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  • FIRST POST
    • justnotgoodenough
    • By justnotgoodenough 7th Mar 18, 1:57 PM
    • 20Posts
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    justnotgoodenough
    Please Help - Draft Defence - County Court Claim
    • #1
    • 7th Mar 18, 1:57 PM
    Please Help - Draft Defence - County Court Claim 7th Mar 18 at 1:57 PM

    Any advice/comment on my draft defence before I submit. Thanks
    Last edited by justnotgoodenough; 21-04-2018 at 8:49 PM.
Page 1
    • Fruitcake
    • By Fruitcake 7th Mar 18, 2:04 PM
    • 36,626 Posts
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    Fruitcake
    • #2
    • 7th Mar 18, 2:04 PM
    • #2
    • 7th Mar 18, 2:04 PM
    What is the name of the PPC.

    Did you reveal the driver's identity in your initial appeal? (I hope not). You have implied it in your initial post, and on the balance of probabilities a judge might find that the driver has been identified.

    If you didn't then you need to edit your post to remove information about who did what. Only ever refer to The Driver and The Keeper.
    If you said any of the above to the PPC, then you have outed the driver and The Keeper has lost the protection of the POFA 2012.

    Please read the Sticky thread for NEWBIES, especially the information by bargepole about court which includes how to respond to a LBC.
    Last edited by Fruitcake; 07-03-2018 at 2:08 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • justnotgoodenough
    • By justnotgoodenough 7th Mar 18, 3:17 PM
    • 20 Posts
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    justnotgoodenough
    • #3
    • 7th Mar 18, 3:17 PM
    • #3
    • 7th Mar 18, 3:17 PM
    Thanks.

    The PPC is Excel.

    I've read the advice from the sticky threads - Ive customised/personalised my response to the LBC and posted it above for scrutiny - I just wanted to be sure before sending I hadnt included anything that was irrelvant or incorrect - or missed something important at this stage.
    • Coupon-mad
    • By Coupon-mad 7th Mar 18, 4:49 PM
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    Coupon-mad
    • #4
    • 7th Mar 18, 4:49 PM
    • #4
    • 7th Mar 18, 4:49 PM
    Looks fine, albeit if you are actually writing to BW Legal (solicitors for Excel) then saying things like 'your signs' needs to be changed to 'your client's signs' etc.
    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.

    • justnotgoodenough
    • By justnotgoodenough 7th Mar 18, 5:04 PM
    • 20 Posts
    • 22 Thanks
    justnotgoodenough
    • #5
    • 7th Mar 18, 5:04 PM
    • #5
    • 7th Mar 18, 5:04 PM
    "Looks fine, albeit if you are actually writing to BW Legal (solicitors for Excel) then saying things like 'your signs' needs to be changed to 'your client's signs' etc."

    Thanks Coupon-mad - in the letter there is no mention of BW Legal or any other solicitors they intend to use?

    They refer to their 'legal department'.
    Last edited by justnotgoodenough; 07-03-2018 at 5:19 PM.
    • Coupon-mad
    • By Coupon-mad 7th Mar 18, 6:02 PM
    • 57,452 Posts
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    Coupon-mad
    • #6
    • 7th Mar 18, 6:02 PM
    • #6
    • 7th Mar 18, 6:02 PM
    Ah OK, Excel trying one on their own.

    Did the letter enclose 'debt claim' pre-court forms and do they allow 14 days, or 30, for response?
    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.

    • The Deep
    • By The Deep 7th Mar 18, 6:46 PM
    • 9,209 Posts
    • 8,975 Thanks
    The Deep
    • #7
    • 7th Mar 18, 6:46 PM
    • #7
    • 7th Mar 18, 6:46 PM
    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences.

    Parking Eye, Smart and a smaller 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 nearly always lose) and have been reported to the regulatory authority by an M.P.

    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 most of these companies may well be put out of business by Christmas.
    You never know how far you can go until you go too far.
    • justnotgoodenough
    • By justnotgoodenough 7th Mar 18, 7:45 PM
    • 20 Posts
    • 22 Thanks
    justnotgoodenough
    • #8
    • 7th Mar 18, 7:45 PM
    • #8
    • 7th Mar 18, 7:45 PM
    Ah OK, Excel trying one on their own.

