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  • FIRST POST
    • Supersaver2017
    • By Supersaver2017 5th Jan 18, 3:50 PM
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    Supersaver2017
    BW Legal Court Papers
    • #1
    • 5th Jan 18, 3:50 PM
    BW Legal Court Papers 5th Jan 18 at 3:50 PM
    Hi Guys,

    Just want to start by thanking anyone who has posted any information/advice on these forums, it has been invaluable in getting me to this stage.

    Let me summarise where I currently stand.

    I have recently been sent a County Court Claim Form from BW Legal on behalf of Excel Parking Services. I initially received a letter back dating to June 2014, which states payment had not been made for a parking in a pay-and-display car park. The driver on the day had purchased a ticket and had incorrectly entered their registration plate.

    I responded to the first letter after reading advice on here, acknowledging the letter but specifying it did not meet the required 'Letter Before Claim' criteria.

    I received another letter stating that they felt they had provided the required information and asking for payment once again. I then (as advised on here) sent another letter breaking down further the information relating to the Practice Direction about what is needed in order for me to respond correctly, and strangely I then was sent a letter stating that as they had no reply from me (since their first letter, despite this being dated 3 weeks after) they were going to start Court Proceedings.

    I replied again stating that I had maintained correspondence and have the email dates to prove this, but instead received the Court Claim forms a few days ago.

    I am now drafting my defence on a number of points and will post on here ASAP, but until then any advice on what to focus on as a rough guide or any questions about the situation would be welcomed.

    Thanks to all in advance
Page 2
    • Supersaver2017
    • By Supersaver2017 6th Jan 18, 9:56 PM
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    Supersaver2017
    No reveal that is correct Lamilad
    • Lamilad
    • By Lamilad 7th Jan 18, 1:14 AM
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    Lamilad
    provide the evidence necessary to support their claims (see emails/letters
    Don't send any evidence or other documentation with your defence. That happens later.
    • Supersaver2017
    • By Supersaver2017 8th Jan 18, 5:18 PM
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    Supersaver2017
    No Lamilad I haven't revealed that. Going to post an updated defence later on tonight
    • Supersaver2017
    • By Supersaver2017 11th Jan 18, 12:22 PM
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    Supersaver2017
    Hi Guys,

    Defence finalised below so will be sending off soon. If there is anything additional anyone thinks I could/should add it would really be appreciated with any advice you have.


    Statement of Defence

    1. The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct. The particulars also fail to describe how the amount claimed has been calculated and do not provide a copy of the contract or details of any agreement.

    2. Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’.

    3. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.

    4. The claim arises from the Claimant issuing an invoice or ‘Parking Charge Notice’ for £100 to the Defendant’s vehicle xxxxxx on xx/xx/2014. The defendant has from the outset denied any liability in respect of the claim and has repeatedly requested that the Claimant provide evidence of any legal basis to their claim which the Claimant has to date failed to do.

    5. The Claimant has, since June 2014, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refused to respond to reasonable requests to provide the evidence necessary to support their claims (see emails/letters. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee into a demand for £254.90.

    6. The Claimant has further failed to comply with Practice Direction by refusing to respond to the Defendants request to use an independent form of dispute resolution.

    7. As a member of the International Parking Community (IPC), Excel Parking are able to access registered keeper details from DVLA. However, IPC membership requires Excel to comply with their Code of Practice which they have failed to do with respect to their signage in this case. Excel have previously been suspended by the DVLA from accessing registered keeper details due to failure to comply with the Code of Practice.

    8. It is denied that the Claimant is the landowner of the land in question or that they have any other right or proprietary interest in the land.

    9. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

    10. In the absence of strict proof, I submit that the Claimant has no case and invite the court to strike the matter out.

    11. If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the IPC Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following:
    • Lack of illumination of signage (and the car park), poor visibility
    • Lack of clarity and prominence of terms and conditions
    • Illegible text due to font size, density, colour and complexity
    • Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
    • Lack of relevant terms and conditions, such as the fees for parking
    • Inadequate positioning of signs, at unsuitable heights

    12. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.

