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  • FIRST POST
    • stranger93
    • By stranger93 15th Jan 18, 2:55 AM
    • 27Posts
    • 14Thanks
    stranger93
    HELP 2 court claims. BW Legal/Excel Parking
    • #1
    • 15th Jan 18, 2:55 AM
    HELP 2 court claims. BW Legal/Excel Parking 15th Jan 18 at 2:55 AM
    HI GUYS , PLEASE HELP!

    I have received 2 county court claim forms from Northampton County Court 3 days ago for unpaid PCN's. The claimant is Excel Parking Services LTD. The "address for sending documents and payments" is stated as BW Legal.

    Particulars of Claim:
    The claimants claim is for the sum of £100 being monies due from the defendant to the claimant in respect of a parking charge notice (PCN) is on XX/XX/XXXX (issue date) at XX:XX:XX at XXXXXXXXX Retail Park XXXXXXXX.
    The PCN relates to XXXXXXX under registration XXXXXXX.
    The terms of the PCN allowed the defendant 28 days from the issue date to pay the PCN, but the defendant failed to do so.
    Despite demand having been made, the defendant has failed to settle their outstanding liability.
    The claim also includes statutory interest pursuant to section 69 of the county courts act 1984 at a rate of 8% per annum a daily rate of 0.02 from XX /XX/XXXX to XX /XX/XXXX being an amount of £8.62.
    The claimant also claims £60.00 contractual costs pursuant to PCN terms and conditions

    Amount claimed: £168.62
    Court fee: £25.00
    Legal representatives costs: £50.00
    Total amount: £243.62

    The Second Claim Form Is exactly the same with the only difference being the date and the times.

    Background Info:
    I have no recollection of this occurrence , I wasn't the driver on the dates specified on the claim forms i am not the only person insured to drive the car in question although i am the registered keeper.

    Up To Now:
    I have completed the AOS on MCOL for both claims and stated that I intend to defend all of the claims.

    I have read through the Newbies section which was a great help and have done some research on how i am going to draft my defence i will post the defence below with the points i have researched so far.

    My questions on whether this contributes to defence:

    I received 2 notice of court claim issued letters from BW Legal and one thing i have noticed is that the breakdown of the county court claim on the letter compared to breakdown on the county court claim form are different would this be arguable ?

    Principal Debt: £100
    Interest: £8.62
    Court Fees: £25
    Solicitors Costs: £110
    Total Amount: £243.62

    But on the claim form the Total Amount has been made to the same figure of £243.62 up instead using a '£60.00 contractual costs pursuant to PCN terms and conditions.' in the particulars of claim.

    Also because i have received 2 claim forms could i argue that the claims be consolidated into one as they are claiming for the same type of contravention ?

    Finally should i send a part 18 request to BW legal and use in my defense if not responded to ?

    i also intend to go to the car park in question to take photos as there is only one sign but three entrances.

    I am going to do some more research on what else i could add into my defense.
    Thankyou in advance as its so helpful how people have given their time to help people on this forum. it's appalling that these parking companies can get away with the things they do and i intend to fight it all the way.

    This is my first draft please feel free to tell me what i've done right & wrong and what i should and shouldn't do i may add the following points:

    '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’.

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


    My defense:

    Statement of Defense


    14/01/2018


    It is admitted that Defendant is the registered keeper of the vehicle in question.
    However the Claimant has no cause of action against the Defendant on the following grounds:-

    1. The Defendant was not the driver of the vehicle on the date in question.


    2. 1. The Protection of Freedom Act 2012 Schedule 4 has not being complied with.

    a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

    b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.

    c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).


    3. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.


    4. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

    The signage is 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


    5. 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.


    6. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.


    6. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.

    a) Excel Parking Services Ltd is not the lawful occupier of the land

    b) 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 locus standi to bring this case.


    7. 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.


    8. The claimant has yet to respond to part 18 Request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the 15/01/2018.

    a) A request to explain if Excel Parking Services Ltd are making a claim as an agent of the landowner or making the claim as occupier in their own right.

    b) A request to explain if the amount claimed by Excel Parking Services Ltd is for a genuine pre estimate of loss for a breach of contract or a contractual sum?

    c) A request to provide copies of the signs on which Excel Parking Services Ltd rely and confirm the signs were in situ on the date of the event. Also to provide the date the signs were installed.

    d) A request to confirm that the signs were at the entrance to the site on the date in question. Also to confirm that the signs meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1.


