Excel BW again

claretmad62

Just another point on this, does the court let me know if the claimant has responded or do I look on the MCOL Site ?

Coupon-mad

The skeleton argument needs developing. You mention a 14 day period but there wasn't one in early 2012 because the POFA didn't exist. You should go on in more depth about the position prior to the POFA enactment, that only drivers could be held liable if identified and there is no other route to keeper liability for a pre-POFA ancient archive 'PCN' dredged up on the back of the Beavis case.

Remove anything about no loss or 'pre-estimate' or justifying the sum.

Go in stronger about the PCN being for £60 (not a discount, the actual sum was £60 discounted to £40 back then) so for this parking firm to claim £100 before their add-ons shows negligence or disregard for the facts of the case, indicative of a robo-claim that the legal firm has not even picked up to look at until now, when they will make a last-gasp attempt to re-plead the case leaving the defendant at a disadvantage.

Add the usual stuff about the added sums being plucked out of thin air and an attempt at double recovery.

Add in that there is no evidence of any contravention at all.

And I started to read the WS but it needs to be in the name of the Defendant, not the Lay Rep. The Lay Rep merely speaks for the Defendant on the day at a hearing (and the Defendant must also attend), but the Lay Rep doesn't write/sign the WS.

Can you copy the WS wording here - as it's a PDF it's harder to comment constructively unless we can copy your words from here into a reply and then add things & cross things out, etc.

claretmad62 wrote: »

Just another point on this, does the court let me know if the claimant has responded or do I look on the MCOL Site ?

If you mean their WS, they have to send you a copy. They don't respond to yours as such, you both show each other your evidence & WS.

claretmad62

Lay Rep, yes of course......Yes, will put up in word so you can edit.

Ta

claretmad62

https://www.dropbox.com/s/16aup9vbox47g6f/WS%20040217.docx?dl=0
Word Link
Coupon-mad....Just edited a couple of points you made, would be much appreciated if you could fill in the gaps where you feel appropriate

Sorry it took a while to get back to you, had saved this on my works PC

Thanks

Coupon-mad

Both a skeleton and a WS needs numbering, not just bullet point, but you can add the numbers once you have finalised it.

I'd suggest this sort of approach:

Skeleton Argument

• The date of the alleged contravention occurred before the enactment of Schedule 4 of the Protection of Freedoms Act 2012 (the POFA) which took effect from 1st October 2012, therefore the Keeper cannot be held liable in law.

POFA APPENDED AS EVIDENCE: E.1


• The original PCN posted five years ago by this Claimant, Excel Parking Services Ltd (Excel) states 'liability lies with the driver'.

PCN APPENDED AS EVIDENCE: E.2


• In 2012, the year of 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.

FOI RESPONSE* FROM DVLA APPENDED AS EVIDENCE E.3


• The original PCN (E.2) posted by this Claimant states a Full Charge of £60.00 (£40.00 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


• It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in this Claimant's undue haste to issue robo-claims in their thousands, scraping the barrel of archive cases to bring to court, under excuse of jumping on the bandwagon started by the (completely different and complex) case in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case').


• The Claimant had no locus standi at the time of this parking event and at best, were contractors of a principal, the landowner. They have failed to show a cause for action by way of sight of a copy of the contract they have 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 2012.


• The Claimant places reliance on its provision of signage at the site and upon the content of that signage. However, the Claimant is under a duty to the Court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage. At the time the driver allegedly parked at this location, it is contended that a criminal offence was being committed in order to artificially create the appearance of a contract.


• The commission of an illegal wrong being present at the time of a driver allegedly entering the contract means that the Claimant will not be able to enforce the contract. The illegality is central to the contract (the terms on the signs themselves) and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.


• The Claimant has omitted to obtain Planning Permissions or Advertising Consent from Bradford Metropolitan Council & the present Landowner for the Signage or the ANPR Cameras. The City of Bradford MDC Planning Register does not show any such applications in its planning history.

EVIDENCE FROM THE COUNCIL WEBSITE APPENDED AS EVIDENCE: E.4


• It is contended that the signs are in place without consent and are therefore illegal advertisements. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display an advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.


• The Judge’s attention is also drawn to RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) 12 March 2015 (the RTA case) which whilst dealing with a different matter, covered at 34, the relevance of the public law principle going back well over 200 years, that no man should profit from his crime. It is submitted that this is particularly relevant in this action. In the RTA case, the Judge cited Lord Mansfield CJ to explain that:
“The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and the defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would have the advantage of it.''

In this claim there has been a transgression of a law (the 2007 Regulations) and it is submitted that the Court should not “lend its aid” to this Claimant “who founds his cause of action upon an illegal act”.

THE RTA CASE IS APPENDED AS EVIDENCE: E.5**


• 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 E.6


• The Code sets out how and in what circumstances a term may be enforced. It states: “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” Broadly, the Code of Practice obliges the Claimant to comply with the law in creating and in enforcing its contract with a motorist and in communicating the terms of that contract. The Claimant failed to do so in several respects.

• The Court’s attention has been drawn to:

(a) the failure of the Claimant to ensure that the relevant legislation had been complied with, thereby resulting in criminal conduct in their operation of parking enforcement, and

(b) the fact as stated by the DVLA, that in 2012 Excel were banned for trying to hold a keeper liable and/or implying that they had any legal responsibility to respond to a 'parking charge notice' and name the driver.

These comprise two clear breaches of the BPA Code of Practice.

