HELP 2 court claims. BW Legal/Excel Parking

Hi Guys,
Thankyou to everyone for your continued support ! my hearing is coming up next week and i'm finishing putting together my skeleton argument to send off at the start of the week.

If anyone could have a quick read over to see if there is any last minute changes that would be much appreciated.

Thanks in advance !


Skeleton Argument

Introduction

I have concerns about how the witness statement has not been filed by Excel but by an employee of BW Legal who has no recollection of the alleged contravention.

Claimants Witness Statement:

The paragraph below relates to the witness statement filed by claimants paralegal BW Legal.

1. Re #5. The claimant submits that the defendant is the responsible person in charge of the vehicle which has incurred the charges referred to in xxxx witness statement.

2. This is denied xxx was not there and has no knowledge of who was driving. However, unlike xxx, I do have knowledge and attest that I was not the driver.

3. Re #10. The claimant states the car park benefited from highly prominent signage.

4. This is denied the claimant does not follow the IPC code of practice, there are no “repeater signs’; no signs on two entrances & the signs are of a low, incoherent standard of overly wordy terms in a blue and yellow design that are unreadable.

5. Re #20. The claimant states that the defendant had 28 calendar days from the issue date of the PCN to write to the claimant setting out full details of the reasons for appeal with any supporting information

6. This is denied I was not the driver on the date of the alleged contravention therefore I have nothing to appeal against.

7. Re # 21. The claimant states that the defendant had the option to disclose the full details of the driver.

8. This is not a lawful obligation or failure on my behalf; I had no reason to respond as the claimant is not relying on POFA 2012.

POFA APPENDED AS EVIDENCE: xxx

9. Re # 23. The claimant stated that the defendant did not respond to the PCN or any subsequent correspondence from the claimant.

10. I did not respond to the brightly coloured notices sent to me by Excel because I believed they were a scam (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.

11. Re #27 The claimant submits that the defendant entered into a contract on the date of the alleged contravention.

12. The defendant was not the driver, the claimant is claiming on the presumed assumption that the defendant was the driver without providing any proof to back up their assumption. There has been no contract formed by the defendant with the claimant.

13. Re #34 & 36. The claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver.

14. 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. 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.

15. Re #37 the claimant places reliance on the case Combined Parking Solutions V AJH Films Ltd 2015.

16. CPS V AJH 2015 has no application to this case whatsoever. This case is only applicable in an employer/employee situation, the transfer of liability was only allowed from driver to registered keeper as the driver was the keeper’s agent.

17. DJ Smith’s judgement about the application of AJH Films V CPS 2015 stated that the case “was clearly and on its face decided on specific facts of that case which involved the defendant being a company rather than an individual”

SMITH V EXCEL PARKING SERVICES 2017 APPENDED AS EVIDENCE

18. Re #41 The claimant states that they do not seek to rely on POFA 2012 in these proceedings.

19. The claimant therefore has no lawful right to chase the registered keeper as POFA 2012 Schedule 4 is the only act that would allow the claimant to hold the registered keeper liable. The defendant is under no legal obligation to provide any details to the claimant as POFA 2012 is not being complied with.

POFA APPENDED AS EVIDENCE: xxx

20. Re #56 -62 The claimant contradicts themselves as they are trying to charge & recover sums under POFA after stating they are not relying on the act.

POFA 2012 not complied with:

21. The date of the alleged contravention was after the enactment of Schedule 4 of the Protection of Freedoms Act 2012 which took effect from 1st October 2012. The claimant has stated in their witness statement that they are not relying on POFA 2012 and therefore have no lawful right to pursue myself as the registered keeper of the vehicle.

22. No lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle where an operator is unable to transfer the liability for the charge using the POFA. This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

POFA APPENDED AS EVIDENCE: xxx

23. The claimant places reliance on the reasonable presumption that the defendant was the driver at the time of the alleged offence. There is no reasonable presumption in law that the registered keeper of a vehicle is the driver.

24. The vital matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated:

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. If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.

POPLA ANNUAL REPORT 2015 APPENDED AS EVIDENCE:

Claimant not complying with IPC Code Of Practice:

25. It is contended that the signs that were in place at the location are unclear and wordy, yet with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract, as was found in many cases involving Excel signs at and around that time.

26. DJ Lateef's damning findings about Excel retail park signage in 2011 in Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) included these observations from her visit in person: !!!8220;The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts!!!8217; attention to the terms and conditions of using the car park!!!8221;. 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 2012.

APPENDED AS EVIDENCE: EXCEL V CUTTS 2011

27. 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.

APPENDED AS EVIDENCE: BEAVIS CASE SIGN

Claimant Credibility:

28. Excel were sanctioned by the DVLA for stating or implying in signs or documents that a registered keeper could be held 'liable for the payment of charges' and/or had any 'legal responsibility' to name the driver. It is contended that this is exactly what Excel are now doing in this claim, conduct which was identified in 2012 as 'a significant breach' of their Trade Body Code of Practice with the British Parking Association. So serious a matter was this, Excel were banned from obtaining data by the DVLA for three months.

RESPONSE FROM DVLA APPENDED AS EVIDENCE: xxx

Coupon-mad wrote: »

Which Court, Judge and what happened, please?

it was in birmingham courts and the judge was DJ Nadarajah.

The Judge went in favour with the PPC as she believed that the claimant could act under the balance of probabilty as they don't rely on POFA it began with the claimant stating their case.

then it was my turn to speak i began by saying i wasn't the driver and started explaining how the claimant had no lawful right to chase me as the RK as they had not complied with POFA.

she asked then ask claimant what do you have to say about that as he seems to have put an awful lot about POFA.

he responded with well he had the chance to name the driver to us, the only correspondence we received was when we issued a court claim against him if he had responded to us saying he wasn't the driver we would be sat here today its easy enough for anyone to say i wasn't the driver which then makes the parking charges unenforceable for us so we have to chase the RK (which is utter bulls**t)
.
I responded by saying I am under no legal obligation to name the driver , then reiterated HG words about keeper liability. I also said about how their letter implies that the RK is liable for the charges as it says on the NTK ' If you are the registered keeper of the vehicle but not the driver then a payment of £60 will be accepted' why would i want to give the details of family members or friends to a company that operates in that manor.

The DJ went onto say well they don't rely on POFA so this case is on the balance of probability. you've entrusted someone with your vehicle if someone took your vehicle and committed a crime would you then not have to say who the driver was ?

I then said well that would be different.

she said how ?

I responded by saying well that would be a criminal case where i would be under different legal obligations.

we then went onto signage which concluded that she thought the signs were adequate even though i had pointed out that the carpark had three entrances with only one sign to one entrance. they had no repeater signs and that you would need a magnifying glass to read the text because its so small.

we then concluded each by stating the main points of our case.

she then concluded by mentioning points from our witness statements ect and went in favour of the PPC.

she also made a comment which i found very offensive at the end which was ' ill give you 21 days instead of 14 , find someone to borrow the money off as you don't want a CCJ on your credit report for such a small amount of money'.

it was like she assumed that i wouldn't be able to afford the judgement which is very rude.

how do i go about moving forward with this my witness statement for the next hearing is due in 2 weeks.