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excel/bw claimform - 2011 EPS PCN EBBW VALE **WON + COSTS**


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Hi All

 

I've had a Claim form from Northampton court today for a parking ticket from December 2011

 

BW Legal for EXECEL PARKING SERVICES LTD

 

i have sent a letter previously stating that i wasn't driving at the time i'm the registered keeper but not the driver. also all the records as to who was driving have been lost due to fire damage

 

what do i submit as a defence and i want to counter claim expenses for having to take a day off work as im self employed

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You wouldn't claim those costs as part of a counterclaim. You would ask the judge to award you costs after you have won the case. It would help you to produce evidence of the cost of the day's work.

 

Your defence would simply be

 

The claim is denied.

Although the defendant was the registered keeper at the relevant time, he was not the driver.

The defendant puts the claimant to proof as to the issue of who was the driver.

The defendant will seek cost of a lost day's work and reasonable costs of travel

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please don't hit Quote...just type we know what we said earlier..

 

DCA's view debtors as suckers, marks and mugs

 

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

 

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

 

 

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Name of the Claimant ? EXCEL PARKING

 

Date of issue – 09/03/17

 

What is the claim for –

 

 

1.the claimant's claim is for the sum of £90.00 being the monies due from the defendant to the claimant in respect of a parking charge notice (PCN) issued 10:57:08 at EBBW VALE The Way ANPR Eps differential charge scheme. PCN relates to under registration

2.The terms of the PCNB allowed the defendant 28 days from the issue date to pay the PCN. but the defendant failed to do so. despite demand having been made. the defendant has failed to settle their outstanding liability.

 

3.the claim also includes statutory interest pursuant to section 69 of the county courts Act 1984 at a rate of 8% per annum a daily rate of 0.02 from 02/12/2011 to 08/03/2017 being an amount of £38.48 The claimant also claims £54.00 contractual costs pursuant to PCN terms and conditions

 

What is the value of the claim? total amount £257.48

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim ? EXCEL

Were you aware the account had been assigned – did you receive a Notice of Assignment? N/A

.

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will this be ok as a defence as i was registered keeper but not the owner or driver of the car in question?

 

1. It is admitted that Defendant is the registered keeper of [motor vehicle].

 

2. It is admitted that the Defendant wasn't the driver or owner of the [motor vehicle] [carpark] at the times mentioned in the Particulars OR the Defendant is unable to admit or deny the precise times it was parked in [carpark] as he has no recollection of this. The Claimant is put to proof of the same.

 

3. It is denied that the Claimant has complied with Schedule 4, Protection of Freedoms Act 2012 [set out the specific ways in which the requirements of the paragraphs mentioned above have not been met].

 

Only include this paragraph if you have checked to POFA and can refer to the specific paragraphs which have not been complied with. Otherwise delete.

 

4. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

 

5. If there was a contract, it is denied that the penalty charge is incorporated into the contract. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, the relevant term must be made known before a contract was formed. Here, the charge was not incorporated into the contract because [explain].

Only include if you have a good reason for saying that the signage was unclear, or that the signage could only be viewed after parking your car. If the signage was clear then delete this paragraph.

 

6. Alternatively, even if there was a contract, the provision requiring payment of [amount] is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; © the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and (d) the clause is specifically expressed to be a penalty on the Claimant's signs.

 

7. Further and alternatively, the provision requiring payment of [amount] is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose.

 

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all."

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no that's for later

and will probably be the simple 2 line defence.

 

 

what you need to do now is:

 

 

pop up on the MCOL website detailed on the claimform.

.

register as an individual

note the long gateway number given

then log in

.

select respond to a claim and select the AOS box.

.

then using the details required from the claimform

.

defend all

leave jurisdiction unticked.

click thru to the end

confirm and exit MCOL.

.

get a CPR 31:14 request running to the solicitors

.

don't sign anything

.

CPR LETTER......

 

 

to the solicitors

[Your address]

.

[Their address [solicitors]

.

[Date]

.

Dear Sir or Madam,

.

Re: (Claimant's name) v (Your name) Case No:

.

CPR 31.14 Request

.

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

.

1. the contract between [parking company name] and the landowner that assigns the right to enter into contracts with the public and make claims in their own name,.

.

2.proof of planning permission granted for signage etc under the Town and Country Planning Act 2007

.

3.copies of the notice to driver, notice to keeper and any other correspondence from [insert Claimant Name] & [insert Solicitors Name} to the defendant that they intend to rely upon in court.

.

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are disclosed at your earliest convenience..

.

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

.

Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

.

If you are unable to comply with this request within 14 days and believe that you will never be able to comply with this request please confirm in your response.

.

You are reminded that as this case is yet to be allocated to a track, CPR31:14 does apply, a refusal to comply because you 'think' at this stage you dont have too will be used against you in any filed defence.

.

Yours faithfully

.

TYPE YOUR NAME DO NOT SIGN IT

 

ends

please don't hit Quote...just type we know what we said earlier..

 

DCA's view debtors as suckers, marks and mugs

 

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

 

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

 

 

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no

don't give them a free method to harass you.

make them waste money

if you go read other vcs excel bw claimform thread

you'll see why.

 

 

use our search cag box of the top red toolbar.

 

 

get AOS and CPR done today.

please don't hit Quote...just type we know what we said earlier..

 

DCA's view debtors as suckers, marks and mugs

 

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

 

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

 

 

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As others will scream at you NEVER email! ALWAYS post a real letter, getting a receipt for proof of postage from your Post Office counter (you don't need to send it Recorded or Signed For).

