BW Legal Court Papers

Coupon-mad

Is there any reason the case was originally assigned to a more local court and now moved to one which is significantly further away CM?

Court logistics and money saving, even if a Court isn't on the closure list:

http://www.bbc.co.uk/news/uk-35552199

Will each transcript need printing in its entirety to be filed in the WS Coupon-Mad?

I would do, for yourself (your own bundle) and for the Judge's copy for Court.

Your WS reads better to me now. It tells the Judge what the issues are and what you did when and how you are only involved as registered keeper, and how lacking their evidence is.

I would not say this, you would not know the circumstances from the PCN (it's never made clear) and if you do not know who was driving you would not know this detail):

It was noted that the driver on the day had purchased a ticket and had incorrectly entered their registration plate,

Also, that's an unhelpful admission of failure by the driver, and it was just as likely yet another machine failure by Excel, as per the QQ case.

So I wouldn't actually say that you know what the case is about unless it's stated in their WS, now, in which case you can state truthfully that the WS is the very first time that the Claimant has even divulged the information that this entire charge hinges upon a keypad failure that is most likely caused by their own machines.

In order to demonstrate that the driver failed to pay & display, the Claimant has the burden to have evidenced that, with photos and readings from that day from the machines, which are known to be unreliable.

Yes, good point.

I would add somewhere that there is no evidence that all machines and keypads in the car park were working that day (have they included a random list of payments made at one or two machines with odd gaps?). I've seen such evidence myself and when I looked closely, there were whole hours where one machine was not in use according to their own data, and some where no payment was made, suggesting a fault.

Or have they not bothered at all? ANPR photos only show the images of the car driving in and out, and is a completely separate system than the P&D machines! Make sure your Judge hears this from you, basically if they have not shown ANY data from the machines, this is like a shop showing pictures of a person walking in and out of a shop and accusing them of stealing, only without any evidence, just some photos of a person arriving and leaving!! ANPR evidence alone means nothing in this context.

Did they include an aerial view of the car park suggesting where the signs and P&D machines were? Have they proved that the signs clearly stated in LARGE LETTERING (as large as the tariffs) the £100 charge, and the 'obligation' to input the full VRN. Not in small print, not hidden on wordy signs...

Supersaver2017

Hi All,

Please see my final edit of my WS before I print off, place in a ring binded file and hand in at the courts on Monday following this weekend. I just want to thank all who have commented on this thread and supported me in any way, its been a great help and extremely reassuring; especially you Coupon-Mad.

Am I correct in saying a contents page proceeded by the witness statement and evidence in a ring binded file will suffice for the courts?

---

Witness Statement
I XXXXXXXXXX of XXXXXXXXXX address XXXXXXXXXX being the Defendant in this case will state as follows;

1. I am (NAME) the defendant in this matter and the facts in this Witness statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

2. It is admitted that I was the registered keeper of the vehicle concerned, but the defendant denies being the driver at the time of the supposed event. There is no evidence of the driver and as this event has been resurrected from almost 4 years ago, it is impossible to expect a keeper to recall who might have been driving. The defendant therefore puts Excel to strict proof that any contract can exist between the Claimant and themselves.

3. I initially received a letter back dating to June 2014, which stated payment had not been made for a parking in a pay-and-display car park. It is not known who was the driving the vehicle on the day as a number of people were insured to use the car at the time via fully-comprehensive insurance cover, and also named drivers on the insurance policy.

4. There is no evidence provided in relation to the alleged claim which gives a representation of whether or not the machines and keypads within the car park were in fully working order, on the particular day in question. As this is an essential area in providing validity of the pay and display system which the car park uses.

5. As these machines are prone to regular faults and mistakes, I feel that the corresponding data from the machines on the particular day is extremely relevant as evidence to whether or not a ticket was purchased. ANPR photos only show the images of a car driving in and out, which is a completely separate system from the pay/display machines.

6. No evidence has been provided that a valid ticket was not purchased the Claimant's evidence relies solely on an entry and exit photograph. There is no photograph of the vehicle without a ticket being displayed. The Claimant is suggesting that no ticket was purchased and displayed in the prescribed manner, this is denied, no evidence has been offered that any action by the driver at the time has led to a breach of this purported condition. In order to demonstrate that the driver failed to pay & display, the Claimant has the burden to have evidenced that, with photos and readings from that day from the machines, which are known to be unreliable.


7. At the time of the stated parking offence I recall receiving what looked like a scam/junk mail letter impersonating a parking ticket, which arrived weeks after any alleged parking event in 2014 and too late to make any informed decision as to who was driving, not that the keeper is under any obligation to provide information on request or demand. As keeper there was no requirement for me to respond to the brightly coloured alarmist notices that appeared to be junk mail in June 2014. This was not an offence or fine from an Authority like a council, and there was no reason or obligation as registered keeper to !!!8216;appeal!!!8217; to what appeared to be junk mail impersonating a parking ticket yet with no basis in law. A registered keeper could not in any way be legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the colourful letter.


