Excel/BW Legal Claim - wrong VRM recorded

xlrage

Hi everyone,


To cut a long story short, PCN in early 2012 from Excel. The wrong VRM was entered by mistake. ("59" instead of the full reg xx59 xxx,)
It was a lease car so the driver was named or it would have been paid automatically then deducted from pay.
Contacted Excel at the time by phone and then email with copies of the ticket etc. Excel didn't respond.
Then the usual rubbish for 6 months which was ignored as was the advice at the time.
Nothing further for years until BW Legal letters in September 2016. Contacted them by email and disputed, several letters back and forth and then at the end of March 17 a claim form for £265.


I could do with some help writing a defence, I've been searching forums but I'm struggling to find something suitable to use as a template.


I want to include in my defence:


The amount claimed is not a genuine pre estimate of loss as a ticket was paid for. The ticket has been retained for use as evidence. Case reference:
3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). Deputy District Judge Obhi ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss.


Defended responded to the PCN and Informed Excel parking at the time by telephone and email – no response and no explanation given for pcn at the time.
Subsequent financial loss could have been avoided by checking for outstanding unmatched tickets before issuing the PCN.


The term’s and conditions are unfair - The Claimant’s ticket machine allows any VRM to be entered and takes payment regardless. If the system is critically reliant on valid a VRM it should be impossible to enter an incorrect VRM. Other organisations have systems that only lets VRM’s be entered into the machine from vehicles that are in the car park and already been recorded on the ANPR database.



Five years have elapsed and claimant has not actively managed the account, there was zero correspondence from the claimant for 3.5 years. The claimants case should be considered as de minimis and not worthy of the court's time.

---

I'm not sure how to put those points into a legal format and if I need to be adding other points about signage and contracts etc? everyone know of any other threads I could look at?


Many thanks in advance.

Lamilad

Firstly read the NEWBIES sticky thread post #2.

Drop the 'not pre estimate of loss' argument. That was kibosh'd by the Beavis case.

You're other arguments have legs. The one about accepting a varied contact by performance (allowing you to enter incorrect VRN and taking payment) is something that has/ is being explored by another poster on here called LoadsofChildren.

She has legal expertise and will hopefully comment on your thread.

Coupon-mad

PCN in early 2012 from Excel.

As well as all those linked in post #2 of the NEWBIES thread (which never talk about 'no loss' any more) you can find other examples of relevant defences by searching this board for: 'Martin Cutts phoney signs Judge Lateef defence Excel'.

xlrage

Thanks for the replies, I've been working on my defence, the formatting has changed to bullet points when copied in and I need to double check exact amounts and dates.
Some parts I've borrowed from other defence and I'm not sure if they are correct like the legal rep costs final point.
Do I need to include something about the Beavis case and how this is distinguishable?
Time is running out for me so here it goes

Draft Defence

The Defendant denies liability in its entirety for the following reasons:

• A parking ticket was purchased and displayed. This ticket has been retained and will be presented as evidence. Since the parking fee was paid, there was no breach of contract and no loss was incurred by claimant- there is no commercial justification for the amount claimed, £266.16.

• The proper claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.

• Excel Parking Services Ltd are/were not the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

• The defendant responded to the PCN and Informed Excel parking at the time by telephone and email informing them that a ticket had been paid for and included issue number so they could trace it on their system. The claimant acted unreasonably by offering no explanation for issuing the PCN at the time and did not reply to my communications. The Claimant did not send the defendant the result of the appeal. BW Legal has confirmed that an appeal was received in a letter dated xxxxx this will be presented as evidence.

• The amount claimed has been constantly inconsistent.

The claimant continued to send demands for varying unsubstantiated amounts from various other agencies without explanation. The amounts ranged from £100 to £450 and yet the amount claimed by the claimant is now only £266.

• The claimant has waited Five years to file this claim and has not been actively managing the account. There was zero correspondence from the claimant for 3.5 years until the defendant was contacted by BW Legal. If the claimant felt there case was so strong they should have brought it years before now.

• The defendant was contacted by BW Legal in September 2016. The defendant again replied to their communications and sent a copy of the purchased ticket within the required 14 days however it then took the claimant an unreasonable 3 months to respond.