    13. In the absence of any signage that contractually bound the Defendant then there can have been no contract, the Claimant has no case, and as such, the court is invited to dismiss the claim.

    14. Even had the terms and conditions been sufficiently prominent, terms which are unfair are not legally binding. Terms which are considered unfair include requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation. It is also unfair to impose disproportionate sanctions for breach of contract. A charge of £100.00 for failing to pay a sum of £1.00 which was not prominently displayed in the first place can be considered a disproportionate sum.

    15. It is anticipated that the Claimant may seek to rely on the Supreme Court ruling in the case of Parking Eye v Beavis. This case can be easily distinguished from ParkingEye v Beavis as Excel Parking have not demonstrated any commercial justification for the amount being charged and the wording of the notices was not clear, and a comparison should not and can not be made between the supreme and county court.

    16. The Claimant is attempting to claim additional charges such as legal costs of £50.00. 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. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

    17. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The keeper can only be held liable if the claimant has fully complied with the strict requirements. The Claimant has not established whether the Defendant was the driver on the day in question and have not clarified whether they are pursuing the Defendant as Keeper or as Driver.

    18. The Claimant is put to strict proof of all his assertions

    19. Considering all the above circumstances, I respectfully ask that the court dismiss the claim.

    I believe the facts stated in this defence are true.
    • Castle
    • By Castle 11th Jan 18, 12:54 PM
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    Castle
    Back in June 2014, Excel would have been members of the BPA and would have to have had complied with the BPA's signage requirements.
    • Supersaver2017
    • By Supersaver2017 11th Jan 18, 12:58 PM
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    Supersaver2017
    Thanks Castle, would you add this in?
    • Castle
    • By Castle 11th Jan 18, 1:28 PM
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    Castle
    Thanks Castle, would you add this in?
    Originally posted by Supersaver2017
    No; I would reword points 7 and 11 to refer to the BPA's Code.

    I don't like the wording in points 5 and 14 as it suggests there has been a failure to pay the £1 parking fee. The £1 parking fee was paid; according to your first post.
    • Supersaver2017
    • By Supersaver2017 11th Jan 18, 10:40 PM
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    Supersaver2017
    Will amend and repost thankyou Castle.

    Looks like I'm having the similar problem to many with not being able to log in on line on the MCOL system....keeps stating incorrect information despite several entries being correct. Going to have to ring in the morning. I hope this hasn't affected my acknowledgement which was submitted on there.....
    • Lamilad
    • By Lamilad 12th Jan 18, 8:02 AM
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    Lamilad
    Looks like I'm having the similar problem to many with not being able to log in on line on the MCOL system....keeps stating incorrect information despite several entries being correct. Going to have to ring in the morning. I hope this hasn't affected my acknowledgement which was submitted on there.....
    Why are you trying to log back into MCOL if you've already acknowledged? Your defence (after being given the thumbs up by us) should be emailed to court, as advised all over the forum.
    • Supersaver2017
    • By Supersaver2017 12th Jan 18, 8:06 AM
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    Supersaver2017
    It was just to confirm that the acknowledgement had gone through successfully
    • Supersaver2017
    • By Supersaver2017 12th Jan 18, 9:06 AM
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    Supersaver2017
    Revised Draft
    Hi guys, my revised Defence is below with the amendments made referring to the BPA and rewording of points regarding ticket payment.



    Statement of Defence

    1. The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct. The particulars also fail to describe how the amount claimed has been calculated and do not provide a copy of the contract or details of any agreement.

    2. Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’.

    3. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.

    4. The claim arises from the Claimant issuing an invoice or ‘Parking Charge Notice’ for £100 to the Defendant’s vehicle xxxxxx on xx/xx/2014. The defendant has from the outset denied any liability in respect of the claim and has repeatedly requested that the Claimant provide evidence of any legal basis to their claim which the Claimant has to date failed to do.

