Excel/BW Claimform - PCN dated 2011 Ebbw Vale, The Walk **CASE DISMISSED**

[jcbkabs]

Is it me or is this a form of bullying?

 

Who can we inform about the underhand unnecessary tactics?

[unclebulgaria67]

Legalised extortion.

 

Find a way to make someone owe you a debt and then seek to make a recovery as cheaply as possible.

 

It is a numbers game, about how much money they make from the process.

 

They have to issue court claims, because otherwise they will get criticised by the judiciary and regulatory bodies such as SRA.

 

This came out in the ACS Law copyright infringement cases, where Judges criticised the speculative invoice process for people found downloading and sharing copyright material. Judges said that you can't threaten issuing court claims as part of an invoicing process, without ever issuing court claims.

 

The only way this would ever be dealt with, is Government facing political pressure from voters to change the law. Government are probably quite happy at the moment, as these PCN's no doubt provide income that central Government does not have to find. I should imagine that overall it generates in excess of a billion in revenues to all who are involved. Excel/BW have to employ people, so income and NI taxes, corporation taxes etc.

[ericsbrother]

agree with UB, they are saying to you that "we know what we are doing, we are clever lawyers" and hope that you somehow think that the ability to tick a box on a form will be so frightening you just send them the money.

 

i like the fact they have agreed to mediation. this is a trick, they want you to look reasonable and do the same but what they are trtying to to is get you to pay them something, anything really so they dont look stupid when they lose their client a lot more than they could possibly ever gain. These clowns are charging Excel to do this, sometime on a promise of payment by results which may be illegal so they need to get something for nothing.

 

Ignore them, force them to pay the fees and take the matter to court where their costs will outweigh anything they can claim. Excel then have to pay your expenses plus BW's fees ( and as they employa local solicitor to attend your court another set of fees as well) and get nothing from the false promise.

Edited May 8, 2017 by honeybee13
Paras.

[Cutty Sark]

Update 18.05.2017

 

Letter received today from Northampton court (N271)

 

Notice of Transfer of Proceedings

 

This claim has been transferred to the below County Court Hearing Centre for allocation. On receipt, the

File will be referred to a procedural judge who will allocate the claim to track and give case management

Directions. Details of the judge's directions will be sent to you in a notice of allocation.

If you would like any further information you can contact the local County Court Hearing Centre directly

But please await the Judge's directions.

Contact details:

 

etc, etc.

 

Again you guys probably know the score, I'm adding to the thread for info so others researching the procedure know what to expect.

 

Whilst on that subject, is it worthwhile attending the public gallery of the court a few days before to see how the process works?

Is there a way to find out when a similar case is being dealt with?

 

I am particularly interested in how to address the judge, as 'sir' rather than 'your honour' for example.

Also when and how to challenge the claimants representative's right to audience and whether this is likely to wind the judge up?

I'm thinking fore warned is fore armed sort of thing.

[dx100uk]

should be a court roll online for every court for that week

[jcbkabs]

Hi cutty sark

I've had a letter from black wood court with a date of 14/09/17 but I need to provid a witness statement but still not had a reply to my cpr31.14 request

Have you had a response to your cpr31.14 request

[Cutty Sark]

Hi Jcbkabs,

No reply to my cpr31.14 request yet either.

Don't think we are going to get one actually as per other threads I've been researching.

This is another point to be raised in our defense to their ridiculous claims.

The date given to you seems a long time off?

They must be busy with all these.

I hope it's costing them an absolute fortune as no doubt others are contesting their ludicrous demands.

In fact I don't understand why they're bothering, there can't be any profit in it for them?

[DragonFly1967]

In fact I don't understand why they're bothering, there can't be any profit in it for them?

 

For Excel, there's no profit in it even if they win. BW Illegal (and their ilk) however are laughing all the way to the bank no matter which way the result goes for their 'client'.

[ericsbrother]

the lack of response to CPR discovery request is procedural one.