• Bw Legal revealed that the original appeal had been received and rejected as the VRM entered was recorded as “09” and the ticket was invalid. The defendant was not aware of this when purchasing the ticket. It is the defendant's opinion that the vehicle registration was mis-recorded by the machine and that it only detected the numeric digits entered.
  There is precedent that a number of ticket machines managed by Excel Parking Services Ltd. are at fault and result in erroneous recordings of registration:
  Claim no. C8DP11F9 – Excel v Mrs S – 09/09/2016, Oldham Court
  Claim No. C8DP36F0 Excel v Ms C
  
  In both the above these cases the judge dismissed the claim, ruling that the defendant on the balance of probabilities entered their registration correctly:
  I am satisfied that the ticket then produced is the ticket that she has produced to the court. It was through no fault of hers that this ticket displayed the letters “QQ” instead of her registration number. She obtained a ticket. She made the payment to obtain that. She displayed that ticket. It shows the relevant time of entry. It shows the amount that she has paid and it shows the registration number that the ticket machine produced. It would have been unreasonable to expect the defendant to do anything further beyond that as far as I am concerned. The registration number is not accurately reflected but that is through no fault on the part of the defendant and I find on the balance of probabilities that the defendant had inputted the correct registration number and she had then displayed the ticket that was issued and so to all intents and purposes had fully complied with the terms and conditions applicable to this car park. Accordingly, I am going to dismiss the claim.

• If the vehicle registration was mis-typed the claimant has accepted new terms. By accepting monies when the claimant knew, or could reasonably be expected to know, the registration entered did not belong to a car in the car park, the claimant has by its action accepted by performance a revised contract. This is the car park equivalent of the ‘battle of the forms’ Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd [1979] 1 WLR 401, Court of Appeal.

• If the Claimant understood that the vehicle registration was mis-typed then Excel Parking Services Policy was not adhered to as outlined here by Excel:
  
  "we do recognise that motorists may input an incorrect digit(s) of their VR number when purchasing a P&D ticket and as such our processing allows for a manual review/quality check of PCN’s before they are issued. Unfortunately, on this occasion our check failed.''

• The claimant’s subsequent financial loss could have been avoided by checking for outstanding unmatched tickets before issuing the PCN.

• The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £266.16 as the ‘amount claimed’’ (for which liability is denied) plus The Particulars of Claim include £50 that the claimant has untruthfully presented as legal representative’s costs. The Claimant is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims court. They are unjustified and should be struck out as unrecoverable.

Marktheshark

DO NOT admit typing it in wrong.
Insist it was typed in correctly but the machine was faulty.

Coupon-mad

Marktheshark wrote: »

DO NOT admit typing it in wrong.
Insist it was typed in correctly but the machine was faulty.

I agree.

Even though only '59' was registered by the machine, it is the claimant's burden to prove why that might have occurred (could be the letters on the keypad were not registering).

Here is a case with a defence I wrote the other day which you can copy from, take the case law and use it yourself, copy whole chunks if you want (if relevant):

https://forums.moneysavingexpert.com/discussion/5636211


You can't have this sentence near the end because your PCN is pre-POFA so the Act does not apply:

The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued.

In the appeals in 2012, do you think the driver was admitted? Shame if so...your defence could use some points about 'no keeper liability' but that can't be argued if the appellant in 2012 outed themselves as the driver.

Which car park location is this?

xlrage

Ok I will take a look at that thanks

I had to admit I was the driver otherwise the lease company would have just paid it and then charged my company.

It's was snow hill, Wolverhampton

Coupon-mad

xlrage wrote: »

Ok I will take a look at that thanks

I had to admit I was the driver otherwise the lease company would have just paid it and then charged my company.

It's was snow hill, Wolverhampton

OK so work on a draft that doesn't use the POFA/keeper liability but does have strong other points.

And do not reply (and tell everyone on the open forum) if you get a private message from anyone with less than 1000 posts offering to *help*. We help for free and you cannot be sure as to the motives of any private message from a relative newbie.

Also have a look at Hot Chocolate's thread which is all about their defence re the same location. You can use some of their wording too.

xlrage

Thanks for the replies,


I've removed the paragraph's about if the reg number was entered incorrectly etc but I want to get across that the ticket machine still accepts payments no matter what. would the following be ok?

• When the registration number was mis-recorded by the ticket machine then the claimant has accepted new terms. By accepting monies when the claimant knew, or could reasonably be expected to know, the registration recorded did not belong to a car in the car park, the claimant has by its action accepted by performance a revised contract.

also bwlegal randomly quoted this in a letter, do I need to cover it in my defence? its about leasehold valuations and doesn't seem relevant


Chaplair v Kumari [2015] EWCA Civ 798


thanks again

Loadsofchildren123

I'll have a look in the morning, just placemarking

xlrage

Thanks,


I'm getting abit worries about the deadline now, the papers are dated the 29/3/17 and they received my AOS 3/4/17 so I figure I've got until 26th?