    5. The Claimant has, since June 2014, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refused to respond to reasonable requests to provide the evidence necessary to support their claims (see emails/letters. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee (which was in fact paid) into a demand for £254.90.

    6. The Claimant has further failed to comply with Practice Direction by refusing to respond to the Defendants request to use an independent form of dispute resolution.

    7. As a member of the International Parking Community (IPC), Excel Parking are able to access registered keeper details from DVLA. However, IPC membership requires Excel to comply with their Code of Practice which they have failed to do with respect to their signage in this case. Excel have previously been suspended by the DVLA from accessing registered keeper details due to failure to comply with the Code of Practice. Also as the date the original PCN was issued in June 2014, Excel were also members of the BPA which must conform to code of practice. Namely points 19.1 - When you issue a parking charge notice the charges you make have to be reasonable arising from enforcement under three different circumstances: when a motorist breaks the terms and conditions of a parking contract, when a motorist trespasses by parking without permission, agreed charges that are advertised in the contract; for example, for an overstay.

    8. It is denied that the Claimant is the landowner of the land in question or that they have any other right or proprietary interest in the land.

    9. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

    10. In the absence of strict proof, I submit that the Claimant has no case and invite the court to strike the matter out.

    11. If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the IPC Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following:
    • Lack of illumination of signage (and the car park), poor visibility
    • Lack of clarity and prominence of terms and conditions
    • Illegible text due to font size, density, colour and complexity
    • Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
    • Lack of relevant terms and conditions, such as the fees for parking
    • Inadequate positioning of signs, at unsuitable heights

    12. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.

    13. In the absence of any signage that contractually bound the Defendant then there can have been no contract, the Claimant has no case, and as such, the court is invited to dismiss the claim.

    14. Even had the terms and conditions been sufficiently prominent, terms which are unfair are not legally binding. Terms which are considered unfair include requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation. It is also unfair to impose disproportionate sanctions for breach of contract. A charge of £100.00 for an assumption of failing to pay a sum of £1.00 (which was in fact paid on the day) from being prominently displayed in the first place can be considered a disproportionate sum. I again refer to the BPA Section 20.1 When a vehicle is parked in a private car park, the normal rule is that the driver is responsible for paying the tariff fee (if any) for parking, for following the terms and conditions which apply, and for paying any parking charges. As the payment was made this is disputed.

    15. It is anticipated that the Claimant may seek to rely on the Supreme Court ruling in the case of Parking Eye v Beavis. This case can be easily distinguished from ParkingEye v Beavis as Excel Parking have not demonstrated any commercial justification for the amount being charged and the wording of the notices was not clear, and a comparison should not and can not be made between the supreme and county court.

    16. The Claimant is attempting to claim additional charges such as legal costs of £50.00. 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. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

    17. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The keeper can only be held liable if the claimant has fully complied with the strict requirements. The Claimant has not established whether the Defendant was the driver on the day in question and have not clarified whether they are pursuing the Defendant as Keeper or as Driver.

    18. The Claimant is put to strict proof of all his assertions

    19. Considering all the above circumstances, I respectfully ask that the court dismiss the claim.

    I believe the facts stated in this defence are true.
    • Castle
    • By Castle 12th Jan 18, 9:44 AM
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    Castle
    Point 11 still refers to the IPC.
    • Supersaver2017
    • By Supersaver2017 12th Jan 18, 10:10 AM
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    Supersaver2017
    Would you just refer to the BPA only Castle? Does the IPA have no standing at all due to the time period? I will amend points 7 and 11 if so. Does the rest of it look suitable thus far would you say? Sorry for all the questions lol and thankyou for helping
    • Supersaver2017
    • By Supersaver2017 14th Jan 18, 8:17 PM
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    Supersaver2017
    Anyone else able to have a quick check of this before I send it over? Much appreciated
    • Castle
    • By Castle 14th Jan 18, 9:11 PM
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    Castle
    Would you just refer to the BPA only Castle? Does the IPA have no standing at all due to the time period? I will amend points 7 and 11 if so. Does the rest of it look suitable thus far would you say? Sorry for all the questions lol and thankyou for helping
    Originally posted by Supersaver2017
    Well its IPC not IPA, but nevertheless, you only need to include reference to the BPA and their Code of Practice at the time, which, in June 2014 was version no 4.:-
    http://www.britishparking.co.uk/Code-of-Practice-and-compliance-monitoring
    • Coupon-mad
    • By Coupon-mad 14th Jan 18, 9:47 PM
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    Coupon-mad
    I would break down large paragraphs, like this, which also remove the 'IPC' completely, because it's just not relevant to June 2014 so I would only refer to the BPA:

