Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

Includes energy companies, mobile phone providers, retailers, banks, insurance companies,debt collection agencies, reclaim companies, secondhand car sellers, cowboy garages, cowboy builders and all the rest who put their own profits before you.

£6.99



Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)


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  1. #41
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Hi I've just seen the information you have sent thank you very much, I have sent you my defence but I had not seen your points before hand , sorry.


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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Quote Originally Posted by J English View Post
    I've taken out all personal details. What do you mean as a text box ? do you mean just cut an paste all the text on this site ?
    Yep. Obviously after removing anything that identifies you personally, case numbers, vehicle registration etc.

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  3. #43
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Particulars of claim

    I will try to reply to claimant using their numbering system where possible.

    1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimants case :

    a)The Defendant does not recognize the date of the alleged parking contravention in para 1 of the Claimants particulars of claim.

    The Operator did not identify the driver and since the incident occurred prior to the Protection of Freedoms Act 2012 there can be
    no Keeper Liability.
    The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available
    allowing a private parking firm to hold a registered keeper liable.

    The claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.
    This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the drivers identity.
    Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here.

    b. The Operator is not the land owner and therefore has no standing
    c. The Operator had no capacity to offer a contract with the Defendant
    d. The signage did not offer a contract with the Defendant
    e. No consideration passed from either the Operator or the Defendant
    f. The Claimant has disclosed no cause of action to give rise to any debt
    g. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty

    2. The Defendant denies that she was driver. The incident occurred before the Protection of Freedoms Act 2012 and therefore there can be no 'keeper liability'.
    The Operator therefore has no right to pursue the Registered Keeper for payment when it cannot identify the driver; the Defendant is also under no obligation
    to disclose who was the driver even if the Defendant could recollect who was driving on a particular day more than six years ago..

    3. The Particulars of Claim state that the Operator managed the car park on behalf of the Douglas Greg (Keighley) Ltd . The Operator was not therefore the Land-owner.
    Since the Claimant is not the landowner, it has no standing to file for damages.
    The land-owner that the claimant had a lease with changed names in 2013 and no evidence has been offered to show that the lease was renewed after 2010 under the same terms.

    4. The Defendant was not the '' registered keeper and/or driver of the Vauxhall Astra bearing vehicle registration mark (VRM) xxxxx (the vehicle)''
    nor does she recognise the dates claimed in section 1.

    5.The Defendant denies being the driver of the vehicle on the contravention date and the Claimant has failed to produce any evidence to prove otherwise.

    6. PATAS and POPLAicon 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" (POPLA report 2015).

    7. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant is in no position to confirm what signs were in
    place more than six years ago.The Defendant was unaware of the content of any signs until alerted to it by the Operators parking chargeicon Notice.
    A clear sign stating the terms and conditions at the entrance to the car park is a specific requirement of the British Parking Association Code of Practice that the
    Claimant is required to follow. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by
    a driver entering the car park this is clearly not the case from the evidence given.

    8.The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract
    were present and therefore no contract could possibly have existed. The driver was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges,
    a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the land-owner.

    Whether there was a contract or a licence, only the Land-owner has standing to bring a claim, not the Claimant.

    The Defendant has no idea what terms and conditions were stated on the signs as its too small and unclear from the evidence given but disputes the Claimants statement that
    such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable
    belief that the Operators intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to
    enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton county courticon appeal) that was decided by Mr Recorder Gibson QC in
    almost identical words (21 February 2014).

    The court is invited to consider whether a document titled parking chargeicon Notice would ever be sent between the parties to a genuine contract. The Claimant's claim for
    Breach of terms and conditions and recover the charges and additional costs incurred further confirms that the sum is neither a contractual term nor a genuine assessment of
    pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.

    The Claimant has stated that, as a result of the Defendants conduct, a charge was incurred. Notwithstanding that the Defendant does not know if she was the driver, the
    Claimant has given no indication of the nature of the alleged conduct in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.

    The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia
    to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and
    Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.