 

 

Also, the only breath in which you should mention POFA is the one which says that a keeper liability can never be generated due to the alleged event occurring prior to the introduction of POFA. The ONLY defendant can be the driver, and you CANNOT be expected to remember who that was 5 1/2 years down the line. If you can, so much the better. But you can never be liable as the keeper.

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I would make the defence very simple,

drop all of the pseudo lawyer speak,

 

you dont talk like that at home

it is 9/10 meaningless as far as your case goes.

 

as it is a cut and paste job of a defence that time has passed by

they will think that you are going to screw up later.

 

The simple fact is

"that there is no contract between the plaintiff and the defendant, there is no keeper liability in this matter and the defendant puts it to strict proof that any such contract exists to give a cause for action by the plaintiff against the defendant".

Use this for the moment.

 

They will then have to decide whether they want to even pay the allocation fee to continue, bearing in mind that you can later ask for either a stiking out of the claim or for a full costs recovery I bet they dont.

 

If they dont drop the claim then you can add anything you want to this when you have to exchange documents, which will be about a fortnight before the hearing.

 

For the moment you just want them to know that you are defending and demanding them to prove their claim ( they of course cant)

That is why you are also sending their bandit lawyers a CPR 31.14 request for documents.

 

This gives then 2 opportunities to look like idiots or drop the matter completely

 

acknowledge the service,

use the simple 2 line defence and

send off the CPR 31.14 and

give them a fortnight to respond.

 

You can later ask the court to dismiss the claim as said but get this easy bit done and make them sweat.

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get down to the car park, if local

photograph

the entrance from the public highway, inc any signage there

and also the signs in the car park

and the parking meter and any wording on it.

 

 

This may seen a little late but I would bet they dont have pictures from the time and so you can show that the signage as it is currently its post 2012 and thus not a true version of what was there in 2011.

 

 

Show they have got one bit wrong and nothing else they say will be believed

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i don't drive so will have to ge some one to take me over there. and as i wasn't the driver at the time i don't think i have any thing to answer also. my address on their letters is wrong

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so since the date of the PCN and them getting the data from the DVLA of the registered keeper

you don't own the car ...

please don't hit Quote...just type we know what we said earlier..

 

DCA's view debtors as suckers, marks and mugs

 

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

 

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

 

 

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who was the keeper at the time.

 

How come the wrong address has been used,

 

have you moved or was it incorrectly addressed to somewhere you have never lived?

 

If you want a decent quality response to your problems you have to be more forthcoming with the facts surronding the event.

 

We cant guess and dont want to give advice that turns out to be wrong.

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  • 2 weeks later...

not required till/by 4pm Monday 10th april

but twill be the 2 line defence already here

 

 

go read post 8

please don't hit Quote...just type we know what we said earlier..

 

DCA's view debtors as suckers, marks and mugs

 

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

 

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

 

 

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you need to also answer the questions in post 15

 

 

dx

please don't hit Quote...just type we know what we said earlier..

 

DCA's view debtors as suckers, marks and mugs

 

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

 

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

 

 

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really? where are the answers then.

Or when you say done do you mean you have fired off the simple defence response regarding keeper liability.

 

If the latter good,

that will give you time to gather all of your other evidence together

but it would be helpful if you answer the questions we ask so we can advise you.

 

People lose cases because they forgot to take something like a copy of the relevant law with them and the judge just couldnt be bothered to look it up.

 

The parking companies invariably dont do their homework properly so are quite easy to defeat if you have done yours as the judge will "prefer your evidence2 .

 

that can mean that he thinks the others arent telling the truth or that your evidence as presented is more compelling than a stock scrpit presented by a lawyer for hire paid just to attend that day.

 

You have raised a number of procedural questions that can sink the claim on their own so get it together ina manner that is easy to understand

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who was the keeper at the time. I was

 

How come the wrong address has been used, i don't know

 

have you moved or was it incorrectly addressed to somewhere you have never lived? No still at same address

 

If you want a decent quality response to your problems you have to be more forthcoming with the facts surrounding the event.

 

Well I've told you what i know

wasn't driving the car at the time and as its registered to me

but was owned by my company and used as a pool car the company has been dissolved in january 2017 after there was a fire in our yard and we lost everything

I don't have the log to show who was driving.

 

I've already written to excel telling them that i wasn't the driver had no response

 

then i have letters off bw legal which i ignored as i have nothing to answer.

 

no they have issued a court claim

i will attend court and defended it all the way

have sent cpr request and filed a simple defence.

 

when i attend court i will be looking for my loss of a days wages but my business partner for my new business wants to claim for the income loss to our business which is more than 3 times their claim

 

We cant guess and dont want to give advice that turns out to be wrong.

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you can claim for your losses but his has to be under CPR27.14.2 (g) and this will only be awarded if you can show a proper breakdown of the costs claimed.

 

You can start with LiP reseach and preparation time so 5 hrs @£19 per hour

. Your partner would be better off saying that you are paid as an employee and you wont get paid for missing a days work as self-employed people cant claim much for lost income as they can arrange their own work schedule.

 

More of that nearer the time,

you need to get as far as a hearing date for that and that is unlikely,

 

this is a speculative claim that may well be discontinued to save them money once they know you aren't paying them.

 

as for the detail,

if it was a compnay car and you weren't named as driver then the Co is the true defendant and they dont exist so ya boo sucks to BWL

 

They will have to show why they are suing you as if your version of events is correct they haven't got a reason to do so.

 

Again, the detail of that will be gone into when the case is allocated a court time

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Don't get confused between your loss of earnings (as an employee) and your research costs as a "Litigant in Person" (LiP) - it is the latter which is £19ph, and you are generally allowed to claim for 5 hours' worth (i.e. £95). What you have lost in terms of income is up to you to define.

As per previous posts you WON'T get any loss of income for self-employed time, so don't ask for it!

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