APPENDED AS EVIDENCE AS THE ONLY ARCHIVE VERSION IN THE PUBLIC DOMAIN, THE 2012 BPA COP (UPDATED IN OCTOBER 2012 AFTER THE POFA): E.7***


• In any event, this Claimant fails to fulfil the requirements of CPR16.2 for particulars of claim in that they have neglected to set out any facts or state what it is they are claiming monies for. Their particulars of claim just state "parking charge notice of ********" and do not say whether the sum is due as a contractual sum, damages for breach of contract or money due for something else, such as a liability for a failure of duty of care or trespass under common law tort.


• The signage at the time of the alleged contravention in early 2012 must be different than then their current signage, since the 'IPC' Trade Body was not formed until October 2013 (and Excel did not move from the BPA to the IPC until 2015 so the photos sent which show an IPC logo, were from at least three or four years after the event and cannot have been in place at the location at the material time). Therefore the photos sent to me cannot be relied upon and indeed, must be false evidence.


• 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.


• DJ Lateef's damning findings about Excel retail park signage in 2011 in Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) included these observations from her visit in person: “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 early 2012.

APPENDED AS EVIDENCE: EXCEL V CUTTS 2011 (E.8)****
AND THE PLAIN LANGUAGE COMMISSION ARTICLE 'PHONE FINES & DODGY SIGNS TAKE DRIVERS FOR A RIDE: (E.9)*****


• It is expected that this Claimant may try to counter that article about these signs but it is worth noting that this was within months of the Cutts case and it is also relevant 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.


• Conversely, it is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel, attacked the Judge’s integrity. He reportedly 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.’



• The Claimant's evidence relies solely on an entry and exit photograph. There is no photograph of the vehicle without a ticket being displayed. I assume they are asserting that no ticket was purchased and displayed in the prescribed manner. This is denied and the claimant has offered no evidence 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.


• This is an ANPR site, where are the systems records showing no payment made on the date mentioned or supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle. There is a well-known history of the parking ticket machines at Excel sites failing to record a VRN and this has been recorded in two recent cases.

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.

Excel v Mr F 23/11/2016. Manchester
Mr F purchased a valid ticket, but Excel claimed he did not. There have been a sizeable number of cases where Excel's machines failed; this was yet another.
Claim no. C8DP11F9 – Excel v Mrs S – 09/09/2016, Oldham Court
Excel Parking / BW Legal today at Oldham Court Mrs S. parked at the Peel Centre, paid the correct tariff, and the machine issued a ticket showing ‘QQ’ in the registration number field.


• My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case.

THE BEAVIS CASE SIGN IS APPENDED AS EVIDENCE; E.10


• The claimant cannot rely on Elliot v Loake ('EvL') to claim that the driver and the keeper can be 'assumed' to be the same, since this was a criminal case and referred to the owner, not the keeper. In any event, 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.


• The vital 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."

POPLA ANNUAL REPORT 2015 APPENDED AS EVIDENCE: E.11******


• 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.


• It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.


I believe that the facts stated in this Skeleton Defence are true.



Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx







*
https://www.whatdotheyknow.com/request/139931/response/342099/attach/2/FOIR3196%20Thorn.pdf

**
http://www.bailii.org/ew/cases/EWHC/QB/2015/630.html

***
http://www.britishparking.co.uk/write/Documents/AOS/BPA__Code_of_Practice_-_October_2012_-_Version_6.pdf


****
http://nebula.wsimg.com/1bb26d17be44123a662f3e1910ea8cf9?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

*****
http://s3-eu-west-1.amazonaws.com/plcdev/files/130/original/DVLA-BPA-23May2012AsPub.pdf

******
https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2






********************************************************

WITNESS STATEMENT SHOULD ONLY BE THE FACTS AND YOUR HONEST BELIEFS, NOT LEGAL ARGUMENTS:

In the matter of

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

Claim no:

Witness statement of Mrs *******, defendant


I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.


1. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event has been resurrected from five years ago, it is impossible to expect a keeper to recall who might have been driving.

2. The Defendant denies being the driver at the time of the supposed event, and therefore puts Excel to strict proof that any contract can exist between the Claimant and themselves.

3. At the time in 2012, the insurance covered more than one family member, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

4. There was no requirement upon me as keeper to respond to what appeared to be junk mail, in early 2012, and in any event was not a matter where a registered keeper could be in any way legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis in law.

5. Having not heard about this matter in years, suddenly in 2016 I received a letter and a court claim out of the blue and I have researched this and discovered that Excel are issuing robo-claims for archive 'parking charges' in their thousands.

6. I am no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report Excel to the Information Commissioner for misuse of my data, obtained from the DVLA in 2012.

7. My DVLA data 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 even better, 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.

8. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - 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.

9. The claimant has failed to properly respond to my request made on XXX by royal mail postal service, requesting any documentation 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 10 questionable colour photos of the car park & the original PCN only, without further information).

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



Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx

claretmad62

That's fantastic, apologies but just can't get my head around the setting out of this so this is brilliant.

Just viewing this on my phone, so will put onto my Laptop when I get back and then put back up for comment if you dont mind.


Can't thank you enough for your help on this..it is very much appreciated

Coupon-mad

No probs. What you don't need as evidence is pics of the signs as they are now, no point.

I've just added the Cutts case and Martin Cutts' Plain Language Commission article 'Phoney fines & Dodgy Signs Take Drivers for a Ride' as two more evidence attachments.

claretmad62

Just on with this now (at work) whilst I have a bit of time, E4 planning, I spoke to Bradford Planning direct a couple of weeks ago and they had nothing at that postcode for Excel + I found the letter shown on my previous WS. Would that suffice for that part, just include the letter I had. ?

Coupon-mad

Yes, that's good evidence.

claretmad62

My wife was also contacted on numerous occasions on her mobile, is the following enough of a point ?

"I have received countless unsolicited Phone Calls & Text messages to my mobile, having never given my Mobile number to the Claimant or their Solicitor, I consider this contact as harassment; a criminal offence."