pcn court appeal letter/defence

Aliweath

Hi All
just after some advise before I submit my defence.
bw legal acting on behalf of Excel (car park in Wakefield)
the incident occurred on the 30th July 2012 I had correspondence from them at the time for maybe around 4 months.. I responded advising I wasn't the driver at the time and they chased me for a while asking me who was...I didn't tell them. they even sent me photographs clearly sowing a man driving, at the time advice was to ignore and they go away! well they did and I moved in 2013 and guess what I got a court letter dated 3/1/18 arrived on the 6th - -I did the acknowledgement bit and I have spent days researching threads etc.i also sold this vehicle in may 2017 so they must have held an up to date address before this an never bothered making contact.

so far this is my defence letter

I deny liability for the entirety of the claim.

To clarify, whilst I was the registered keeper of that vehicle at the time, the alleged parking event occurred before the Protection of Freedoms Act 2012 and as such your client has no right to pursue me, as the keeper, for payment. I understand your clients typical defence in these cases is to quote criminal case law, Elliot vs Loake (1982) however you will be no doubt be aware this defence was ruled as not persuasive under very similar circumstances in Excel v Mr C C8DP37F1 Stockport (31/10/16).

1. This matter relates to a pay & display car park and on the material day, 30/07/2012, the ticket was bought for 4 hours in good faith but inexplicably and unnoticed by the driver at the time, a ticket for just 2 hours was printed by the machine. (previously provided to the company in 2012).

2. The driver confirmed that they as a matter of fact, that they put £4.80 in a ticket machine to buy a ticket for a 4 hour period and went shopping, being new to the area didn't know how long they would be, so erred on the side of caution.

3. The system did not alert them to any shortfall to inform them that (for whatever reason within the workings of the machine) money had not registered and neither did any fall through and out into any tray, as is the case with other such machines. Therefore it was perfectly reasonable for them to rely on the full payment which was accepted into the machine.
The machine must have been faulty and/or not registered the money. Since it is a fact that they put the full £4.80 into the machine, this issue must have been caused either by an internal machine malfunction or a matter of the machine being set to print a ticket regardless of overpayment - either way, this was not a matter within mine or the drivers control.

4. It is in the public domain that the IAS turn the usual rules of evidence on their head, by expecting the consumer (rather than the claimant) to bear the burden of proving their case, even being expected to evidence matters that are solely in the knowledge of the parking firm. In my case, I realise now that I bore an impossible burden, of being expected to prove to the IAS that I had paid £4.80 and somehow evidence (weeks later) the whereabouts of my unregistered payment - which was within this claimant's own machine. This reverse burden of proof puts consumers in an impossible position and of course, the IAS found in favour of the parking firm. The IAS uses anonymous 'assessors' (contrary to the usual ADR rules) and any decision from this service must be viewed in the context that the decisions often bizarrely fall against consumers, appear to have the burden of evidence unfairly weighted against drivers and appear to lack any apparent independence.

5. In relation to the car park sign, there is a huge amount of wordy but small font text on it; Exhibit 2. Only the hourly tariffs are in the largest font. Vital information, such as the possibility of the machine accepting overpayments and the penalty itself, is hidden in small print so none of this was known or agreed as a contract when they put £4.80 into the machine. Further, the sums added to the £100 parking charge appear to have been invented, an attempt at double recovery and plucked from thin air because they are not stated in clear terms/font on the sign, nor have any costs been incurred from debt collectors which are known to advertise a 'no collection no fee' service.


6. At no point has this Claimant actually evidenced that the takings from that machine on that day were inconsistent nor have they even mentioned checking that information. They are relying purely on the fact their machine was (unfairly) set to print an incorrect hourly ticket - whatever the overpayment registered - and somehow twisted this to suggest that I breached a small print contractual term.

7. If they wanted to ensure the correct tariff was paid without such disputes arising, the machine should be set so that no ticket is printed until a tariff which matches a published rate is registered.

8. I believe the way the machine is set is an unfair term and unfair business practice. Additionally I contend that this claimant's four year silence and non pursuitant of this matter, was wholly unreasonable and vexatious. Given that the machine was clearly accepting money but not producing a ticket to reflect that payment, the sum involved this claim is out of all proportion to the alleged (denied) sum purportedly owed.

9.At my previous address between April 2012 and April 2013 I received the letter advising that I was being pursued for a PCN, I contacted the company in good faith advising them that I was not the driver of the vehicle and they provided photographic evidence to me that supported my information, the driver can be clearly seen and is male and under the data protection act and protection of freedoms act prior to 2012 I did not provide them with whom the driver was.

10. I moved address in April 2013 and received no correspondence from Excel or BW Legal until the letter N1SDT arrived on the 6th January 2018 so they have accessed my information at some point between 2013 and 2018 to gain information and then waited until the 3rd Jan 18 to to contact and harass me over this matter.



I believe that the facts stated in this witness statement are true.
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System

Excel (car park in Wakefield)

They either drop the case 7 days before a hearing or lose at the hearing for lack of driver identity. BW use the hassle of the court for two reasons

1. To get you to name the driver who then gets their own claim - while maintaining the first one for hassle sake
2. To hope you bottle or mess up the paperwork

You are in for the long haul so keep up with the paperwork.

KeithP

At the top you say 'defence' and at the bottom you state 'witness statement'.
Which is it? Looks more like a witness statement to me.

Have you yet read post #2 of the NEWBIES FAQ sticky tread?
That offers guidance through the court processes from receiving a Letter Before Claim onwards.

Have you acknowledged service of the claim form yet?

Also, this post may help you:
forums.moneysavingexpert.com/showpost.php?p=73731175&postcount=14

Castle

Aliweath wrote: »

4. It is in the public domain that the IAS turn the usual rules of evidence on their head, by expecting the consumer (rather than the claimant) to bear the burden of proving their case, even being expected to evidence matters that are solely in the knowledge of the parking firm. In my case, I realise now that I bore an impossible burden, of being expected to prove to the IAS that I had paid £4.80 and somehow evidence (weeks later) the whereabouts of my unregistered payment - which was within this claimant's own machine. This reverse burden of proof puts consumers in an impossible position and of course, the IAS found in favour of the parking firm. The IAS uses anonymous 'assessors' (contrary to the usual ADR rules) and any decision from this service must be viewed in the context that the decisions often bizarrely fall against consumers, appear to have the burden of evidence unfairly weighted against drivers and appear to lack any apparent independence.

[/I]

In July 2012 Excel were members of the BPA and more importantly there was no independent appeal process in place until 1st October 2012; so you couldn't have appeal a ticket issued before the 1st Oct 2012.

Redx

post #1 definitely looks like a witness statement , not a defence

read the comments by LOC123 in this thread https://forums.moneysavingexpert.com/discussion/5773618 to understand what must be filed and by when

defence comes first , long before any witness statements or evidence

Coupon-mad

Yep that's not a defence, reads more like a Witness Statement or pre-court dispute letter. You can't say 'your client' because a defence is addressed to the Court. You are not writing a letter to BW Legal.

Excel were banned by the DVLA in Autumn 2012 - read the FOI about that ban and mention it in defence. Read Lamilad's defences re his cases he won v Excel in 2016, both easily found on pepipoo forum.

Also search this forum for 'Excel defence Cutts' and read one no older than 2016.

Aliweath

Thanks all...it all properly messes with my head all this legal jargon...but i think I understand what you all mean and i will read the suggested threads and try again!!!! Thanx for your time peeps!