    The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company.
    The Defendant asserts that the Claimant has also ignoredicon the Governments official position on parking charges as expressed clearly in the Department for Transport Guidance on
    the Recovery of Parking Charges :

    Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are
    likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to
    recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

    The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimants loss. The Claimant has at no time provided an explanation how the
    sum has been calculated.

    9. and point 27 - 29.1 - 29.2 The Claimants images of the signage offered as evidence of the Terms and Conditions, it states a 100 charge is reduced to 40 yet the Claiment
    has claimed more than this in the NTK. The core terms of the sign don't say anything about a charge being payable for not buying a ticket and the small print is not clear,
    this is an unfair contract under S62 of the Consumer Rights Act.

    29.2 POFA says only the original billed in the NTK applies to keeper. The claiment are claiming 60 in costs agreed if they were suing the driver but at point 31 they say
    the sum is 54. They both cant be right.

    The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
    It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

    As such, I am keeping a note of my wasted time/costs in dealing with this matter.
    I request the court strike out this claim for the reasons stated above
    I confirm that the contents of this statement are true to the best of my knowledge and belief.


  4. #44
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    IMHO a bit too wordy
    99% of that is for your witness statement.

    dx

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  5. #45
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Ok I thought so, I'll size it down and use more of ericsbrother comments.

    I put it all together tonight sleep on it then send to the court and BWL tomorrow.

    BWL also will accept a email with attachements so i'll wait until late in the day to send to them I presume as long as it arrived tomorrow (service day) at BWL its fine.

    The court copy will be sent early morning.


  6. #46
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Post it up here 1st

    as long as its arrives at the court by 4pm you are ok

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  7. #47
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    This is what I intend to send tomorrow: I've put together 4 photos do you need to see them again ?


    Particulars of claim


    The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimants case :


    1. Neither the defendant nor the vehicle in question were anywhere near the car park on 29/10/2016 and the defendant puts it to strict proof that the claimant furnish any evidence at all of a parking event on that date that lead to a claim for a breach of any condition on the signage present at that date.See P1

    2. Excel originally wrote to the defendant about a parking event on the xxth April 2012 which is before the POFA was entered onto the statute books and as the defendant denies being the driver at that time and as no keeper laibility exists the defendant puts it to strict proof that Excel show who was driving at the time.

    3. The vehicle details given in the claim are not the correct details for the defendants vehicle at that time. The defendant denies any association with the vehicle identified in the claimants witness statement. See P1

    4. The claimant states they are a member of the Independent Parking Committee and adhere to their code of practice. the IPC did not exist in 2012 and their claim to be a member of the Independent Parking Committee is likewise unture, that is the registered name of a private limited company only registered in december 2016 that is not an Accredited Trade Association so they cannot be a menber nor abide by its code of Practice. The owners of the International Parking Community, (an ATA) has threatened legal action against any company claiming such membership as passing themselves off as a member of the latter.

    5 The claimant has failed to show any cause for action against the defendant on the date specified in the claim as they have not created a keeper liability and indeed state that they are not claiming one. However they then go on to state that they are claiming from the keeper when the POFA 2012 specifically disallows this unless certain conditions are met and these have not been met.


    6. The claimant is asking for costs that are not recoverable from the driver as the POFA limits any claim from the keeper to be no more than the amount specified on the Notice to keeper and again only if specific conditions are met. This means that there is no lawful method of adding the amounts specified in the claimants witness statement at points 29.2 and 32, where the disparity in the amount claimed is also noted. See P3

    7 The claimant has failed to produce any evidence that a notice to keeper was issued at all. This is in breach of the POFA and also a breach of Civil Procedureicon rules.

    8 In any case, the signage at the site is so poorly laid out and with such small and conficting text and clashing colour it cannot be said that it makes for an offer of a contract to park with certain conditions and a motorist passing these signs would be unable to consider such an offer. The 100 damages for breach of contract is not part of the core terms of parking and even then what constitutes a breach of conditions cannot be determined by reading the signage. For this reason the defenadnat states that no such breach occurred and that the contract is unfair and unenforceable. See P4 and P5


    For all of the above reasons the defendant states that they believe that the claim is totally without foundation and as it contains so many errors in matters of fact it is nothing more than an attempt to use the courts to try and profit from harassment or coercion rather than an attempt to recover an actual debt. For this reason the defendant asks that the claim be struck out in its entirety as being unreasonable conduct and requests a full costs recovery order under CPR 27.14.2(g)

    I confirm that the contents of this statement are true to the best of my knowledge and belief.


