BW Legal Court Papers

Supersaver2017

Thankyou Claxtome

The scanner options did not work sadly, but I have been able to use an Adobe application on my phone which collates the pages and then saves as a pdf together. So the hand written signed final page has been uploaded.

I appreciate that Keith, didn't really think to post this outside my thread as I was presuming someone may have had a similar problem in doing this also. It's not a simple process unfortunately.

Supersaver2017

Hi Guys,

I received my Directions Questionnaire in the post a few days back now. Am I correct in thinking this can be completed and sent online?

I have read the breakdown by Bargepole with the advice towards what answers to present in the questionnaire itself.

Thanks again to all as always for the ongoing help.

KeithP

Email it to: ccbcaq@hmcts.gsi.gov.uk

Supersaver2017

Hi All,

I have now received my notice of allocation and a request for witness statements in the next 4 weeks.
Am I correct in thinking the witness statement will build on all points in the defence in more detail?
I have read over the information in Bargepole's guide and will include the references to other cases.

Thankyou

Lamilad

Supersaver2017 wrote: »

Hi All,

I have now received my notice of allocation and a request for witness statements in the next 4 weeks.
Am I correct in thinking the witness statement will build on all points in the defence in more detail?
I have read over the information in Bargepole's guide and will include the references to other cases.

Thankyou

So have you received the notice of hearing as well? The NoA doesn't usually contain a hearing date telling you when to have to WS in by.

Strictly speaking, the WS is a simple statement which refers to evidence upon which you wish to rely and gives your first hand account of the event in question. But in small claims cases it can also be used to expand on your defence arguments and challenge any aspects of the claimant's case.

When you have something post it up here for review.

Supersaver2017

Hi Guys,

First draft of my witness statement is listed below. Any feedback thank you for in advance. I'm unsure if all the information presented is needed or relevant so would really appreciate some guidance as I've found this the most difficult stage despite doing all my research.

---

Witness Statement
I XXXXXXXXXX of XXXXXXXXXX address XXXXXXXXXX being the Defendant in this case will state as follows;
1. I make this Witness Statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

2. I initially received a Letter Of Claim from BW Legal dated 19th October 2017, and responded in acknowledgement of this. The letter informed that I was being pursued for a charge in to the amount of £154 rising to an estimated total of £255.74.

3. I then carried out some research and sought advice online through various outlets, familiarising myself with the Practice Direction on Pre-action Conduct. As a result of this the alleged debt was disputed. With the letter issuing the incorrect statement that it was 'fully compliant with the Practice Direction' and as a matter of fact the content failed to meet the requirements for a letter before claim/letter of claim/letter before action/letter before county court claim.

4. As a result of this, it was requested that BW Legal provide a Letter Before Claim which complied with the requirements of the Practice Direction on Pre-action Conduct.

5. Until receiving this letter I was totally unaware of the court procedure and had no prior knowledge of what the requirements and stages of the process were. However, BW Legal as a company were required to carry out all steps of the pre-action procedure before commencement of court proceedings.

6. I then confirmed that the claim against me is a breach of contract action or if not to specify the claim (debt action, trespass, etc) so I was able to understand what the claim was about and how to respond to it.

7. In response to a follow up letter I received another letter dated 8th December 2017, and again wrote to acknowledge this. It was requested that I could be given the specified 14 days to reply as when the letter was received there was only a time period of 3 days to reply.

8. I continued my position by declaring the alleged debt wass disputed and any court proceedings will be strongly defended. The letter once again issued the incorrect statement that it is 'fully compliant with the Practice Direction' and it appeared that the content failed to meet the requirements for a letter before claim/letter of claim/letter before action/letter before county court claim.

9. As a result of this, it was again requested to provide a Letter Before Claim which complies with the requirements of the Practice Direction on Pre-action Conduct:I then referred to Practice Direction Annex A Paragraph 2 below and highlighted how/why the letter did not meet the required standards.

10. The claimant!!!8217;s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include !!!8211;

11. (1) the claimant!!!8217;s full name and address - Not Provided.

(2) the basis on which the claim is made - i.e. why the claimant says the defendant is liable - Basis of claim not provided.

(3) a clear summary of the facts on which the claim is based - Provided but incorrect, as a ticket was purchased.

(4) what the claimant wants from the defendant - Provided, but does not relate to a respective/justifiable penalty or money owed.

(5) if financial loss is claimed, an explanation of how the amount has been calculated - Not Provided. No explanation towards how the balance has been calculated.

(6) details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant - Not Provided or confirmed this has no place/does not apply.


2.2
The letter should also !!!8211;

(1) list the essential documents on which the claimant intends to rely - Not Provided, a list of essential documents which the claim relies on must be provided. This must be provided before proceedings have started under Pre-action Conduct.

(2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this; Provided, but did not meet substantive ADR regulations.
(3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant - Provided

(4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see !!!8211; Provided

12. The same process was repeated on 21st December 2017 in which another non-compliant letter was sent. The same response listed above was given in a request for the correct formatted letter.

13. A statement of Defence was then filed after BW Legal issued another letter stating that my Letter Before Claim from October 19th 2017 had expired, despite this being titled as a !!!8216;Letter Of Claim!!!8217; and the fact that this had been replied to within the 30 day requested period and that the case was now being pursued in the County Court.

14. The claimant may state that if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving. The claimant would wish to rely on the precedent of Elliot vs Loake (1982). This would not be applicable as it has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and
instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.

15. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and interests of the landowner. Strict compliance with the BPA(CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case. a. In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other !!!8216;legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question!!!8217;.

16. I have no liability as I am the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges. a. The driver has not been evidenced on any occasion b. There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of !!!8216;keeper liability!!!8217; as set out in Schedule 4.

