Excel PCN NTK

poundofcarrots

Update:

Today, I received Excel's witness pack for Case 1. I am still waiting on the Judge's decision as to whether my two cases will be combined as one hearing. I called the court this morning but have been told to call back on Friday so I will have to plough on with my witness statement anyway as the latest I can submit it would be 24th June.

Excel are using a paralegal to represent them. His witness statement is predictably long but there are some points I'd like to highlight here for feedback. The three main points of my defence (post #82) are that I was not the driver and have not named him, the correct parking fee was paid but the incorrect registration number was entered (by the driver) and that Excel does not have authority from the Landowner to pursue charges through litigation.

1. Excel confirm that they are not relying on POFA 212 to pursue me as registered keeper but will rely on Law of Agency and cite Excel vs Nick Jenning 2017 as a persuasive authority.

2. Although the parking fee was paid and can be proved through the SAR received from Excel (and the PDT log supplied in the Witness Pack), Excel maintain that the T&Cs were broken in not entering a Full and Accurate VRM. They refer to the signage displayed as showing the T&Cs. Excel state that by not correctly entering the VRM, the driver had not made 'reasonable endeavours to comply with the contractual T&Cs'.

3. For proof of authority, Excel have only submitted a Leaseholder Witness Statement signed by Alun Cockroft (Commercial Director of Excel) stating that, as Leaseholder, they have the same rights as the Landowner to pursue outstanding parking charges.

4. The witness statement states that sending reminder letters about the unpaid PCN constitutes debt recovery costs and that their addition of £60 should therefore be justified.

Very grateful for any feedback as always.

Coupon-mad

Excel are using a paralegal to represent them.

No, he won't appear at the hearing, he just writes their WS and if you search the forum for his name you will probably find it already discussed, as these WS are actually based upon template rubbish we've shot down many times.

1. Excel confirm that they are not relying on POFA 212 to pursue me as registered keeper but will rely on Law of Agency

Good. Search the forum! All done before, many times, using Excel v Smith.

2. Although the parking fee was paid and can be proved through the SAR received from Excel (and the PDT log supplied in the Witness Pack), Excel maintain that the T&Cs were broken in not entering a Full and Accurate VRM. They refer to the signage displayed as showing the T&Cs. Excel state that by not correctly entering the VRM, the driver had not made 'reasonable endeavours to comply with the contractual T&Cs'.

And your WS says that:

- you were not driving anyway
- there is no legitimate interest in penalising a paying driver for a minor keying error
- the driver did make reasonable endeavours and did put in her VRN (following the instructions to the letter of the sign, if they want to be pedantic, you can too)

3. For proof of authority, Excel have only submitted a Leaseholder Witness Statement signed by Alun Cockroft (Commercial Director of Excel) stating that, as Leaseholder, they have the same rights as the Landowner to pursue outstanding parking charges.

So Excel have supplied the same old landowner statement, seen before, signed by themselves! As seen before, so search the forum for the word Cockroft.

4. The witness statement states that sending reminder letters about the unpaid PCN constitutes debt recovery costs and that their addition of £60 should therefore be justified.

This has all been covered everywhere, search the forum for disproportionate costs.

I am still waiting on the Judge's decision as to whether my two cases will be combined as one hearing. I called the court this morning but have been told to call back on Friday so I will have to plough on with my witness statement anyway as the latest I can submit it would be 24th June.

OK good, so start putting your evidence together like all the other cases who have used Excel v Smith - you will find LOADS to copy from.

poundofcarrots

Thanks Coupon. I did a lot of reading last night and found the answers to some of my own questions before you replied, but your advice has helped me focus my WS. Much obliged as always.

poundofcarrots

Would you mind having a read of my Witness Statement (below)?

I am concerned that my wife's name on any accompanying documents (insurance etc.) might encourage a follow up claim, knowing she was the driver...

Many thanks in advance.

Witness Statement

1. I am *********** *********. In this matter I will say as follows:

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. The basic points of my statement which I will describe in further detail below are that:

• I was not the driver of the vehicle; there is evidence to suggest I was not the driver and the Claimant cannot transfer liability to me under any applicable law
• The full and correct parking fee was paid to park
• The claimant has no landowner authority to pursue unpaid charges through litigation and cannot supply proof of such.

4. I am the registered keeper of the vehicle concerned but was not the driver at the time of the alleged contravention. I have responded promptly and truthfully to all correspondence from the Claimant. The Claimant has been informed repeatedly (since the first PCN was responded to) that my wife was driving the vehicle but she has not been named. They have been given evidence that the parking charge was paid at the time the PCN was issued.

5. At the time of the alleged contravention, my wife was the keeper of the vehicle VRM *******. She was insured to drive my vehicle (See Exhibit…). Each week at approximately this time, she parked in ******** Car Park in order to take our two children to swimming lessons.

6. The included Statement (Exhibit …) of parking receipts shows that her vehicle had parked there on 24 previous occasions over the preceding year at similar times (for the same purpose).

