EXCEL PCN 2015 Peel Centre now BW claimform

[hollieollo]

read the pranksters latest blog about this very place, it has some very relvant points that you should note and add to your defence bundle when the time comes. You will also need to quote the case numbers of that particular failure by Excel to screw money out of the innocent as well as furnishing copies of the Fairlie Fenton judgement rather than just quoting it.

 

Do you mean this post:- http://parking-prankster.blogspot.co.uk/2016/10/bw-legal-how-to-winlose-claim.html

 

Regards

 

Chris

[hollieollo]

Just checked the MCOL website this morning and it says that DQ entered by claimant on 21/10/2016(I already knew this) and that the case has been transferred to Stockport County Court.

 

 

I sent my letter requesting that it be struck out to Northampton yesterday.

 

 

Will I now need to send the same letter to Stockport?

 

Chris

[ericsbrother]

no, it will be forwarded.

 

After you get the allocation letter then you write to Stockport CC for all matters that then arise.

Your letter may not get read by anyone who matters for a while so dont expect a response in monday's post.

 

 

I hope that you get a case management directions letter,

if you do let us know otherwise things will follow their normal course

and you will be told what to do any by when by Stockport.

[hollieollo]

Just to keep you in the loop, I received the letter N271 advising that proceedings have been transferred to Stockport County Court.

[ericsbrother]

thats normal. read the panksters blog as they have just lost a claim in the courts for here but it was a different reason. That doesnt mean that there isnt something to learn though as they lost one before that as the ticket machine was faulty so it was what is known as a frustrated contract so they cant claim a breach.

[hollieollo]

I`m not sure what BW are playing at,

 

 

this morning I received a letter with a badly photocopied Excel Parking header saying that the account has been passed to BW Legal.

 

 

Evidently, they will contact me regarding payment?

Are they really that stupid?

Don`t they know they are supposed to be going to Stockport County Court?

 

Furthermore, I spoke to Stockport CC this morning

a lady told me that Allocation Fees are no longer paid, and have not been paid for the last 2 years,

but that the hearing fee had gone up and would be payable sometime in the future after the district judge had looked at the file.

 

She also told me that my letter asking for the case to be struck out had been forwarded to them, but they had not yet received the file.

 

Until they receive all the documentation, the judge cannot make any decisions about the case.

 

This is all like Rumpole of the Bailey!!

 

I am confused about what is happening.

[ericsbrother]

well, at the moment you are waiting for a judge to read the paperwork and then either order the claimants to pay the hearing fee (old allocation fee) or for either party to produce some documents that will decide whether it goes to a hearing. You may get invited to attend or submit to a case management hearing, if you do then I would advise attending.

[hollieollo]

You may get invited to attend or submit to a case management hearing, if you do then I would advise attending.

 

Thanks for the quick reply. Can you briefly explain what is involved in a case management hearing?

[ericsbrother]

if there is one it will normally formally lay out what each party is expected to do in a certain time before the matter goes to a full hearing.

 

 

In your case I would think that Excel/BW will be ordered to show exactly why they they are suing you as you have asked for a strike out.

 

 

If they get the legal jargon wrong then their claim may well be struck out at this stage (here's hoping).

[hollieollo]

Well today I received a form labelled

`Notice of Allocation to the Small Claims track(Hearing)`.

 

Despite the claims of the court in Northampton,

my original letter requesting a strike out has been ignored.

 

the form gives 7 days to make any representations,

I have merely redated the strike out request and sent it to Stockport County Court.

 

The claimants have been told to pay a £25 hearing fee by 3rd January 2017 or the claim will be struck out.

 

The form also states that:-

`By 27th December 2016 you must file at court and serve on yout opponent

 

a) A written witness statement of any person(including yourself( whose evidence is relied upon in support of your case. It must contain:-

i) All the evidence of thew witness

ii) Be dated

iii) Conclude with a signed confirmation stating: "The contents of my statement are true to the best of my knowledge and belief"

b) Copiers of any documents relied upon, even if these have previously been sent to your opponent and/or sent to the court. You are unlikely to be allowed to rely on any documents which have not been filed at court and sent to your opponent in compliance with this direction.

 

Most of this will not involve me, I`m guessing?

 

Chris

[ericsbrother]

so far nothing unusual.

 

You need to write a witness statement outlining your version of events and the main points you are making as to why their claim is rubbish and end it as prescribed.

