Excel PNC v Xircom

Coupon-mad

There's no such entity as a registered owner.

The signs are correct, the contract IS with the driver, but liability can pass to the registered keeper (NOT owner) only if a PPC complies with the POFA in all respects.

Xircom

I refer to your Letter before Claim dated 22/05/2019 Not a mention of ‘Notice to Keeper’, No letters to inform me of liability as Registered Keeper, I then refer to your County Court Claim Ref F6xxxx0Q dated 17/07/2019 from Excel Parking and would wish to draw your attention to the following statement contained therein:-

"The Defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent location. "

PoFA 2012
This statement makes it clear that Excel Parking is dealing with its claim in accordance with the requirements of Schedule 4 of POFA. The requirements of Schedule 4 are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt. The BPA Code of Practice supports the need for strict compliance (para 21.5 refers).

Excel Parking has however failed to comply in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012. Whilst the ‘Notice to Keeper’ issued had indicated that Excel Parking require a payment to be made, there is no specific identification of the “Creditor”, who may, in law, be Excel Parking or some other party. PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor" must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided. He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

So, in addition to Excel Parking’s failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

I do not believe Excel Parking Services Ltd, have provided, any evidence to prove who is liable for the contravention they claim has taken place. I am the registered keeper of a vehicle, but Excel Parking Services Ltd have not provided any proof to show who was driving the vehicle I am the registered keeper for, at the time the contravention is alleged to have taken place.

Signage
For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. Upon returning to the car park after receiving this unjustified 'charge notice' to check the alleged terms at a later date, I had to get out of my car to even read the larger font on the signs, and the smaller font was only readable when standing next to a sign. They were also very brightly coloured (Yellow on Blue, White on Light Brown) but too busy, confusing and unclear. Everything except the 'welcome' heading is too unreadable to be compliant (photo attached). Excel appear to have made no improvements to their signage design since it was severely criticised by Deputy District Judge Lateef at Stockport County Court in Excel -v- Cutts, where Excel lost the case:

Referance can be made at
http://www.manchestereveningnews.co.uk/new...t-battle-870812
http://s3-eu-west-1.amazonaws.com/plcdev/f...r2012_1b_mf.pdf '

ANPR Cameras
The BPA code of practice: 21 Automatic number plate recognition (ANPR)

21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.

' I contend that these cameras in this car park are not compliant and so I require Excel to produce evidence to the contrary if they are to rebut this point, specifically producing to POPLA, contemporaneous records to evidence that the cameras here have received in 2018, regular maintenance and checks to ensure that the timing and detail of any images captured were accurate on the day of this event. '

I think that all these point just about cover the situation? I like to thank some members for their input and information gathered from other forums. You views and comment as always much appreciated.

Redx

Still cannot see anything about Landowner authority, plus a few spelling errors too

Address their POC as well as landowner authority (as well as POFA and signage and any IPC Cop failures too)

Xircom

I'm not a good speller being an old soldier never had need for it, however my daughter a BA-Hons in English, she will proof read for me before I post to County Court.

Don't understand what you mean by "Address their POC? as well as landowner authority (I don't know who the landowner is) thats part of my defence ( The driver is entitled to know the identity of the party with whom he has legally contracted. ) That would be the Landowner?

Not sure what you mean by this as well ? (as well as POFA and signage and any IPC Cop failures too)"

Redx

I appreciate that you may not know all the legal terms, but it's a legal case so my points are valid nevertheless

A spell checker set to UK will help fix spelling errors

At the moment no county court has been allocated if this is your defence
The defence goes to the CCBC in Northampton , not a court

Their Particulars Of Claim are the POC , so back argue them

You can obtain landowner details from the Land Registry for a small fee

The parking contract is with the claimant, not the landowner

There has to be a clear contract flowing from the landowner to the claimant

POFA is a law enacted in 2012, so adherence to the law

They are members of the IPC , so must abide by their Cop (code of practice)

Xircom

well I have posted my defence ; let see what happens I sure that if one rules applies to one then the same rule in law applies to all ; but let see how it goes... Thanks for all your support and if I lose it's only 185.00 but I can appeal.. now that would be ore fun.. it all about cost.. 1K, 2K no Limit
let see how we fair.. thanks... off on holiday now..

Xircom

ok back from Holiday and no news ; my appeal been posted and I had nothing from court or any 3rd party. so it seem we have a waiting game. I'll update you as we go. Thanks

Le_Kirk

Have you logged in to MCOL to check the status. It should say stuff like "defence submitted on ......." "DQ sent to claimant and defendant on...."

Xircom

Hello All
So this is the position today, I filed my DQ on 06/08/2019 before going on Holiday, I received a letter on Wednesday 11/09/2019 called "General Form of Judgement or Order" which basically say "Claimant" you have been sent Notice of Proposed Allocation to Track which specified the date by which you were required to return the Direction Questionnaire. You have failed to file .....blar blar blar Then it closed with you have 7 days from service of this Order with Country Court Business etc.... if the Claimant does not comply the their claim will be automatically struck off. The letter is dated 10/08/2019 so they have until either 17/09/2019 or if business working days 21/09/2019. I checked MCOL and as of this morning 16/09/2019 nothing been filed.

BrownTrout

They are just late. Nothing to worry about. Happens all the time