8. 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.

9. 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. 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.

10. In 2012 after complaints made about Excel Parking stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing.

11. 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 (See Evidence A)


12. 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.

13. 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).

14. 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.

15. I refer to the case of Excel v Mrs S. C8DP11F9 (Peel Centre ticket failure) in that it was found it was through no fault of the defendant that this ticket displayed the letters !!!8220;QQ!!!8221; 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. (See Evidence

16. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant!!!8217;s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated !!!8220;I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012!!!8221; (See Evidence C).

17. I refer to the case of Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062. In which it was found that a person is not generally liable in law for the actions of somebody they have allowed somebody else to use. If they were, then there would have been no need for the Protection of Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. The hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars (See Evidence D).


18. 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;( See Evidence E).

19. 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 (See Evidence F).

20. It is contended that the signs that were in place at the location were unclear and wordy, yet with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract, as was found in many cases involving Excel signs at and around that time.
In reference to the British Parking Association Code of Practice, in which it states under appendix B, entrance signage: -
!!!8220;The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.!!!8221;
"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"

21. 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.

22. I refer to the case Parking Eye vs Cargius, November 2014 in which the judge dismissed the claim, The charge of £100 far exceeded the cost of the overstay (£2) and subsequent costs. Commercial justification did not apply because the car park generated substantial revenue and therefore it was not necessary to charge large amounts for transgressions to make management commercially viable (See Evidence G).

23. In Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) the Judge DJ Lateef's personally visited the site to view the signs in situ, DJ Lateef's damning findings about Excel retail park signage in 2011 included these observations from her visit: !!!8220;The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts!!!8217; attention to the terms and conditions of using the car park!!!8221;. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in 2011. (See Evidence H)

20. It is expected that this Claimant may try to counter that article about these signs but it is worth noting that Mr Cutts manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English, so he is something of an authority on clear, legible terms. And the Judge agreed with him.

21. It is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel, is in the public domain as having attacked the Judge!!!8217;s integrity in the Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: !!!8216;The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts.


Evidence
A !!!8211; Copy of Schedule 4 of the POFA
B !!!8211; Case Transcript - Excel v Mrs S. C8DP11F9 (Peel Centre ticket failure)
C !!!8211; Case Transcript - Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016
D !!!8211; Case Transcript !!!8211; Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062
E !!!8211; Beavis Case Notification for Parking Sign
F !!!8211; Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability' if defending as keeper.
G !!!8211; Case Transcript - ParkingEye v Cargius, A0JD1405
H !!!8211; Case Transcript !!!8211; Excel Vs Cutts 2011

Coupon-mad

Your WS should refer to the evidence provided as you go along (see Ev1, see Ev2, etc).

And where is your insurance document you refer to but haven't listed as evidence?

You can't say this, because this is not true in 2014:

A registered keeper could not in any way be legally liable as the law stood at that time.

Here I would add:

8. 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, a ludicrous inflation of the alleged parking charge. In the Beavis case, it was held that the £85 'parking charge' was already significantly inflated for profit and that there were no damages or losses/incidentals that a parking firm not on possession, could lawfully claim.

Supersaver2017

I will add my insurance document to the list of evidence if I!!!8217;m able to dig it out !!!55357;!!!56876; it may have even been online.

Thanks Coupon Mad.

What would you suggest for the registered keeper law bit? Would you just remove?

Coupon-mad

Just remove that line because that comes from a pre-POFA 2012 one. Yours was post POFA.

Supersaver2017

Will do. Looks like I!!!8217;ve got the best draft possible anyhow. Much appreciated.

Will keep the thread update with how I fare !!!55357;!!!56842;

Umkomaas

Please switch off your 'Smart Punctuation' on your iPhone/iPad to avoid clogging up your posts with !!!!8820; and the like. Posts become difficult to read as every apostrophe used converts to exclamation marks and numbers.

Go to 'General' > 'Keyboard' > 'Smart Punctuation' and flick the switch off.

Switching off seems to have no negative affect on any other use of the keyboard.

Supersaver2017

Does anyone know how the transcripts featured on the parking prankster's case law site are able to be copied across for my evidence? They all seem to be locked PDF documents? Am I able to just do a print screen for this?

Supersaver2017

Would I have to print the article separately and then write the page number on? Apologies if this sounds extremely naive I'm just struggling with how to get this into my main body of text

Supersaver2017

Also, am I able to send over my W/S and evidence via the Word files I have completed them in or will they need to be scanned as individual PDF's?