    Did the letter enclose 'debt claim' pre-court forms and do they allow 14 days, or 30, for response?
    Originally posted by Coupon-mad
    It says on the letter that they have enclosed :-

    Annex 1 - Information sheet
    Annex 2 - Financial statement

    Although no other documents were in the envelope. Just a scary letter with lots of options on how to pay.

    They say I have 30 days to cough up 160 (100 plus 60 debt collection fee) or they will issue court proceedings without further notice. Then they will add on court fees and interest.

    Then there is half a page explaining how the resulting CCJ will ruin my life!!!
    • Coupon-mad
    • By Coupon-mad 7th Mar 18, 8:32 PM
    • 57,452 Posts
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    Coupon-mad
    • #9
    • 7th Mar 18, 8:32 PM
    • #9
    • 7th Mar 18, 8:32 PM
    Well it won't 'ruin your life' (LOL!) because you can't get a CCJ if you defend, do not miss any court deadlines for paperwork return, win or lose at the hearing (if you lost, just pay within 30 days, no CCJ).

    And we win (or see discontinued) 99% of well-defended fully-coached cases on here.

    Respond robustly as keeper, tell them you know you can't be held liable and ask for their evidence of:

    - who was driving
    - the alleged contravention
    - the signs on site on that day
    - the records regarding the payment machine repairs and this fault
    - all photos taken
    - all letters they allege were posted, front & back copies

    ...and point out they seem to have lost their stock of 'reply forms' because the letter had no enclosures. But to save themselves the stamp and and further man-hours wasted on this, you suggest they cancel the charge immediately because they cannot hold registered keepers liable, did not offer a suitable grace period, given the entrance signs enticed drivers in but Excel then frustrated any 'contract' with a broken machine making it impossible for a person with cash only, to agree and accept parking terms - and as such, they have no case.
    Last edited by Coupon-mad; 07-03-2018 at 8:37 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.

    • justnotgoodenough
    • By justnotgoodenough 7th Mar 18, 8:53 PM
    • 20 Posts
    • 22 Thanks
    justnotgoodenough
    Thanks again for the feedback! I will make sure to include the points you have listed (appreciate you taking the time to do that).

    Its shocking really how they try to scare people.
    They have stated in bold text to pay or:

    live with a bad credit rating,
    i can expect no future lending,
    may be sacked from my current job
    will have difficulty finding another job
    and the cherry on top?? ..... the bailiffs will then pop round to take my stuff!
    !
    • Johnersh
    • By Johnersh 7th Mar 18, 9:48 PM
    • 1,031 Posts
    • 1,985 Thanks
    Johnersh
    Please post the letter online redacting all personal details, registrations, locations & ticket dates.

    If the letter is misleading as to the debt recovery process you should also submit a complaint.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Johnersh
    • By Johnersh 8th Mar 18, 7:59 PM
    • 1,031 Posts
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    Johnersh
    Here's the protocol that their letter was supposed to comply with. I suggest you mark up the sections where they are non compliant and send it back, given that you have already requested the salient documents.
    https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/protocols/pre-action-protocol-for-debt-claims.pdf

    I would also make clear that a failure to comply with the protocol can result in them being debarred from interest even in the event that they are successful (CPR - see para 16 https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#6.1).

    Further the 60 is not a contractual cost or charge, but an administrative charge, it should be itemised separately as per the protocol. Interest may not be applied to that sum.

    I would point out that a failure to pay when they have failed to respond to the queries raised and the request for documentation means that any proceedings are premature. It would be unreasonable to incur the costs of proceedings at this stage. (teeing up your claim for unreasonable costs later)

    Finally, I consider that the letter is misleading as to the process of debt recovery and threatening. there can be no basis for comment on your employment prospects. There can be no basis for making those claims, without making clear discharge within 30 days will have no such effect. That said it's Excel, so beyond making the point and showing it to the Court to ensure that it is criticised, not much turns on it.
    Last edited by Johnersh; 08-03-2018 at 8:19 PM.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • justnotgoodenough
    • By justnotgoodenough 9th Mar 18, 1:41 PM
    • 20 Posts
    • 22 Thanks
    justnotgoodenough
    Thank you Johnersh.

    Appricate you taking the time to write that. Will pick their letter apart again and will add those points to my defence/court notes. Cheers.
    • justnotgoodenough
    • By justnotgoodenough 15th Mar 18, 1:37 PM
    • 20 Posts
    • 22 Thanks
    justnotgoodenough
    I've been reading through some of the other threads and have written to the landowner to request they ask Excel not to pursue this PCN. This is the response I've had from the landowners MA ...