  8. #48
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Now you are including piccies and paperwork as well,
    the date on the origianl paperwork will destroy their claim and WS and probably get them an earwigging for incompetence as well if it gets that far.

    I can see them discontinuing about a week before the hearing, even the day before so make sure that you have blocked their email and phone numbers so they cant do this with impunity


  9. #49
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Thanks for all your help. I'll let you know what happens next. Sending paperwork to court now and BWL later today so they have no time to get back.


  10. #50
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    the other thing you can still do is ask the local council if Excel had planning permission for their signage and equipment back in may 2012 under the advertising hoardings regs of the town and country planning act 2007.

    You can add that on if they ahvent to the lack of contract as no PP- criminal behaviour and you cant agree to participate in crime. so no contract entered into


  11. #51
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Hi , I've had a letter from the courts they have asked the claimant to file the trial fee 25 and completed application before 1st July, if they dont it will be struck out. I'm sure they will.

    They have set a hearing for the 13th August which they indicate will last no more than 1 hour.

    I was thinking of asking Excel for a list of car registation plates that they logged on the day in question, I noticed a case that Excel failed to supply ALL details and it was struck out. Any thoughts ?


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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    This letter wouldn't happen to be Notice of Allocation by chance ?

    Dont miss the directions that you have to comply with by the dates stated.

    Andy

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  13. #53
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Its a notice of allocation to the small claimsicon tack. It appears I have to deliver all documents no later than 14 days before the hearing. Thanks for pointing that out.


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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    And a witness statement..particularisin g your defence.

    We could do with some help from you

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  15. #55
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    when you write your WS for your defence you should itemise the main points and then if you aksed for certi information under a CPR 31.14 request ask that they either be forced to produce this or request that the claim be dimissed for lack of a cause for action as they ahvent furnished the necessay proof thy have the right permissions etc.

    If you didnt ask for something under that request then you cnat really ask for it now but you can comment on the lack of proof so if you say that they have double dipped and you invite them to show otherwise they will have to produce evidence that this isnt so if you make this a main point or risk gtting the claim chucked out for failing to show a cause for action.

    Showing you were elsewhwere would be the icing on the cake but just giving enough to make someone doubt their statement will be enugh. what you cant do is ambush them on the day though so word it carefully

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  16. #56
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Ok will do. My WS needs to be sent at the end of July but I'm away 20th so I have a month to get it all sorted I presume I can send it via e-mail again so I could get it all ready before I'm away then just send it last min.


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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    You could if they accept electronic submission....but always follow it up with a hard copy.

    We could do with some help from you

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  18. #58
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    I woud always send a paper copy to court as a back up and never email the claimant, paper only.


    Quote Originally Posted by J English View Post
    Ok will do. My WS needs to be sent at the end of July but I'm away 20th so I have a month to get it all sorted I presume I can send it via e-mail again so I could get it all ready before I'm away then just send it last min.



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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    First draft of witness statement: Any comments greatly appreciated.

    1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimants case :

    a)The Defendant does not recognize the date of the alleged parking contravention in para 1 of the Claimants particulars of claim.

    The Operator did not identify the driver and since the incident occurred prior to the Protection of Freedoms Act 2012 there can be
    no Keeper Liability.
    The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available
    allowing a private parking firm to hold a registered keeper liable.

    The claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.
    This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the drivers identity.
    Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here.

    b. The Operator is not the land owner and therefore has no standing
    c. The Operator had no capacity to offer a contract with the Defendant
    d. The signage did not offer a contract with the Defendant
    e. No consideration passed from either the Operator or the Defendant
    f. The Claimant has disclosed no cause of action to give rise to any debt
    g. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty

    2. The Defendant denies that she was the driver. The incident occurred before the Protection of Freedoms Act 2012 and therefore there can be no 'keeper liability'.
    The Operator therefore has no right to pursue the Registered Keeper for payment when it cannot identify the driver; the Defendant is also under no obligation
    to disclose who was the driver even if the Defendant could recollect who was driving on a particular day more than six years ago..