    9. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

    a) The Claimant has no commercial justification
    b) The Claimant did not follow the IPC or BPA Code of Practice
    c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
    e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

    10. 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 Claimant claims a sum of £168.62 as the ‘amount claimed’’ (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions. In contradiction to this the claimant's solicitor has, however, described the Principal Debt as £100 and solicitor's costs as a further £110 in correspondence with the keeper summarised within the letter titled ‘Notice of county court claim issued’. 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 representatives costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.


    11. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.


    12. 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.

    Therefore I ask the court to respectfully strike out this claim with immediate effect.
    I believe that the facts stated in this Statement of defence, (date I intend to send) are true."


    Signed
Page 1
    • nosferatu1001
    • By nosferatu1001 15th Jan 18, 9:53 AM
    • 2,454 Posts
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    nosferatu1001
    • #2
    • 15th Jan 18, 9:53 AM
    • #2
    • 15th Jan 18, 9:53 AM
    Have you acknowledged BOTH claims?
    Don't contest jurisdiction unless you live outside England and Wales
    Do not start the defence yet. You are just giving yourself the full 33 days from DATE OF ISSUE of the claim forms

    What is the date of issue?
    You should ask the court to combine the claims, as they turn on essentially the same facts.
    • stranger93
    • By stranger93 15th Jan 18, 1:35 PM
    • 27 Posts
    • 14 Thanks
    stranger93
    • #3
    • 15th Jan 18, 1:35 PM
    • #3
    • 15th Jan 18, 1:35 PM
    Hi nosferatu1001 Thankyou for responding so quickly.

    I have acknowledged both claims

    I haven't contested jurisdiction

    The date of issue was 9th January

    And okay how would I go about doing this would I state it in my defense ?

    Thankyou
    • nosferatu1001
    • By nosferatu1001 15th Jan 18, 3:06 PM
    • 2,454 Posts
    • 3,003 Thanks
    nosferatu1001
    • #4
    • 15th Jan 18, 3:06 PM
    • #4
    • 15th Jan 18, 3:06 PM
    Yes, defenCe (with a C!) you would add a preliminary matter, that this court case ref XXXX and case ref YYYY should be combined, to avoid wasting the courts time, to prevernt the defendant having to defend 2 claims, and as this is clearly an attempt to obtain double recovery of the filing fees when no additional work was required to file the 2nd PoC

    I would NOT expect the CCBC (northampton) to actually pay attention, so you will likely get two DQ (dont ask what they are, NEWBIES thread, post 2, read it all!) and you will again there have to state the need to combine the cases.
    • stranger93
    • By stranger93 15th Jan 18, 4:28 PM
    • 27 Posts
    • 14 Thanks
    stranger93
    • #5
    • 15th Jan 18, 4:28 PM
    • #5
    • 15th Jan 18, 4:28 PM
    Thankyou for your response it has been very helpful !

    Also thankyou for clarifying that it is defence with a C because I have been reading so many different cases & many people have spelt it with an S so was unsure.

    I will add the preliminary matter within my defence and if I receive 2 DQ's I will again state the need to combine the cases if it gets that far.

    I understand that I now have 33 days from the date of issue to file my defence.

    I will refine my defence so far and post it below in a separate post for critique.

    Once again thankyou for your help I appreciate it very much.
    • stranger93
    • By stranger93 22nd Jan 18, 1:09 AM
    • 27 Posts
    • 14 Thanks
    stranger93
    • #6
    • 22nd Jan 18, 1:09 AM
    Defence draft against BW Legal/Excel Parking
    • #6
    • 22nd Jan 18, 1:09 AM
    Hi I've been working on my defence and this is what I've written for my first draft if anyone could give their opinions and advice on what I should and shouldn't say would be a great help.

    Also how would I add a preliminary to my defence ?

