County court letter assistance

Logblahar

Thanks for the advice, I will focus on my defence. I have put something together using several other threads. In post 9 on my thread I have put what I have so far. If you get chance, could you possible see if what I have put down is on the right lines. Thanks

System

The contravention description being Parked without purchasing a valid pay and display ticket at a well known retail park in Keighley.

If this is Cavendish then you should search for the postings by Lamilad who has comprehensively beaten Excel at this car park.

The reason that you are not getting help is you are not giving any information so people who might be able to help e.g. Lamilad, can't.

If this is not Cavendish then the name of the parking company and the location is needed.

Lamilad

Ok, firstly that defence is too long and 'waffley'. You've got the main important points in there - just in too much detail.

It's obvious you are talking about the Cavendish Retail Park in Keighley, now operated by G24. There's plenty of Excel/ BW Legal defences on the forum for you to read.

Also look at CEL defences which are generally similar.

12. The claimant has yet to respond to a letter of information request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the (date).

Is this even relevant, did you actually send a letter?

Also the PoFA stuff needs to be among your first points.

Logblahar

Sorry, Yes you are correct it is the Cavendish.

Logblahar

I sent a letter of information to BW after I received the court claim form, As I had no information of the alleged PCN. Should I not have done this?
Should I remove this point from my defence?

System

s I had no information of the alleged PCN. Should I not have done this?Should I remove this point from my defence?

Leave it in as it was the correct thing to do. As Lamilad is the expert here, follow that advice.

Logblahar

Hi, Thanks for the advice. Is there anything in particular I should remove?

It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

1. The Defendant was not the driver of the vehicle on the date in question. The Claimant is put to strict proof. (defendant has CCTV evidence that on said date and time of event they were elsewhere).
1.1. The Claimant has provided no evidence that the Defendant was the driver. The Defendant suggests that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

1.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
1.2.1. There was a 'relevant obligation' either by way of a breach of contract, trespass or other tort; and 6.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

1.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

2. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict 'keeper liability' provisions!

3. The registered keeper is unaware of the PCN, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time/with mandatory wording.

4. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

5. 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. Even if they have been incurred, the Claimant has described them as "Legal representatives costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

6.It is not admitted that on (said date) the Defendant's vehicle was parked at (said place).
6.1. The Claimant has provided no evidence, photographic or otherwise that the vehicle is indeed parked.

7. 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 the interests of the landholder. Strict compliance with the BPA Code of Practice (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.

8. The signage on and around the site in question was small, unclear, confusing and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver.

9. 1 If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

9.2 Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

9.3 At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable.

10. It is denied that the Claimant has authority to bring this claim. 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.

11.No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

12. The claimant has yet to respond to a letter of information request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the (date).
Asking for Copies of full particulars of the parking charges. Including all letters sent by the claimant including notice to keeper.

13. There was no compliant 'Letter before County Court Claim', under the Practice Direction.
14. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

15. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landholder can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landholder themselves claiming for a nominal sum.

16. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
In my opinion, there is a better alternative than legal proceedings, namely that we utilise the services of a completely independent Alternative Dispute Resolution service suited to parking charges. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence, (date I intend to send) are true

Coupon-mad

Looks good to me.

Hope your local Court is Skipton, thanks to Lamilad, they chew up Excel and spit them out for fun!

Logblahar

After looking through more threads involving Excel and BW Legal as well as looking at the new pre action protocol for debt claims oct 2017. Is it a good idea to add this related info to my defence?

With the fact I had no letter before county court claim, PCN or notice to keeper and have not been given affecting my ability to defend the claim.

Logblahar

I have added to and adapted my previous defence.
Not sure if I have weakened it or strengthened it.
Any comments and advice welcomed.
I will post the defence shortly