Excel/BW Claimform - ANPR PCN - The Walk retail park Ebbw Vale.

[ericsbrother]

the point of all that is so now you can mention in your defence that they havent shown any authority from the landlord and they dont have planning permission etc and so there is no cause fro action against you. that makes their job harder as now they are going to have to dig out all of the paperwork and bring it t court when they were hoping that you would just poo your pants and pay up.

 

Post up your thoughts as it is better we comment on what you want to say rather than write something for you as you are the one who is going to talk about it and by penning it you will show your understanding of the matters at hand. No need to use flowery language, being clear is more important. Occasionally we will chuck in words like "locus standi" as this is the correct term for having the right to make a claim but encompasses more than that and will save you some ink.

 

We will hopefully find you some previous cases that are pertinent as well so you have what are called persuasive cases to use as examples of why they shouldnt get a penny of they dont follow the POFA or whatever. You should make copies of these references and use them as part of your bundle because judges cant be bothered to search through a mass of case law and past cases to see if they are relevant so you produce them ans say that you believe they are.

 

BW will claim that things like CPS v AJH Films are compelling when they arent, they arent even persuasive so if they mention that case it would be wise to take copies of other recent decisions where that claim has been roayally booted out as rubbis and there are a few on the parking pranksters blog so get searching!

Edited February 20, 2018 by honeybee13
Paras

[Spewy74]

Been reading up and to be honest I’m not sure if I could go through this in court, I’m not the most confident or he cleverest to be fair. I could easily get myself in a pickle

[DragonFly1967]

Been reading up and to be honest I’m not sure if I could go through this in court, I’m not the most confident or he cleverest to be fair. I could easily get myself in a pickle

 

OK, this is going to make for tough reading, but it has to be said.

 

Not a single one of us can make you go to court to defend this. But what are your options exactly?

 

If you decide to pay it off before the case, it's going to cost you £240. If you go to court and lose, it's going to cost you £240.

 

Going to court and trying your best to win this is going to cost you precisely £0.00.

 

Excel and BWL are absolutely counting on the fact that you're going to bottle out, that's how they make their money. They don't have any kind of valid claim and you know it! (Hell, even they know it, but that never stops them) You've been told this time and time again.

 

YOU ABSOLUTELY MUST DO SOMETHING TO HELP YOURSELF HERE

 

It's not up to us to defend you, it's up to you to do it yourself. Yes, we'll give you pointers and all the advice that we can, but this is a self help forum and there's only so much that we can do.

 

Please, for not only your own sake but for the sake of everyone else that these snakes try to frighten out of their money, don't give up, that's exactly what they're banking on.

 

In court, they can be beaten and are beaten on a regular basis. Judges are getting wise to their (usually) underhand tactics, and are well aware that most of their claims are defective, usually in more than one way.

 

Go to court, defend the claim to the best of your ability, if you lose, at this stage you've not really lost anything, it's going to cost you £240 either way, but if you win and claim back your costs, then they will owe you money and you'll be dining out on their dollar instead of it being the other way around.

 

Don't give up now!

[ericsbrother]

write out your witness statement here and tell us what you are going to add in the way of other evidence, pictures, letters, printouts of previous hearinge etc and we will help suggest ways of setting things out or changing words.

 

We can write it all out for you but we cant make you understand it so writing it for yourself will help you to be able to recall it and answer any question you may get asked ( if they send someone who has the right to question you and that is unlikely).

You dont need to be clever, just read up on the right material

 

as for confidence, you already know what the worst that can happen is so anything you say will give you a good chance of killing their claim and if you approach things like that then a win is definitely achievable because they dont really have a claim.

Edited February 21, 2018 by dx100uk
paras

[Spewy74]

I have found these point from similar cases to my wifes.

 

It is admitted that the Defendant is the registered keeper of the vehicle in question.

 

However it is denied that the Claimant has authority to bring this claim on the following grounds:-

 

1 The registered keeper was not the driver at the time of the alleged incident.

The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements.

(in my wifes case she was actually picking her son up who worked at one of the shops in the retail park. she drove around waiting for him but as he was late coming out she must have overstayed the "free time limit" is it just easier to deny being the driver? I wouldn't expect anyone to condone not telling the truth.)