    7. The Claimant was a member of British Parking Association in June 2014, and in order to access the data of a registered keeper from the DVLA, BPA members must fully comply with the applicable Code of Practice, which they have failed to do with respect to their signage in this case.

    7.1. It is worth noting that this Claimant has previously been suspended by the DVLA from accessing registered keeper details, due to failure to comply with the Code of Practice in terms of the words on its signs.
    I think that's enough on that point.

    In this one you said 'see emails/letters' which I have removed, but added other things:

    5. The Claimant has, since June 2014, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refused to respond to reasonable requests to provide the evidence necessary to support their claim. (see emails/letters.

    5.1. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded.

    5.2. It is apparent that this Claimant has made no attempt to improve its misleading and aggressive business practices and unclear signs, since the cases of:
    (i) Excel v Hetherington-Jakeman* (2008) where the Judge found the demands were not sent to inform a driver or narrow any issues, but were intended to "frighten or intimidate", and
    (ii) Excel v Cutts** (2011) where the Judge ruled that Excel's signage was deficient and later Excel's owner publicly derided the court ruling as "an embarrassment to the judicial system" describing DDJ Lateef, as "not fit to serve the civil court."

    5.3. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee (which was in fact paid) into a demand for £254.90.

    You said the issue was this:

    I initially received a letter back dating to June 2014, which states payment had not been made for a parking in a pay-and-display car park. The driver on the day had purchased a ticket and had incorrectly entered their registration plate.
    So, was this a completely wrong VRN, or a partial one, and could it have been a keypad or machine error, in fact? Excel's machines are known to issue tickets with partial/wrong number-plates, or even error codes, then they blame the drivers!

    You need to address this is it was a possible keypad failure. Bargepole showed you a similar case in an earlier reply and told you to 'base your defence' on that case, but I don't see it mentioned?

    AFAIK, nothing questioning Excel's system is in your defence yet, pointing out that the machines the Claimant uses are known to be faulty and old, and when failures occur the Claimant pursues consumers to court, in case after case when the driver has made reasonable endeavours to comply and any VRN error is clearly the fault of the machine or keypad itself.


    These are for your evidence for later, because nothing goes with the defence:

    The following PDF file is the Judgement in the case of Excel Parking Services v Hetherington-Jakeman Mansfield County Court, March 2008:
    *http://forums.pepipoo.com/index.php?act=attach&type=post&id=4984

    and the claim v Martin Cutts, of the Plain Language Commission:

    **https://irp-cdn.multiscreensite.com/aaf9e928/files/uploaded/DVLA-BPA-Cutts12June2012_v2_mf.pdf

    https://bmpa.zendesk.com/hc/en-us/articles/115004322549-Excel-v-Cutts-at-Peel-Centre-Clarity-of-signs-

    http://www.manchestereveningnews.co.uk/news/greater-manchester-news/motorist-wins-18-month-ticket-battle-870812
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Supersaver2017
    • By Supersaver2017 20th Jan 18, 1:05 PM
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    Supersaver2017
    Re-Draft #2
    Thank you Coupon-Mad! Great information and points to add.

    I have revised and re-posted below, apologies for the constant posts with these re-drafts....I just want to make sure I send something I am satisfied with and everyone's input has aided me massively.

    There was a ticket purchased on the day if I recall correctly but would using that as a reference bring questions about revealing the driver identity? Or despite the fact if I even know am I still within my rights to just deny revealing that if asked?