    Many thanks in advance


    Statement of Defence:


    It is admitted that Defendant is the registered keeper of the vehicle in question.

    However the Claimant has no cause of action against the Defendant on the following grounds:-

    1. The Defendant was not the driver of the vehicle on the date in question.


    2. The Protection of Freedom Act 2012 Schedule 4 has not being complied with.

    a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

    b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.

    c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).


    3. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.


    4. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

    The signage is 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


    5. 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.


    6. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.


    6. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.

    a) Excel Parking Services Ltd is not the lawful occupier of the land

    b) 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 locus standi to bring this case.


    7. 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.


    8. The claimant has yet to respond to part 18 Request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the 15/01/2018.

    a) A request to explain if Excel Parking Services Ltd are making a claim as an agent of the landowner or making the claim as occupier in their own right.

    b) A request to explain if the amount claimed by Excel Parking Services Ltd is for a genuine pre estimate of loss for a breach of contract or a contractual sum?

    c) A request to provide copies of the signs on which Excel Parking Services Ltd rely and confirm the signs were in situ on the date of the event. Also to provide the date the signs were installed.

    d) A request to confirm that the signs were at the entrance to the site on the date in question. Also to confirm that the signs meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1.


    9. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

    a) The Claimant has no commercial justification
    b) The Claimant did not follow the IPC or BPA Code of Practice
    c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
    e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

    10. 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 Claimant claims a sum of £168.62 as the ‘amount claimed’’ (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions. In contradiction to this the claimant's solicitor has, however, described the Principal Debt as £100 and solicitor's costs as a further £110 in correspondence with the keeper summarised within the letter titled ‘Notice of county court claim issued’. 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 representatives costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.


    11. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.


    12. 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.

    Therefore I ask the court to respectfully strike out this claim with immediate effect.
    I believe that the facts stated in this Statement of defence, (date I intend to send) are true."


    Signed
    • Umkomaas
    • By Umkomaas 22nd Jan 18, 9:02 AM
    • 17,571 Posts
    • 27,778 Thanks
    Umkomaas
    • #7
    • 22nd Jan 18, 9:02 AM
    • #7
    • 22nd Jan 18, 9:02 AM
    Just literally glanced my eyes over this, (I don!!!8217;t normally deal with court defences), and noticed you have two paragraph 6s. So you!!!8217;ll need to amend, with knock-on effect on subsequent paras. I!!!8217;ve not read any of the other detail, so please don!!!8217;t read any lack of other comment from me is a !!!8216;thumbs up!!!8217; on the draft.

    6. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper!!!8217;s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.


    6. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • stranger93
    • By stranger93 17th Apr 18, 1:07 PM
    • 27 Posts
    • 14 Thanks
    stranger93
    • #8
    • 17th Apr 18, 1:07 PM
    • #8
    • 17th Apr 18, 1:07 PM
    Hi Guys,

    My witness statement is due in just under 10 days defending as registered keeper and was wondering if anyone could give me a few pointers on what I could add or change on my statement so far.

    For evidence I have so far:

    pictures/videos of the car park in question to show the poor signage.
    a copy of beavis sign for comparison.
    a copy of Henry Greenslade's wording from the POPLA Annual Report 2015.
    a copy of Schedule 4 of the POFA - ( which section should I copy for the judge ?)

    I am going to go into more detail on my skeleton defence when i receive the court bundle from excel to defend against their witness statement & evidence.


    IN THE COUNTY COURT - Claim No.: [INSERT]

    Between

    EXCEL PARKING SERVICES LTD (Claimant)

    -and-

    [YOUR NAME] (Defendant)
    ____________________________
    WITNESS STATEMENT
    __________________________


    I, ****************** of **************, *********, ***********, **** *** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.


    1.The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

    3. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

    4. There was no requirement upon me as keeper to respond to what appeared to be junk mail, No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis in law.

    5. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.

    6. The claimant has failed to properly respond to my request made on XXX by email, requesting any documentation and relevant contracts with the landowners that allow the claimant to issue claims upon the landowners behalf. My request was ignored even though I have received emails from communication with excel.

    I believe that the facts stated in this Witness Statement are true.

