Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

milkybk

Ok no worries, thank you.

milkybk

Well, I have just made the first blunder I think I've made in this case so far haha. I was just editing some wording and saving a draft of the email I showed you guys, just so I had something to refer to, jog my memory etc. I like to have everything printed off and filed, especially for the court date, for quick reference. 

I unfortunately fat fingered send and cannot withcall it, as I use the Windows 10 email app. Outlook will only let you recall it from their official app. So, rather stupidly, I have now sent the aforementioned email.. Quite annoyed at myself, however I don't think it will do much harm.

Regardless, I will edit my defence and post it here tonight. Thanks everyone, it genuinely means a lot. I have serious back issues at the moment, which have made me bed bound for 2 weeks. So having support from yourselves has greatly helped.

Coupon-mad

When drafting an email, never put the recipients in.    Even if you hit 'reply' if there is any chance of making a mistake and it matters, delete the recipients and only add them when ready to send.

That's my rule and it works!

And, reset your email recall time from 5 seconds to 30.  Saves me a lot of angst.

milkybk

Coupon-mad said:

When drafting an email, never put the recipients in.    Even if you hit 'reply' if there is any chance of making a mistake and it matters, delete the recipients and only add them when ready to send.

That's my rule and it works!

And, reset your email recall time from 5 seconds to 30.  Saves me a lot of angst.

Haha yes, duly noted! At work I have the actual outlook desktop app, so can recall an email just by right clicking and going through the options etc. Unfortunately the Windows mail app and the Outlook online don't let you. 

I do wonder if the people working for companies like Excel actually think they can win these cases haha. Obviously the tactic is hope people just pay up as they're scared and don't contest etc. But I wonder if they sit at their desks reading set aside stuff thinking "why do we even bother with these specific people". Haha, just a random thought,

milkybk

Ok edited draft defence. I have left out sections 4-18, as you guys previously mentioned, they are standard anyway.

___________________________________________________________________

IN THE MILTON KEYNES COUNTY COURT

Claim No.: XXXXXXXX

Between

Excel Parking Services Limited

(Claimant) 

- and -  

XXXXXXX

 (Defendant)
____________________
DEFENCE
____________________

1.   The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.   It is admitted that the Defendant was the registered keeper of the vehicle and nobody else was officially insured to drive it. However, 4 years have past since this event and I cannot be sure I was the driver, therefore I deny liability. The Claimant repeatedly refused to provide me with photographs etc when requested during my original appeal in 2017, therefore I cannot be sure of the full facts. The Claimant's Data Protection Officer also refused to reply to my Subject Access Request email, sent 04/072021. The Claimant also ignored a follow up email chasing the SAR on 07/07/2021. By law, the Claimant should have responded without delay and within one month of receipt of the request. This was a simple request and therefore there are no mitigating circumstances to allow for an extension should have been required. Therefore the Claimant refused my legal right of access, as they did in 2017 during my original appeal. 

On 16/09/2021 I received a SAR file from Excel. It contained no new information that pertains to my defence. They still refused to provide PDT machine records from the day of the alleged parking charge. Therefore, without the aforementioned full facts, liability is denied.  

3.  As the registered keeper, the first heard I about this alleged parking charge was via post. The only photos I had were two blurry ones, where I could barely make out the cars registration plate. The claimant has demonstrated no evidence of non-payment of a parking ticket, nor failure to display, nor any breach of contract. In my Subject Access request, I asked the Claimant for a PDT machine record from the day of the alleged parking charge, of all payments made. They did not supply this.

The photos the Claimant has provided in their witness statement are of signage in daylight on completely different dates, potentially over 4 years since the alleged offence.  As can be seen on the PCN car photos, it was extremely dark when the alleged event took place. Therefore these signs will not have been as clear or as easy to spot, if they were even present in 2017.

Finally, the aerial view they Claimant has created shows just one PDT machine (no proof it was working) and a couple of 'entrance signs' and a single ANPR sign but zero 'information signs', none whatsoever. Therefore this cannot be considered evidence of an agreed contract by the driver.