 

You should be saying they have failed to show a cause for action against the defendnat because.....

 

( usually the wording of the claim and the fact that they havent identified the driver and do rely on POFA for keeper liability)

 

sometime it gets the claim kicked out and they have a choice of paying to start again or sometimes they get a Case Management Order telling them to do it properly

 

( who woudl have thought that the worlds second best solicitors would ever get things so wrong anyway)

 

or it can be that on the day the first thing they are asked by the judge is "where is your claim?"

[jcbkabs]

What type of things you putting in your witness statement cutty shark

I've got to submit it by 19/6/17

[Cutty Sark]

Update 11.6.2017

 

Received notification from local court last weekend giving hearing date of 14 June but advising documents to be received by the court on or before 4 July?

 

Contacted the court by telephone to question this and found it was a clerical error.

 

New letter from the court received yesterday with corrected dates.

 

Hearing date for final hearing is 12 July

 

Claimant to pay fee of £25 by 4pm by 14 June (from original notification) or the case will be struck out.

 

Witness statements to be submitted to the court and other party by 04 July

 

I will write up a witness statement by tomorrow if someone would be kind enough to run through it with me....thanks

 

E.g.

 

1. Parking company failure to comply with my CPR request

2. Parking company solicitors claiming fee they not entitled to claim for.

3. I was not the driver

4. Parking company failure to identify driver

5. No keeper liability as pre POFA plus parking company admission they do not hold keeper liable.

6. No legal obligation on my part to identify driver

7. Likelihood driver used a disabled parking badge and cases of parking company agreeing to drop charges in this case. (DUBIOUS POINT AS obviously I can't prove this now)

[dx100uk]

id wait to see if the pay the fee meself.

still leaves plenty of time for the WS.

[ericsbrother]

Ok, when you write it up you need to get the order of things right

 

 

so point 1 will be procedure

(ie they have failed to show any basis of claim against you as the keeper and no keeper liability exists as pre POFA. then I was not the drivera dn no obligation to identify the same.

 

As with the other claim here

photographs of the current signage is vital as it will show if Excel are pulling a fast one with their photographs as the signs will be massively different back in 2011

 

 

Note thay are members of the IPC which didnt exist then so that is a start.

[Cutty Sark]

Update 26/06/2017

 

Game on!

 

I rung the local court today to see if the claimant had paid the £25 court fee and they have.

 

I haven't heard from the parking company's solicitors yet. (expecting a copy of their WS)

 

EB.

What relevance do the signs at the car park have in my case please?

I wasn't even in the car.

 

I need to post off my bundles by Wednesday to ensure BWL gets them by Monday,

 

The court copies are not a problem as its only 8 miles away and I can pop them in by 4:00 on Monday.

 

Is it ok to post my WS on here tomorrow for any last minute advice?

[dx100uk]

ofcourse you can post it here..

you don't 'have' to ensure the claimant gets your bundle 'on time'

only to the court one,

 

 

their one can be posted 2nd class with free POP from the po counter.

[ericsbrother]

relevance of signage

- ability of parking co to offer conditions of contract,

 

 

whether the signage forms a contract with anyone,

 

 

in the case of Excel,

the signage may well have said VCS so a different entity and as such Excel have no locus standi.

 

 

You might not think this is relevant but you use every tool in the box to make sure they lose their claim

 

 

after you go thorough all of the no keeper liability bit you say "and in any case" and then rip into the signage

 

. If you have photos of the signage taken recently you can compare these with the images Excel produce with their bundle and if they are the same you will know that they dont date from 2011.

 

 

The obvious differences will be the IPC dint exist back then

any mention of them on a sign and it is not contemporaneous and thus they are telling porkies to court

 

 

(you dont say they are lying, you say they have provided incorrect evidence material as you cant prove they did it deliberately witht he intent to deceive)

 

If you dont send BWL their copy of your bundle in time you can have your defence struck out so make sure it arrives on time but wise to make sure they arrive just in time so post first class friday..