    Signed xxxxxxxxxxxxxxxx
    Dated xxxxxxxxxxx

    Any help would be very much appreciated.

    Thanks in advance.
    • nosferatu1001
    • By nosferatu1001 17th Apr 18, 1:32 PM
    • 2,454 Posts
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    nosferatu1001
    • #9
    • 17th Apr 18, 1:32 PM
    • #9
    • 17th Apr 18, 1:32 PM
    You copy the bits of POFA you use to support yoru arugment that the NtK canot hoild the keeper liablke. So sched 4 para 8 or 9

    Your WS must reference EVERY documnt you rely upon, this one references nothing.

    In fact it doesnt match any of your defence, really. If in your defence you raise poor signage, where is the reference to that signage here? And so on.

    Work through the points of your defence and work out how you wilL PROVE each element.
    • stranger93
    • By stranger93 17th Apr 18, 3:01 PM
    • 27 Posts
    • 14 Thanks
    stranger93
    You copy the bits of POFA you use to support yoru arugment that the NtK canot hoild the keeper liablke. So sched 4 para 8 or 9

    Your WS must reference EVERY documnt you rely upon, this one references nothing.

    In fact it doesnt match any of your defence, really. If in your defence you raise poor signage, where is the reference to that signage here? And so on.

    Work through the points of your defence and work out how you wilL PROVE each element.
    Originally posted by nosferatu1001
    Thankyou for your help.

    I will redraft my witness statement in relation to my defence with the relevant references to back the points made in my witness statement.

    I will post shortly so that it can be reviewed.
    Last edited by stranger93; 20-04-2018 at 1:14 AM.
    • Coupon-mad
    • By Coupon-mad 17th Apr 18, 3:48 PM
    • 57,389 Posts
    • 70,992 Thanks
    Coupon-mad
    You need to have in the WS mention of why as keeper you are not liable, since the Claimant does not rely on the POFA (they use non-POFA NTKs) and cannot hold a registered keeper liable. Then add this:
    I have no recollection of this occurrence; I was not the driver on the dates specified on the claim forms.

    I am not the only person insured to drive the car in question although I am the registered keeper.
    You should add that the Particulars of Claim give you no hint as to the allegation, making you position as Defendant keeper who was not driving, almost impossible. For example, a retail park contravention could be: not paying a tariff, underpaying a tariff, not displaying a ticket, a flipped ticket, overstaying free time, returning within 2 hours when disallowed by signage, entering a wrong VRN, or the keypad itself failing to properly record the VRN.

    I would adduce as evidence a copy of your car insurance proving more than one driver is named, as well as any other driver in the family who has fully comp insurance and could have used the car for a shopping run.

    I would print off the whole of Schedule 4 for you and the Judge (ignore para 10, it has no application).

    Each line/point in your WS should relate to your evidence by number. All pages need numbering too, and then the whole lot with all numbered evidence at the back behind the WS, goes in a file or ring binder with a contents sheet, to make it nice & easy for the Judge to follow. Deliver that by hand with the Claim Number and 'Defendant's Witness Statement & Evidence' on every page and on the front.

    Email the version you supply to the other side.
    Last edited by Coupon-mad; 17-04-2018 at 3:51 PM.
    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.

    • stranger93
    • By stranger93 19th Apr 18, 12:08 PM
    • 27 Posts
    • 14 Thanks
    stranger93
    Hi guys Thankyou for your input on guiding me i've done some more research and redrafted my Witness Statement.

    If anyone could go through and help me with what i would need to amend that would be very much appreciated.

    I have also been hit with a third claim from Excel this time without the use of BW legal.
    they are claiming for numerous PCN's in one claim should i post the defence in this thread or start a new one ?


    IN THE COUNTY COURT - Claim No.: [INSERT]

    Between

    EXCEL PARKING SERVICES LTD (Claimant)

    -and-

    [YOUR NAME] (Defendant)
    ____________________________
    WITNESS STATEMENT
    __________________________


    I, ****************** of **************, *********, ***********, **** *** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

    1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

    3. The claimant has produced no evidence of who was driving

    4. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. (exhibit copy of Insurance showing other named drivers , Insurance copy of me being a named driver on another policy)

    5. The claimant cannot “presume” that the defendant and RK was the driver at the time of the alleged contravention. For the following reasons.

