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A win against Excel and BW
RAF_Vinny
Posts: 3 Newbie
Hi, as a newbie poster to the forum I thought I would share my win today against Excel parking. I have used these forums to get information over the last few months and this has certainly helped me today, and so a few tips on my "win" may help others.
Usual story, a court letter was sent in Nov 16 for a PCN supposedly issued in 2014 (infact 3 yrs exactly today) The court notification was genuinely the first correspondence I had regarding the ticket. It was issued for failure to pay for the parking.
The car park was a Pay and Display however there are a number of spaces set aside and used by local businesses who are lease holders to the building the carpark is attached to, in order to use these spaces an email adding the reg is sent to Excel Parking. My company was doing some work there for a business who did email Excel and advise of the reg. Thankfully copies of the emails sent had been archived on my server as the business has now ceased trading.
So what now seems like a standard court from was sent to me, advising failure to respond to the PCN, Notice and LBA's with usual costs etc. for ease I will summarise my defence.
1) I was unable to say who was driving the vehicle at the time, as there was 3 other people involved with that particular contract, and as a new startup it was easier and cheaper to allow them to use my vehicle, the chances are I was not driving as the work carried out on the day was not in my skill set. So first defence was no PCN or Liability notice received therefore failure to comply with Sched 4 of POFA.
2) If they claimed "presumed received 2 working days after posting" I advised under Sched 4 of PoFA i didn't believe all the conditions had been met in respect of the wording, (this was a "punt" as I hadn't actually seen the PCN but had seen examples of ones from the same time issued by Excel, and as it happened I was correct, the wording did not comply in respect of PoFA for Keeper liability)
3) I then used Henry Greenslade as I couldn't say who was driving out of the group and was not obliged to advise even if I did.
4) I asked for a copy of the contract, as I believed it would state in there about these spaces, how they are used and how Excel needed to be informed, I never got a copy just the usual witness statement to say a contract existed between them and the landowner.
5) I provided copies of the emails sent to excel at the time and photos of the spaces, which are still there and still marked with the company name, and also copies of invoice sent to the company for the work carried out on the day. This was obvs my main defence, but had it have been challenged, other than the email and Invoice I had no other proof so all the rest was belt and braces, should this not have been accepted.
6) In a letter to me after the court docs had been issued BW advised and extra £52 Solicitors costs added, this was not listed on the court form, but lumped into the main debt, so challenged the validity under CPR 27.14
7) As I had received no notice before action from BW, I also claimed failure to follow the pre-action process correctly.
The response from BW was basically a standard one they have used many times from what I have seen on these forums, they challenged that they had complied with ALL aspects of PoFA, whihc I was ready for and had highlighted the failures as part of my bundle. They challenged the keeper liability and quoted "Elliott v Loak" for which I was ready with a copy and to advise this had been a Criminal case with forensic evidence and the due to the fact the keeper had been proven to lie already, the court presumed he was the driver. They also quoted Combined Parking Solutions V AJH films, as keeper liability due to owner allowing the vehicle to be used. Again ready with a copy of this and to advise that this was argued that as it was a company vehicle they were obliged to disclose the driver, mine is a private vehicle used in the course of business.
For failure to comply with pre-court process they advised 3 dates on whihc letters from BW was sent, never received, and in a 48 page bundle they had no copies of any of these to show!
For the challenge on the extra £52 costs, they used Chaplair v Kumari when a judge and appeal agreed the costs could be claimed and were not subject to CPR 27.14. However, these costs were allowed for the simple reason they had been listed separate and described as contractual recovery costs on the original particulars of claim, this had not been done on mine, merely lumped into the original "debt".
We then had pages of Signs, pictures of the carpark, and a whole section on why they are allowed to charge £100 for the PCN, none of which I had questioned. The signs had no bearing as the car was allowed to park legally for free, so no one would have read the signs. It was clearly just another example of a "copy and paste" exercise on the bundle.
