Excel/BW claimform - PCN Swansea SA1 2012

[ericsbrother]

the directions will no doubt be aimed at Excel to prove they have a claim or shut up.

 

You may be asked to provide some evidence that you have mentioned in your skeleton

such as why you believ they have no claim against you

( had that once when I sued my next door neighbours landlord (housing association) when the tenant burnt my fence and garden shed down by accident.

The LL was happy to settle if they believed that I was using the right laws to sue.

 

Once I quoted a couple of relevent cases the judge said that was enough and that would I accept the full claim without a judgement being entered against the defendant. saved a lot of time and on th HA's side money as well)

[Wi3347]

Still nothing from the courts.

 

 

Is this a normal amount of time?

 

 

Seems like a long time!

[ericsbrother]

yes, it could be a year before you get a date but that would be unusual, a month is quite normal

[Wi3347]

Letter from the court arrived today. It states it's been allocated to the small claims track.

 

The claimant must pay £25 trail fee by the 18th of July at 2pm or it will be struck out.

 

The hearing date has been set for a day in august.

 

All parties must by the 25th of July send to the court and all parties all documents upon which they intend to rely on at the hearing. This includes written statements from themselves and any others.

[ericsbrother]

on the 23rd july you post your WS and evidence bundle to the court and to BWL.

That is a sunday so post the court lot on the friday and BWL's on the monday first class recorded.

 

 

With a bit of luck they will refuse to sign for it and drop themselves in it as then they wont be able to peep at your homework and use it to make up their new version of events and thus file theirs late.

 

 

The RM log will show refused delivery and that isnt a reason to complaint to court about not receiving it but you will be able to say they didnt send theirs on time.

[Wi3347]

will do.

In my statement I will be going along the lines of I can't remember who was driving as it was so long ago.

 

 

I had another ticket for the same time period which I paid but can't remember who parked it for the second one and have no recollection of a ticket until the letter arrived 4 years later.

 

We are still relying on the fact that the ticket was Pre pofa so they cannot rely on pofa to put the responsibility onto the registered keeper?. Assuming that will only come in at the hearing?

[Wi3347]

Update.

May have a slight stumbling block.

Checked the exact date and the PCN was issued in august 2012.

I believe POFA came into force in may 2012?

Meaning they could rely on POFA.

Am I right in that?

 

I have been looking into the pofa.

I don't remember there being a photo on the NTK so in my statement I could say there is no evidence to suggest a notice to driver was ever served and if it was, that is was pofa compliant.

 

I also believe that RK details should be requested not quicker than 28 days and not longer than 56 days after the alleged contravention. I could right to the dvla asking when my details were requested?

 

I've also never received anything from BW, th to documents I requested asking for proof their client has the legal right to charge for parking etc.

 

 

Shouldn't I be writing to the court as this state to state this and request it be struct out because their failure to do this?

 

Advice please ladies and gents

[zydeco]

Pofa 2012 came into force OCTOBER 2012 so still pre.

[Wi3347]

Pofa 2012 came into force OCTOBER 2012 so still pre.

 

Is that so? What I could find said 1st of may 2012. This is good news

[Wi3347]

Shall I write to the court before sending my WS stating it's Pte pofa and there is no keeer obligation therefore can it be struck out?

[ericsbrother]

You could but you may not get a response so adding a request with the paperwork you have to send would at least get read by the same judge.

 

As it is nothing to do with POFA that isnt a reason for a strike out so you wont be asking for that.

A strike out would be on the grounds of Excel failing to show Locus standi and not providing evidence that they have "strict proof" of any cause for action against the defendant as he was not the driver at the time.

 

The difference betwen this and what you have suggested is on the face of it fairly small but huge in legal terms.

 

 

Your POFA bit is one for the day, they will argue that Elliot v Loake and CPS v AJH Films allpy when they dont, they both concern criminal matters and any way in the latter the driver was a "servant" so unless you have a chauffeur that is irrelevant.

[Wi3347]

Right ok. I'm a bit confused as to what needs to go in my witness statement then?

Are they just my version of events as in I was staying as the hotel for months, I don't know who was driving?

 

perhaps a WS and seperate request stating BW have not provided me any of the documentation requested or proof that their client has permission to charge for Parking or any proof I was driving etc?

[ericsbrother]

a separate request yes but get the wording right.

 

Look up "locus standi" and "strict proof".

 

When you say they havent provided documentation you must say that this was asked for as discovery under CPR 31.14 and asked for to determine their right to make a claim and show a cause for action against the defendant.