    6. There is no law that allows them to do this.

    7. The defendant asserts under ‘statement of truth’ that he was not the driver on this occasion. This will be repeated in court should this claim proceed to a hearing.

    8. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.

    9. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) 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. (Exhibit Popla 2015)

    10. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit PoFA Schedule 4)

    11. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper was not the driver, so he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for the claimant. As Mr B was not the driver, there would be no way they could offer any proof. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper. ( Exhibit – Excel Vs Mr B)

    12. The claimant is known to use Elliot V loake as part of their defence. I refer to Excel v Mr C C8DP37F1 at Stockport 31/10/2016. In this case the judge recognised that Elliot vs Loake was completely irrelevant. In dismissing the claim the judge stated amongst his reasons for doing so that - Excel did not adduce evidence of the driver, and - Elliott v Loake is not persuasive, and can be distinguished. (Exhibit Excel V Mr C)

    13. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. (Exhibit Excel Vs Lamoureux )

    14. I the defendant has recently visited the site in question for the purposes of gathering evidence for this case.

    15. Even if I was the driver on the date in question, the signage on and around the site does not meet the British Parking Association (BPA) or the Independent Parking Committee (IPC) which the claimant is a member of.

    16. I refer to the IPC code of practice which states signs should where practical be placed at the entrance to a site. The site in question has three entrances with only a sign to one entrance. (Exhibits - Photo / Video Evidence; IPC Code Of Practice; Detailed map of site sign positions)

    17. I again refer to the IPC code of practice which also states the Claimant is required to provide a sufficient number of signs to ensure any parking conditions are adequately brought to the attention of the motorist. There is only 2 signs in total on the site where neither sign has been repeated. (Exhibits - Photo / Video Evidence; IPC Code Of Practice ; Detailed map of site sign positions).

    18. 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. (Exhibit- Beavis Case Sign)

    19. My case can be compared to the Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) with DJ Lateef’s findings. Observations from her visit in person found answer to the key issue of whether excel had taken reasonable steps to draw 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 2011. (Exhibit - Excel Vs Cutts 2011)

    20. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing. (Exhibit - DVLA Freedom of information Request Regarding Excel 2012 Ban)

    21. The claimant failed to adequately respond to my request made on xxx where I requested any documentation and relevant contracts with the land owners that would allow the claimant to issue claims on the landowner’s behalf. (exhibit copy of email sent )

    22. My Request for information was ignored

    23. As the RK, in xxx I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions.

    24. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question at the material time. The claimant is put to strict proof otherwise.

    Thanks In Advance !
    • nosferatu1001
    • By nosferatu1001 19th Apr 18, 2:26 PM
    • 2,454 Posts
    • 3,003 Thanks
    nosferatu1001
    Start a new thread. That case will be largely similar to this but will have different specifics. As youve nottice it also keeps it clearer - your news was lost in the post above!
    • stranger93
    • By stranger93 20th Apr 18, 1:20 AM
    • 27 Posts
    • 14 Thanks
    stranger93
    You need to have in the WS mention of why as keeper you are not liable, since the Claimant does not rely on the POFA (they use non-POFA NTKs) and cannot hold a registered keeper liable. Then add this:


    You should add that the Particulars of Claim give you no hint as to the allegation, making you position as Defendant keeper who was not driving, almost impossible. For example, a retail park contravention could be: not paying a tariff, underpaying a tariff, not displaying a ticket, a flipped ticket, overstaying free time, returning within 2 hours when disallowed by signage, entering a wrong VRN, or the keypad itself failing to properly record the VRN.

    I would adduce as evidence a copy of your car insurance proving more than one driver is named, as well as any other driver in the family who has fully comp insurance and could have used the car for a shopping run.

    I would print off the whole of Schedule 4 for you and the Judge (ignore para 10, it has no application).

    Each line/point in your WS should relate to your evidence by number. All pages need numbering too, and then the whole lot with all numbered evidence at the back behind the WS, goes in a file or ring binder with a contents sheet, to make it nice & easy for the Judge to follow. Deliver that by hand with the Claim Number and 'Defendant's Witness Statement & Evidence' on every page and on the front.

