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EXCEL/BW claimform - PCNfrom 2011 - St Andrews Retail Park Hull


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First of all,

thanks for the great forum and I am sorry that my first post is a request,

it would have been nicer to have helped someone else first.

 

In 2011,

I received a parking notice from a privately owned car park.

 

This was at st andrews retail park Hull (HU3 4EB).

I initially disputed the notice by phone for the usual reasons that there is no contract and the car park is free for two hours, but also based on the sign and situation.

 

I was only parked for about 10 mins as I popped into Wilko to get a fuse for the car.

However, I had parked in a Taxi bay at the front of the car park.

 

It doesn't look like it was part of the main car park at all and the standard Excel sign made no reference to not parking in a Taxi slot (not an official taxi rank, but a few spaces for taxis to wait),

 

just the usual "Park within authorised bays, do not park to cause an obstruction, or obstruct other vehicles, entrances, exits, pedestrian walkways, doorways, emergency exits or emergency vehicle access."

 

I disputed this by phone and then unfortunately ignored letters sent (which I have not kept all of them).

 

I don't think that the sign is clear for parking in a taxi slot and there were no taxis.

Also, it was a distress purchase.

 

Now I have received a Claim Form (claimant Excel Parking) which appears to be from the County Court Business Centre (Northampton NN1 2LH).

 

Also a letter from BW Legal titles Notice of County Court Claim Issued saying they have issued legal proceedings as I have failed to make a payment.

 

The claim is £270 (£100 +£41.92 interest, court fees £25, Solicitors costs £104).

 

They say they may enter a CCJ against me if I do not contact them or reply to the court claim.

 

I am not sure what to do next.

I don't want to go to court and this looks official.

Does this mean that I already have a court claim against me?

 

Any help appreciated and I am more than happy to donate to the site for any advice received.

 

I hope that I have given enough information.

Edited by Pandas
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  • Confused 1

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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for starters it is pre POFA so as long as you have never admitted being the driver there is no contract with you as the keeper of the vehicle, which is how they are going to have to sue you.

 

You dont have a court claim until the N1 county court summons drops on your doorstep. BW can say that they are going to turn the sun off for maintenance reasons but that doesnt mean they are.

 

What to do? 2 choices- ignore and wait to see if they persuade their client to agree to waste money on this or write to them saying that there is no keeper liability and you demand "strict proof" (legal term) that their client has a cause for action against you.

 

As for the signage, it the bays are still as they were it would be worth getting some pictures of where your car was parked and the signage that is there now. The signs will be different to those of 2011 but get the pictures to show that Excel are telling porkies if they produce these.

 

It may well be that VCS, a sister company had the contract at the time so the strict proof should include some evidence of their right to make a claim. I doubt if they will show this but the paper trail you are creating will damn them.

Edited by honeybee13
Paras.
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Ericsbrother, I think you may have missed the following paragraph in post 1

 

Now I have received a claim formicon (claimant Excel Parking) which appears to be from the county courticon Business Centre (Northampton NN1 2LH).

 

Pandas, When you have filled out the answers to DX's link, can you also post, in PDF form a scan od the N1 claim form that you have received, having redacted all personal references (name and address, reg no, claim numbers and any bar codes). In particular, the date of the event is important as the 6 year limit could come into play.

My time as a Police Officer and subsequently time working within the Motor Trade gives me certain insights into the problems that consumers may encounter.

I have no legal qualifications.

If you have found my post helpful, please enhance my reputation by clicking on the Heart. Thank you

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Thanks for the messages everyone. I really appreciate this. It is very intimidating to get these letters.

 

I am trying to find out exactly what they are claiming for as it doesn't say anywhere on the letters. Just to check, is the 'N1 claim form', the form from the Count Court Business Centre? When redacting information, do I leave the 'amount claimed' on the sheet?

 

Thanks.

 

P.

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if you just fill out the link in post 2

that's all we need

but ensure the particulars of claim are EXACTLY what is written on the N1.

bar your pes details

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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Hi, here is the information on the form:

 

Name of the Claimant ?

