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  • FIRST POST
    • stranger93
    • By stranger93 15th Jan 18, 2:55 AM
    • 29Posts
    • 16Thanks
    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 2
    • Coupon-mad
    • By Coupon-mad 24th Apr 18, 11:43 PM
    • 59,521 Posts
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    Coupon-mad
    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 mandatory requirements of the Codes of Practice of the British Parking Association (BPA) nor the International Parking Community Independent Parking Committee (IPC) both of which the claimant is/has been a member. of.
    Some suggestions above to make it read more smoothly, and giving the correct full name for the IPC, who changed it a year or two ago.
    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.

    • markkelly112
    • By markkelly112 26th Apr 18, 2:39 PM
    • 15 Posts
    • 1 Thanks
    markkelly112
    How did you get on buddy with this?

    I have a similar one next week.
    • stranger93
    • By stranger93 26th Apr 18, 2:40 PM
    • 29 Posts
    • 16 Thanks
    stranger93
    Hi Guys,

    i've had a call from BW Legal this morning offering a without prejudice offer.

    I recorded the whole conversation.

    BW Legal have stated on the call that their client does not intend to rely on POFA 2012 I got them to repeat this several times throughout the call.

    I am filing my witness statement next week is there any way i can include the recorded phone call as evidence to show the judge that they are not relying on POFA and therefore have no grounds to bring a case against me as the registered keeper.

    He also said to me on the phone that they are acting on 'reasonable presumption' that i was the driver at the time because they are not relying on POFA.

    the only thing they intend to use in their defence is signage, but i have also got undoubtable proof of how the signage does not meet IPC standards.

    also i am going to be claiming full costs from Excel/BW Legal as i have to miss work to attend the court hearing just to clarify what is considered proof to the judge on what i'm earning for the work i have missed for the day ?.

    once again thanks for all the help i have received ! I feel fully prepared against Excel/BW Legal
    • markkelly112
    • By markkelly112 26th Apr 18, 2:42 PM
    • 15 Posts
    • 1 Thanks
    markkelly112
    How did u get on buddy, my one is next week.
    • KeithP
    • By KeithP 26th Apr 18, 2:45 PM
    • 8,080 Posts
    • 7,949 Thanks
    KeithP
    You mention 'without prejudice'.

    My understanding is that you cannot use that conversation in court, but please wait for others to confirm.
    .
    • nosferatu1001
    • By nosferatu1001 26th Apr 18, 2:48 PM
    • 2,851 Posts
    • 3,546 Thanks
    nosferatu1001
    Almost certainly you coudl not include it, unless you told them you were recording it. It was also "WP" basis.

    THeir own WS will no doubt state their assumption. SO you must know by now they try to cite TWO cases to back this up - Elliot v Loake, where there was forensic evidence and the drivers own testimony to provide proof of his identity, and secondly CPS vs AJH films, where they say a Keeper can be liable as the driver was their "agent", but again this case relied upon an Employer being liable for an employees actions - which isnt the case here.

    COSTS:
    You have TWO types of costs to go for: Ordinary and Unreasonable

    Ordinary: Half a day loss of pay or leave, capped at £95. Take proof. Mileage and parking

    Unreasonable, under CPR27.14(2)(g). Yuo have to show they behaved unreasonably, and this gives you chance to claim for yor time spent preparing the case, at at least £19 per horu (LIP rate)

    Either way you submit your costs schedule 3 days before teh hearing. Examples are found all over this forum.
    • stranger93
    • By stranger93 26th Apr 18, 3:17 PM
    • 29 Posts
    • 16 Thanks
    stranger93
    How did u get on buddy, my one is next week.
    Originally posted by markkelly112
    I'm filing my Witness statement next week so got a few weeks until the case i will update on how everything goes, good luck on your case.


    You mention 'without prejudice'.

    My understanding is that you cannot use that conversation in court, but please wait for others to confirm.
    Originally posted by KeithP
    I was thinking this thankyou for your help !

    Almost certainly you coudl not include it, unless you told them you were recording it. It was also "WP" basis.

    THeir own WS will no doubt state their assumption. SO you must know by now they try to cite TWO cases to back this up - Elliot v Loake, where there was forensic evidence and the drivers own testimony to provide proof of his identity, and secondly CPS vs AJH films, where they say a Keeper can be liable as the driver was their "agent", but again this case relied upon an Employer being liable for an employees actions - which isnt the case here.