 

 

As said, copies of documents you wish to use at the hearing

so if you are going to refer to other cases where Excel have lost you must be clear as to what case this is,

where it was heard and a precis of the case or at least the reasons for the outcome (no signage, confusing layout etc).

 

 

A full transcript will not be necessary but you cant just say PE v Smith and leave it at that,

the judge isnt going to look up 5,0000 PE claims and hope to find the one you are referring to.

[hollieollo]

The main points of my defence are as folows:-

1/ My daughter, who is also my carer, was using the car for the first time since I bought it. She uses the Peel Centre car park 3/4 times a week and always gets a ticket which I refund as part of her carers allowance.

 

2/ The car was new to her and she thinks she might have put in an incorrect registration number when purchasing her ticket.

 

3/ Excell Parking did not send the Penalty notice to me until 5 months after the event. The rules state 14 days after the alleged contravention, the Notice to Keeper must be sent. The scrict protocols of Schedule 4 of the POFA 2012 have not been met. There is no cause for action against the defendant as there is no keeper liability inder the POFA as the claimant failed to follow the protocols of the act to create one.

 

4/ Because of the delay in sending the Penalty notice, any ticket would have been thrown away long since.

 

5/ Their evidence relies solely on an entry and exit photograph. There is no photograph of the vehicle without a ticket being displayed. The claim is that no ticket was purchased and displayed in the prescribed manner. This is denied and the claimant has offered no evidence that any action by the driver at the time has lead to a breach of this purported condition in the contract supposedly offered and accepted at the time. In any case, the driver paid the prescribed fee so no loss caused to the claimant and no other cause for action as there was no breach of contract.

 

6/ The claimants solicitors have failed to respond to my CPR 31:14 request made on 10/08/2016 by royalmail recorded delivery postal service requesting any documentation or relevant contracts with the land owners that allow the claimant to issue claims upon the landowners behalf.

 

The main thrust of my defence is that their PCN was out of date when they sent it and thereby did not comply with POFA protocols. That a ticket was purchased but the registration details may have been incorrectly used. There is no evidence(photograph of vehicle with no ticket on dashboard) other than merley entry/exit photographs of the vehicle. Non-compliance with my CPR 31:14 request.

 

Any additional comments?

 

Regards

 

Chris

[dx100uk]

penalty notice?

[hollieollo]

I meant Parking Charge Notice.

[dx100uk]

well you need to get things correct when dealing with a court claim

else they and the claimant will exploit your lack of understanding upon these matters

[ericsbrother]

my daughter?

No, the driver at the time.

 

 

Not naming driver to keep any liability limited still applies otherwise they may just drop their action and start again by suing your daughter.

 

Point 4 is irrelevant,

they have 6 years to make a claim but you can say that under the Road Traffic Act councils only have 6 months to issue proceedings as it is considered that it would be unlikely that anyone would remember the events further back than that.

 

On point 5

you should also stick the knife in and quote as many of the claims that EXcel lost for rubbish ANPR, inadequate signage and faulty equipment as you can.

use the Parking Pranksters blog to dig out case ref no's and a precis of each.

 

on point 6

your dont say the claimants solicitors, you say the claimant.

The solicitors are like a taxi,

they just go where they are told to so if Excel havent responded then it is Excel's fault, not BW.

 

 

To add to this you should go furhter and say thus no cause for action against the defendant

(note the impersonal wording, you dont say I, me, etc) has been demonstrated so the claim should be dismissed as being without merit.

[hollieollo]

Juust noticed that the court require any written witness statement, including my own, by 27th December, and to be served on the opponent.

Does that mean my defnce has to be laid out and sent?

 

Also, regarding the date of which the original Parking Charge Notice was received, being 5 months after the date of the alleged contravention, surely they only have 30 days maximum to send this according to the CPR rules?

[dx100uk]

You've already sent your defence

This is your witless statement you have to do...

 

One copy to the court

One to the claimants Sol

 

But if they don't pay the fee its not going anywhere.....

[hollieollo]

You've already sent your defence

This is your witless statement you have to do...

 

One copy to the court

One to the claimants Sol

 

But if they don't pay the fee its not going anywhere.....

Thanks for your prompt response.

They are required to pay by 3rd January 2017. I am required to submit some sort of witness statement by 27th December. I do not have any witness statement to make, the defence says it all.

 

Chris

[dx100uk]

Urm you do else you'll lose,....