I have been hounded and harassed by a bombardment of ‘debt recovery’ letters. I would also point out that the Defendant cannot be held liable, due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

KeithP

I suggest you change the first two sentences of para 2 to something like...
2.   It is admitted that the Defendant was the registered keeper of the vehicle. However, 4 years have past since this event and therefore cannot be sure who was driving. Liability is denied.

Note there that I have removed the word 'I' from that. Defences are usually written in the third person so you should adjust subsequent text similarly.

Also remember that all paragraphs need a number - you have three paragraphs there without a number.

milkybk

KeithP said:

I suggest you change the first two sentences of para 2 to something like...
2.   It is admitted that the Defendant was the registered keeper of the vehicle. However, 4 years have past since this event and therefore cannot be sure who was driving. Liability is denied.

Note there that I have removed the word 'I' from that. Defences are usually written in the third person so you should adjust subsequent text similarly.

Also remember that all paragraphs need a number - you have three paragraphs there without a number.

1.   The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.   It is admitted that the Defendant was the registered keeper of the vehicle. However, 4 years have past since this event and therefore cannot be sure who was driving. Therefore liability is denied. 

3.   The Claimant repeatedly refused to provide me with photographs etc when requested during my original appeal in 2017, therefore I cannot be sure of the full facts. The Claimant's Data Protection Officer also refused to reply to my Subject Access Request email, sent 04/072021. The Claimant also ignored a follow up email chasing the SAR on 07/07/2021. By law, the Claimant should have responded without delay and within one month of receipt of the request. This was a simple request and therefore there are no mitigating circumstances to allow for an extension should have been required. Therefore the Claimant refused my legal right of access, as they did in 2017 during my original appeal. 

4.   On 16/09/2021 I received a SAR file from Excel. It contained no new information that pertains to my defence. They still refused to provide PDT machine records from the day of the alleged parking charge. Therefore, without the aforementioned full facts, liability is denied.  

5.  As the registered keeper, the first heard I about this alleged parking charge was via post. The only photos I had were two blurry ones, where I could barely make out the cars registration plate. The claimant has demonstrated no evidence of non-payment of a parking ticket, nor failure to display, nor any breach of contract. In my Subject Access request, I asked the Claimant for a PDT machine record from the day of the alleged parking charge, of all payments made. They did not supply this.

6.   The photos the Claimant has provided in their witness statement are of signage in daylight on completely different dates, potentially over 4 years since the alleged offence.  As can be seen on the PCN car photos, it was extremely dark when the alleged event took place. Therefore these signs will not have been as clear or as easy to spot, if they were even present in 2017.

7.   Finally, the aerial view they Claimant has created shows just one PDT machine (no proof it was working) and a couple of 'entrance signs' and a single ANPR sign but zero 'information signs', none whatsoever. Therefore this cannot be considered evidence of an agreed contract by the driver.

8.   I have been hounded and harassed by a bombardment of ‘debt recovery’ letters. I would also point out that the Defendant cannot be held liable, due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

KeithP

Still several occurrences of the words 'I' and 'my' in there.

henrik777

I wouldn't be denying  liability. More asking them to prove it.

https://www.civillitigationbrief.com/2020/08/21/what-is-the-difference-between-a-non-admission-and-a-denial-a-search-term-that-comes-up-frequently/

milkybk

KeithP said:

Still several occurrences of the words 'I' and 'my' in there.

Ok, thanks, will fix for next post

henrik777 said:

I wouldn't be denying  liability. More asking them to prove it.

https://www.civillitigationbrief.com/2020/08/21/what-is-the-difference-between-a-non-admission-and-a-denial-a-search-term-that-comes-up-frequently/

Interesting and actually makes sense as well.

So currently reads: Therefore liability is denied. 

Would you change it to something like: Therefore the Defendant pleads non-admission (to... something I guess, no sure how you'd word it) and therefore the onus is on the Claimant to prove the Defendant was the driver at the time of the alleged incident. 

The template defences and recommendations all say to deny liability but I'm always interested to hear opinions. Want it to be water tight anyway.