    Email the version you supply to the other side.
    Originally posted by Coupon-mad
    Thankyou for your reply it has really helped !

    If you spot anything else I should change in my redraft please let me know.

    Start a new thread. That case will be largely similar to this but will have different specifics. As youve nottice it also keeps it clearer - your news was lost in the post above!
    Originally posted by nosferatu1001
    Thankyou I have started a new thread for the 3rd claim.
    • The Deep
    • By The Deep 20th Apr 18, 9:05 AM
    • 9,203 Posts
    • 8,968 Thanks
    The Deep
    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    Hospital car parks and residential complex tickets have been especially mentioned.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas. This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    Hospital car parks and residential complex tickets have been especially mentioned.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.
    You never know how far you can go until you go too far.
    • stranger93
    • By stranger93 21st Apr 18, 3:19 PM
    • 27 Posts
    • 14 Thanks
    stranger93
    Hi Guys,

    Thankyou to everyone who has commented with guidance for my witness statement.

    I have gone through the points made by everyone and have redfrafted my statement.

    If anyone could have a quick read & pick up on anything they think I should remove or research to add that would be a great help.

    once again thankyou !

    IN THE COUNTY COURT - Claim No.: [INSERT]

    Between

    EXCEL PARKING SERVICES LTD (Claimant)

    -and-

    [YOUR NAME] (Defendant)
    ____________________________
    WITNESS STATEMENT
    __________________________


    I, ****************** of **************, *********, ***********, **** *** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

    1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

    3. The claimant has produced no evidence of who was driving

    4. I have no recollection of this occurrence.

    5. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

    6. I am not the only person insured to drive the car in question. (exhibit copy of Insurance showing other named drivers , Insurance copy of me being a named driver on another policy)

    7. The claimant does not rely on Pofa and therefore cannot hold a registered keeper liable

    8. The claimant cannot “presume” that the defendant and RK was the driver at the time of the alleged contravention. For the following reasons.

    9. There is no law that allows them to do this.

    10. The defendant asserts under ‘statement of truth’ that he was not the driver on this occasion. This will be repeated in court should this claim proceed to a hearing.

    11. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.

    12. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) 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. (Exhibit Popla 2015)

    13. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit PoFA Schedule 4)

    14. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper was not the driver, so he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for the claimant. As Mr B was not the driver, there would be no way they could offer any proof. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper. ( Exhibit – Excel Vs Mr B)

    15. The claimant is known to use Elliot V loake as part of their defence. I refer to Excel v Mr C C8DP37F1 at Stockport 31/10/2016. In this case the judge recognised that Elliot vs Loake was completely irrelevant. In dismissing the claim the judge stated amongst his reasons for doing so that - Excel did not adduce evidence of the driver, and - Elliott v Loake is not persuasive, and can be distinguished. (Exhibit Excel V Mr C)

    16. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. (Exhibit Excel Vs Lamoureux )

    17. I the defendant has recently visited the site in question for the purposes of gathering evidence for this case.

    18. Even if I was the driver on the date in question, the signage on and around the site does not meet the British Parking Association (BPA) or the Independent Parking Committee (IPC) which the claimant is a member of.

    19. I refer to the IPC code of practice which states signs should where practical be placed at the entrance to a site. The site in question has three entrances with only a sign to one entrance. (Exhibits - Photo / Video Evidence; IPC Code Of Practice; Detailed map of site sign positions)

    20. I again refer to the IPC code of practice which also states the Claimant is required to provide a sufficient number of signs to ensure any parking conditions are adequately brought to the attention of the motorist. There is only 2 signs in total on the site where neither sign has been repeated. (Exhibits - Photo / Video Evidence; IPC Code Of Practice ; Detailed map of site sign positions).

