Court papers ref BW legal/Excel

STuartqaqcndt

Well after exchanging letters with BW Legal since last September they have finally sent me court papers.
Basic is that BW legal are saying that the parking permit was not displayed in an ANPR ticket car park in Wakefield in August 2012.
I have asked for evidence of the alleged contravention and all that has been sent back are photos of the car entering and leaving the car park.
Now three people were insured for driving at the time this occurred, I have not indicated any driver to date, and I am/was the registered keeper.
The court appearance is for Northampton, so I am obviously asking for that to be changed to my local court.
My defence draft is basically to reiterate, that BW/Excel have not provided proof of the driver, they have not provided proof of the lack of display of parking permit and they have not stated that the parking fee was not paid.
Any assistance is welcome.:beer:

Umkomaas

I'm not a court 'expert', but here are a few points to set you on your way.

1. You must acknowledge service now, this gives you a maximum of 33 days from the date at the top of the court papers to develop your defence.

2. August 2012 was prior to the enactment of the Protection of Freedoms Act 2012 and only the driver can be held liable. It is vital that no inadvertent slip-ups occur which mention who was driving.

3. Northampton Court is the national distribution centre for court paperwork, so there's no risk of having to 'appear' there; you will be offered the opportunity for the hearing to be held in a county court local to you.

4. You will need to develop a robust and wide-ranging defence to deal with this at court. Do some forum searches on 'Excel defence'. Check out Lamilad's threads (below) where he trounced Excel twice. There'll be some good defence pointers there.

http://forums.moneysavingexpert.com/showthread.php?t=5490298

http://forums.moneysavingexpert.com/showthread.php?t=5478608

http://forums.moneysavingexpert.com/showthread.php?t=5525109

Look at how unsure Lamilad was when he first started on this path with BWL/Excel, now after his fabulous victories against them he's up and about expertly advising people here and on PePiPoo how to deal with this trash. A legend.

STuartqaqcndt

Ok thanks for the info and pointers, from what I have seen on the different forums my case is not similar, in that Excel are saying that there was no ticket displayed, as opposed to over stay/no ticket purchased etc.
Is it necessary to go into detailed defence in the first instance??

beamerguy

STuartqaqcndt wrote: »

Ok thanks for the info and pointers, from what I have seen on the different forums my case is not similar, in that Excel are saying that there was no ticket displayed, as opposed to over stay/no ticket purchased etc.
Is it necessary to go into detailed defence in the first instance??

I am unclear, ANPR is automatic
How would they know if there was no ticket displayed unless an attendant saw that and took a picture clearly showing there was no ticket displayed
ANPR could not identify that

Lamilad

STuartqaqcndt wrote: »

Ok thanks for the info and pointers, from what I have seen on the different forums my case is not similar, in that Excel are saying that there was no ticket displayed, as opposed to over stay/no ticket purchased etc.

what do the particulars of claim say regarding the alleged contravention? Your case is not dissimilar, it's just like 90% of the other Excel/VCS claims on here and Pepipoo, including mine. You'll be able to adapt other defences to make your own.

STuartqaqcndt wrote: »

Is it necessary to go into detailed defence in the first instance??

No, your initial defence will be bullet points outlining why you dispute the claim. You will submit something more detailed later on. You must, however get all the points in there that you wish to argue as you can't add them later.

Follow Umkomaas' advice and read the newbies sticky (essential reading)

Redx

beamerguy wrote: »

I am unclear, ANPR is automatic
How would they know if there was no ticket displayed unless an attendant saw that and took a picture clearly showing there was no ticket displayed
ANPR could not identify that

this site probably uses both

I published part of a similar old contract for another site near me a few days ago on here

STuartqaqcndt

Hi have perused numerous threads on the different sites and determined my defence/reply.
I am currently looking at a thread mentioning minimus, which i shall incorporate into my argument.
In the meantime any comments on the following would be welcome, note my specifics are in bold.