[Cutty Sark]

I have visited the car park today and photographed the current signs.

Still trying to get them off my camera and onto the pc at the moment but

EB is correct they do mention the IPC and to reiterate, the alleged incident took place on 16 October 2011.

So far this is what I have written as a witness statement and I would be grateful for any input as to content.

 

The facts in this statement are true to the best of my knowledge.

 

The speculative claim for £xxx issued by the claimant is denied in its entirety for the following reasons:

 

1/ The claimant has failed to follow procedure by not providing a reply to my CPR 31:14 request dated 23/03/2017 for the disclosure and production of verified and legible copy of documents listed as follows:

 

The contract between Excel Parking Services Ltd. and the landowner that assigns the right to enter into contracts with the public and make claims in their own name.

 

Proof of planning permission granted for signage etc. under the Town and County Planning Act 2007

 

Copies of the notice to driver, notice to keeper and any other correspondence from Excel Parking Services Ltd. And B.W.Legal to the defendant that they intend to rely on in court.

 

 

2/ The alleged contravention is dated 16 October 2011 which predates the Protection of Freedom act 2012, specifically clause 4 which enables the registered keeper to be held accountable if the driver is not disclosed. The act is not retrospective and therefore not applicable. Therefore the registered keeper cannot be held responsible for any non-compliance with any contract implied or otherwise as Excel has not proved the defendant was the driver and cannot as he was not the driver.

Excel and their solicitors have written to the defendant quoting two previous cases, Elliot v. Loake (1983) Crim. L.R. 36. which is not applicable as this relates to a criminal case not a civil case. The case also involved the use of forensic evidence to prove who the driver was. Neither Excel nor their solicitor can provide forensic or any other evidence that the driver was the defendant as he was not.

The other case quoted by Excel and their solicitor is Combined Parking Services v. A.J.H. Films Ltd. Again this is irrelevant as this case involved a company and its employee. The defendant is not a company and the person who borrowed the car was not an employee of the defendant.

The claimant cannot assume the registered keeper of a vehicle is always the driver.

These quoted examples have been defeated in small claims courts previously as in the following cases:

Excel v Mr L at Skipton – 17/11/2016 - The judge dismissed the claim, summing it up as follows, saying it boiled down to two things:

1. Either the claimant could prove the defendant was the driver, which they did not.

Or

2. They could comply with Protection of Freedoms Act 2012 to pursue the defendant as the keeper, which it was proved they did not.

 

 

Excel v Mr C C8DP37F1 at Stockport - 31/10/2016 - Claim dismissed as Excel had not complied with the mandatory requirements of the Protection of Freedoms Act 2012 to invoke keeper liability, Excel did not provide evidence of who the driver was, and Elliot v Loake was not persuasive and could be distinguished.

 

 

It is quite clear in law that compliance with the Protection of Freedoms Act 2012 is the only way that an operator can hold the registered keeper liable for a parking charge without providing evidence that they were the driver at the time of the parking event.

 

Excel Parking Services Ltd v Mrs. Lynzi Evans

Judge: DJ McKay

Claim no: C8DP79CC in the Cardiff Civil Justice Centre.

Legal representative of BW Legal: Mr Singh

 

Observer's court report

 

Mr Singh was asked to outline his case by the judge. Photographic evidence was presented by Mr Singh to show the vehicle parked in the Excel car park of SA1 Swansea showing an invalid pay & display ticket which had been purchased the previous evening. Mr Singh pointed out that the ticket had expired at 7:18pm on Saturday 21st January 2012. Photographs showed that the vehicle remained in position at 11:10 am the following day. Therefore, the car had outstayed its welcome and the car park operator was entitled to issue the PCN due to a breach of the T’s & C’s. Mr Singh said that there was a "reasonable assumption" that the keeper of the vehicle was also the driver at the time it was parked therefore, Excel were entitled to request information about the driver from the DVLA in order to issue a notice to keeper to recover their loss. He accepted that the incident pre-dated POFA by 9 months but he intended to rely on Elliott v. Loake and CPS v. AJH Films in order to demonstrate keeper liability.

