Me and Excel - At war!

Not far off with my WS now but I'd like to mention the fact that Excel refused my SAR and completed their DQ in the name of VCS. Not sure about wording... Advice appreciated. Thanks

Ok I this is the final draft of my witness statement. I will be delivering it to the court in person on Thursday, so I still have time to make amendments, edits etc. I don't really want to make it longer as it's already 9 pages. To the experienced posters on this forum, please let me know what you think. Many thanks

I intent to index my court bundle as follows:
1 DEFENCE
2 WITNESS STATEMENT OF ANITA DILE
3 WITNESS STATEMENT OF [MY NAME]
4 EXHIBIT IL1 – CLAIMANT DIRECTIONS QUESTIONNAIRE [DQ]
5 EXHIBIT IL2 – POPLA ANNUAL REPORT 2015
6 EXHIBIT IL3 – PROTECTION of FREEDOMS ACT 2012, SCHEDULE 4
7 EXHIBIT IL4 – EXCEL PARKING SERVICES LTD VS MRS S [09/09/16]
8 EXHIBIT IL5 – PARKING EYE SIGN (Re: The Beavis Case)
9 EXHIBIT IL6 – IPC CODE OF PRACTICE
10 EXHIBIT IL7 – BPA CODE OF PRACTICE
11 EXHIBIT IL8 – EXCEL CAR PARK SIGN

IN THE COUNTY COURT - Claim No.:

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

*********** (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, ************ of **************************************** am the defendant in this case.

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. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. I have only driven this vehicle on 4 occasions, never to this retail park.

4. I would like to bring to the courts attention the Directions Questionnaire [DQ] that I have received in relation to this case. The document that was sent to me and Northampton County Court Bulk Centre was completed in the name of “Vehicle Control Services” [VCS]. The covering letter included with the DQ was also letter-headed and signed in the name of VCS.

5. I have no idea who VCS are or what they have to do with this case. They are not mentioned in the PoC or in any other documents relating to this claim. I have never had any dealings with VCS nor have I ever received any letters or correspondence from them in relation to parking activities or anything else.

6. I am very confused as to why a company called VCS have completed the DQ and this has made it difficult for me to know how to proceed with my defence. I do not know what their function is or what authority they have

7. I have very serious concerns about how Excel have handled my personal information by allowing this unknown company who I know nothing about and have no connection with, to, not only know my personal details, but to have enough information about my case to be able to complete the DQ

8. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant’s paralegal, Anita Dile:

9. Re #6: The claimant submits that the defendant is the responsible person in charge of the vehicle which has incurred the charges referred to in Ms Dile’s witness statement.

10. This is denied and Anita Dile was not there and has no knowledge of who was driving on any occasion. However, unlike Ms Dile, I do have knowledge and attest that I was not the driver.

11. Re #7: The claimant states that the defendants vehicle was captured by the claimants ANPR system having parked in the car park for longer than the maximum stay period permitted.

12. The Claimant appears to be attempting to change their particulars of claim without filing the appropriate form nor paying the Court the necessary fee for this; so I object to this Witness Statement. For the first time they now state the breach is ‘having parked for longer than permitted’

13. Yet at #11 I see they state a completely different alleged contravention:

14. (that the ANPR camera) ‘Identified that the vehicle was parked without purchasing a pay & display ticket’. This is denied and there is no evidence of any single period of parking, let alone evidence of not purchasing a ticket or not displaying it. An ANPR camera image shows none of these things.

15. Re #13 onwards: any ‘Liability Notices’ are ultra vires:

16. This Claimant should never have issued to a registered keeper, a document described as a ‘liability notice’ (LN) because they were not availing themselves of any right to ‘keeper liability’. This right is offered under statute to parking operators and landholders, ONLY if they comply with Schedule 4 of the POFA 2012, which Excel admit they do not. Under the applicable BPA Code of Practice at the time, a LN was a document only for cases where an operator could hold a keeper liable under the POFA. This LN was contrary to DVLA rules which prohibit misleading keepers as to whether they are the liable party. Excel knows this.

17. I contend that they stopped using LNs in late 2014 and/or that any issued are ultra vires.

18. In fact I take issue with their claim that they sent LNs in 2015 or 2016. The Claimant moved to the IPC Trade Body on 1.1.2015 and had stopped issuing ‘LNs’ by then, since they chose to continue NOT to issue ‘POFA’ PCNs and were aware this risked a DVLA ban for misleading keepers re liability for non-POFA PCNs. Now, this Claimant seeks to bring me to Court as if I am liable for non-POFA PCNs!

19. Re #32 & 33: The claimant submits that the images of the car park and signs in exhibit AD3, specifically specifically detail the terms and conditions of parking and the consequences of failing to comply with said terms and conditions. The claimant claims the map and photographs are a true representation of the signs.

