Excel Parking / BW Small Court Date

Billy_Whizz1971

So I have my date in court with Excel/BW Legal and have received the Claimant's witness statement via email today .

I have drafted an initial witness statement (below) which basically reflects that that I posted as part of my initial MCOL submission.... NB This needs to be with the Court on the 17th May.

I would really welcome any support that you could offer in nailing these cowboys and my main question is: is this defence enough? and do I need to respond specifically to information contained in BW Legal's witness statement (I can supply if required but was worried about revealing my identity online!)

I deny any liability to the Claimant and assert that I am not liable to the Claimant for the sum claimed or any amount at all and except where specifically covered or stated, no other aspect is admitted and the Claimant is put to strict proof the viability of the claim.

The Claimant states the claim has been issued for £100 in respect of a Parking Charge Notice issued on XXXXX /2012 relating to vehicle registration number XXXXX at a location stated as The Square Chorlton-!!!-Hardy.

I was the registered keeper of the vehicle registration number XXXXX at this time and the vehicle was able to be driven by a number of people so insured and with legitimate access.

The alleged PCN relates to an incident date of over five years ago and it is submitted that the Claimant has not substantiated any cause of action in issuing the proceedings, failing to specify any alleged breach of terms or if proceedings have been issued against me as the registered keeper or the driver.

As the concept of keeper liability was only introduced on 1st October 2012, by the introduction of the Protection of Freedom's Act 2012, particularly Schedule 4 (POFA) and can liability can only be passed onto the keeper provided all the criteria has been met. As there can be no keeper liability for this alleged parking event, then it is submitted that the Claimant has no further cause for pursuance of this charge. The Claimant can only pursue the driver.

No evidence has been adduced as the driver's identity, and due to the length of time now elapsed, it is unreasonable for me to remember who may have been driving on the relevant date.

The onus is on the Claimant to provide validity of this claim and evidence that I can be liable. Prior to issuing proceedings, no evidence has been adduced of either proof my vehicle was parked at the location or any terms were breached or if the Claimant has a valid contract with the landowner to issue such charges or any ANPR is accurate. A recent blog in the public domain indicates for example that the location has more than one entry and exit point with more than one claim struck out due to multiple visits, which raises the doubt of any ANPR evidence.
Research has indicated that the Claimant's recent cases have been dismissed where keeper liability cannot be established and these have been published in the public domain, including cases involving this Claimant's legal representative. Such cases include among others Excel v Mr B C7DP8F83 at Sheffield 14/12/2016; C8DP56P8, Excel v Mr C & Mrs C, Skipton County Court, 19/12/2016 and Excel v Mr C C8DP37F1 Stockport 31/10/2016.

In addition to the £100 ‘parking charge’, for which liability is denied, the Claimant’s legal representatives, BW Legal, have artificially inflated the value of the Claim by adding various ‘Solicitor’s Costs’ of £104 which I submit have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report BW Legal to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct. It is additionally submitted that the 'interest' added be discounted due the fact the Claimant did not seek to issue proceedings at an earlier stage.

The continued pursuit of this Claim, where there is clearly no cause of action, is de facto evidence of unreasonable behaviour on the part of the Claimant, and I submit that the Court should dismiss the claim, and award my full costs of defending this matter and my attendance at Court, pursuant to Civil Procedure Rule 27.14 (2) (g). Should the Court be minded to further express its disapproval of the Claimant’s actions, consideration may be given to making an award against the Claimant of Exemplary Damages pursuant to CPR 16.4(c).

The contents of this statement are true to the best of my knowledge and belief.

MR XXX

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Umkomaas

Have you read post #2 of the NEWBIES FAQ sticky which has very comprehensive information about court defences (including links to some extremely powerful ones) as well as giving general guidance on timescales, how to lay out defences, witness statements, skeleton arguments etc?

Billy_Whizz1971

Many thanks - had a quick read but all the info is a bit overwhelming to be honest ...

Which section do you mean by post 2 - is it possible for you to hyperlink...?

Cheers

Umkomaas

Many thanks - had a quick read but all the info is a bit overwhelming to be honest ...

This really isn't a simple matter that can be explained for a satisfactory outcome in just a few sentences. It is definitely not designed for the 'quick read'.

Which section do you mean by post 2 - is it possible for you to hyperlink...?

We avoid hyperlinking within the forum as newbies don't learn to search the great wealth of information contained here. It's not us being 'difficult', we just try to help people to help themselves.

If you look at this thread, your opening post was post #1, my reply was post #2, this reply is post #4. The NEWBIES FAQ sticky is exactly the same, but the posts are muuuch longer than these in this thread.

HTH

Billy_Whizz1971

<Many thanks but it all seems a bit overwhelming (I have absolutely no legal background and struggle with lengthy text/documents - I paid a company to draft the statement above as part of my initial defence!) so I will take a chance on submitting the defence above and taking the hit if it comes ... Can't afford it but thinking that paying £250 may be worth it if it saves me hours of research and a day off work in court!

Thanks for responding anyway

ElParque

If you've not yet sent in your Witness Statement (WS) and your PCN was issued before Oct 2012, look at Post 31 in my thread entitled "Witness Statement is due". Written by Lamilad, it's superb. (Not all of it will be relevant to your case but the important parts are).

If your PCN predates POFA and you're not that confident about appearing in court, I reckon your best bet is to concentrate your defence solely on the fact that there is no keeper liability. Hammer that point.

If you weren't the driver but you know who the driver was, tell the court that you know who the driver was. If it was a family member, tell them that but not who. If you can produce the insurance certificate showing multiple drivers as evidence, do so.

Pre POFA PCNs are the easiest to defend, imo. Don't give up.

Billy_Whizz1971

Many thanks El Parque - the Lamilad WS is amazing ....

A quick question: In my initial defence the company who helped me to respond used the words: "it is unreasonable for me to remember who may have been driving on the relevant date."

If I now use the wording from Lamilad's WS i.e. a clear statement that I was not the driver (points 4 and 10 below) would this raise red flags and if so should I adjust the wording to fit my original defence?

4. I was the Registered Keeper of the vehicle at the time of the event in question; however, I was not the driver.
10. The defendant asserts under ‘statement of truth’ that he was not the driver.

ElParque

Since you wrote your defence, could you have asked the other people who had access to the car keys and might have been driving that day if they were the driver? And could one of them have now admitted to you that he/she was the driver? That's what happened in my case.

If so, you could tell the judge that you now know who the driver was that day. Don't make stuff up. If you haven't already done so, ask around. Maybe someone got the PCN and hoped you'd not be pursued for it and now has admitted as much.

keepswimming

I ve only read your post quickly but I ve just had a case discontinued at the same car park, please read my thread it has WS defence etc, I also have loads of PDF evidence I ll post on Dropbox so you can use all of that too

keepswimming

i ve posted a link in my thread to dropbox with lots of exhibits and information about my case and the Chorlton car park

Billy_Whizz1971

Had my day in court today and success... Case dismissed and Excel paralegal took a hammering... I almost felt sorry for her... Can't thank forumites enough especially El Parque, Lamlash and keepswimming... I owe you all several beers... My lesson be persistent and know your argument inside out... &#55357;&#56841;