    "If there was not a lease with Excel then you are correct we could go back to them and ask them to cancel any notices but unfortunately that is not the case here as Excel have a lease of the car park and therefore are the effective landowner of that car park for a number of years. My clients have a lease with them but it does not permit us to tell Excel to cancel any tickets that Excel may issue."

    wondered is it possible there is a clause in any contract that prevents land owners from intervening? Or without seeing the contract is it impossible to comment? Thanks
    Last edited by justnotgoodenough; 22-04-2018 at 2:39 PM.
    • Coupon-mad
    • By Coupon-mad 16th Mar 18, 12:17 AM
    • 57,452 Posts
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    Coupon-mad
    Trouble is a lease means they DO have title. They are 'in possession' of the land under a lease.
    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 16th Mar 18, 10:03 AM
    • 2,482 Posts
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    nosferatu1001
    If Excel have a lease it will be registereed. You can get a copy of that from the land registry.
    • justnotgoodenough
    • By justnotgoodenough 17th Mar 18, 5:06 PM
    • 20 Posts
    • 22 Thanks
    justnotgoodenough
    Ah ok - that sucks - I've completely misunderstood that, I thought the land owner could always intervene - I didn't realise a contract and a lease in regard to these car parks were two different things. Thanks guys. I will try the land registry to confirm this is the case but looks like they have this covered.
    Last edited by justnotgoodenough; 17-03-2018 at 5:09 PM.
    • Coupon-mad
    • By Coupon-mad 17th Mar 18, 8:47 PM
    • 57,452 Posts
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    Coupon-mad
    OK, but they do not have the rest covered and the case is worth defending, as they all are.
    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.

    • Coupon-mad
    • By Coupon-mad 22nd Mar 18, 7:30 PM
    • 57,452 Posts
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    Coupon-mad
    They say the machine was in fully working order on the day in question and no faults were reported to them. They 'put me to strict proof'.
    Reply reiterating that the machine was out of order and the driver overheard another member of the public in front of the driver in the queue, reporting it to the helpline by phone. Therefore Excel MUST have a record and you put them to strict proof of that record of that machine in that car park at/either side of the material time. You require the actual records (VRNs redacted) showing that machine.

    Point out that Excel is in breach of the Consumer Rights Act 2015 which says:

    ''A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.
    (5)Whether a term is fair is to be determined;
    (a)taking into account the nature of the subject matter of the contract, and
    (b)by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.
    (6)A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer.''


    - Requiring a consumer to be put to 'strict proof' of the function of a machine that Excel themselves control, is ludicrous, void for impossibility and clearly unfair and contrary to good faith.

    - Expecting a consumer to have paid using an alternative method or machine that was not open to a person without a credit card, and where there was no such 'other machine' in sight, is unfair. The driver looked around and the only signs indicated the (broken) pay point at the entrance of the car park. There were no signs on the walls (low or high) or any obvious signage indicating there was any other machine to pay.

    - Expecting a driver to have arrived, parked, walked to a machine, read the signs, then discovered from a driver in front in the queue that the machine was out of order and had been reported, then looked for an alternative machine, then given up and driven out, all within the 'usual' ten minutes that applies to everyone on a normal day when the machine is working, is also void for impossibility and clearly unfair and contrary to good faith.

    - Telling a registered keeper that they are being held liable, despite the Notice to Keeper not complying with the POFA, such that Excel cannot rely on 'keeper liability' at all, is disingenuous, misleading about liability, unfair and contrary to good faith. Unreasonable and vexatious, in fact.

    (I would not argue the Grace period at this stage, they will say the driver had ten minutes to leave and your argument above already says what actually happened - a broken machine, entirely within Excel's control, not the driver's - that added another 5 minutes as a fruitless search for an alternative machine).

    Clearly you do NOT mention the driver making a phone call on arrival. Edit your post to remove it.
    Last edited by Coupon-mad; 22-03-2018 at 7:34 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.

    • justnotgoodenough
    • By justnotgoodenough 22nd Mar 18, 9:06 PM
    • 20 Posts
    • 22 Thanks
    justnotgoodenough
    As always thank you so much coupon.
    I will keep replying to them!

    Obviously I will report back here if it escalates to court.
    Ill keep reading the threads as I seem to find something different each time I read and re-read.
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