 

Excel Parking Services Ltd

2 Europa Court

Sheffield Business Park

Sheffield

S9 1XE

 

Date of issue – 20th April, 2017

 

Date to acknowledge - 08/05/17

 

 

Date to submit defence = 22/05/17

 

What is the claim for –

 

1.The claimants claim is that the sum of £100.00 being monies due from the defendant to the claimant in respect of a parking charge notice (PCN) issued on 25/07/2011 (issue date) at 11:52:22 at St. Andrews Retail Park Hull.

 

2.The PCN relates two (car) Under registration (registration number).

The terms of the PCN allowed the defendant 28 days from the issue date to pay the PCN, but the defendant fail to do so.

3.Despite to demand having been made, the defendant has failed to settle their outstanding liability.

4.The claim also includes statutory interest pursuant to section 69 of the County Court act 1984 at a rate of 8% per annum and a daily rate of 0.02 from 25/07/2011 to 19/04/2017 being an amount of £41.92.

5.The claimant also claims £54 contractual cost pursuant to PCN terms and conditions.

 

What is the value of the claim?

Amount claimed £195.92

Court Fee £25.00

Legal representatives costs £50

Total amount £270.92

 

Has the claim been issued by the Private parking Company or was the PCN assigned and it is the Debt purchaser who has issued the claim ?

 

I am not sure, Excel Parking is on the Claim Form and BW Legal is the address for sending documents and payments.

 

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

 

Not aware of this.

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thanks for that.

 

 

please note your corrected dates for ack'ing [AOS] and defence filing.

the date on the claimform is ONE in the count.

 

 

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 .......

 

 

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

 

 

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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Thanks for this.

 

I called BWL to ask exactly what this is about and she responded (after speaking many times to her manager):

 

"It is a PCN for parking in a restricted area on 25-07-2011".

 

I asked if they had photos of the car, the location and the signs at the time and they responded "the client has them". So I challenged her and asked if they have made a court claim without seeing evidence and she said "the client has them".

 

She said that a court claim has been issued because I did not respond and I have to complete the defence statement. She also said that I had committed an offence, but I am not sure what the offence was. I recorded the call.

 

So, to recap, I parked on a taxi bay (not official rank), for 10 mins (max) for a distress purchase. I can't link yet to an image as I have not posted enough, but if you google 371 Hessle Road Hull and check the image on google maps, you can see the taxi marks at the front of the car park.

 

The signs make no mention of parking in a taxi section and as you can see from the image, it is not clear that it is part of the 'official' car park and no taxis are ever in the space.

 

I am also happy to write to the MD/CEO of the stores copying Excel and BWL if this is helpful.

 

Does any of this information help at all?

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no and that twas a stupid thing to ring them.

 

get on with the claim aos and the cpr

and don't go doing stupid things like that again.

 

it could hurt you.

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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stop calling people and only deal with matters via the court procedure from now on and that WILL BE IN WRITING WHEN THE COURT TELLS YOU TO.

 

 

you submit the forrm via moneyclaimonline and say that you defend all of the claim.

 

 

You then have an extra 14 days to submit a skeleton defence.

this can be just one line at the moment.

 

 

If you want to use the form you can but MCOL accounts are easy to set up and have a little toolbar that has a useful timeline on it so you dont ahve to remember everything as far as dates go.

 

What you did and didnt do is irrelevant unless you just want to shoot yourself in the foot.

Read about the POFA,

there is no keeper liability prior to Nov 2012 so they can only sue the driver of the vehicle at the time if that person is known to them

 

 

. You are under no obligation to identify that person or to help them at all so you never say "I" under any circumstances in your writings.

 

For the moment,

if you want to submit a defence

you can simply say that

"the defendant denies any contract existed between themselves and the claimant and put it to "strict proof" of the same.

There is no keeper liability in this matter".

 

the denial of a contract is your defence,

anything you add to this later will not change that.

