Excel BW Legal 2012 court claim faulty machine.

Hotchocolate

Hi all,
To cut a long story short I have just received my court claim form and am in the process of preparing my defence.

MCOL is down at the moment but following the great advice on the newbies thread I will be doing my AOS when its back up.

Background.
In January 2012 the driver parked on Temple Street Wolverhampton but the ticket machine was faulty and would not accept full registrations. The parking attendant told everyone to just type a single letter, which worked.
This the driver did and a few weeks later received the PCN from excel.

Anyway i appealed to excel at the time sending a copy of the ticket purchased but to no avail and after many threats they stopped contacting me. I was prepared to go to court at the time.

Fast forward to August 2016 and in pops BW legal after payment for the same ticket. I have lost the original but still have the email copy which was sent over.

No good though court papers landed yesterday.

Hopefully I can get some tips on my defence im looking at:

1. Im the registered keeper but not the driver, I have never named the driver.

2. Ticket purchased and contract variation mutually agreed at the time.

3. Faulty machine.

4. Claim form states 'Snow Hill', not correct location.

5. Im a layperson please be gentle.


Things like signage may not come into my defence but I will be sending a part 18 request to excel for more information, incuding original pcn, machine fault and maintenence history, list of pcns issued on that day.

Any help with this much appreciated.

Half_way

BW legal have on several occasions got Excel and VCS confused ( both owned by Simon Renshaw Smith) do your documents all relate to the correct parking company?

The Protection of freedoms act came into force in may 2012 ( someone needs to check the exact date - i may be out by a few months)
When did your parking event occur?
Also most Parking companies from that time ( and quite a few to the present) fall short, by some margin of meeting the requirements in Sch4 of the protection of freedoms act, Excel and VCS are amongst those. What paperwork do you still have from the parking event?
Using the above you have a strong defence point - the Paring company failed to meet the strict requirements of the protection of freedoms act, and as the parking event took place almost/just over 5 years ago you can not be sure of who was driving at the time

You can also check for other VCS/Excell fail to meet POFA requirements

Umkomaas

Not sure whether it is a mix of Excel/VCS signage, but this is a notorious site in Birmingham blogged about by The Parking Prankster.

http://parking-prankster.blogspot.co.za/2017/04/bw-legal-continue-to-file-claims-for.html

yotmon

Pofa was 01/10/12 so as long as your contravention was prior to that, then it cannot be used.

Always use the signs as a defence - its what they rely on to form a contract.

By the way, you have 'named' the driver in post #1. Please delete and replace with 'the driver' and stick to that in subsequent posts.

catfunt

Defend this robustly and they may well discontinue before it gets to a hearing.

You will need to prepare and assume it's going to court though.

This is pre-POFA (POFA came into force on October 2012) so they will have to convince a judge that you were driving. They will very likely try to use Elliott v Loake (search on here for the meaning) so you need to shoot that one down.

Hotchocolate

Thanks everyone, im working on my part 18 request and will ask for copies of signage as the car park is no longer there.

Beavis and Loake cases im looking to rebut in my initial defence.

Suffering from information overload at the moment but will keep this thread updated.

Half_way

Just to avoid barking up the wrong tree, and wasted time spent on advice that deosnt apply, please answer these questions:

Did the parking event take place before October 2012?
do you have any paperwork form the original event? if you dont then its not a huge problem, however if yo do it would be useful.
as a side note its best to keep any paperwork that you receive where money is demanded from you for 6 years.

Lamilad

The Protection of freedoms act came into force in may 2012 ( someone needs to check the exact date - i may be out by a few months)

It received Royal Assent in May but came into force in Oct.

I will be sending a part 18 request to excel for more information, incuding original pcn, machine fault and maintenence history, list of pcns issued on that day.

P18 is N/A to small claims but you can request information from the claimant to help you prepare your case and it would be unreasonable of them to refuse or ignore as per the overriding objective.

I advise against making such a request as telling them that they haven't sent enough info or that's it not accurate gives them chance to put their mistakes right before the hearing. Much better to highlight all the deficiencies in your witness statement and on the day in front of the judge.

type 'pre pofa' into the search box to find other cases similar to yours, like JackBasta who is currently dealing with a pre pofa court case (not Excel but still similar).... Do the same on Pepipoo (use Google Custom search) where you'll find Kathycymraeg and Dub Cat dealing with pre pofa, Excel cases
http://forums.pepipoo.com/index.php?showforum=60

Read lots of other threads too and use the info you find to put a defence together. Post it here for critique.

Coupon-mad

Also Fudge05's thread is about Albert Street and is like yours, pre-POFA, showing a defence already written and a Witness Statement and evidence for the hearing now being discussed:

http://forums.pepipoo.com/index.php?showtopic=110445

Makes it easier for you because you can copy most of it! Show us first.

Hotchocolate

Hi, I can confirm this is pre POFA.
Thanks for the links, I have now completed AOS online and will work on my defence and will my first draft here when complete.

The keeper liability dispute seems a common one but will also work on my other primary defence that a parking attendant informed the driver to just enter 'A' into the machine as it wasn't working properly.

Have formally requested more info from bwlegal including, machine fault service history, lease agreement with the council (heavily redacted version available at legalbeagles forum), copy of signage.

Lamilad

Hotchocolate wrote: »

Hi, I can confirm this is pre POFA.
The keeper liability dispute seems a common one but will also work on my other primary defence that a parking attendant informed the driver to just enter 'A' into the machine as it wasn't working properly.

The keeper liability aspect is something you can back up with evidence so this should be the main focus of your defence.

Whereas what the attendant said is just your word against theirs. Definitely include it though.