 

2. 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.

 

3. Excel Parking Services Ltd are not the lawful occupier of the land. 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 right to bring action regarding this claim.

( I presume this applies unless they bring proof to court? )

 

4. The signage on the site in question was unclear and not prominent on site/around the areas in question, so no contract has been formed with driver(s) to pay £100, or any additional fee charged if unpaid in 28 days. 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.

( not sure this all applies as I think the signs are clear and visible, although there must be something with the wording )

 

5. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

a) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question

b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

(I read that a judge dismissed a claim on this so should I take this bit out? )

 

6. 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 £100 as a ‘parking charge’ (for which liability is denied) plus The Particulars of Claim include £54 that the claimant has untruthfully presented as contractual charges. The claimant's solicitor has, however, described the charge in correspondence as "legal fees" and is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims court.

(is this relevant?)

 

7. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. 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. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum.

The amount claimed is an extravagant and unconscionable penalty. Even if all the conditions had been met to disengage the penalty, the Supreme Court in ParkingEye v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable ( ParkingEye v Somerfield).

 

8. In addition, the claimant has yet to respond to part 18 Request written and sent by the defendant and delivered to BW Legal on the XX/XX/2016,

 

To summarise:

The defendant was not the driver at the time the charge was issued.

The claimant is not the landholder and therefore not in a position to issue this charge.

The signage at the site at the time of the alleged event does not meet accepted code of practice.

The Protection of Freedoms Act does not permit the Claimant to recover such an inflated amount.

‘Parkingeye v Beavis’ clearly does not apply in this case

The claimant or their solicitor has not responded to the part 18 request

 

any more help on this would be greatly appreciated.

[ericsbrother]

do not use the flowery language like "it is admitted that the defendant is the keeper" as it is entirely pointless, use plain english so there is no misunderstanding who is being sued? If you then it doesnt matter who was driving, it wasnt you so keep them and all of that supposed mitigation out of it.

 

If you are denying being the driver then arguments about the signage and overcharging become almost irrelevant as the POFA covers this in para 9(2) by all means refer to CPR 27 as well if the unicorn food tax is called pre-action legal fees or some other such rot. If just a fee that is down to the contract offered the driver then the POFA is king and say so.

 

You havent sent a part 18 request.

 

come on, get stuck in so you understand what you want to say rather than just repeating what someone else has said. You may refer to all of this as being persuasive if you can find the original case ref but you must do some work for yourself

 

so do a draft and start with somehting like the defendant denies that any monies is owed as a result of a contract between him and the claimant as he was not the driver at the time and no keeper liability has been created under the Protection of Freedoms Act 2012 (POFA)

read up on the POFA and how a liability can be created and why one hasnt.

 

There is plenty of stuff in other posts top help you including other thread from this site

[Spewy74]

I’m a bit confused by the POFA,

“- Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.”

 

Doesn’t that allow them to pursue the registered keeper?

[shamrocker]

Indeed - but they must meet certain requirements if they wish to pursue you on POFA grounds. Do they comply?

[Spewy74]

Indeed - but they must meet certain requirements if they wish to pursue you on POFA grounds. Do they comply?

 

I can’t see what they haven’t done, but every post I’ve read states they haven’t followed POFA in their defences. What am I missing?

[shamrocker]

I'm not sure if you read this thread, but it's along the lines of what I reckon EB and others would suggest you follow:

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?476097-Excel-BW-claimform-PCN-cavendish-retail-park-in-keighley-on-10-04-2014-**Discontinued-Costs**

[Spewy74]

ok thanks shamrocker.

 

my initial defence is

 

It is admitted that Defendant is the registered keeper of the vehicle in question.

 

However it is denied that the Claimant has authority to bring this claim on the following grounds:-

 

1. the registered keeper was not the driver and as the POFA 2012 has not been followed, the registered keeper can not be held liable.

 

2. there has been no breach of contract so no cause for action against the defendant.

 

3. the claimant has not responded to a CPR 31.14 request.

 

is this enough?

is it worth adding about land owner, signage issues?

I understand that this is just the preliminary stuff and the full defence will be talked about in court.

 

I still cant see that they haven't followed POFA though, any help with that would be grand.

