Excel County Court Claim

Gitface

Hi All

Great forum and I have read and read many posts including the newbie post and love the advice. I am still reading....

I am very stressed and worried I won't be able to do what's needed in time, so please don't berate me for not spending a fortnight researching here before posting.

My car was being driven by my daughter and she tried to pay by phone and thought she had paid but then returned to the car to find a PCN on the windscreen. (or so she tells me!)

We ignored it, old advice I know, although my daughter didn't want the stress and wanted to pay it.

I had a couple of letters through, ignored those too.

Now I have a Court claim, stating I was the registered keeper and the driver at the time and that there was a breach of contract etc.

My daughter does not want to be involved, she has way to many other stresses in her life at the moment, so I need to pick this up.

Do I go down the route that I was the registered keeper and not the driver at the time, or do I beg my daughter to get her phone records out and drag her to court as the driver?

The claim was issued by the Northampton crowd in late December. I have already filled in the form on line to have the time extended and we are a couple of days into the extension. Guess there is only 10 days left to do something, but what do I do now? Help!

Thanks in advance.

KeithP

Gitface wrote: »

The claim was issued on 31 December and I have filled in the form on line to have the time extended.

With a Claim Issue Date of 31st December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 3rd February 2020 to file your Defence.

That's nearly two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.

Having filed your Defence, there is more to do...

1. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
2. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet, and then complete it as described by bargepole in his 'what happens when' post.
3. The completed DQ should be returned to the CCBC to the same email address and in the same way as your Defence was filed earlier.
4. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

Coupon-mad

Now I have a Court claim, stating I was the registered keeper and the driver at the time and that there was a breach of contract etc.

My daughter does not want to be involved, she has way to many other stresses in her life at the moment, so I need to pick this up.

Do I go down the route that I was not the driver at the time, or do I beg my daughter to get her phone records out and drag her to court as the driver?

It's your claim not hers, so she never has to be involved and of course one of your points will the the usual one that you deny driving and the Claimant has not complied with the POFA 2012. You are the Defendant and you are not liable.

Read any Excel or VCS defence.

Read the NEWBIES thread.

And, read CEC16's thread.

Gitface

Wow, so pleased people are willing to help so quickly.

> That's nearly two weeks away. Plenty of time to produce a Defence

I can feel the stress levels reducing already!

Thanks to Coupon-mad and KeithP.

> It's your claim not hers, so she never has to be involved and of course
> one of your points will the the usual one that you deny driving and the
> Claimant has not complied with the POFA 2012

I have read about POFA and not sure if they did or did not comply. They did send me a letter and request drivers details. Is that all they need to do? Of course, it was ignored.

> You are the Defendant and you are not liable.

Isn't that the point of POFA? Thought I was liable if I ignored requests etc.

I will read the newbie thread again, and again, plus any Excel/VCS too.

Really, thank you soooo much for your support.

Coupon-mad

Excel have NEVER complied on wording. The POFA is linked in the NEWBIES post #1.

You are the Defendant and you are not liable.

Isn't that the point of POFA? Thought I was liable if I ignored requests etc.

Not if they didn't send a compliant NTK and provided 'adequate notice' on prominent and clear signs of a 'relevant contract/obligation'.

They will not have done any of that properly.

Gitface

I am reading the newbie thread again, and again... so much to take in, but thanks for your help.

> Not if they didn't send a compliant NTK and provided 'adequate notice' on
> prominent and clear signs of a 'relevant contract/obligation'.

As I was not the driver so I genuinely didn't see any of the signs, prominent or not. I did however receive a NTK, so I need to determine if this was compliant?

Sorry for the questions. It's all quite overwhelming but I am determined to break them! LOL.

Can't say how much I appreciate that I am not doing this on my own. You guys rock!

Redx

It wont be compliant, trust coupon mad on that score

non-compliance means no keeper liability , the wrong person is in the dock, the actual driver has not been identified
what they gonna do ? - call ghostbusters ?

your defence is simple , your honour , I have no liability in this case because the claimant failed to follow the law named POFA and I was not the driver

if they ask who the driver was - yes I know who was driving but respectfully decline to name them because I am under no obligation to do so

the actual words will be legalese, but thats the crux of it for you in laymans terms

Coupon-mad

I did however receive a NTK, so I need to determine if this was compliant?

We know it's not... so your job is even easier, you can start from that standpoint and I advise you to read the POFA and see why not! You need to know what we already know!

The NEWBIES thread tells you about it and can be searched electronically (e.g. for the word POFA using control & f on your keyboard) so that you don't have to trawl through it all.

1505grandad

If you read post #105 of this thread (VCS is a sister company of Excel) you will realise the importance of the above post by C-m:-

https://forums.moneysavingexpert.com/discussion/comment/76750316#Comment_76750316

The_Deep

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]

Gitface

Here is my defence.... I only have a few days left. Any advice obviously treated with the highest esteem...

Statement of Defence


Date


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.


2. 1. The Protection of Freedom Act 2012 Schedule 4 has not been complied with.

a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, 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.

b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of the charge and prescribed Notice to Keeper letters in time and with mandatory wording.

c) The claimant has no right to assert that the defendant is liable based on “reasonable assumption”. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no “reasonable presumption” in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).


3. 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 landowner. 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 any fixed amount after exceeding a licence to park free. None of this applies in this material case.


4. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice. The claimant is a member of the BPA, whose requirements they did not follow. Therefore no contract has been formed with driver to pay any fixed amount, or any additional fee charged if unpaid in 28 days.

The signage is inadequate in terms of the following:

a. Lack of clarity and prominence of terms and conditions
b. Illegible text due to font size, density, colour and complexity


5. Photographs of the keeper’s vehicle does not constitute a proven contravention of the parking conditions.


6. 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.

a) Excel is not the lawful occupier of the land

b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.


7. 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 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.

8. 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. The Claimant claims a sum of £nnn.nn as the amount claimed (for which liability is denied) plus the Particulars of Claim include £nn that the claimant has presented as contractual costs pursuant to PCN terms and conditions, in addition there is a further £25 Court fees and £nn Legal representative's costs. In contradiction to this the claimant's solicitor has, however, described the Principal Debt and initial legal costs as £nnn and with a further £nn.nn being made up of estimated interest, court fees and solicitor's costs. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative's costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.


9. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner 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 landowner themselves claiming for a nominal sum.


10. 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.

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."


Signed