2015)

15. Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is unable to transfer the liability for the charge using the POFA, in this case because of the indisputable fact that the event pre-dated the law. This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

16. In 2012, several months after this alleged parking event, Excel were sanctioned by the DVLA for stating or implying in signs or documents that a registered keeper could be held 'liable for the payment of charges' and/or had any 'legal responsibility' to name the driver. It is contended that this is exactly what Excel are now doing in this claim, conduct which was identified in 2012 as 'a significant breach' of their Trade Body Code of Practice with the British Parking Association. So serious a matter was this, Excel were banned from obtaining data by the DVLA for three months. (Exhibit FOI RESPONSE* FROM DVLA)

17. The Beavis case at 96, draws attention to the Code of Practice of the British Parking Association ('the BPA'). And at 111 the Judge helpfully comments that “while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.” (Defendant’s emphasis of the key point).
THE BEAVIS CASE IS APPENDED AS EVIDENCE
(exhibit X) ARCHIVE VERSION IN THE PUBLIC DOMAIN, THE 2012 BPA COP (UPDATED IN OCTOBER 2012 AFTER THE POFA)

18. It is contended that the signs that were in place at the location were unclear and wordy, yet with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract, as was found in many cases involving Excel signs at and around that time.
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 (see photo exhibits P), 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. (Exhibit X)

19. in Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) the judge DJ Lateef's personally visited the site to view the signs in situ, DJ Lateef's damning findings about Excel retail park signage in 2011 included these observations from her visit: “The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park”. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in 2011. (APPENDED AS EVIDENCE: EXCEL V CUTTS 2011 X)



20. It is expected that this Claimant may try to counter that article about these 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, so he is something of an authority on clear, legible terms. And the Judge agreed with him.

21. 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

22. No evidence has been provided that a valid ticket was not purchased the Claimant's evidence relies solely on an entry and exit photograph. There is no photograph of the vehicle without a ticket being displayed. The Claimant is suggesting that no ticket was purchased and displayed in the prescribed manner, this is denied, no evidence has been offered that any action by the driver at the time has led to a breach of this purported condition. In order to demonstrate that the driver failed to pay & display, the Claimant has the burden to have evidenced that, with photos and readings from that day from the machines, which are known to be unreliable.

23. There is also a well-known history of the parking ticket machines at Excel sites failing to record a VRN and this has been recorded in recent cases. (Exhibit X,X,X,X)evidence and m.e.n articles as additional exhibits)
Stockport CC in Excel v Mr C C8DP37F1 Stockport 31/10/2016.
The other being Excel Parking v Mrs S. C8DP11F9 on 09/09/2016 at Oldham CC. In this case the defendant purchased a ticket, but the machine was faulty and did not print her VRN correctly. The judge ruled in favour of the defendant on the balance of probabilities that she bought her ticket and entered the VRN correctly, only for the machine to erroneously mis-print it. The case was dismissed.
(exhibits court transcript.X)


24. 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 points 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), along with anyone who unknowingly drives through the car park has also received PCN’s. 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. (See also photo exhibits P).
(exhibit X M.E.N articles)


25. The original PCN (Exhibit PN 1) posted by this Claimant states a Full Charge of £100.00 (£60.00 discounted) however the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at quadruple recovery:
1. £100.00 Principal debt
2. Excel’s Initial legal costs £54.00
3. Interest £33.76
4. Solicitors fee’s £104.00
5. Outstanding balance to pay now £262.76
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)
26. It is my belief that the Claimant's stated indemnity and additional costs are arbitrary and unsubstantiated and are an attempt at double recovery, which cannot be supported on the small claims track. Excel may rely on Chaplair Ltd vs Kumari to justify the additional costs, however Kumari can be fully distinguished from this matter, since that was an irrelevant decision about contractual fees set in lease terms, not 'costs' fabricated by this Claimant several years afterward the event. (exhibit X kumari case)

26. I firmly believe that the incoherent particulars of claim, lack of evidence, and complete disregard to own code of conduct and continual harassment to myself is wholly unreasonable.

keepswimming

I forgot I had point 26 in, I was trying to write something but didn't finish, so ignore that pint, unless you have any ideas.

Coupon-mad

keepswimming wrote: »

here is my WS, its a rough draft at the min, and it looks part skeleton argument too.

Can you split it into a WS and skeleton, if you have time?

THE BEAVIS CASE IS APPENDED AS EVIDENCE
(exhibit X) ARCHIVE VERSION IN THE PUBLIC DOMAIN, THE 2012 BPA COP (UPDATED IN OCTOBER 2012 AFTER THE POFA)

I would not append the Beavis case, personally, it's pages long!

keepswimming

thanks CM, I ve got a couple of days left to edit, as for the Beavis case, I ve noticed the size of it, would it be worth just appending the odd relevant page from it?

thanks

Coupon-mad

Yes, that would be OK, where it supports your case.

This needs to have full double speech marks (start and finish) or at first glance it's not clear you are using Excel's esteemed top banana's reported words:

''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.''

keepswimming

next question, if I break the above WS into skeleton argument and WS can I exhibit evidence in the WS?

I was thinking of ending after point 10 and making that the WS, and then re numbering from 11 and making that the skeleton, any thoughts?

thanks

keepswimming

ok re read stuff, I see I can append exhibits to the WS so ignore my last post on that point, just need another's view point on breaking up the WS as mentioned, or to leave as is, still a bit of work to do.

thanks