 

The judge turned to the defendant but rather than questioning the defence he proceeded to talk Mr Singh through it instead. He noted the observations regarding Elliott v Loake and CPS v AJH Films and referred to the copies of the judgements of these cases which were included with the witness statement. He explained why they had no relevance to the claimant's case. He also referred to the Excel v Lamoreux judgement and the problem with establishing driver identity even when an incident was after the introduction of POFA. More importantly, he then moved on to the fact that as this claim was pre-POFA, keeper liability was not possible without any additional evidence to support it. Consequently, the claimant's case relied entirely on Elliott v Loake and CPS v AJH Films. At this point Mr Singh requested that the judge might adopt a "pragmatic approach" in allowing these cases to influence his judgment.

 

The judge then moved on to summarise as follows. Elliott v Loake was a different type of case entirely. It was a criminal case which meant that there was a legal obligation upon the keeper of the vehicle to give the name of the driver in criminal law. As this claim involved no criminal offence, then Elliott v Loake had no relevance to it. In the CPS v AJH Films case, the judge fully agreed with the Defendant's witness statement which correctly pointed out that this case involved employer/employee liability. As this claim was not a comparable situation, it also had no relevance to the claimant's case.

 

The judge noted that the defence witness statement was filed 12 weeks prior to the court date and clearly explained why these cases were of no relevance to this claim and then questioned Mr Singh on why the claimant was unable to provide any further evidence. Surely, the claimant should have withdrawn their claim once they realised that they couldn’t do this? The judge also added that the claimant had ample time to investigate and challenge the problems raised by the defence in relying upon these cases to prove keeper liability. Mr Singh was unable to provide an answer to this other than to state that he had only read through the paperwork the day before the hearing. Again, Mr Singh emphasised the importance of the judge adopting a pragmatic stance in accepting the two cases as proof of keeper liability.

 

The judge then went on to consider the relevance of POFA in relation to the claim. He read from the Ministry of Transport document (Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges) which had been included in the defence witness statement. He noted that the introduction of this act was meant to assist parking companies in the transfer of liability to the keeper but as this incident pre-dated POFA it didn’t apply to this case. The Lamoureux judgement also showed that even though a claim is made after the introduction of POFA, there can be no assumption in law that the keeper was the driver at the time of the incident.

 

The judge concluded that as the defence witness statement was so comprehensive and presented an overwhelming case; and as the claimant could offer no tangible evidence that Mrs Evans was the driver of the vehicle and because the incident was pre-POFA, she could not be held liable for the charge. This confirmed the importance of POFA in claims where keeper liability are being raised. For all these reasons, the claim was struck out. Mr Singh then requested leave to appeal but the judge refused this on the basis of the overwhelming evidence provided by the defence. This would leave the claimant with no successful prospect for any appeal. Costs were then awarded to the defendant to the value of £199.00 to be paid within 21 days.

 

Following a short break the judge then moved on to the counterclaim being brought by the defendant for a breach of the Data Protection Act. The judge didn’t feel that there had been a breach as he felt there was no misuse of personal data. He felt that this would only really apply in situations where personal information was passed to third parties with no material interest in the parking incident. Mr Singh was also quite emphatic that in the absence of any information from the keeper, the claimant had no other option than to continue to pursue her for the charge as no information regarding the identity of the driver had been presented. The judge didn’t seem to want to explore the counterclaim any further. The judge then proceeded to strike out the counterclaim of £250.00.

 

3./ The defendant is under no legal obligation to disclose who the driver of the vehicle was at the time of the alleged contravention.

 

4./ the defendant is also unable to disclose who the driver of the vehicle was at the time of the alleged contravention for the following reasons:

The alleged event took place over five and a half years ago.

The person who borrowed the vehicle died over three years ago and his affairs have been settled.