    3. The Particulars of Claim state that the Operator managed the car park on behalf of the Douglas Greg (Keighley) Ltd . The Operator was not therefore the Land-owner.
    Since the Claimant is not the landowner, it has no standing to file for damages.
    The land-owner that the claimant had a lease with changed names in 2013 and no evidence has been offered to show that the lease was renewed after 2010 under the same terms.

    4. The Defendant was not the '' registered keeper and/or driver of the Vauxhall Astra bearing vehicle registration mark (VRM) xxxxx (the vehicle)''
    nor does she recognise the dates claimed in section 1.

    5.The Defendant denies being the driver of the vehicle on the contravention date and the Claimant has failed to produce any evidence to prove otherwise.

    6. PATAS and POPLAicon 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" (POPLAicon report 2015).

    7. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant is in no position to confirm what signs were in
    place more than six years ago.The Defendant was unaware of the content of any signs until alerted to it by the Operators parking chargeicon Notice.
    A clear sign stating the terms and conditions at the entrance to the car park is a specific requirement of the British Parking Association Code of Practice that the
    Claimant is required to follow. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by
    a driver entering the car park this is clearly not the case from the evidence given.

    8.The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract
    were present and therefore no contract could possibly have existed. The driver was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges,
    a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the land-owner.

    Whether there was a contract or a licence, only the Land-owner has standing to bring a claim, not the Claimant.

    The Defendant has no idea what terms and conditions were stated on the signs as its too small and unclear from the evidence given but disputes the Claimants statement that
    such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable
    belief that the Operators intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to
    enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton county courticon appeal) that was decided by Mr Recorder Gibson QC in
    almost identical words (21 February 2014).

    The court is invited to consider whether a document titled parking chargeicon Notice would ever be sent between the parties to a genuine contract. The Claimant's claim for
    Breach of terms and conditions and recover the charges and additional costs incurred further confirms that the sum is neither a contractual term nor a genuine assessment of
    pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.

    The Claimant has stated that, as a result of the Defendants conduct, a charge was incurred. Notwithstanding that the Defendant does not know if she was the driver, the
    Claimant has given no indication of the nature of the alleged conduct in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.

    The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia
    to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester county courticon 2011) and
    Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.

    The British Parking Association Code of Practice S.34 states that parking chargesicon must be fair, reasonable and a genuine pre-estimate of the loss to the parking company.
    The Defendant asserts that the Claimant has also ignoredicon the Governments official position on parking charges as expressed clearly in the Department for Transport Guidance on
    the Recovery of Parking Charges :

    Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are
    likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to
    recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

    The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimants loss. The Claimant has at no time provided an explanation how the
    sum has been calculated.

    9. and point 27 - 29.1 - 29.2 The Claimants images of the signage offered as evidence of the Terms and Conditions, it states a 100 charge is reduced to 40 yet the Claimant
    has claimed more than this in the NTK. The core terms of the sign don't say anything about a charge being payable for not buying a ticket and the small print is not clear,
    this is an unfair contract under S62 of the Consumer Rights Acticon.

    29.2 POFA says only the original billed in the NTK applies to keeper. The claiment are claiming 60 in costs agreed if they were suing the driver but at point 31 they say
    the sum is 54. They both cant be right.

    10. Under a CPR 31.14 request I have asked for a list of car regisrtation plates that they logged on the day in question so far they have failed to produce this information , I ask the court to dismiss this case as they havent furnished the necessary proof.

    The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
    It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

    As such, I am keeping a note of my wasted time/costs in dealing with this matter.
    I request the court strike out this claim for the reasons stated above
    I confirm that the contents of this statement are true to the best of my knowledge and belief.


  20. #60
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    Default Re: Excel Parking/BW Legal Form N180 *** Discontinued ***

    Urm imho to much..war and peace...

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