20. This is denied, not least because the map is undated and the signs in 2014 would have been completely different from those in 2015, due to the fact this Claimant moved to the IPC Trade Body on 1.1.15. The new signs from that date would have involved a completely different basis for the ‘parking charge’ since Excel started to follow the ‘IPC line’, that charges were not for breach of contract but were now a ‘fee’ for parking otherwise than in accordance with some terms on an IPC sign. It was not just a matter of covering the ‘BPA’ icon with an IPC sticker. Signs were physically changed in January 2015 at all Excel car park sites. The Claimant has omitted to mention this crucial difference to the Court.

21. Re #36: The claimant states that the defendant did not respond to any of the notices referred to in Ms Dile’s WS, nor were the parking charges settled or appealed.

22. I did not respond to the brightly-coloured alarmist Notices sent to me by Excel because I believed they were spam (this sort of scam had been exposed on Watchdog). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.

23. Re #38: The claimant states “Subsequently the matter was listed to be heard in the Staines County Court on 17th November 2016 at 11:30am”.

24. The Claimant is clearly using copy & paste Witness Statements. They mention "Staines County Court" but as the presiding Judge will be fully aware - as am I - this is not the court I will attend. If a hearing takes place it is in Skipton, North Yorkshire.

25. Re #41: The Claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver.

26. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit IL2, an extract from the POPLA Annual Report 2015.

27. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence 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. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

28. It is submitted that the main reason that the Claimant is ‘unable to take steps to enforce’ the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 prescribed wording in their Notice to Keeper letters. Had they done so, then they might have had cause to pursue me as registered keeper (subject to other evidence, such as adequate notice from signage that existed on each occasion). In the absence of such notices, there is no cause of action. It is noted that, at #43, the Claimant admits they ‘never acquired any right’ to hold me liable and indeed scrutiny of Schedule 4, Exhibit IL3 proves the Notices were not worded accordingly.

29. Re #42: The claimant states that they “served the defendant with the relevant notices; however the defendant failed to provide a response. Therefore the claimant has had no alternative but to issue proceedings against the defendant”.

30. The Claimant mentions ‘relevant notices’. I submit that, as a registered keeper who was not driving and who only received non-POFA Notices to Keeper (NTKs) which were never my concern nor liability, these are better described as ‘irrelevant notices’.

31. Re #44 - #50: The argument put forward by the claimant in these paragraphs is brazen and unsupported by the applicable law it tries to adduce. It seems the Claimant on the one hand admits that it does not comply with Schedule 4 of the POFA (due to not seeking to use the prescribed POFA wording in its PCNs) yet on the other hand…tries to use that Act anyway! This Act only applies if an operator has complied with the POFA paragraph 8 or 9 in issuing a compliant NTK as prescribed by that statute. Consequently, the Claimant is unable to rely on the keeper liability provisions of the Schedule.

32. Re # 54: The claimant states that “if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving. The claimant would wish to rely on the precedent of Elliot vs Loake [1982]

33. Elliott v Loake [1982] has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.

34. In fact it was forensic evidence, coupled with a sharp-eyed officer in addition to an eye-witness account of the incident, which proved it was the appellant's vehicle that was involved in the incident.

35. In this case it was not that the appellant was the registered keeper, but that he lied when questioned about the incident. Since it was proved that it was unquestionably his vehicle that was involved in the incident, the question had to be asked as to why he had no knowledge of the driver at that time. The car wasn't stolen, the keys never left his possession, no-one had permission to use it and there was forensic evidence that showed it was his car but he still denied having been the driver at the time. It was the lying that caused the conviction and not (per se) the fact that he was the registered keeper.

36. Re #55: The claimant states the following “Although this relates to the road traffic act 1972, the defendant was duly served with notices compliant with paragraph 8 schedule 4 of the Protection of Freedoms Act 2012. This places upon him a statutory obligation to provide the details of the driver. The defendant took not steps whatever [sic], he gave no evidence to explain why he did not do so and therefore under the aforementioned precedent the claimant is able to reasonable [sic] assume that the defendant was the driver of the vehicle on the date of the contraventions.

37. Here the Claimant contradicts its own previous words at #43 (where they admit they never acquired any right to hold me liable under the POFA). At #55 they now say that I was ‘served with Notices Compliant with paragraph 8 of Schedule 4’ even though they admitted in #43, this was not the case.

38. Issuing Notices in accordance with paragraph 8 of Schedule 4 is in fact impossible, since paragraph 8 merely deals with NTKs which follow a PCN placed upon a car windscreen. Paragraph 8 does not deal with those notices issued by ANPR, as the Claimant described at #11. Neither did this Claimant comply with paragraph 9 (at all), nor the requirement for ‘adequate notice’ of the charge.

39. Ms Dile states: ‘this places upon him a statutory obligation to provide the details of the driver’. No, it most certainly does not (even if such compliant NTKs had been served). Indeed the Claimant themselves quoted Mr Greenslade the POPLA Lead Adjudicator in #43 and defeated their own argument.

40. It is in the public domain that when the POFA 2012 Bill was being heard in the House of Commons, Lynne Featherstone MP was vocal in rejecting calls to amend Schedule 4 (section 56 of the Bill) after considering lobbying by the BPA trying to impose a statutory obligation. Parliament refused.