So today turned up in court, I was ready to challenge the "Right of Audience" however BW had instructed a real solicitor and not just an advocate. He advised me that he had "read all the documents and nothing to discuss but let the judge decide" After about 10 mins of waiting it became obvious that he hadn't read anything as he came over to ask if the main defence would be the parking in the company spaces, which I said yes. He then could be heard on the phone asking questions about them. When we went in the judge had clearly read the bundles and asked if the main defence was from what he could see the right to park legally on these spaces. I said it was and so he said lets start with that part of your witness statement. The Judge and the claimant solicitor made a couple of references to " me agreeing I had parked the vehicle on the land" only took a couple of corrections by me to remind them "I had not necessarily parked the vehicle, but the vehicle had been parked"
The Solicitor then advised he had not had any witness statement, or bundle and had no idea what the judge was referring to, the judge asked me why this might be and had I sent it, and I produced a recorded delivery signature for BW dated within the timescale for providing. The Solicitor went a bit quite, the judge then said he could take a look at his bundle and the email, invoices, pics etc. (in other words dont be asking for an adjournment) he took one look and just shrugged. The judge then went over that part of the witness statement and agreed that it was probable we had complied with the requirements to Excel and the vehicle had permission to park free, and the claimant could offer no reason why we had not parked correctly or why they had issued the PCN if they had been informed of the vehicle registration. So he dismissed the claim as no contract existed, I then asked about costs, and he did say that we had only been there 10 mins, but I pointed out the amount of work needed to defend the claim,
and if they had read original defence correctly and my witness statement this could have been dealt with before today, so the judge turned to the solicitor who was now looking a bit brow beat and just said "whatever you feel is reasonable we will accept" I then chipped in and said I was happy with £50, and the judge agreed.
I was a bit gutted I didn't get chance to go over my "belt and braces" defence parts, but it just shows that yet again a case they were very unlikely to win they continued with.
If any of this experience helps others then great, as I know I was able to put together a decent defence and witness statement from seeing posts and comments on here and other forums.
Usual story, a court letter was sent in Nov 16 for a PCN supposedly issued in 2014 (infact 3 yrs exactly today) The court notification was genuinely the first correspondence I had regarding the ticket. It was issued for failure to pay for the parking.
The car park was a Pay and Display however there are a number of spaces set aside and used by local businesses who are lease holders to the building the carpark is attached to, in order to use these spaces an email adding the reg is sent to Excel Parking. My company was doing some work there for a business who did email Excel and advise of the reg. Thankfully copies of the emails sent had been archived on my server as the business has now ceased trading.
So what now seems like a standard court from was sent to me, advising failure to respond to the PCN, Notice and LBA's with usual costs etc. for ease I will summarise my defence.
1) I was unable to say who was driving the vehicle at the time, as there was 3 other people involved with that particular contract, and as a new startup it was easier and cheaper to allow them to use my vehicle, the chances are I was not driving as the work carried out on the day was not in my skill set. So first defence was no PCN or Liability notice received therefore failure to comply with Sched 4 of POFA.
2) If they claimed "presumed received 2 working days after posting" I advised under Sched 4 of PoFA i didn't believe all the conditions had been met in respect of the wording, (this was a "punt" as I hadn't actually seen the PCN but had seen examples of ones from the same time issued by Excel, and as it happened I was correct, the wording did not comply in respect of PoFA for Keeper liability)
3) I then used Henry Greenslade as I couldn't say who was driving out of the group and was not obliged to advise even if I did.
4) I asked for a copy of the contract, as I believed it would state in there about these spaces, how they are used and how Excel needed to be informed, I never got a copy just the usual witness statement to say a contract existed between them and the landowner.
5) I provided copies of the emails sent to excel at the time and photos of the spaces, which are still there and still marked with the company name, and also copies of invoice sent to the company for the work carried out on the day. This was obvs my main defence, but had it have been challenged, other than the email and Invoice I had no other proof so all the rest was belt and braces, should this not have been accepted.
6) In a letter to me after the court docs had been issued BW advised and extra £52 Solicitors costs added, this was not listed on the court form, but lumped into the main debt, so challenged the validity under CPR 27.14
7) As I had received no notice before action from BW, I also claimed failure to follow the pre-action process correctly.
The response from BW was basically a standard one they have used many times from what I have seen on these forums, they challenged that they had complied with ALL aspects of PoFA, whihc I was ready for and had highlighted the failures as part of my bundle. They challenged the keeper liability and quoted "Elliott v Loak" for which I was ready with a copy and to advise this had been a Criminal case with forensic evidence and the due to the fact the keeper had been proven to lie already, the court presumed he was the driver. They also quoted Combined Parking Solutions V AJH films, as keeper liability due to owner allowing the vehicle to be used. Again ready with a copy of this and to advise that this was argued that as it was a company vehicle they were obliged to disclose the driver, mine is a private vehicle used in the course of business.
For failure to comply with pre-court process they advised 3 dates on whihc letters from BW was sent, never received, and in a 48 page bundle they had no copies of any of these to show!
For the challenge on the extra £52 costs, they used Chaplair v Kumari when a judge and appeal agreed the costs could be claimed and were not subject to CPR 27.14. However, these costs were allowed for the simple reason they had been listed separate and described as contractual recovery costs on the original particulars of claim, this had not been done on mine, merely lumped into the original "debt".
