HELP 2 court claims. BW Legal/Excel Parking

Hi guys Thankyou for your input on guiding me i've done some more research and redrafted my Witness Statement.

If anyone could go through and help me with what i would need to amend that would be very much appreciated.

I have also been hit with a third claim from Excel this time without the use of BW legal.
they are claiming for numerous PCN's in one claim should i post the defence in this thread or start a new one ?


IN THE COUNTY COURT - Claim No.: [INSERT]

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

[YOUR NAME] (Defendant)
____________________________
WITNESS STATEMENT
__________________________


I, ****************** of **************, *********, ***********, **** *** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

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 claimant has produced no evidence of who was driving

4. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. (exhibit copy of Insurance showing other named drivers , Insurance copy of me being a named driver on another policy)

5. The claimant cannot “presume” that the defendant and RK was the driver at the time of the alleged contravention. For the following reasons.

6. There is no law that allows them to do this.

7. The defendant asserts under ‘statement of truth’ that he was not the driver on this occasion. This will be repeated in court should this claim proceed to a hearing.

8. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.

9. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. (Exhibit Popla 2015)

10. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit PoFA Schedule 4)

11. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper was not the driver, so he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for the claimant. As Mr B was not the driver, there would be no way they could offer any proof. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper. ( Exhibit – Excel Vs Mr

12. The claimant is known to use Elliot V loake as part of their defence. I refer to Excel v Mr C C8DP37F1 at Stockport 31/10/2016. In this case the judge recognised that Elliot vs Loake was completely irrelevant. In dismissing the claim the judge stated amongst his reasons for doing so that - Excel did not adduce evidence of the driver, and - Elliott v Loake is not persuasive, and can be distinguished. (Exhibit Excel V Mr C)

13. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. (Exhibit Excel Vs Lamoureux )

14. I the defendant has recently visited the site in question for the purposes of gathering evidence for this case.

15. Even if I was the driver on the date in question, the signage on and around the site does not meet the British Parking Association (BPA) or the Independent Parking Committee (IPC) which the claimant is a member of.

16. I refer to the IPC code of practice which states signs should where practical be placed at the entrance to a site. The site in question has three entrances with only a sign to one entrance. (Exhibits - Photo / Video Evidence; IPC Code Of Practice; Detailed map of site sign positions)

17. I again refer to the IPC code of practice which also states the Claimant is required to provide a sufficient number of signs to ensure any parking conditions are adequately brought to the attention of the motorist. There is only 2 signs in total on the site where neither sign has been repeated. (Exhibits - Photo / Video Evidence; IPC Code Of Practice ; Detailed map of site sign positions).

18. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case. (Exhibit- Beavis Case Sign)

19. My case can be compared to the Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) with DJ Lateef’s findings. Observations from her visit in person found answer to the key issue of whether excel had taken reasonable steps to draw attention to the terms and conditions of using the car park. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in early 2011. (Exhibit - Excel Vs Cutts 2011)

20. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing. (Exhibit - DVLA Freedom of information Request Regarding Excel 2012 Ban)

21. The claimant failed to adequately respond to my request made on xxx where I requested any documentation and relevant contracts with the land owners that would allow the claimant to issue claims on the landowner’s behalf. (exhibit copy of email sent )

22. My Request for information was ignored

23. As the RK, in xxx I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions.

24. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question at the material time. The claimant is put to strict proof otherwise.

Thanks In Advance !

Coupon-mad wrote: »

You need to have in the WS mention of why as keeper you are not liable, since the Claimant does not rely on the POFA (they use non-POFA NTKs) and cannot hold a registered keeper liable. Then add this:


You should add that the Particulars of Claim give you no hint as to the allegation, making you position as Defendant keeper who was not driving, almost impossible. For example, a retail park contravention could be: not paying a tariff, underpaying a tariff, not displaying a ticket, a flipped ticket, overstaying free time, returning within 2 hours when disallowed by signage, entering a wrong VRN, or the keypad itself failing to properly record the VRN.