 

As that was a stupid idea to file all that rubbish in your defence

 

Already had one peel loss today

Don't be the second

[hollieollo]

Urm you do else you'll lose,....

 

As that was a stupid idea to file all that rubbish in your defence

 

Already had one peel loss today

Don't be the second

 

To be clear, what should I be stating in my witness statement?

Unfortunately, I am getting conflicting advice from different people.

 

Regards

 

Chris

[dx100uk]

Post 86

[hollieollo]

Post 86

 

OK I have read that and i replied with Post 87, which sets out my case. Am I right to assume that is my witness statement?

 

Chris

[hollieollo]

I have spenjt the last couple of days trawing through the Parking Pranksters website along with Money Saving Expert. This is my witness statement:-

 

WITNESS STATEMENT

__________________________

 

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. I have only driven this vehicle on 2 occasions, never to this retail park.

 

4. Excel issued a NtK that they claimed was compliant with POFA, including the warning that if, 28 days after the issue of the notice, the sum was not paid or the driver notified to Excel, they would invoke keeper liability.

 

 

In a recent case at Stockport CC in Excel v Mr C C8DP37F1 Stockport 31/10/2016 the judge made a finding of fact that the Excel wording does not comply with the mandatory requirements of POFA to invoke keeper liability.

 

 

As Excel did not adduce evidence of the driver, and as Elliott v Loake is not persuasive and can be distinguished, the claim was dismissed.

 

5. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred.

 

 

ANPR camera photos merely show a vehicle arriving and leaving.

 

 

All vehicles will have been recorded thus (assuming their VRNs were captured).

 

 

All vehicles, including those whose drivers paid and displayed.

 

6. In order to demonstrate that the driver(s) on these occasions failed to pay & display, the Claimant should have evidenced that, of course.

 

 

Where are the photos of the dashboard showing no P&D ticket displayed?

 

 

Failing that, as this is an ANPR site, where are the system records showing no payment made on these days?

 

 

They have not even supplied lists of the VRNs input by drivers on those days,

e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle.

 

7. There is a well-known history of the parking ticket machines at the Peel Centre failing to record a VRN and this has been recorded in two recent cases.

 

 

One mentioned above, at Stockport CC in Excel v Mr C C8DP37F1 Stockport 31/10/2016.

 

 

The other being Excel Parking v Mrs S. C8DP11F9 on 09/09/2016 at Oldham CC.

In this case the defendant purchased a ticket, but the machine was faulty and did not print her VRN correctly. T

 

he judge ruled in favour of the defendant on the balance of probabilities that she bought her ticket and entered the VRN correctly, only for the machine to erroneously mis-print it. T

he case was dismissed.

 

8. The driver maintains that a ticket was bought and displayed on the vehicle during the stay at the car park, however, as this was the first use of a newly acquired vehicle, the VRN may have been incorrectly entered, albeit still a valid VRN.

 

 

As stated in point 6. Above, no pictures of the vehicle without a valid ticket have been produced by the claimant.

 

 

There are no system records showing no payment made, nor has there been any lists of VRNs input by drivers on that day,

e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle.

 

9. The NTk was dated and sent out on 06/07/2015, almost 5 months after the alleged contravention, thereby NOT complying with POFA paragraph 9 sub (5).

 

 

There is no cause for action against the defendant as there is no keeper liability inder the POFA as the claimant failed to follow the protocols of the act to create one.

 

10. The claimant`s Particulars of Claim states that the PCN was issued on 10/02/2015 which is incorrect. It was issued on 06/07/2015 as stated on their own PCN letter.

 

11. The claimants have failed to respond to my CPR 31:14 request made on 10/08/2016 by Royal Mail recorded delivery postal service requesting any documentation or relevant contracts with the land owners that allow the claimant to issue claims upon the landowners’ behalf.

 

The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place.

 

 

I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

 

The contents of my statement are true to the best of my knowledge and belief.

I will need to get this sent off tomorrow to comply with the dates set by the court, so any helpful comments would be appreciated.

 

Regards

 

Chris

 

For some reason the formatting has been fragmented.

There are actually spaces between each paragraph.

[ericsbrother]

As you know,

Trev is hitting a lot of motorists with claims based around his crap ticketig system so keep an eye out for others as they crop up.

 

 

Judges do not work in isolation so I'm sure that yours will have read up on similar cases before hearing this one so you may be asked questions about the others and how your matches them or otherwise. Make the right noises and they certainly will be used as a precedent to ensure consistency of interpretation and application of law