41. Re #57: The claimant states that the statement in their particualrs of claim which refers to “a parking charge notice” was a genuine administrative error, but they do not address any of the other inadequacies in their POC that were brought to their, and the courts, attention in my initial defence.

42. I found it odd when I received and acknowledged the court papers that this Claimant could bring a claim against me without actually referring to anything specific - just a range of dates - it did not even say how many PCNs they were talking about. Nor did it inform me that the period spanned a time when they changed from the BPA to IPC, changed the signs, changed their Code of Practice, nor did this Claimant furnish me with any evidence nor even a description of the alleged contravention(s).

43. I was never shown the alleged signage contract photos (not even the original ‘PCNs’ showed the purported signs. As registered keeper, I never saw the ‘contract’ they are trying to hold me liable for, until this WS where they have sent some photos, not defining which were BPA - 2014 version - and which were 2015 IPC signs, and an aerial map which is no proof of the signs on those days.

44. The Claimant is again trying to change their Particulars of Claim without payment of the appropriate court fee or filing the required form. I object to these attempts to change woeful particulars which expose the robo-claim nature of their copy & paste claims.

45. Further evidence of the cut & paste nature of this claim is shown at #85 where the Witness Statement says it is ‘an employment car park’. It is not any such location! It is just a retail park, in my defence I certainly never said anything about it being my "employment car park" and, for the record, I work 12 miles away - and was not the driver, as already pleaded.

46. Re #59: The claimant agrees that the circumstances of this case are different from that of Parking Eye [PE] vs Beavis [2015], but states the principles are the same.

47. This is not the case. There are many significant and crucial differences between this and PE vs Beavis, as laid out in my defence para. 4. In the Beavis case one of the key factors was the clear and prominent signage in the car park the parking charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge

48. he Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

49. Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

50. Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”

51. Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

52. Ms Dile even refers to para 108 from The Beavis Case judgement in #59, proving the claimant understands the importance of clear and prominent signage. The sign referred to in the Beavis case is enclosed as Exhibit IL5. When compared to the excel car park sign – Exhibit IL8, I submit that no reasonable person would agree that their terms are brief, clear and prominently proclaimed.

53. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

54. Re #61: The claimant submits that the signs around the carpark are clearly visible and meet the requirements set by the IPC and BPA. They further claim that their signs adhere to both codes of practice (CoP) and are therefore deemed reasonable.

55. Both the IPC and BPA state that signs should be simple and easy to read, and there should be strong colour contrast between text and background. Both also recommend black on white as a good example.

56. I submit that Excel’s do not comply with IPC or BPA CoP. The dominant colours on Excel signs are blue and yellow against a background packed with confusing patterns and symbols.

57. The sign is a mass of confusing and contradictory words. The icon showing the PCN charge of £100 is hidden in the small print at the bottom of the sign. It is not prominent or obvious and not easy to see by a motorist driving, even very slowly, past the sign.

58. In support of the above 3 points I enclose Exhibit IL6 – the IPC code of practice; Exhibit IL7 – the BPA code of practice; and Exhibit 8 – an Excel sign from the car park in question.

59. Re #70: The claimant cites Vine vs Waltham Forest LBC [2002] in response to my statement that any driver did not have fair opportunity to discover the onerous terms by which they would late be bound.

60. Even though I was not the driver. I submit that the case of Vine vs Waltham Forest LBC [2002 supports my case not the claimants.

61. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

62. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

63. This judgment is binding case law from the Court of Appeal.

64. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established
65. Conclusion – no evidence of contravention and the Particulars lack any basis for a claim

66. I am an unrepresented consumer who has never attended the County Court before and was not even the driver so I have no knowledge of the events, dates, or signage terms. I strongly object to this Claimant at the eleventh hour, showing me a range of ‘PCNs’ in an attempt to change the Particulars and trying to excuse their legal representative’s failure to comply with CPR 16.4 as an ‘administrative error’.

67. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers paid and displayed.

68. In order to demonstrate that the driver(s) on these occasions failed to pay & display, the Claimant should have evidenced that, of course. Where are the photos of the dashboard showing no P&D ticket displayed? Failing that, as this is an ANPR site, where are the system records showing no payment made on these days? They have not even supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle.

69. I did not even know the dates they were referring to or how many incidents until I got the court bundle. I wonder how I am supposed to know what I am defending.

70. I hope that I am not going to be ambushed on the day (or late) with reams of lists where any omission could just as well be evidence of their own repeated (well known) machine failure to record a VRN, as was recorded in two Excel cases recently, Excel v Ms C (Stockport) C8DP36F0 and Excel Parking v Mrs S. C8DP11F9 09/09/2016, Oldham Court - Exhibit IL4 is the transcript for the latter case. This transcript is provided despite me having no idea whether the Claimant plans to amend their particulars to adduce that there was a failure by the driver(s) to input a VRN. I am having to cover all possible scenarios known in Excel claims, due to the lack of information and evidence.

71. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

72. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.



73. I believe the facts stated in this Defence Statement are true.


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