I would adduce as evidence a copy of your car insurance proving more than one driver is named, as well as any other driver in the family who has fully comp insurance and could have used the car for a shopping run.

I would print off the whole of Schedule 4 for you and the Judge (ignore para 10, it has no application).

Each line/point in your WS should relate to your evidence by number. All pages need numbering too, and then the whole lot with all numbered evidence at the back behind the WS, goes in a file or ring binder with a contents sheet, to make it nice & easy for the Judge to follow. Deliver that by hand with the Claim Number and 'Defendant's Witness Statement & Evidence' on every page and on the front.

Email the version you supply to the other side.

Thankyou for your reply it has really helped !

If you spot anything else I should change in my redraft please let me know.

nosferatu1001 wrote: »

Start a new thread. That case will be largely similar to this but will have different specifics. As youve nottice it also keeps it clearer - your news was lost in the post above!

Thankyou I have started a new thread for the 3rd claim.

Hi Guys,

Thankyou to everyone who has commented with guidance for my witness statement.

I have gone through the points made by everyone and have redfrafted my statement.

If anyone could have a quick read & pick up on anything they think I should remove or research to add that would be a great help.

once again thankyou !

IN THE COUNTY COURT - Claim No.: [INSERT]

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

[YOUR NAME] (Defendant)
____________________________
WITNESS STATEMENT
__________________________


I, ****************** of **************, *********, ***********, **** *** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

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 claimant has produced no evidence of who was driving

4. I have no recollection of this occurrence.

5. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

6. I am not the only person insured to drive the car in question. (exhibit copy of Insurance showing other named drivers , Insurance copy of me being a named driver on another policy)

7. The claimant does not rely on Pofa and therefore cannot hold a registered keeper liable

8. The claimant cannot “presume” that the defendant and RK was the driver at the time of the alleged contravention. For the following reasons.

9. There is no law that allows them to do this.

10. The defendant asserts under ‘statement of truth’ that he was not the driver on this occasion. This will be repeated in court should this claim proceed to a hearing.

11. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.

12. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. (Exhibit Popla 2015)

13. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit PoFA Schedule 4)

14. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper was not the driver, so he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for the claimant. As Mr B was not the driver, there would be no way they could offer any proof. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper. ( Exhibit – Excel Vs Mr

15. The claimant is known to use Elliot V loake as part of their defence. I refer to Excel v Mr C C8DP37F1 at Stockport 31/10/2016. In this case the judge recognised that Elliot vs Loake was completely irrelevant. In dismissing the claim the judge stated amongst his reasons for doing so that - Excel did not adduce evidence of the driver, and - Elliott v Loake is not persuasive, and can be distinguished. (Exhibit Excel V Mr C)

16. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. (Exhibit Excel Vs Lamoureux )

17. I the defendant has recently visited the site in question for the purposes of gathering evidence for this case.

18. Even if I was the driver on the date in question, the signage on and around the site does not meet the British Parking Association (BPA) or the Independent Parking Committee (IPC) which the claimant is a member of.

19. I refer to the IPC code of practice which states signs should where practical be placed at the entrance to a site. The site in question has three entrances with only a sign to one entrance. (Exhibits - Photo / Video Evidence; IPC Code Of Practice; Detailed map of site sign positions)

20. I again refer to the IPC code of practice which also states the Claimant is required to provide a sufficient number of signs to ensure any parking conditions are adequately brought to the attention of the motorist. There is only 2 signs in total on the site where neither sign has been repeated. (Exhibits - Photo / Video Evidence; IPC Code Of Practice ; Detailed map of site sign positions).

21. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case. (Exhibit- Beavis Case Sign)

22. My case can be compared to the Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) with DJ Lateef’s findings. Observations from her visit in person found answer to the key issue of whether excel had taken reasonable steps to draw attention to the terms and conditions of using the car park. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in early 2011. (Exhibit - Excel Vs Cutts 2011)

23. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing. (Exhibit - DVLA Freedom of information Request Regarding Excel 2012 Ban)

24. The claimant failed to adequately respond to my request made on xxx where I requested any documentation and relevant contracts with the land owners that would allow the claimant to issue claims on the landowner’s behalf. (exhibit copy of email sent )

25. My Request for information was ignored

26. As the RK, in xxx I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions.

27. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question at the material time. The claimant is put to strict proof otherwise.

Hi guys,

Thankyou to everyone who has supported me !

I've gone through my witness statement and made some more changes to cover every possible angle in my defence.

If anyone has any last minute recommendations before sending off to the courts that would be great help.

Once again thanks in advance.


____________________________
WITNESS STATEMENT
____________________________


The Particulars of Claim give no hint as to the allegation, making the position as Defendant keeper who was not driving, almost impossible.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

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 claimant has produced no evidence of who was driving and is put to strict proof.

4. I have no recollection of this occurrence.

5. I am not the only person insured to drive the car in question. (exhibit copy of Insurance showing other named drivers , Insurance copy of me being a named driver on another policy)

6. The claimant does not rely on Pofa 2012 and therefore cannot hold a registered keeper liable

7. The claimant cannot “presume” that I the defendant and RK was the driver at the time of the alleged contravention.

8. There is no law that allows them to do this.

9. I assert under ‘statement of truth’ that I was not the driver on this occasion. This will be repeated in court should this claim proceed to a hearing.

10. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.

11. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. (Exhibit Popla 2015)

12. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit PoFA Schedule 4)

13. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. (Exhibit Excel Vs Lamoureux )

14. The claimant is known to cite Elliot Vs Loake (1983) as a basis of their claim to assume the keeper was also the driver. However this is a criminal case with forensic evidence, whereby the keeper of the vehicle was also proved to be the driver at the time of an offence (road traffic accident) and thus has no basis upon this case or contract law.

15. I the defendant has recently visited the site in question for the purposes of gathering evidence for this case.

16. Even if I was the driver on the date in question, the signage on and around the site does not meet the British Parking Association (BPA) or the Independent Parking Committee (IPC) which the claimant is a member of.

17. I refer to the IPC code of practice which states signs should where practical be placed at the entrance to a site. The site in question has three entrances with only a sign to one entrance. (Exhibits - Photo / Video Evidence; IPC Code Of Practice; Detailed map of site sign positions)

18. I again refer to the IPC code of practice which also states the Claimant is required to provide a sufficient number of signs to ensure any parking conditions are adequately brought to the attention of the motorist. There is only 2 signs in total on the site where neither sign has been repeated. (Exhibits - Photo / Video Evidence; IPC Code Of Practice ; Detailed map of site sign positions).

19. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case. (Exhibit- Beavis Case Sign)

20. My case can be compared to the Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) with DJ Lateef’s findings. Observations from her visit in person found answer to the key issue of whether excel had taken reasonable steps to draw attention to the terms and conditions of using the car park. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in early 2011 which Excel parking LTD are still using . (Exhibit - Excel Vs Cutts 2011, Picture of signs)

21. I also refer to the IPC code of practice which states the text should be of such size and in a font that can be easily read by the motorist. The site in questions signs do not meet this requirement. (Exhibit IPC Code)

22. I have reasonable belief that the claimant does not have the authority to issue charges on this land in their own name as they failed to supply the relevant information when requested. The claimant is put to strict proof that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd.

23. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing. (Exhibit - DVLA Freedom of information Request Regarding Excel 2012 Ban)

24. The claimant failed to adequately respond to my request made on xxx where I requested any documentation and relevant contracts with the land owners that would allow the claimant to issue claims on the landowner’s behalf. (exhibit copy of email sent )

25. My Request for information was ignored

26. As the RK I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions. (Carpark Sign)

27. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question and the claimant is put to strict proof otherwise.


I believe the facts stated in this Witness Statement are true.