    21. 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. (Exhibit- Beavis Case Sign)

    22. My case can be compared to the Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) with DJ Lateef’s findings. Observations from her visit in person found answer to the key issue of whether excel had taken reasonable steps to draw 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 2011. (Exhibit - Excel Vs Cutts 2011)

    23. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing. (Exhibit - DVLA Freedom of information Request Regarding Excel 2012 Ban)

    24. The claimant failed to adequately respond to my request made on xxx where I requested any documentation and relevant contracts with the land owners that would allow the claimant to issue claims on the landowner’s behalf. (exhibit copy of email sent )

    25. My Request for information was ignored

    26. As the RK, in xxx I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions.

    27. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question at the material time. The claimant is put to strict proof otherwise.
    • nosferatu1001
    • By nosferatu1001 22nd Apr 18, 12:17 AM
    • 2,454 Posts
    • 3,003 Thanks
    nosferatu1001
    4 and 5 are not really compatible. You assert you know nothing but you do know you were not the driver...
    • Coupon-mad
    • By Coupon-mad 22nd Apr 18, 12:21 AM
    • 57,389 Posts
    • 70,992 Thanks
    Coupon-mad
    10. The defendant asserts
    In a WS, it should be all in the first person: 'I'.
    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.

    • stranger93
    • By stranger93 22nd Apr 18, 11:07 PM
    • 27 Posts
    • 14 Thanks
    stranger93
    Hi Guys,

    Once again a huge thankyou to everyone who has commented with guidance it has really helped me through the whole process in fighting these scammers.

    I have gone through the points and made the relevant changes my witness statement is due within the next week. Is there any other final points worth researching and adding ?.

    Thankyou in advance !

    I, ****************** of **************, *********, ***********, **** *** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

    The Particulars of Claim give no hint as to the allegation, making the position as Defendant keeper who was not driving, almost impossible.

    1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

    3. The claimant has produced no evidence of who was driving

    4. I have no recollection of this occurrence.

    5. I am not the only person insured to drive the car in question. (exhibit copy of Insurance showing other named drivers , Insurance copy of me being a named driver on another policy)

    6. The claimant does not rely on Pofa and therefore cannot hold a registered keeper liable

    7. The claimant cannot “presume” that the defendant and RK was the driver at the time of the alleged contravention.

    8. There is no law that allows them to do this.

    9. I assert under ‘statement of truth’ that I was not the driver on this occasion. This will be repeated in court should this claim proceed to a hearing.

    10. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.

    11. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) 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. (Exhibit Popla 2015)

    12. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit PoFA Schedule 4)

    13. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. (Exhibit Excel Vs Lamoureux )

    15. The claimant is known to cite Elliot Vs Loake (1983) as a basis of their claim to assume the keeper was also the driver. However this is a criminal case with forensic evidence, whereby the keeper of the vehicle was also proved to be the driver at the time of an offence (road traffic accident) and thus has no basis upon this case or contract law.

    14. I the defendant has recently visited the site in question for the purposes of gathering evidence for this case.

    15. Even if I was the driver on the date in question, the signage on and around the site does not meet the British Parking Association (BPA) or the Independent Parking Committee (IPC) which the claimant is a member of.

    16. I refer to the IPC code of practice which states signs should where practical be placed at the entrance to a site. The site in question has three entrances with only a sign to one entrance. (Exhibits - Photo / Video Evidence; IPC Code Of Practice; Detailed map of site sign positions)

    17. I again refer to the IPC code of practice which also states the Claimant is required to provide a sufficient number of signs to ensure any parking conditions are adequately brought to the attention of the motorist. There is only 2 signs in total on the site where neither sign has been repeated. (Exhibits - Photo / Video Evidence; IPC Code Of Practice ; Detailed map of site sign positions).

    18. 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. (Exhibit- Beavis Case Sign)

    19. My case can be compared to the Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) with DJ Lateef’s findings. Observations from her visit in person found answer to the key issue of whether excel had taken reasonable steps to draw 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 2011. (Exhibit - Excel Vs Cutts 2011)

    20. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing. (Exhibit - DVLA Freedom of information Request Regarding Excel 2012 Ban)

    21. The claimant failed to adequately respond to my request made on xxx where I requested any documentation and relevant contracts with the land owners that would allow the claimant to issue claims on the landowner’s behalf. (exhibit copy of email sent )

    22. My Request for information was ignored

    23. As the RK, in xxx I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions. (Carpark Sign)

    24. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question at the material time. The claimant is put to strict proof otherwise.


