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Excel BW Legal 2012 court claim faulty machine.
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Coupon-mad wrote: »Good, I was thinking the address could be redacted but the original available for inspection by the Judge?
And the witness and defendant could then be there in person and easily explain the reason why the postal address is not being given to the parking firm in their copy (because when the Bill went through the House of Commons, despite frantic lobbying by interested parties like the 'piece of skirt botherer' at the BPA, MPs specifically refused to add a requirement to name the driver to the POFA Bill and at a hearing is no different - quote Henry Greenslade on 'understanding keeper liability').
Make sure you go into detail in your witness statement about not having to identify the driver - include this stuff as well as the Henry Gleenslade POPLA report quote.Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0 -
A massive thanks again, I'm leaning towards a witness statement from the driver as all along I've never pretended to not know who the driver was.
Having spoke with the driver who still remains frustrated about the whole faff of this they are more than happy to supply a witness statement.
The annoying thing is purchase of the ticket has never been disputed (I still have a copy). Just the claimed breach by only entering one letter in the machine as per the parking attendants instructions at the time.0 -
Emphasise in your statement about what a waste of valuable court resources this is, plus a waste of your time and money. It's a vexatious claim because it's never been disputed the driver paid, or that a ticket was displayed, all that's in dispute is whether the operative on site at the time told the driver to do what he then did (and all the other queuing drivers) - this issue could have been explored and quite possibly resolved if they had complied with their pre-action obligations, because then they would have answered your questions about the faulty machine and electronic information about what other drivers did at around the same time. I'd go on about this in the hope of the judge getting irritated at his/her time being wasted....
Put a sentence in your defence about this as well - they've suffered absolutely no financial loss whatsoever as it is accepted that the driver paid, this claim is all about trying to squeeze something out of you they were never entitled to!Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0 -
Well after much research and help from everyone on here ive finally got my first defence statement draft done.The defendant XXXX XXXXX assert that I am not liable to the claimant for the sum claimed or any amount at all, for the following reasons.
1. I am the registered keeper for the vehicle XXXXXXX but was not the driver at the time so no contract excists between myself and Excel Parking Services Ltd.
a) The driver at the time will be providing a witness statement to identify themselves.
b) The event claimed occured before the Protection of Freedoms Act (POFA) was introduced so registered keeper liability does not apply.
2. The driver at the time informed me there was problems with a faulty pay and display ticket machine at the alleged location.
a) The machine was not accepting full registration numbers.
b) A parking attendant on site informed the driver to just enter the letter 'A' into the machine in order for it to produce a valid ticket.
c) There was no other machine on site.
d) A copy of this ticket has been sent to Excel Parking Services Ltd and will be included with the witness statement.
3. The claim form states the PCN was issued at 12:05:05 on 07/01/2012. The parking ticket purchased was valid from 11:49 till 12:49 on 07/01/2012.
4. The claimant have never disputed a ticket was purchased once it was shwn to them only disputed that a contract breach occured due to a full and correct registration not being entered. They therefore have no losses to claim for.
5. As the fault with the machine was out of the drivers control I believe the case of Jolley V Carmel Ltd [2000] 2 EGLR 154 applies where it was held that a party who makes 'reasonable endeavours' to comply with a contracts terms should not be penalised for breach when unable to comply with the terms.
a) Especially as a parking attendant who could reasonably be regarded as an Excel representative was giving instructions to just enter a single letter 'A' into the faulty machine.
b) As the letter of the contract (Offer/Acceptance/Consideration) is still intact I believe 'de minimis non curat lex'' also applies here, in that the law does not concern itself with trifles as the claimant have suffered no losses.
6. As the claimants legal representative (BW Legal Services Ltd) have constantly in our communications to try and get me to pay this PCN stated I could reasonably be considered the driver and used legal cases [Beavis vs ParkingEye and Elliot vs Loake] to enforce this argument I feel it neccesary to rebut these in this defence statement.
a) This case differs from Beavis vs ParkingEye as the car park in this claim was a pay and display car park not a free car park as in the Beavis vs ParkingEye case.
i) In the Beavis vs ParkingEye case there was an undenied contract.
ii) In the case of ParkingEye vs Cargius it was held that the Beavis vs ParkingEye case did not apply as parking was paid for rather than free for a limited period.
b) This case differs from Elliot vs Loake as that was a crimminal case with foresic evidence to help identify the driver who had lied. That cannot apply here as the driver will be supplying a witness statement.
c) Barrister, Parking Law Expert and POPLA lead adjudicator Henry Greenslade from 2012 to 2015 stated:
"However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.''
7. A formal request has been made to the claimant for more information which has been acknowldeged by their legal representative (BW Legal Services Ltd), the details I am awaiting are:
a) Copy of original PCN notification.
b) Copies of signage at the time.
c) Sevice, maintenence, faulty history of the pay and display ticket machine.
d) Lease agreement with the landholder, believed to be Wolverhampton City Council.
