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Excel - County Court Claim
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Hi
I've been getting help from Nosferatu on the Pepipoo site.. (that sounds very odd when I read it back) It was an infamous car park in Keighley.
The defence I posted was...
It is admitted that Defendant is the registered keeper of the vehicle in question.
However it is denied that the Claimant has authority to bring this claim on the following grounds:-
1. The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements.
2. The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking.
3. Excel Parking are not the lawful occupier of the land.
(i) absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
4. The terms and conditions displayed on the signs at the entrance to the the site in question were unclear and the penalty conditions buried in a tiny font at the foot of the sign. The amount of the penalty was not a core term and by being hidden it was not sufficiently prominent on site/around the areas in question particularly on entrance to the site and was not obvious even after a diligent review of the terms, so no contract has been formed with driver(s) to pay £100, or any additional fee charged if unpaid in 14 days
5. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.
6. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.
7. The provision is a penalty and is not saved as such by the Beavis ruling as there is no commercial justification for such a disproportionate amount being charged
a) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable
8. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
9. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.0 -
Is anyone able to help with a court bundle, based on my initial defence? Our case is due in court in November. Am I right in thinking we just need to have more detail for each point?0
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You can set it out like this poster did, posts 70 & 71 are an example:juke_joint wrote: »Is anyone able to help with a court bundle, based on my initial defence? Our case is due in court in November. Am I right in thinking we just need to have more detail for each point?
http://forums.moneysavingexpert.com/showthread.php?t=5470683&page=3
Have your exhibits at the back of a file/bundle as numbered appendices, referred to in the witness statement signed and dated by you.
And here below, is another (different) example of a full defence, referencing exhibits using a numbering system and referring to a lever-arch file (you can hand-deliver the local court's copy and make sure it is nicely presented - in a file, double line spaced in Times New Roman 12 font is recommended). You can see this one is written by what appears to be a legally qualified person and isn't a 'forum effort':
http://parking-prankster.blogspot.co.uk/2016/08/parkingeye-discontinue-two-cases.html
Oh, and on this forum and/or on pepipoo do not reply to any private message from a poster with less than 1000 posts to their name here. We deal with these issues openly on the forum and any pm could be from anyone at all (even the parking firm) and any private message about this is not recommended to be replied to/read.
Nosferatu appears trustworthy on pepipoo though, a regular poster.
On here, others might have more to add to the above. Bargepole, hoohoo, IamEmanresu or the Parking Prankster might have more tips.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thankyou. This is very helpful.
Also. Should I be expecting to get any paperwork from BW Legal before our court appearance or would that follow me submitting g the full defence?0 -
Should I be expecting to get any paperwork from BW Legal before our court appearance
A court bundle should be with you 14 days before. If one hasn't arrived then call the court to see if they have received a copy or check your spam filter in case they have emailed it to you.0 -
We managed to find out the landowner recently so I wrote a letter to him explaining that as a loyal customer of his we shouldn't be getting this level of harassment for spending money in his store. I didn't expect anything to come of it, but within a few days they wrote back to say they'd be getting the case put on hold. Just had a call to say they will be trying to cancel the proceedings as what Excel are doing is unacceptable. We still haven't received the court bundle from BW/Excel and it's due (as is ours) in a few days so I'm hoping they can sort this, but it all sounds very promising.0
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juke_joint wrote: »We managed to find out the landowner recently so I wrote a letter to him explaining that as a loyal customer of his we shouldn't be getting this level of harassment for spending money in his store. I didn't expect anything to come of it, but within a few days they wrote back to say they'd be getting the case put on hold. Just had a call to say they will be trying to cancel the proceedings as what Excel are doing is unacceptable. We still haven't received the court bundle from BW/Excel and it's due (as is ours) in a few days so I'm hoping they can sort this, but it all sounds very promising.
A Good result, however you should ask them for a written and signed confirmation, as you are extremely concerned that this is will end up in court.
Excel will be claiming that they have the landowners authority to take this to court, if the landowner says they dont then that pretty much !!!!es on Simmon Rensahw-Smiths fire.
You should also be looking to get this struck out, and to make a claim against Excel for their unreasonable behaviour, even more so if after telling and providing excel with the infomration that the landowner wants this cancelled, but excel are going to carry on regardless of their principal wishes.
You need to make it clear that you are being perfectly reasonable in this and that:
The Landowner wants the action being carried out by their agents this cancelled
You do not want to clog up the courts and waste valuable court time, as well as public money
Excell parking are being unreasonable in continuing to pursue this matter and as such you want full costs - i believe that these can be found here https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27 maybe some one else can elaborate.
but above all you must get it in writing that the landowner wants this cancelled, or doesn't wish this to go to court in front of a judge.From the Plain Language Commission:
"The BPA has surely become one of the most socially dangerous organisations in the UK"0 -
Sports Direct have just said Excel are refusing to drop our case. This has set our prep for defence back a week and it's due in tomorrow!
Can someone send me a summary of the points in my defence that relate to the Beavis case? Am on train on phone so it easy for me to find.0 -
Well you said your wife's defence (Because she's the Defendant) looked like this:The defence I posted was...
It is admitted that Defendant is the registered keeper of the vehicle in question.
However it is denied that the Claimant has authority to bring this claim on the following grounds:-
1. The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements.
2. The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking.
3. Excel Parking are not the lawful occupier of the land.
(i) absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
4. The terms and conditions displayed on the signs at the entrance to the the site in question were unclear and the penalty conditions buried in a tiny font at the foot of the sign. The amount of the penalty was not a core term and by being hidden it was not sufficiently prominent on site/around the areas in question particularly on entrance to the site and was not obvious even after a diligent review of the terms, so no contract has been formed with driver(s) to pay £100, or any additional fee charged if unpaid in 14 days
5. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.
6. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.
7. The provision is a penalty and is not saved as such by the Beavis ruling as there is no commercial justification for such a disproportionate amount being charged
a) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable
8. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
9. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
So all your wife needs to add is her witness statement really, you can't rush anything else out so your wife will have to stick to the above defence.
Witness statement info here:
http://www.bmpa.eu/static_witness_statement.php
The BMPA do assist people so your wife could contact them but you have so little time! You could email them to ask for general advice.
I notice you said you were there too:
So, you could also sign a witness statement to corroborate the facts, if you are planning to turn up with her to any hearing (SHE MUST ATTEND). Your wife is named on the claim form, you said (misspellings are nothing special). Do not state in either statement, which of you was driving.We'd visited Sports Direct late on a Sunday afternoon.
Have you got the evidence bundle from the other side yet? Maybe they will drop it.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi
Not got their eveidence bundle yet. My wife has completed a witness statement to say she was a passenger. We have not stated who the driver was. would me saying she wasn't the driver make the judge presume I was?
We were just looking through the Beavis court notes and wondering if we should include any of it as exhibits in our bundle to support points 7 and 8 from our skeleton defence above?
We also have an email from Bradford Council stating their signage had no planning permission and is technically unlawful as well as statements from Sports Direct (the land owners) instructing Excel to drop the case!0
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