Further to the claim reference number XXXXXX issue date 08-03-2017 by Excel Parking services Ltd Europa Court Sheffield, for a claim of £100 in respect of a Parking Charge Notice issued on 31-08-2012 Providence Street Wakefield referencing motor vehicle registration number XXXXX.
As previous registered keeper of the vehicle, registration number xxxx xxxx, I wish to appeal against the parking charge issued by Excel on the following grounds:

1. No loss as the parking fee was paid
2. Failed to conform to the requirements of POFA.
3. No genuine pre-estimate of loss.
4. Lack of Proprietary Interest & non-compliant Contract with Landowner
5. Unclear and non-compliant signage, forming no contract with drivers.
6. The claim does not specify what supposed contravention has been breached.
7. The alleged contravention occurred in August 2012, and no evidence has been produced to support the claim.

To expand on these points:
1. No loss as the parking fee was paid for the duration of the stay.
1.1. I enclose a signed statement from one of the passengers in the car showing that they entered data into the ticket purchasing machine, and paid for the parking, refuting Excels allegation that no payment was made.
1.2. I require Excel to produce an un-redacted and unedited list of the payments made using the equipment on this site on the date of the alleged offence, to include times and vehicle registration numbers.
1.3. I also require, for this purpose, a list that must be in Excel”s possession of the VRN’s entered into their system that do not have a corresponding ANPR entry.
2. Failed to conform to the requirements of POFA
2.1. The alleged failure is given in the Notice to Keeper as:
“failure to display a parking permit/ticket”,
no permits are issued for this car park, at the time of the supposed contravention the only proof of compliance to park was a ticket issued by an automated machine where the registration number is entered and a ticket produced on payment of the indicated fee per time stay/unit requested. After almost 5 years it is impractical for the defendant to be expected to produce such a ticket.
2.2. POFA 2012 Schedule 5 Paragraph 7 (2) states:
(b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;
© inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i)specified in the notice; and
(ii)no later than the time specified under paragraph (f);


3. No genuine pre-estimate of loss
3.1. The Parking Charge Notice received makes no mention of VAT and therefore cannot be considered a charge for services rendered. The charge, therefore, can only be construed to be a penalty, which is not allowed, or as claim for liquidated damages.
3.2. The charge of £100 for the alleged contravention is extravagant and unconscionable.
3.3. The charge for the alleged contravention is a punitive penalty and not a genuine pre-estimate of loss. The charge of £54.00 contractual costs are again a penalty as the costs for parking were paid.
3.4. I require Excel to supply details of the alleged losses they are attempting to recover that flow directly from the event.
3.4.1. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, costs in relation to processing of appeals when only a very small percentage of motorists actually appeal as far as POPLA etc. cannot possibly flow as a direct consequence of this parking event.
3.4.2. BW Legal cited Parking Eye v Beavis, which does not apply as this car park referenced is a Pay and display, whereas the car park referenced in the case was a free car park with time limits.


4. Lack of Proprietary Interest & non-compliant Contract with Landowner
4.1. Parking Eye state in their Notice to Keeper that they merely managing the site, but do not name the principal.
4.2. I put Excel to strict proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges, in the courts if necessary, in their own name as creditor.
4.3. Further, I require Excel to produce a full contemporaneous, un-redacted copy of their agreement with the landowner to confirm (or otherwise) that they had the necessary legal standing to offer parking and pursue charges in their own name at the time of the alleged parking event.
4.4. A signed Witness Statement will not be satisfactory proof.
4.5. The BPA Code of Practice (CoP) contains the following:
Written authorisation of the landowner
If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.

5. Non-Compliant Signage, Unclear and Inadequate.
5.1. Due to the position of signage, and lack of a good direct lighting source directed onto the main machine payment area it is difficult to determine what the terms and conditions are.
5.2. The appellant paid for parking, complied with such terms as could be discerned in the conditions.
5.3. It is the will of Parliament following the EU Consumer Rights Directive that express consent is obtained for consumer contracts (not implied consent) and that information is provided in a durable medium in advance.
5.4. Based on the signage in this car park, Excel has failed to meet these requirements. I request that POPLA check Excel parking services limited evidence and signage positions/photos on this point and compare the signs to the BPA Code of Practice requirements.
5.5. There is no contract between Excel and the driver, but even if there was a contract then it would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc., were not satisfied.
6. There is only a statement saying that monies are due in respect of a parking charge notice issued on 31-08-2012, which has never been received by the defendant, whilst a copy of the parking charge notice (dated 11-09-2012) was received by the defendant on the 14th of October 2016 only at the request of the defendant for evidence of the alleged contravention.
7.The correspondence between myself since first being informed of the alleged contravention in September 2016, as registered keeper of the vehicle at the time of the supposed contravention, has resulted in no evidence being provided by Excel Parking services via their representatives BW Legal supporting the supposed contravention, namely failure to display a parking permit/ticket, or any evidence to enable identification of the drive, it should be noted that at the time of the alleged contravention there were three family members insured to drive the vehicle in question.