8. In addition to the original parking charge believed to be £100, for which liability is denied, the claimant's legal representatives 'BW Legal Services Ltd' have artificially inflated the value of the claim by adding various 'Solicitor Costs' of £54.00 which I submit have not actually been incurred by the claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report BW Legal Services Ltd to the Solicitors Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their code of conduct.
9. The Court is invited to dismiss the claim, and to allow such defendants costs as are permissible under Civil Procedure Rule 27.14.
Any feedback would be great...0 -
Loadsofchildren123 wrote: »Emphasise in your statement about what a waste of valuable court resources this is, plus a waste of your time and money. It's a vexatious claim because it's never been disputed the driver paid, or that a ticket was displayed, all that's in dispute is whether the operative on site at the time told the driver to do what he then did (and all the other queuing drivers) - this issue could have been explored and quite possibly resolved if they had complied with their pre-action obligations, because then they would have answered your questions about the faulty machine and electronic information about what other drivers did at around the same time. I'd go on about this in the hope of the judge getting irritated at his/her time being wasted....
Put a sentence in your defence about this as well - they've suffered absolutely no financial loss whatsoever as it is accepted that the driver paid, this claim is all about trying to squeeze something out of you they were never entitled to!
Thanks for this, nervous to give it the big un but how about:
10. I the defendant believe this claim is a total waste of the courts valuable time. The claimants legal representatives cannot even get the claim particulars right or even put the minimal effort in to sign the claim form with a real persons name.
This whole situation has hung over us for over 5 years and im not even sure if holding on to my data for that length of time isnt a breach of the data protection act.
What we have here is a claim for no losses based on self inflicted faulty equipment scenario compounded by a total incompetence of the claimant to have a system in place to cross check ANPR PCN tickets with potential machine failures thus sparing members of the public the cost and hassle of having to defend themselves in court.
This is not only potentially trying to obtain funds by deception but also a gross abuse of this countries legal system.
Also the claimants legal representatives not only display a poor knowledge of the law but also demonstrate a total disregard for logic and reasonableness. They show themselves to be not a professional law firm but nothing more than vexatious litigant, hell bent on abusing the court system out of pure greed.0 -
If it's pre-POFA & the driver has provided a witness statement then there is nothing else that needs to be argued merely that the case should be dismissed as the PPC is pursuing the wrong individual.0
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If it's pre-POFA & the driver has provided a witness statement then there is nothing else that needs to be argued merely that the case should be dismissed as the PPC is pursuing the wrong individual.
Yep in an ideal world that should be the end of it, but if I was the claimant I would go to court to get the drivers name then start again.
Looking at this through their eyes is what I have to do..0 -
It doesn't work like that & it won't be the end of it even if you win this case. With the witness statement from the driver the judge will dismiss the claim because the PPC are pursuing the wrong person. All the arguments about whether the parking charge is right or wrong become irrelevant & only serve to confuse. After this case is dismissed it's then going to be up to the PPC to take the driver to court & that is when all the arguments as to whether the charge is justified or not will be heardHotchocolate wrote: »Yep in an ideal world that should be the end of it, but if I was the claimant I would go to court to get the drivers name then start again.
Looking at this through their eyes is what I have to do..0 -
It doesn't work like that & it won't be the end of it even if you win this case. With the witness statement from the driver the judge will dismiss the claim because the PPC are pursuing the wrong person. All the arguments about whether the parking charge is right or wrong become irrelevant & only serve to confuse. After this case is dismissed it's then going to be up to the PPC to take the driver to court & that is when all the arguments as to whether the charge is justified or not will be heard
Might be my phrasing but this is the same as what I've wrote previously, I'm expecting this is just the begining.
Unless BW legal's business model is based on losing every court case and just going after the low hanging fruit who pay up regardless then I can't see how they would ignore the opportunity to proceed prepared to lose then go after the driver.
Most of my defence is practice for the next claim rather than this one.
Course in hindsight I could have just paid up years ago and forgot about it, but such is the disgust at how these !!!!!!s operate I'm starting to think having faulty machines is very profitable for them.0 -
But they won't get the driver's address. As already covered in depth. Omit it.
You've actually summed up exactly what it appears to be. The above is what these robo-claim firms do.Unless BW legal's business model is based on losing every court case and just going after the low hanging fruit who pay up regardless
Correct. There are so many ways this nasty industry tip the balance against consumers, setting people up for a fall (dodgy signs, lines, machines, timers, predatory tactics, altered photos, pretending a keeper can be liable anyway, despite not using the POFA, are just a few examples).I'm starting to think having faulty machines is very profitable for them.
And when given the chance, even the bl@@dy Supreme Court couldn't see it for what it was - an unrecoverable penalty against Mr Beavis who was delayed by Staples and committed no crime/contravention worthy of paying £85 to some random, detested stealth camera parking firm.
So what hope do we have of ending this predatory rip-off in the long term? All we can do is win the battles, like yours, until finally someone in power with the ability to act, actually notices there is a war that needs wining too.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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