 

my defence will be on the grounds that

no contract has been broken as no contract was agreed. will need to read up more on that and how to get that across. if I prove that then everything else will be irrelevant.

they have no proof that the driver didn't buy a ticket, (should I contact BWL before hand to ask for this?)

[dx100uk]

looks fine to me

you save the rest for your WS if it gets that far...

[DragonFly1967]

I still cant see that they haven't followed POFA though, any help with that would be grand.

 

Take a good look at the signage on site and at any and all paperwork that you've received.

 

Then read this in conjunction with both the IPC CoP for AOS members https://theipc.info/uploads/-imXk-gEBVk2UV_c_WWpjuthUeH2hwEwihq7Np6Q030/Code%20of%20Practice%20v6%20Amended%2014th%20June%202017.pdf and with POFA Sch 4. http://www.legislation.gov.uk/ukpga/2012/9/schedule/4

 

Whilst the problems/mistakes/missing information (what's on the signage and the paperwork) may only be minor, they are there (or not there as the case may be). And if they have not complied with both the IPC CoP for AOS members and the law 100%, dotted all the i's and crossed all the t's, then it doesn't comply and keeper liability cannot be created.

 

Reading it all will also be important to your defence WS if it goes that far. By reading it all, you'll understand it more, and you'll be able to point out to the Judge exactly where their claim falls apart completely.

[ericsbrother]

the wording must match the law and they must use certain phrases or no keeper liability

 

I can’t see what they haven’t done, but every post I’ve read states they haven’t followed POFA in their defences. What am I missing?

[Spewy74]

Ok excellent, feeling a little more confident about it all now after reading other posts.

One thing is all the court stuff is in my wife’s maiden name, we have since been married so should she sign it as it appears on the claim?

[DragonFly1967]

She should just sign it with her usual signature. If it gets questioned at all (highly unlikely) it's easily explained.

[Spewy74]

Ok, it’s online though so will look like a different name

[DragonFly1967]

Ahh, in that case... Surname (now) nee maiden name

[Spewy74]

Have had a letter from BW Leagal saying they are proceeding with the claim.

today have now had a Notice of Proposed Allocation to the small claims track.

 

Have to complete the small claims direction questionnaire.

 

Seems all pretty straight forward.

It says I must serve copies on all other parties.

Do I need to send a copy to BW Legal?

Edited March 8, 2018 by dx100uk
spacing

[dx100uk]

one to court

one to bw legal [minus sig/email/phone]

 

one for your file.

 

no to mediation

1 wit you

rest is obv

[ericsbrother]

keep an eye on the clock as BWL have a limited time to pay the allocation fee once this is returned and acted upon.

 

If they are late then you write to the court ( the one you will be told is dealing with things) and ask for the claim to be struck out on those grounds and also under CPR 16.4- lack of evidence for cause for action in POC

[Spewy74]

Bw legal were straight on the case, had their DQ back within days.

As the claim is against my wife but I’ll be representing her, is it only 1 witness ie her? Where do I come into it?

Edited March 19, 2018 by Spewy74
Spelling error

[dx100uk]

as post 70

[ericsbrother]

you photocopy the rules for lay reps and take it with you.

as a lay rep you will have a right of audience but you must make it clear what capacity you are there under or you may find yourself sitting in a corridor for the duration.

 

Be polite to the judge and dont forget to challenge the staus of their rep as they MUST be a solicitor if they arent employed directly by the parking co or BWL.

again this is covered by procedure so copy it and understand it.

[DragonFly1967]

Yep, as EB says. Take a copy of the lay representatives (rights of audience) order 1999

 

Also as EB has suggested, take a copy of the Legal Services Act 2007

 

Also take at least one copy (to give to the Judge (if it's applicable)) of Ellis v Larson and McShane v Lincoln both of which deal with Rights of Audience and solicitors agents.

 

 

If you get a chance to speak to your opposition before the case is heard, try to get a business card or their name and look them up on the SRA and/or CiLeX registers to see if they really are a solicitor.

 

If they aren't and they're not from BWL themselves, go straight for the jugular! Challenge their right to represent the claimant and let the Judge decide. The Judge may chose to allow them to continue (it's up to each individual Judge as to what they allow in their court) but equally, the Judge may order that they have no right of audience and tell them to go and sit at the back of the room