    Would you just add this as an additional number in the paragraph below?

    Eg/

    8. When parked at the location, the driver had paid the correct tariff, and the machine issued a ticket showing the incorrect registration of the car. However payment had still be made for the stay. Thus referring to a malfunction between the P&D machine and Excel’s systems

    8.1 If the ANPR was directly linked to the P&D machine/system, it would be impossible for anything other than a valid registration number to be printed on the ticket.

    8.2 The machines Excel use nationally seem particularly prone to failure, and several complaints that charges have been issued even when a valid ticket has been purchased have been made in other attempts made by the Claimant. It is also noted that when these failures have occurred previously it has been refused to cancel charges even when CCTV evidence from nearby shops shows a tickets were purchased.

    -------------------------------------------------------------------

    Statement of Defence

    1. The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct. The particulars also fail to describe how the amount claimed has been calculated and do not provide a copy of the contract or details of any agreement.

    2. Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’.

    3. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.

    4. The claim arises from the Claimant issuing an invoice or ‘Parking Charge Notice’ for £100 to the Defendant’s vehicle xxxxxx on xx/xx/2014. The defendant has from the outset denied any liability in respect of the claim and has repeatedly requested that the Claimant provide evidence of any legal basis to their claim which the Claimant has to date failed to do.

    5. The Claimant has, since June 2014, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refused to respond to reasonable requests to provide the evidence necessary to support their claim.

    5.1. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded.

    5.2. It is apparent that this Claimant has made no attempt to improve its misleading and aggressive business practices and unclear signs, since the cases of:
    (i) Excel v Hetherington-Jakeman* (2008) where the Judge found the demands were not sent to inform a driver or narrow any issues, but were intended to "frighten or intimidate", and
    (ii) Excel v Cutts** (2011) where the Judge ruled that Excel's signage was deficient and later Excel's owner publicly derided the court ruling as "an embarrassment to the judicial system" describing DDJ Lateef, as "not fit to serve the civil court."

    5.3. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee (which was in fact paid) into a demand for £254.90.

    6. The Claimant has further failed to comply with Practice Direction by refusing to respond to the Defendants request to use an independent form of dispute resolution.


    7. The Claimant was a member of British Parking Association in June 2014, and in order to access the data of a registered keeper from the DVLA, BPA members must fully comply with the applicable Code of Practice, which they have failed to do with respect to their signage in this case.

    7.1. It is worth noting that this Claimant has previously been suspended by the DVLA from accessing registered keeper details, due to failure to comply with the Code of Practice in terms of the words on its signs.

    7.2 Namely points 19.1 - When you issue a parking charge notice the charges you make have to be reasonable arising from enforcement under three different circumstances: when a motorist breaks the terms and conditions of a parking contract, when a motorist trespasses by parking without permission, agreed charges that are advertised in the contract; for example, for an overstay.

    8. It is denied that the Claimant is the landowner of the land in question or that they have any other right or proprietary interest in the land.

    9. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

    10. In the absence of strict proof, I submit that the Claimant has no case and invite the court to strike the matter out.

    11. If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the IPC Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following:
    • Lack of illumination of signage (and the car park), poor visibility
    • Lack of clarity and prominence of terms and conditions
    • Illegible text due to font size, density, colour and complexity
    • Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
    • Lack of relevant terms and conditions, such as the fees for parking
    • Inadequate positioning of signs, at unsuitable heights

    12. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.

    13. In the absence of any signage that contractually bound the Defendant then there can have been no contract, the Claimant has no case, and as such, the court is invited to dismiss the claim.

    14. Even had the terms and conditions been sufficiently prominent, terms which are unfair are not legally binding. Terms which are considered unfair include requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation. It is also unfair to impose disproportionate sanctions for breach of contract. A charge of £100.00 for an assumption of failing to pay a sum of £1.00 (which was in fact paid on the day) from being prominently displayed in the first place can be considered a disproportionate sum. I again refer to the BPA Section 20.1 When a vehicle is parked in a private car park, the normal rule is that the driver is responsible for paying the tariff fee (if any) for parking, for following the terms and conditions which apply, and for paying any parking charges. As the payment was made this is disputed.