The person who borrowed the vehicle did so to assist an acquaintance to move his belongings to another town. The defendant does not know who this acquaintance was or his new address to find out who was actually driving.

 

5./ The claimant has also inflated his claim by £54 which is for a legal charge that cannot be recovered in a small claims court. CPR 27.14 refers.

 

If this seems too long for a normal post I could try and find out how to make it into a pdf file and repost it as an attachment?

[ericsbrother]

Ok I would start by dropping the comment "speculative" as it is subjective and may get up the judge's nose. It is their job to determine such things. say you are the defendnant and was registered keeper of the vehicle reg no xxx**yyy at the time of the event

 

2 put all of your case decisions as an annexe and sumply refer to them in your WS where appropriate so the point 2 should simply say somehting like

the keeper of the vehicle was not the driver at the time and as it is pre POFA 2012 no keeper liability can be created.

 

3 that Excel have failed by way of a CRR 31.14 request to show they have the authority to enter into contracts and to make civil claims in their own name by showing sight of the contract they have with the landowner that assigns such rights to them. The defendant does not belive that Excel have a locus standi in this matter.

 

4. Any contractual liability can only be with the driver at the time and the driver at the time is now deceased and his estate settled. (dont be playing footsie with this important fact, no you arent obliged to name the driver but it is better to absolutely screw this down rather than look shifty trying to avoid incriminating yourself, be proud of this killer fact and make them eat it)

 

elliot v loake (etc) not applicable and this is supported by the case of Excel v Evans (etc- name all of the ones you can find inc those in your draft andhave the full reports asevidence but not in the WS)

Take copies of all documents you refer to and the pictures of the sigange so you can blow holes in their claims if they wheel out pictures that show IPC logo etc.

 

5. all OK, shows they are a dodgy bunch

Edited June 28, 2017 by honeybee13
Paras.

[Cutty Sark]

Thank you EB, your time and effort is very much appreciated às well as the other guys who have helped me out.

 

I will do exactly as you suggest.

 

I will report back on the outcome.

[ericsbrother]

If they have any sense they will drop the matter as soon as they see your WS.

 

 

As they file late this will mean you can go after a full costs recovery order because of their unreasonable behaviour under CPR 27.14.2 (g).

 

 

You will have to put this in writing and show what your costs are but include LiP (litigant in person) research and preparation costs of 5 hrs@ £19ph make sure that you have this printed out for the hearing.

[Cutty Sark]

Update today 03.07.2017

 

Just got back from a nice day out (my wedding anniversary) and found an e-mail from bw legal.

How on earth did they get my e-mail address? I've only provided that to the court so they must have disclosed it?

 

Anyhow it's from their paralegal dept with an attached witness statement which I haven't downloaded yet.

The e-mail also had a read confirm request which I declined.

It also states that an advocate will be attending to represent them as no one from Excel or bwlegal will be there.

 

Is it normal to receive a witness statement via e-mail address that they shouldn't have knowledge of?

 

Oh, plus they've added another 30 odd quid???

[dx100uk]

probably because you gave it to them on the N180

[Cutty Sark]

Nope I was very careful not to.

Only on the n180 to the court.

[Cutty Sark]

Update 05.07.2017.

 

Received bwlegal witness statement and bundle through the post today.

A day later than specified by the court.

 

Had a quick read through and they still seem to be relying on Elliot v Loake and CPS v AJH films to make the keeper liable?

 

Also mentions Parking Eye v Beavis to enforce their claim as being reasonable and Chaplair v Kumari about contractual entitlement

 

Other things they provide are some very poor quality photographs of the car where you can only just make out the registration,

photographs of The signage on the site from 2011?

They also state that as I didnt disclose the driver details I am liable for the pcn.

 

There's a copy of an agreement between the landholder and Excel (dated 2014) which I take as a response to my CPR request

 

More work to do by the look of it, especially with only a week to go.

[dx100uk]

scan it up to ONE MULTIPAGE PDF

follow the upload