 

these are things they cannot do regardless of whether the request was complied with so there is a good chance they will be asked to explain themselves as a CMO or at the very beginning of the hearing and get told to sod off when they cant answer.

 

You are not making a vague request without a reason behid it so use the correct terminology where appropriate and your chances of success are increased massively.

 

Look at the pranksters latest blog and quote those cases to show they are abusing the court process by pursuing hopeless cases when they know they have no cause to do so.

[Wi3347]

Ok I will read up on them before I write my request.

 

 

I will do a draught and post on here for comments / suggestions.

 

 

Where can I find the pranksters blog? Is it on here or another internet site?

 

In regards to the WS. Is that just me recollection of the day or? I'm unsure

[dx100uk]

yes parking prankster site

[ericsbrother]

I would suggets that you dont say you cant remember who was driving, just state there is no keeper liability and you put it to strict proof theat they identify the driver at the time.

have you got photographs of the signage as it is now? Reason i ask is because they may well try pulling the wool over people's eyes and claim they are the same as they wee then. The IPC didnt exist back then so your pictures can rebut their evidence if they try that one on.

[ericsbrother]

your WS will say that you are the defendant and then lay out the facts and your statement of why you dont owe them money

 

So begin by numbering the points you want to address such as

 

1. The defendant denies that any contract exists between the claimant, Excel parking and the defendant and they have failed to show a cause for action aginst the defendant by way of showing they have an assignment of the landowner giving them the right to enter into contracts with the public and to make civil claims in their own name.

 

2. As there is no keepr liability in this manner it is put to Excel to show strict proof as to who was driving at the time as the defendant denies being the driver.

 

3. The claim itself fails to properly fulfil the requirements of CPR 16.4 at is is unclear how the claim is made up, why the defendant is liable and nor whether it is damages for a breach of contract or a contractual sum. The claim also includes an element of costs that are not recoverable in the small claims process.

 

4. s the event is pre POFA (oct 2012) no liability has been transferred to the the keeper so there is no cause for action against the defendant in that capacity and without proof of who was driving at the time, no evidence of any actionable cause at all against the defendant.

 

5. Excel have made a number of unsubstiantiated claims in the courts and are abusing the court process as a method of intimidation or coercion rather than for collecting monies they have proper entitlement to. I cite claim numbers xxxyyyxxx ( list a load of previous cases that involve pre 2012 claims that got chucked out and then have the full detail as part of your document bundle). Excel have offered no evidence that their claim is a genuine one

 

6. Excel did not issue a notice of their claim or an invoice at the time, the first the defendant knew about this matter was a demand dated the xxth mon 2016/7 and the plaintiffs have failed to respond to requests for a full breakbown of how the demand came about. This means the defendant could not agree or dispute the claim before court action was taken by the plaintiff and is still unclear as to what exactly the cause for action is. Again this is an abuse of the court process.

 

There will be more about the site itself but that will have to wait for you to produce a load of pictures, proof planning permissionwast given and all the other things you should have read up on.

[Wi3347]

Ok perfect.

I will do some digging and work on that and post up draft.

I will also take photos of the signage

[ericsbrother]

you were told to get photos months ago,

I fail to understand why people who are being sued seem to take such a lackadaisical attitude to all of it.

 

Your defence is almost unbeatable unless you screw it up and like many others that fact doesnt seem to have sunk in.

 

 

Put some effort in to this and absolutely screw them down

[Wi3347]

I was not asked to provide photos months ago.

I was asked to provide photos on a different thread about a completely separate matter where I promptly posted the photos.

 

 

I was asked to get photos on this thread 6 days ago and during that time my dad has been really unwell,

 

 

I've been helping a friend move house to London and I've been on call with work in the nights meaning i cant leave the local area, this car park is over an hours drive round trip.

 

 

I haven't taken a lackadaisical attitude, I've followed all advice to the letter.

I am always very appreciate of the help and advice given here but there is not need to be hostile.

 

 

im finishing my WS and will post a draft over the coming days.

I wont have a chance to post photos for a week or so.

[ericsbrother]

the obtaining of photographs applies to every thread on the private parking forum, they form the contract the parking co relies on in every case so we need to see the signs in every case. It is self evident.

 

I dont intend to come across as hostile but Excel stand no chance of winning this unless you chuck it away and I wouldnt like to see you lose because something has been missed out even something that may be completely irrelevant on the day, you need to have everything to hand just in case the judge makes a detour on the evidence trail.