 

 

"Strict proof" is a legal term that obliges them to show some solid evidence that what they say is true and that will effectively mean they need to show evidence of who was driving at the time.

 

 

If you tell them that you were then they can continue with their claim.

Leave it for them to prove and they are stuck.

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Thanks for this dx100uk and ericsbrother.

 

 

The good news is that I did not tell them I was or was not there,

I just wanted to know what their claim was 'on the basis of' as it is not on the letters they sent.

They only said that I would have to prove that it was someone else in court.

 

Quick questions:

 

Would you put the skeleton defence in now based on no contract?

If so, why do they say I have to prove it was someone else?

Will I have to do this?

 

What do you think the chances are of this going to the next stage to court?

 

Thanks again.

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you must read things carefully and properly.

you must also understand a little about the law that surrounds this.

But, you dont tell them who was driving, they cant ask and force you to answer but best not go there.

 

 

The law says they ahve to prove they have a claim against you, not just a possible vague claim against someone

 

I have put a 1 line defence submission in the inverted commas starting

" the defendant.....ending.... there is no keeper liability in this matter"

it is that simple at this stage.

 

Chances of going to court?

Quite high as you phoned them they will have you down as being likely to pay up.

 

they are greedy and know 85% of people dont bother to respond or turn up so they win by default.

They may drop the claim when the court date gets close as they know they are onto a loser

but will probaby wait until they have read your defence submission

and then phone the court the day before the hearing

and hope that you dont gte awarded a large costs order for wasted time so expect this to go all the way

 

Once your 1 line defence is submitted and they have failed to respiond to the CPR31.14 request

you can go after them and ask the court to strike out the claim on several grounds.

 

 

More of this when you get the courts acknowledgements of your paperwork back and an allocation questionnaire.

this will just determine what track the case should take

and you can tell them when you are on holiday

and that you dont want mediation.

 

 

all straightforward and simple if you stick within the time limits

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well you don't want them too either...think about it!!!

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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Share on other sites

The CPR 31.14 asks them to show all of the documents that give them the right to make a claim.

 

If they cant produce these then their claim is doomed as long as you imprint the relevant points in the judge's mind.

 

Their failure to respond damages their claim as the POC will be meaningless and no cause for action shown.

 

Any further action on their part may well be an abuse of process, coercion, fraud etc

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  • 4 months later...

Thanks for the advice. I am now putting together my witness statement for a court case early in October.

 

First of all, they never provided me with the information requested in the CPR 31.14. They responded saying that they have referred the request to their client who would forward the documents on receipt. Nothing was received.

 

I also sent a Subject Access Request letter to Excel and This included all the details relating to the case and images. Nothing was listed saying that they had responded to the CPR request. However, this did not include the following elements requested in the CPR:

 

1. The contract between Excel Parking Services and the landowner (relevant to the time of the claim being 25/07/2011) 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.

 

Any advice on writing the witness statement would be really appreciated.

 

Also,

I checked with the DVLA to see when Excel requested my details.

It appears they requested my details 15 days after the alleged contravention.

This was a paper ticket according to Excel.

 

 

Does this mean that they have asked for my details too early?

I have read that they cannot ask for Keeper details earlier than the 29th day no later than the 56th day.

 

 

Should I mention this and is there a counterclaim?

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no that's the NTK deadline

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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Thanks, on this point specifically

 

"A notice to keeper must be served not ealier than 28 days after, and not more than 56 days after, the service of that notice to driver."

 

The dates which they have sent me:

 

25/07 Alleged contravention with ticket on car (shown in photographs)

 

09/07 Excel requested owner details from DVLA (15 days after alleged contravention)

 

17/08 Notice to owner served by Excel (23 days after alleged contravention)

 

am I right in saying that they have not followed the legal deadlines?

 

Thanks in advance and sorry if I am missing something.

I need to get on with a witness statement and this looks interesting to me.

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the POFA didnt exist in 2011

they didnt have to adhere to any timetable.

