My Witness Statement is due

How do I find the judgement in the case that parking Prankster refers to in a blog namely
Excel v Mr B C7DP8F83 at Sheffield 14/12/2016

Apparently it shows how Elliot v Loake is inapplicable. I can't find it!

Here is my Skeleton Argument. Is it a good idea to include it with my WS or should I wait until I've seen the claimants WS before submitting it? Or should I simply turn up in court with it?

All advice very gratefully received!


Skeleton Argument

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• The date of the alleged contravention occurred before the enactment of Schedule 4 of the Protection of Freedoms Act 2012 (the POFA) which took effect from 1st October 2012, therefore the Keeper cannot be held liable in law.

POFA APPENDED AS EVIDENCE:


• In 2012, the year of this alleged parking event, 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.

FOI RESPONSE* FROM DVLA APPENDED AS EVIDENCE

• 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 PARKING ON PRIVATE LAND APPEALS (POPLA) Lead Adjudicator, in 2015 in the Annual Report where he stated:

“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. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass."

POPLA ANNUAL REPORT 2015 APPENDED AS EVIDENCE:

• Therefore, where an operator is unable to transfer the liability for the charge using the POFA, no lawful right exists to pursue unpaid parking charges from the keeper of the vehicle. In this case because of the indisputable fact that the event pre-dated the law I contend the operator is unable to transfer liability and pursue me, the keeper . This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

The judge in the very recent case of Excel v Ian Lamoureux held that without using POFA and with no evidence as to the identity of the driver, the claim against Mr Lamoureux was misconceived and so was dismissed..

EXCEL v Ian Lamoureux 17 Nov 2016 appended as evidence



• The Claimant places reliance on its provision of signage at the site and upon the content of that signage. It is contended that the signs that were in place at the location were 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.

• Judge 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: “The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts’ 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 2012.


• I produce an article from the Plain Language Commission which talks about the actual signs used by Excel at the time of the incident. They are shown to be indistinct and inadequate. Excel insisted at the time, on BBC 1's watchdog programme and in written answers to the program that their signs comply with BPA standards. (The BPA is a self-governing body run by its members and in their interests). Despite the supposed adequacy of the signage, Excel were unable to explain why they had issued 11,000 PCNs at one car park and had not taken any steps to make the signs clearer. The conclusion might be drawn that they have no interest in issuing fewer PCNs because that's how they make their money. Indeed, the less clear their signage is the more likely drivers are to not understand them and to end up with an invoice for supposed contravention.

• It is expected that this Claimant may try to counter that article about these signs but it is worth noting that this was within months of the Cutts case and it is also relevant that Mr Cutts manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English, so he is something of an authority on clear, legible terms. And the Judge agreed with him.


• Conversely, it is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel, attacked the Judge’s integrity. He reportedly wrote to Stockport MP Andrew Gwynne: ‘The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts.’



APPENDED AS EVIDENCE: EXCEL V CUTTS 2011

'Phoney fines and dodgy signs take drivers for a ride' Plain Language Commission,

Edition 1 – 19 April 2012. Pages 24 -30 and 38 - 40

PHOTO OF SIGNAGE AT THE SITE TAKEN IN 2015.



• The original PCN I received recently by this Claimant states a Full Charge of £100.00 (£60.00 discounted) however the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at quadruple recovery:
1. £100.00 Principal debt, 2. Contractual Costs pursuant to PCN T&C - £54.00
3. Interest - £35.70 4. Legal Representatives Costs £50.00, 5. Court Costs £25
6. Outstanding balance to pay now £264.70


• It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in this Claimant's undue haste to issue robo-claims in their thousands, scraping the barrel of archive cases to bring to court, under excuse of jumping on the bandwagon started by the (completely different and complex) case in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case').

• I counter the argument re the relevance of the Beavis case in case the claimant should make it. 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 my case.

THE BEAVIS CASE SIGN IS APPENDED AS EVIDENCE;

• The claimant cannot rely on Elliot v Loake ('EvL') to claim that the driver and the keeper can be 'assumed' to be the same, since this was a criminal case and referred to the owner, not the keeper. In any event, in EvL there was overwhelming forensic evidence from other sources that the defendant was the driver at the time. By contrast, in my case this Claimant has not offered any evidence to the driver's identity and cannot make any lawful assumption.

• The Claimant had no locus standi at the time of this parking event and at best, were contractors of a principal, the landowner. They have failed to show a cause for action by way of sight of a copy of the contract they have with the landowner to assign the right to enter into contracts with the public and to make claims and take civil action against drivers in their own name, in 2012.

• In any event, this Claimant fails to fulfil the requirements of CPR16.2 for particulars of claim in that they have neglected to set out any facts or state what it is they are claiming monies for. Their particulars of claim just state "monies due in respect of a parking charge notice" and do not say whether the sum is due as a contractual sum, damages for breach of contract or money due for something else, such as a liability for a failure of duty of care or trespass under common law tort.


• It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.


I believe that the facts stated in this Skeleton Defence are true.

Signed


Dated

Sorry to mither but could one of the very wise members of this board take a look at my WS above and advise me of any changes that need to be made? I need to print all the stuff off tonight and take it to court tomorrow!

If you are able to, thanks in advance!

Thanks for that Lamilad. I was going to produce as exhibits, the driving licences of my three sons, an email showing and that there were 3 cars between the 5 of us and an email recently obtained confirming that my wife was the main driver of the car.

Would you say that these exhibits are unnecessary?