    15. It is anticipated that the Claimant may seek to rely on the Supreme Court ruling in the case of Parking Eye v Beavis. This case can be easily distinguished from ParkingEye v Beavis as Excel Parking have not demonstrated any commercial justification for the amount being charged and the wording of the notices was not clear, and a comparison should not and can not be made between the supreme and county court.

    16. The Claimant is attempting to claim additional charges such as legal costs of £50.00. 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. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

    17. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The keeper can only be held liable if the claimant has fully complied with the strict requirements. The Claimant has not established whether the Defendant was the driver on the day in question and have not clarified whether they are pursuing the Defendant as Keeper or as Driver.

    18. The Claimant is put to strict proof of all his assertions

    19. Considering all the above circumstances, I respectfully ask that the court dismiss the claim.

    I believe the facts stated in this defence are true.
    • claxtome
    • By claxtome 21st Jan 18, 2:59 AM
    • 577 Posts
    • 680 Thanks
    claxtome
    I would renumber 9 and 10 as 8.1 and 8.2 respectively.

    There was a ticket purchased on the day if I recall correctly but would using that as a reference bring questions about revealing the driver identity? Or despite the fact if I even know am I still within my rights to just deny revealing that if asked?
    You are under no obligation to name the driver


    I would add in the new paragraphs you mentioned worded something like the following before the current number 5 to set the scene:
    5. The driver entered the registration of the car, paid the correct tariff, and the machine issued a ticket which unbeknown to the driver showed an incorrect registration of the car. The machine shouldn't allow an incorrect registration to be printed on the ticket and indicates a malfunction between the P&D machine and Excel’s systems.

    5.1 If the ANPR was directly linked to the P&D machine/system, it would be impossible for anything other than a valid registration number to be printed on the ticket.

    5.2 The machines Excel use nationally seem particularly prone to failure, and several complaints that charges have been issued even when a valid ticket has been purchased have been made in other attempts made by the Claimant. It is also noted that when these failures have occurred previously it has been refused to cancel charges even when CCTV evidence from nearby shops show tickets were purchased.
    Last edited by claxtome; 21-01-2018 at 3:41 AM.
    • Castle
    • By Castle 21st Jan 18, 10:40 AM
    • 1,771 Posts
    • 2,396 Thanks
    Castle
    1) In point 11 you still refer to the IPC rather than the BPA.

    2) I would also expand point 6 to make reference to their total failure to comply with the Pre-Action Protocol.
    • Supersaver2017
    • By Supersaver2017 23rd Jan 18, 1:14 PM
    • 50 Posts
    • 12 Thanks
    Supersaver2017
    Draft final stages
    Hi guys, getting closer to a final draft now so if you all could take another look I would be most grateful.


    Statement of Defence

    1. The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct. The particulars also fail to describe how the amount claimed has been calculated and do not provide a copy of the contract or details of any agreement.

    2. Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’.

    3. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.

    4. The claim arises from the Claimant issuing an invoice or ‘Parking Charge Notice’ for £100 to the Defendant’s vehicle xxxxxx on xx/xx/2014. The defendant has from the outset denied any liability in respect of the claim and has repeatedly requested that the Claimant provide evidence of any legal basis to their claim which the Claimant has to date failed to do.

    5. The driver entered the registration of the car, paid the correct tariff, and the machine issued a ticket which unbeknown to the driver showed an incorrect registration of the car. The machine shouldn't allow an incorrect registration to be printed on the ticket and indicates a malfunction between the P&D machine and Excel’s systems.

    5.1 If the ANPR was directly linked to the P&D machine/system, it would be impossible for anything other than a valid registration number to be printed on the ticket.

    5.2 The machines Excel use nationally seem particularly prone to failure, and several complaints that charges have been issued even when a valid ticket has been purchased have been made in other attempts made by the Claimant. It is also noted that when these failures have occurred previously it has been refused to cancel charges even when CCTV evidence from nearby shops show tickets were purchased.