 

They didn't even have to send out an NTK

if they didn't they would have to rely on the driver bothering to pay them after receiving the screen ticket.

 

This is not an argument you want to progress so forget it

concentrate on

1) that the Particulars of claim are so vague that they fail to fulfil the requirements of CPR 3.4 and 16.4 despite a CPR 31.14 request for this information

you ask they be struck out on that basis with a full costs order.

 

the POC doesn't t state what the claim is for

is it as a contractual sum or for monies due as a result of a breach of contract (signage will help you tell which way it should be

 

you need to press for copies of pictures of the signage in place at the time in a format that is recognisably at that site and not a generic mock up)

 

2) the contract- chances are at that time it was flawed or with VCS and not excel.

 

3) no keeper liability and no mechanism to create one.

No evidence has been put forward by Excel as to who was driving at the time and thus who any contract would be with as it is not the keeper of the vehicle.

 

Some evidence that you weren't the driver would be helpful in this as they then cannot rely upon the trustworthiness of witnesses to argue that on the balance of probabilities it was you

 

4) in any case the wording of the signage is too vague to determine that a contract has been offered, considered and accepted by the driver at the time.

 

You need pictures of the signage as it it today so you can show that they are not the same as the ones that were there at the time.

 

For starters the IPC didn't exist then so any signage they produce as evidence that has their logo is an attempt to pull a fast one.

By having your pictures you can prove this.

 

You also need to know where the signs were at the time and where they are now, what sort of lighting is present if the ticket was issued at night/twilight.

 

Also have a look at some other threads and you will see that Excel have either dropped the matter or that they have got a kicking for bad POC's and acting unreasonably.

 

You need to copy any reference to these cases and quote the claim reference numbers in your witness statement and have a printout of the source material in your appendices

 

For example the parking pranksters blog has a lot of examples where excel has failed to produce a decent particulars of claim

 

You copy them and use them as being persuasive. ( knowing Excel has previous on this will focus a judges mind on the truthfulness of their other evidence.

 

Lastly you make copies of the Rights of audience regs for courts as BWL will likely send a paralegal from a local firm along and they aren't allowed to present a claim or speak on it, only a solicitor or an employee of Excel or BWL .

 

If they dont send someone employed by Excel you challenge the veracity of the ir WS and say that you want to either cross examine its author or request that it is struck out since ther is no witness to make that statement in the hearing

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Thanks for the comments, it is really appreciated. I will work on this later today. Is there anywhere to send my witness statement to get feedback?

 

Also, looking at the photo's they sent, it says that the car was parked in a Taxi bay, but there is no evidence in the photos that this is the case (i.e. no markings on the road), it looks like a normal parking space. Is their word enough evidence?

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OK, here goes. I have read a lot as suggested and have put together the witness statement below. I would appreciate any comments. I hope that it is not too long. Do I need to attach 'exhibits' of letters etc? Also I have mentioned Beavis, but I am not sure if I should.

 

Two specific points: Point 9 - They say the car is in restricted area/taxi bay, but the photos they sent do not show this, it looks like a normal marked bay. Point 8.1 - BW Legal effectively lied to me in a call (I recorded this as they said they were recording the call), should I make more of this?

 

Thanks again for all of your help. I suppose everyone should have their day in court.......LETS DO THIS!

 

----------------

 

Not having been in court before I have responded to the court summons stating that I would defend my case. It is not cost effective to employ a solicitor in this case, so I have had to arrange this defence myself, please excuse me if I fail to use the correct legal terms.

 

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 defendant denies the Claim in its entirety, asserts that he is not liable to the Claimant (Excel) for the sum claimed, or any amount. The defendant denies any contract existed between himself and the Claimant and put it to Strict Proof of the same. There is no
keeper liability in this matter.

 

2. The event in question as well as being almost 6 years ago, is prior to the introduction of the Protection of Freedoms Act 2012. The claimant has no proof of the driver and has not answered a CPR 31:14 request. The Claimant has had 6 years to produce robust evidence and has produced nothing.