 

That also means you take copies of the relevnet blogs on the Parking pranksters blogspot, any case references you come acrossanywhere, any knowledge of ownership of the land etc, knowing somehting is not enough, you have to prove it when there is doubt and the parking co wont tell the truth when it damages their claim ( ie most of the time)

 

If the site is the same as Cuttysarks post then grp those images as they show what you need to show, namely the signage in place are onw thing and Excels's signage pictures are not from the car park at all but a paste up of a generic signa and offer no evidence they were actually there at all. Basically they are needed to rebut Excel's evidence and you can say that this is what is here now but they werent there then

Edited July 10, 2017 by honeybee13
Paras

[Wi3347]

so far for my WS i have got.

 

1. The defendant denies that any contract exists between the claimant, Excel parking and the defendant and they have failed to show a cause for action against the defendant by way of showing they have an assignment of the landowner giving them the right to enter into contracts with the public and to make civil claims in their own name. They have shown no Locus Standi in this matter.

 

2. As there is no keep liability in this manner it is put to Excel to show strict proof as to who was driving at the time as the defendant denies being the driver.

 

3. The claim itself fails to properly fulfil the requirements of CPR 16.4 at is unclear how the claim is made up, why the defendant is liable and nor whether it is damages for a breach of contract or a contractual sum. The claim also includes an element of costs that are not recoverable in the small claims process.

 

4. As the event was in August 2012 it is pre Schedule 4 of POFA (Oct 2012). Therefore no liability has been transferred to the keeper, so there is no cause for action against the defendant in that capacity and without proof of who was driving at the time, no evidence of any actionable cause at all against the defendant.

 

5. Excel parking have made a number of unsubstantiated claims in the courts and are abusing the court process as a method of intimidation or coercion rather than for collecting monies they have proper entitlement to. I cite claim numbers C7DP8T7D and C3DP56Q5. Excel have offered no evidence that their claim is a genuine one despite request from the defendant for disclosure under CPR 31.14 to determine their right to make a claim and show a cause for action against the defendant.

 

6. The first the defendant knew about this matter was a demand in August 2016 and the plaintiffs have failed to respond to requests for a full breakdown of how the demand came about. This means the defendant could not agree or dispute the claim before court action was taken by the plaintiff and is still unclear as to what exactly the cause for action is. Again this is an abuse of the court process.

 

 

What I need now is a bit of advice on how much of these 2 claim numbers i have stated i have to take with me on the day. as in do i need to print the transcrips or make notes to submit and take with me?

 

also considering adding in to me WS "The claimant cannot rely on POFA to make the keeper liable to pay at this event pre-dates POFA. They therefore can only pursue the driver, however the claimant can offer absolutely no evidence that the defendant is the driver and therefore, the claimant has no real prospect of success in this matter." but not sure if that would be a good idea or no?

 

i will check cuttysarks post to see if the photos are the same ones

[Wi3347]

the photos from cutty sarks are not from the same location unfortunately. But the claims seem identical, I assume BW will not rely on the POFA but elliot V loake. I honestly dont know why they bother taking it this far!

[ericsbrother]

with regard to point 6

make it clear that you asked for sight of the documents relevent to points 1, 2 and 3 as a CPR 31.14 request before the track of the claim was decided and they have failed to produce them.

For this reason you state that their behaviour is unreasonable and that you seek a full costs recovery order under CPR 27.14.2(g)

 

As for refernces to ANY documents

you take copies of them with you so if you have the full case transcript you take it,

other than that as much as you do have so screen grab of the Parking Pranksters blog or a printout of the thread on MSE for example.

 

 

Also take copies of the POFA as well to show the limits of the legislation as it is now regarding keeper liability.

There are plenty of cases on the paranksters blog refering to Eliott v Loake and CPS v AJH films showing they are not relevant,

take copies of those summaries as well.

 

Remind you of what I said about their pictures in Cutty sarks thread,

they are not photos of signage

but a computer mock up of what they claim was there at the time.

 

 

Again demand some evidence that the signage was as stated with positions of these signs, numbers , type of lighting etc.

 

Also as a point 7

I would say that they dont have planning permission

(under Town and country planning act 2007)

for their signs so no contract could ever be formed as it would be a criminal compact and unenforceable.

[ericsbrother]

dont forget,

Elliott v Loake was a criminal case on a public road where there was plenty of other evidence that the keeper was the driver at the time

and in CPS v AJH films it was a company lorry and the company had vicarious liablity as the driver was a "servant" of the co.

 

 

Now Gladdys/BW claim that any person borrowing your car is your servant and you are responsible for their actions.

This was the case until about 50 years ago when insurance became compulsory

but would still apply if you employ a chauffeur and he, for example, ran a red light on your instructions.

 

 

A taxi driver doing the same would get done because although you are hiring them they are not your servant.