    COSTS:
    You have TWO types of costs to go for: Ordinary and Unreasonable

    Ordinary: Half a day loss of pay or leave, capped at £95. Take proof. Mileage and parking

    Unreasonable, under CPR27.14(2)(g). Yuo have to show they behaved unreasonably, and this gives you chance to claim for yor time spent preparing the case, at at least £19 per horu (LIP rate)

    Either way you submit your costs schedule 3 days before teh hearing. Examples are found all over this forum.
    Originally posted by nosferatu1001
    Thankyou for your help i was under the impression i would not be able to use this but just wanted to double check so thankyou for clarifying I think they know they are not going to win this case so are trying to make an offer to save this going to court.
    • Quentin
    • By Quentin 26th Apr 18, 3:30 PM
    • 36,343 Posts
    • 20,591 Thanks
    Quentin
    You didn't mention what the offer was
    • Coupon-mad
    • By Coupon-mad 27th Apr 18, 12:56 AM
    • 59,521 Posts
    • 72,691 Thanks
    Coupon-mad
    When they ring and make an offer, that normally heralds a discontinuance, days later.

    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.

    • nosferatu1001
    • By nosferatu1001 27th Apr 18, 10:14 AM
    • 2,851 Posts
    • 3,546 Thanks
    nosferatu1001
    Id get your schedule of costs put together now

    Submit to court about 3 days before, including a section on how unreasonable theyve been and hitting them for costs or preparing.

    They know nothing now they shouldnt have known befroe submitting the claim, so the claim never had a hope of succeeding and they clearly never wanted this to go to a hearing. Definition of unreasonable, in my mind!
    • stranger93
    • By stranger93 7th May 18, 4:01 PM
    • 29 Posts
    • 16 Thanks
    stranger93
    When they ring and make an offer, that normally heralds a discontinuance, days later.

    Originally posted by Coupon-mad
    Excel have decided to continue the claim how long do they have until to discontinue ?
    they have sent through their witness statement which is a load of waffle with no substance at all, they have even stated they are not using POFA i can't get my head around the stupidity of the claim its like they want to lose.

    I am going to work on my skeleton argument this week and go through their witness statement to defend it point by point.

    should i post here for feedback ?

    Id get your schedule of costs put together now

    Submit to court about 3 days before, including a section on how unreasonable theyve been and hitting them for costs or preparing.

    They know nothing now they shouldn't have known befroe submitting the claim, so the claim never had a hope of succeeding and they clearly never wanted this to go to a hearing. Definition of unreasonable, in my mind!
    Originally posted by nosferatu1001
    Thankyou I will be finalising my costs this week for the hearing should they be stupid enough to allow it go ahead.
    • Redx
    • By Redx 7th May 18, 4:18 PM
    • 18,515 Posts
    • 23,441 Thanks
    Redx
    they can discontinue even on the day in the waiting room

    yes post any WS etc on here for critique, be foolish not to

    if claiming costs for time off work etc, copy and take or submit proof of earnings like a payment of earnings invoice from your employer or similar (like a monthly salary statement containing gross pay , net pay , deductions etc - ie:- a payslip or payslips)
    Last edited by Redx; 07-05-2018 at 4:22 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • beamerguy
    • By beamerguy 7th May 18, 5:13 PM
    • 7,802 Posts
    • 10,378 Thanks
    beamerguy
    Excel have decided to continue the claim how long do they have until to discontinue ?
    they have sent through their witness statement which is a load of waffle with no substance at all, they have even stated they are not using POFA i can't get my head around the stupidity of the claim its like they want to lose.


    should i post here for feedback ?

    Originally posted by stranger93
    Look, Excel and BWLegal are full of waffle and until some
    bright spark realises they will lose the claim, they will
    continue right up to being whooped in court.
    THAT'S WHEN YOU CLAIM YOUR COSTS

    Not sure though if there are any bright sparks in Excel or
    BWLegal ...... they do read this forum so maybe the penny
    will drop that they are on a loser.
    The courts are fed up with with these two jokers

    Just carry on and ignore any bait that passes your way
    which in general means they don't want to go the court
    route ?

    Funny old life that innocent motorists are being scammed,
    we hope that the new members bill in the house will help
    put a stop to this rubbish and ..... the old boys club, the SRA
    get to grips with BWLegal and the likes
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • stranger93
    • By stranger93 9th May 18, 12:30 AM
    • 29 Posts
    • 16 Thanks
    stranger93
    Hi Guys,

    Thankyou to everyone who has posted and helped throughout this whole process

    I'm just over a week away to my date in court with BW Legal/Excel as it seems they want to be stupid enough to allow this claim to go through to court.

    I have ignored all the bait they have thrown my way and i'm looking forward to getting my day in court with them and claiming my costs for this absolute farce of a claim.