    I believe the facts stated in this Witness Statement are true.
    • stranger93
    • By stranger93 24th Apr 18, 11:32 PM
    • 27 Posts
    • 14 Thanks
    stranger93
    Hi guys,

    Thankyou to everyone who has supported me !

    I've gone through my witness statement and made some more changes to cover every possible angle in my defence.

    If anyone has any last minute recommendations before sending off to the courts that would be great help.

    Once again thanks in advance.


    ____________________________
    WITNESS STATEMENT
    ____________________________


    The Particulars of Claim give no hint as to the allegation, making the position as Defendant keeper who was not driving, almost impossible.

    1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

    2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

    3. The claimant has produced no evidence of who was driving and is put to strict proof.

    4. I have no recollection of this occurrence.

    5. I am not the only person insured to drive the car in question. (exhibit copy of Insurance showing other named drivers , Insurance copy of me being a named driver on another policy)

    6. The claimant does not rely on Pofa 2012 and therefore cannot hold a registered keeper liable

    7. The claimant cannot “presume” that I the defendant and RK was the driver at the time of the alleged contravention.

    8. There is no law that allows them to do this.

    9. I assert under ‘statement of truth’ that I was not the driver on this occasion. This will be repeated in court should this claim proceed to a hearing.

    10. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person.

    11. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) 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. (Exhibit Popla 2015)

    12. The Claimant claims no right to pursue myself the Defendant as the registered keeper as they have failed to meet the conditions of PoFA 2012. I the keeper could only be held liable if the claimant had fully complied with the strict requirements. (Exhibit PoFA Schedule 4)

    13. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. (Exhibit Excel Vs Lamoureux )

    14. The claimant is known to cite Elliot Vs Loake (1983) as a basis of their claim to assume the keeper was also the driver. However this is a criminal case with forensic evidence, whereby the keeper of the vehicle was also proved to be the driver at the time of an offence (road traffic accident) and thus has no basis upon this case or contract law.

    15. I the defendant has recently visited the site in question for the purposes of gathering evidence for this case.

    16. Even if I was the driver on the date in question, the signage on and around the site does not meet the British Parking Association (BPA) or the Independent Parking Committee (IPC) which the claimant is a member of.

    17. I refer to the IPC code of practice which states signs should where practical be placed at the entrance to a site. The site in question has three entrances with only a sign to one entrance. (Exhibits - Photo / Video Evidence; IPC Code Of Practice; Detailed map of site sign positions)

    18. I again refer to the IPC code of practice which also states the Claimant is required to provide a sufficient number of signs to ensure any parking conditions are adequately brought to the attention of the motorist. There is only 2 signs in total on the site where neither sign has been repeated. (Exhibits - Photo / Video Evidence; IPC Code Of Practice ; Detailed map of site sign positions).

    19. 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. (Exhibit- Beavis Case Sign)

    20. My case can be compared to the Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) with DJ Lateef’s findings. Observations from her visit in person found answer to the key issue of whether excel had taken reasonable steps to draw 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 2011 which Excel parking LTD are still using . (Exhibit - Excel Vs Cutts 2011, Picture of signs)

    21. I also refer to the IPC code of practice which states the text should be of such size and in a font that can be easily read by the motorist. The site in questions signs do not meet this requirement. (Exhibit IPC Code)

    22. I have reasonable belief that the claimant does not have the authority to issue charges on this land in their own name as they failed to supply the relevant information when requested. The claimant is put to strict proof that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd.

    23. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing. (Exhibit - DVLA Freedom of information Request Regarding Excel 2012 Ban)

    24. The claimant failed to adequately respond to my request made on xxx where I requested any documentation and relevant contracts with the land owners that would allow the claimant to issue claims on the landowner’s behalf. (exhibit copy of email sent )

    25. My Request for information was ignored

    26. As the RK I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £54 for legal costs which they claimed are detailed in the car park terms and conditions. (Carpark Sign)

    27. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question and the claimant is put to strict proof otherwise.


    I believe the facts stated in this Witness Statement are true.
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