17. The signs around the residents parking are inadaquate, confusing and forbidding. The entrance signs are poorly placed, very small and cannot be read when driving at a slow speeds. All signs are unlit, of a dark non reflective material and are extremely difficult to see in anything other than bright light. Entering the parking area from the entrance to where the car was parked only allows one perimeter sign to be in view, which is still unreadable from a vehicle.

18. If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the BPA Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following:
!!!8226; Lack of illumination of signage (and the car park), poor visibility
!!!8226; Lack of clarity and prominence of terms and conditions
!!!8226; Illegible text due to font size, density, colour and complexity
!!!8226; Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
!!!8226; Lack of relevant terms and conditions, such as the fees for parking
!!!8226; Inadequate positioning of signs, at unsuitable heights


19. The amount claimed includes charges that the Claimant has charged without any explanation as to how it has been calculated. There is a discrepancy between the charge for breaching the claimant!!!8217;s terms and the amount claimed on the particulars of this claim.

20. The driver entered the registration of the car, paid the correct tariff, and the machine issued a ticket which unbeknown to the driver showed an incorrect registration of the car. The machine should not allow an incorrect registration to be printed on the ticket and indicates a malfunction between the P&D machine and Excel!!!8217;s systems. This could be caused by a faulty/sticking or wet keypad, or the system itself misreading the information from the keypad, or even faded/weathered keys with unclear letters, given that this claimant is known to use old machines at their sites, prone to errors. There is no evidence of fault by the driver - it cannot be assumed that the number was in fact keyed in wrongly - and the claimant is put to strict proof. It is averred that, on the balance of probabilities the driver did not get their own VRN wrong and that it is far more likely that the fault lay in the old machine system or the keypad.


21. 5.1 If the ANPR was directly linked to the P&D machine/system, it would be impossible for anything other than a valid registration number to be printed on the ticket. Such systems exist at some retail parks (e.g. Tesco use a system run by Highview which shows shoppers an image of their car and the VRN, to click to confirm their car, no VRN requiring input at all). It is averred the claimant's faulty and old systems are not fit for purpose and cause drivers loss, not just of coins but unjust 'fines' such as this one. This is an unfair business practice, contrary to the Consumer Rights Act 2015 and the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs).

22. The machines Excel use nationally seem particularly prone to failure, and several complaints that charges have been issued even when a valid ticket has been purchased have been made in other attempts made by the Claimant. It is also noted that when these failures have occurred previously it has been refused to cancel charges even when CCTV evidence from nearby shops show tickets were purchased.



STATEMENT OF TRUTH
I believe the facts stated in this witness statement are true

Signed:
Print:
Dated:

Supersaver2017

Hi Guys

I have around a week remaining before I have to submit my Witness Statement, so any advice would be extremely helpful as currently I don’t have any guidance on what I have at the moment.

Also.... I have read on the forums that the WS can be submitted no later than 2 weeks before the hearing date. But on my letter it says a month before the hearing?

Many Thanks

Coupon-mad

If the Judge in your case says not later than a month before, then get it to the court (in a file/ring binder with all your evidence numbered, and a contents page at the front) a few days before that.

Your WS needs to refer to your numbered evidence and the cases you are relying on.

Excel v Mrs S (Peel Centre ticket machine failure), and
Excel v Lamoureux (x 2) and
Excel v Smith (on appeal) and
ParkingEye v Cargius

spring to mind, to show lack of liability as keeper, and the first one is dynamite to show machine failure.

Those court transcripts are easy to find Google using keywords 'Parking Prankster case law' and you need to also click on 'more case law' to find the cases across two pages.

You could also refer to Jolley v Carmel (strictly speaking should be in a separate 'Skeleton Argument' like claxtome shows here, this is where the legal argument/case law goes):

http://forums.moneysavingexpert.com/showthread.php?t=5715702

https://bmpa.zendesk.com/hc/en-us/articles/115000857125-Jolley-v-Carmel-Limited-2000-

This (below) should be waaaay higher the top of your WS, took me ages to read through far to much about the LBC (you should delete most of that, it will not win you the case).

20. The driver entered the registration of the car, paid the correct tariff, and the machine issued a ticket which unbeknown to the driver showed an incorrect registration of the car.

The machine should not allow an incorrect registration to be printed on the ticket and indicates a malfunction between the P&D machine and Excel's systems. This could be caused by a faulty/sticking or wet keypad, or the system itself misreading the information from the keypad, or even faded/weathered keys with unclear letters, given that this claimant is known to use old machines at their sites, prone to errors. There is no evidence of fault by the driver - it cannot be assumed that the number was in fact keyed in wrongly - and the claimant is put to strict proof.

It is averred that, on the balance of probabilities the driver did not get their own VRN wrong and that it is far more likely that the fault lay in the old machine system or the keypad.

Also it seemed odd to me, that you say nothing in your WS about the letters that arrived and why you didn't appeal.

I would be talking about what happened from your point of view as registered keeper (before any LBC) and maybe that was because your research found out that the so-called independent appeal offered by IPC members is considered a kangaroo court, and the conflict of interests and unfair appeals system has now led to the Parking Bill:

http://forums.moneysavingexpert.com/showthread.php?t=5787731

nosferatu1001

If your court order says a month befire, that!!!8217;s what you follow. 14 days is the norm, only

Supersaver2017

Thanks Coupon-Mad

So would you keep the WS very simple and just refer my situation to the cases you have suggested, with how aspects are similar/the same?

The point you said which should have been higher up I included from my Defence as I thought that was relevant. Would you avoid doing that?

I will remove the bulk of the points about the LBC into a single condensed point/s as per your advice.

Also will I need to physically mail my evidence file to the court or can this be emailed over displaying the contents?

I will make headway with the WS and Evidence today as submission is required before the end of the week.

Thankyou again for your help