    I have started my skeleton argument below please feel free to throw any critique my way so that I can make the relevant changes before i send off to the courts next week.

    Thanks in advance !



    Skeleton Argument

    Introduction

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

    Claimants Witness Statement:

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

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

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


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

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

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

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

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

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

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

    10. I did not respond to the brightly coloured notices sent to me by Excel because I believed they were a scam (this sort of scam had been exposed on Watchdog). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.

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

    12. The defendant was not the driver, the claimant is claiming on the presumed assumption that the defendant was the driver without providing any proof to back up their assumption.

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

    14. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

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

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

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

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


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

    POFA 2012 not complied with:

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

    POFA APPENDED AS EVIDENCE: xxx

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

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

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

    Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.

    Claimant not complying with IPC Code Of Practice:


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

    DJ Lateef's damning findings about Excel retail park signage in 2011 in Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) included these observations from her visit in person: !!!8220;The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts!!!8217; attention to the terms and conditions of using the car park!!!8221;. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in early 2012.

    APPENDED AS EVIDENCE: EXCEL V CUTTS 2011


    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.


    Claimant Credibility:

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

    RESPONSE FROM DVLA APPENDED AS EVIDENCE: xxx
    • Coupon-mad
    • By Coupon-mad 9th May 18, 1:29 AM
    • 59,521 Posts
    • 72,691 Thanks
    Coupon-mad
    Have you already filed as evidence, VCS v Quayle and the appeal case of Excel v Smith:

    http://www.parking-prankster.com/more-case-law.html

    which both knocked CPS V AJH 2015 into the bin?
    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 9th May 18, 8:24 PM
    • 29 Posts
    • 16 Thanks
    stranger93
    Have you already filed as evidence, VCS v Quayle and the appeal case of Excel v Smith:

    http://www.parking-prankster.com/more-case-law.html

    which both knocked CPS V AJH 2015 into the bin?
    Originally posted by Coupon-mad
    thanks for the heads up I haven't filed that case as evidence with my witness statement but i did mention CPS V AJH and how its irrelevant to this case. Is it to late to submit that case as part of my evidence ?

    If there is any other critique anyone can throw my way please feel free !

    Thanks in advance
    • Coupon-mad
    • By Coupon-mad 10th May 18, 1:45 AM
    • 59,521 Posts
    • 72,691 Thanks
    Coupon-mad
    I mentioned 2 cases, and those transcripts can be filed with your SA.
    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 10th May 18, 5:49 PM
    • 29 Posts
    • 16 Thanks
    stranger93
    I mentioned 2 cases, and those transcripts can be filed with your SA.
    Originally posted by Coupon-mad
    Okay thankyou ! I will file both transcripts with my SA & will post here for final critique before sending off at the start of next week.
    • stranger93
    • By stranger93 11th May 18, 9:26 PM
    • 29 Posts
    • 16 Thanks
    stranger93
    Hi Guys,
    Thankyou to everyone for your continued support ! my hearing is coming up next week and i'm finishing putting together my skeleton argument to send off at the start of the week.

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

    Thanks in advance !


    Skeleton Argument

    Introduction

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

    Claimants Witness Statement:

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

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

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

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

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

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

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

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

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

    POFA APPENDED AS EVIDENCE: xxx

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

    10. I did not respond to the brightly coloured notices sent to me by Excel because I believed they were a scam (this sort of scam had been exposed on Watchdog). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.

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

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

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

    14. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

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

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

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

    SMITH V EXCEL PARKING SERVICES 2017 APPENDED AS EVIDENCE

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

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

    POFA APPENDED AS EVIDENCE: xxx

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

    POFA 2012 not complied with:

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

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

    POFA APPENDED AS EVIDENCE: xxx

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

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

    Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.

    POPLA ANNUAL REPORT 2015 APPENDED AS EVIDENCE:

    Claimant not complying with IPC Code Of Practice:

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

    26. DJ Lateef's damning findings about Excel retail park signage in 2011 in Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) included these observations from her visit in person: !!!8220;The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts!!!8217; attention to the terms and conditions of using the car park!!!8221;. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in early 2012.

    APPENDED AS EVIDENCE: EXCEL V CUTTS 2011

    27. My case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case.

    APPENDED AS EVIDENCE: BEAVIS CASE SIGN

    Claimant Credibility:

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

    RESPONSE FROM DVLA APPENDED AS EVIDENCE: xxx
    • Coupon-mad
    • By Coupon-mad 24th May 18, 1:27 AM
    • 59,521 Posts
    • 72,691 Thanks
    Coupon-mad
    Which Court, Judge and what happened, please?
    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.

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