Lamilad

That looks more like a POPLA appeal. You need to read threads specifically dealing with Excel/VCS court cases and look at the defences used. The ones I used are on my threads but there's better ones out there.

You won't find something you can just copy and paste, you will have to amend/ edit so that it becomes specific to your case then post on here for review/ further advice

catfunt

Looks like the start of an avalanche of claims from BWL.. that's three on here in the last day or so.

Not a court expert either, but some pointers:

There are no requirements to adhere to POFA, as this did not come into force until Oct 2012.
So, they can only pursue the driver, and how the chuff are you expected to remember that from nearly five years ago?!

You just, as I understand it, need a skeleton defence briefly outlining the points on which you are defending the claim. Include all the points now as you will have difficulty in adding them later. No need to expand on them yet.

You may also want to look into the sparse "particulars of claim" issue and find some wording mentioning this. I'm sure others will be along with more thorough advice on that score.

In any case, get a draft on here for critique before you submit.

What is the date on the court claim?

STuartqaqcndt

Hi all thanks for the info to date, I have had a rethink of the previous post I made and so have revised significantly my initial rebutl? of Excels court claim, which was issued on the 8th of March.
A couple of questions there is a great deal of info about, and mention of skeleton defence and detailed defence, so I have whittled my basic defence to the item below:
Any comments and advice would be appreciated

1. The court claim does not specify what supposed contravention has been breached, although communication from the claimant to the defendant has stated “failure to display a valid parking permit/ticket”.

2. The alleged contravention occurred in August 2012, and no evidence has been produced to support the claim despite the defendant’s repeated requests to provide such.

3. The claimant has no right to persue the registered keeper for this alleged contravention as the alleged contravention occurred before the protection of freedoms act 2012 came into force (October 2012) and so cannot hold the registered keeper to be responsible in this instance.

4. The claimant’s communications with the defendant prior to the court claim have stated “the terms and conditions to which the driver agrees to be contractually bound” as the claimant has not identified the driver he cannot assume the keeper/driver are one and the same at the time of the supposed contravention. Reference POFA 2012

5. The vehicle in question was one insured for use by three family members, and so again the claimant cannot assume the driver and keeper were one and the same at the time of the alleged contravention
Reference POFA 2012

6. The alleged contravention is dated as being the 31st of August 2012, but there has been no communication from the claimant until September 2016 but repeatedly since then, which has included three telephone calls to the defendants home, as such this failure to fully inform the defendant of all the aspects of the claim despite my repeated requests to provide it, amount in my opinion to harassment, by which the claimant hopes to extort monies under false representation/pretences, for what I feel the court will regard as a De minimus situation.

7. The speculative claim brought is to my mind intended to intimidate a person who has no specific or specialised knowledge regarding the law and the legal process. Research by me has indicated that Excel parking services and their agent BW Legal are serial offenders in this respect and are currently subject to an active investigation by the SRA with respect to what are known as robo-claims specifically relating to supposed car parking terms and conditions contraventions.

I therefore respectfully ask the court to dismiss the action against the defendent

Umkomaas

You need to get everything you intend to rely on in your initial defence, you can't add to it later.

On a skim-read, I can't see anything about authority to manage the car park, to issue tickets or to pursue charges to court in their own name. You need something on signage (which is almost always deficient).

Have you read bargepole's advice in the NEWBIES FAQ sticky? Have you used Lamilad's defence as a starting point for your own - there will be plenty to pick from there. What you put in your defence will need to be addressed by the PPC - don't let them off lightly.