    6. The Claimant has, since June 2014, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refused to respond to reasonable requests to provide the evidence necessary to support their claim.

    6.1. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded. Numerous requests have been made for letters which provide the required information in line with the Pre-Action protocol, which have all been ignored and replied to in the form of template letters.

    6.2. It is apparent that this Claimant has made no attempt to improve its misleading and aggressive business practices and unclear signs, since the cases of:
    (i) Excel v Hetherington-Jakeman* (2008) where the Judge found the demands were not sent to inform a driver or narrow any issues, but were intended to "frighten or intimidate", and
    (ii) Excel v Cutts** (2011) where the Judge ruled that Excel's signage was deficient and later Excel's owner publicly derided the court ruling as "an embarrassment to the judicial system" describing DDJ Lateef, as "not fit to serve the civil court."

    6.3. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee (which was in fact paid) into a demand for £254.90.

    6.4 The Claimant has further failed to comply with Practice Direction by refusing to respond to the Defendants request to use an independent form of dispute resolution.


    7. The Claimant was a member of British Parking Association in June 2014, and in order to access the data of a registered keeper from the DVLA, BPA members must fully comply with the applicable Code of Practice, which they have failed to do with respect to their signage in this case.

    7.1. It is worth noting that this Claimant has previously been suspended by the DVLA from accessing registered keeper details, due to failure to comply with the Code of Practice in terms of the words on its signs.

    7.2 Namely points 19.1 - When you issue a parking charge notice the charges you make have to be reasonable arising from enforcement under three different circumstances: when a motorist breaks the terms and conditions of a parking contract, when a motorist trespasses by parking without permission, agreed charges that are advertised in the contract; for example, for an overstay.

    8. It is denied that the Claimant is the landowner of the land in question or that they have any other right or proprietary interest in the land.

    9. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

    9.1 In the absence of strict proof, I submit that the Claimant has no case and invite the court to strike the matter out.

    10. If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the BPA Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following:
    • Lack of illumination of signage (and the car park), poor visibility
    • Lack of clarity and prominence of terms and conditions
    • Illegible text due to font size, density, colour and complexity
    • Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
    • Lack of relevant terms and conditions, such as the fees for parking
    • Inadequate positioning of signs, at unsuitable heights

    11. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.

    12. In the absence of any signage that contractually bound the Defendant then there can have been no contract, the Claimant has no case, and as such, the court is invited to dismiss the claim.

    13. Even had the terms and conditions been sufficiently prominent, terms which are unfair are not legally binding. Terms which are considered unfair include requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation. It is also unfair to impose disproportionate sanctions for breach of contract. A charge of £100.00 for an assumption of failing to pay a sum of £1.00 (which was in fact paid on the day) from being prominently displayed in the first place can be considered a disproportionate sum. I again refer to the BPA Section 20.1 When a vehicle is parked in a private car park, the normal rule is that the driver is responsible for paying the tariff fee (if any) for parking, for following the terms and conditions which apply, and for paying any parking charges. As the payment was made this is disputed.

    14. It is anticipated that the Claimant may seek to rely on the Supreme Court ruling in the case of Parking Eye v Beavis. This case can be easily distinguished from ParkingEye v Beavis as Excel Parking have not demonstrated any commercial justification for the amount being charged and the wording of the notices was not clear, and a comparison should not and can not be made between the supreme and county court.

    15. The Claimant is attempting to claim additional charges such as legal costs of £50.00. 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. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

    16. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The keeper can only be held liable if the claimant has fully complied with the strict requirements. The Claimant has not established whether the Defendant was the driver on the day in question and have not clarified whether they are pursuing the Defendant as Keeper or as Driver.

    17. The Claimant is put to strict proof of all his assertions

    18. Considering all the above circumstances, I respectfully ask that the court dismiss the claim.

    I believe the facts stated in this defence are true.
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