7. On 29th July, two days before the PCN was incurred, her car broke down and she borrowed my car to take our children to swimming lessons. Having used the car park in her own vehicle so many times previously, she automatically but incorrectly input her own VRM (*******) into the PDT machine instead of my vehicle’s (********). Exhibit … shows that her vehicle was attended by breakdown recovery on 29th July as stated.

8. I made a Subject Access Request to Excel Parking which shows that the full fee paid required to park in this car park at the exact time of the PCN (Please see exhibit …) The PDT Log provided by the Claimant also shows this (p64 Claimant Witness Statement). The claimant knows the correct fee was paid. However, my wife’s vehicle was not present in this car park because she was driving mine instead. I have brought a copy of the parking ticket retained for which the Claimant is pursuing an identical claim (********) to bolster my case here (See Exhibit …).

9. The claimant could easily disprove my account by showing a photograph of the vehicle ******** entering the car park at these times, but they can’t as it was not there.

10. There is no legitimate interest in penalising a paying driver for a keying error. The driver did make reasonable endeavours to comply with the T&Cs by inputting her full registration details and paying the fee to park in the car park.

11. In order to transfer the liability to the keeper of the vehicle in law, the Claimant must use the POFA 2012 Schedule 4 (see Exhibit …). The Claimant has not done this, and have said they are not citing POFA 2012 on multiple occasions, including their witness statement (para.41)

12. Instead the Claimant is relying on the Law of Agency.

13. An appeal at Manchester County Court on Thursday 8th June 2017 (Smith V Excel Parking Services) before His Honour Judge Smith, no. (C0DP9C4E/M17X062 See Exhibit …) stated that POFA 2012 is precisely where in law, an operator can hold a keeper liable for unpaid parking charges. The Claimant had chosen instead to use the general law of agency, quoting Combined Parking Solutions v AJH Films. HHJ Smith found that this was not relevant to that case, and allowed the appeal.

14. The Claimant has in his Witness Statement suggested that the law of agency is relevant here, with any driver being the agent of myself as registered keeper and principal, thus allowing the driver to bind me to a contract. This is not supported in law hence HHJ Smith allowing the appeal in the previous case involving the very same Claimant as this one – Excel Parking Services.

15. My family arrangements are not commercial and are not intended to be, and as such there can be no agency arrangements.

16. If the driver of a vehicle is the agent of the registered keeper, who is therefore liable the parking charges, why did Parliament find it necessary to introduce legislation that a parking company could recover payment from the registered keeper only if it met certain conditions?

17. In my Legal Defence, I put the Claimant to strict proof that it has a contract from the Landowner to pursue charges and take enforcement action in court for parking charges. The claimant has not been able to provide this and there is therefore no evidence that they have this legal right. The fact that it has not produced this evidence that would significantly help its case suggests, on the balance of probabilities, that this contract does not exist.

18. I believe that this claim is entirely unreasonable, unnecessary and unwarranted. The Claimant could, with minimum effort, see that the parking fee was paid at the time that they have issued a PCN to me as keeper. They have a legal route through which they can transfer liability to a vehicle’s keeper, but have chosen not to. They are unable to prove they have any authority to act in court as tenants of the landowner of this car park. Instead, they have relentlessly pursued and harried me, attempting to intimidate me into paying an unlawful and inflated penalty charge. I have spent countless hours reading in order to defend myself against this vexatious claim. My costs in defending this are therefore submitted.

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

Umkomaas

I am concerned that my wife's name on any accompanying documents (insurance etc.) might encourage a follow up claim, knowing she was the driver...

That would be novel. Never ever seen anything like that. Don't let your imagination run away with your rationality.

poundofcarrots

Ha, thanks! Any thoughts on the WS?

Umkomaas

poundofcarrots wrote: »

Ha, thanks! Any thoughts on the WS?

Sorry, I don't get involved at court stages. The only WS I'd be concerned about would be my own - should Mrs U file for divorce if I spend any more time than I currently do on this forum. There's more than enough work that I get involved in already, just getting people off their PCNs at the earlier stages of the process.

The forum has morphed grotesquely since Beavis, from a successful medium for dealing directly with PCNs, to a quasi-legal platform where even greater [STRIKE]miracles[/STRIKE] legal advice is demanded by motorists from a very small number of regulars, most of whom have neither legal training nor qualification.

Coupon-mad

I've seen ONE case once where the PPC pursued the wife after the husband and they lost both cases. UKCPS I think, about 8 - 10 years ago.

Anyway just partially redact her full name from that piece of evidence, and have the actual document with you in court.

Just in case you are asked to show the Judge and explain why you are not happy for the parking firm to have the full name of another potential driver, given that you are defending it and have no obligation to name a driver to a private firm (Henry Greenslade's words are the authority for that).

poundofcarrots

Thanks Coupon.

So I should add Henry Greenslade's words to my WS? Was there anything else you thought that was obviously missing from it?

Coupon-mad

Excel v Smith, which you must tell the Judge is persuasive, being on appeal. It's in the Parking Prankster's case law pages.

And the things I already posted above.

Searching the forum for other Excel v Smith posts will find you completed cases to learn from where people already won.