We then had pages of Signs, pictures of the carpark, and a whole section on why they are allowed to charge £100 for the PCN, none of which I had questioned. The signs had no bearing as the car was allowed to park legally for free, so no one would have read the signs. It was clearly just another example of a "copy and paste" exercise on the bundle.
So today turned up in court, I was ready to challenge the "Right of Audience" however BW had instructed a real solicitor and not just an advocate. He advised me that he had "read all the documents and nothing to discuss but let the judge decide" After about 10 mins of waiting it became obvious that he hadn't read anything as he came over to ask if the main defence would be the parking in the company spaces, which I said yes. He then could be heard on the phone asking questions about them. When we went in the judge had clearly read the bundles and asked if the main defence was from what he could see the right to park legally on these spaces. I said it was and so he said lets start with that part of your witness statement. The Judge and the claimant solicitor made a couple of references to " me agreeing I had parked the vehicle on the land" only took a couple of corrections by me to remind them "I had not necessarily parked the vehicle, but the vehicle had been parked"
The Solicitor then advised he had not had any witness statement, or bundle and had no idea what the judge was referring to, the judge asked me why this might be and had I sent it, and I produced a recorded delivery signature for BW dated within the timescale for providing. The Solicitor went a bit quite, the judge then said he could take a look at his bundle and the email, invoices, pics etc. (in other words dont be asking for an adjournment) he took one look and just shrugged. The judge then went over that part of the witness statement and agreed that it was probable we had complied with the requirements to Excel and the vehicle had permission to park free, and the claimant could offer no reason why we had not parked correctly or why they had issued the PCN if they had been informed of the vehicle registration. So he dismissed the claim as no contract existed, I then asked about costs, and he did say that we had only been there 10 mins, but I pointed out the amount of work needed to defend the claim,
and if they had read original defence correctly and my witness statement this could have been dealt with before today, so the judge turned to the solicitor who was now looking a bit brow beat and just said "whatever you feel is reasonable we will accept" I then chipped in and said I was happy with £50, and the judge agreed.
I was a bit gutted I didn't get chance to go over my "belt and braces" defence parts, but it just shows that yet again a case they were very unlikely to win they continued with.
If any of this experience helps others then great, as I know I was able to put together a decent defence and witness statement from seeing posts and comments on here and other forums.
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Comments
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Great account, great defence, great result. Stitched them up like a kipper and it's fantastic that you were able use the forum information without any call on forum expertise, in sharp contrast to threads that run for months clogged up with questions like 'should I use a first or second class stamp'.
A real breath of fresh air read. Well done.
Any chance you could email the above account to the Parking Prankster (don't say you've never heard of him or your halo might just start to tilt! :rotfl:)
Excellent, made my forum day.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0 -
Thanks, I decided not to post to ask for info just in case the"spys" linked it back to me before today.
Hahaha, oh yes I have heard of him, I even had the relevant parts highlighted for my challenge to the right of audience he did recently to read out!0 -
Amazing and well done to you:j:j
Game, Set and Match to you
Proving beyond doubt again, that BWLegal are a worthless set up
Judges are getting wise to this Excel/BWLegal scam and their incompetence:rotfl:0 -
Why do they keep trying to run with Elliott v Loake?You never know how far you can go until you go too far.0
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Always brightens my day to hear about Excel/VCS/BWL being thoroughly shafted in court! Well done.
Goes to show, all that's needed to beat these idiots in court is plently of research and thorough preparation. This defendant covered his bases well with the proof that he'd posted the bundle - hopefully, proof of sending by email would've been just as acceptable.
He was also very clear about what his defence hung on and only had to stick to his guns to win the case.0 -
BW had instructed a real solicitor and not just an advocate. He advised me that he had "read all the documents and nothing to discuss but let the judge decide" After about 10 mins of waiting it became obvious that he hadn't read anything as he came over to ask if the main defence would be the parking in the company spaces, which I said yes. He then could be heard on the phone asking questions about them.
The Solicitor then advised he had not had any witness statement, or bundle and had no idea what the judge was referring to
Was this a lie by the BW solicitor - he had already approached you pre-trial and asked if your main defence would be the parking in the company spaces. He must have had something in front of him to deduce such a question ?0 -
I had already put that in my original defence that "No contract could exist as we had parked in safe spaces allocated to local business"0
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Was this a lie by the BW solicitor - he had already approached you pre-trial and asked if your main defence would be the parking in the company spaces. He must have had something in front of him to deduce such a question ?
That is the way of BWLegal, but, Simon Renshaw-Smith continues to use them ... there are some brains missing here on both sides
Maybe it's onset dementia where he cannot remember his last losses0 -
Fantastic account to read; all done from reading the forums & the Prankster's blog - very well done!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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