 

3. The action is no more than an abuse of the court process. As suggested previously, a coherent statement of fact about the driver and the evidence to support this, is key to the case.

 

4. The defendant requests the court to strike out the Claim under CPR 3.4 as there is no liability. The Claimant has failed to answer the CPR 31:14 request, the evidence received from a SAR (Subject Access Request) is vague and doesn't t state what the claim is for as there is no evidence of a breach of contract. Similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to the Claimant’s template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

 

If this proceeds to court, the Defendant requests costs for defending this claim, which will be submitted separately and in a timely manner.

 

5. The Claimant has failed to answer my CPR 31:14 request made on 02/05/2017 to their Solicitors BW Legal. This requested any documentation or relevant contracts with the landowners at the time of the alleged offence that allow the Claimant to issue claims upon the landowners’ behalf. No information was received relating to planning permission for signage etc under the Town and Country Planning Act 2007. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to the Claimant at the time of alleged contravention, and no proof has been provided.

 

6. BW Legal were given 14 days to responded to the CPR 31:14 request. They wrote to the Defendant on 17/05/2017, included in their letter was the following line:

 

6.1 “We have referred the request to Our Client and will be forwarded to you upon receipt”.

 

6.2 The Defendant reminded BW Legal about the failure to respond to the CPR 31.14 request when sending them a copy of the Directions Questionnaire on 26/05/2017. Still no evidence has been received. Therefore they have failed to follow through with their agreement to send this ‘upon receipt’.

 

7. I firmly believe that to pursue me as registered keeper when the Claimant has no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious. And a breach of DATA protection can occur when a parking company pursues a charge which is not valid, or an over inflated charge, or both and the defendant believes this has happened and use this case as ref case D6GM2199 v Mr B, Bury county court, before DJ Osborne.

 

8. BW Legal’s correspondence In support of this Claim has at best been extremely confusing, if not misleading. BW Legal’s Notice of County Court Claim Issued on 20/04/2017 did not include the Vehicle registration number (therefore the Defendant did not know what it was for) and also previous correspondence stated that the contravention was “Parked in a restricted area of the car park”, but no description or evidence of this has been shown. The Defendant called BW Legal on 26/04/2017 to ask what the Claim was for and to state that there was no keeper liability. The Defendant has a recording of this call where the following statement was made in response to no keeper liability:

 

8.1 “If someone else was driving the car Mr (my name), you need to ask them, whoever was driving the car to call us to accept liability”.

 

8.2 The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the particulars of claim, it can be seen the date of the alleged incident is 25/07/2011 which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced. This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the drivers identity. Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here.

 

PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).

 

9. The claimant hasn't provided any evidence at all that the alleged contraventions even occurred. The Particulars of Claim only contains the Parking Charge Notice reference (PCN), photographs of the car parked in an unmarked bay and a photograph of the PCN on the windscreen with a date stamp. These are vague and lack pertinent information. The evidence fails to establish any link to the alleged contravention, which has been claimed differently as “Parked in a Taxi Bay” or “Parked in a restricted area of the car park”. The photos do not show that the car is parked in a restricted area or in a taxi bay, but is in what appears to be a normal marked bay. Additionally there is no evidence of signs or contracts with the landowner to authorise the Claimant to make any claim. The Defendant repeats the request that the court to strike out the claim for failure to disclose a cause of action and failure to comply with CPR 16.4 Contents of the particulars of claim and Practice Direction 16 paras 7.3 - 7.5.

 

10. The claimant has produced a figure of £270.92. This is a completely unsubstantiated and inflated three-figure sum, incoherently adduced by the claimant's solicitors. The Defendant has the reasonable belief that the sum is simply a number made up out of thin air, and an attempt to artificially inflate recovery by the Claimant. Any time and resources allegedly spent by the Claimant are staff employed performing their normal duties for the express purpose of operating its business model and whose cost would have been incurred if the ticket had been displayed or not. Furthermore, Interest is included at 8% p.a. as part of this alleged debt which would have been avoided if court action were issued in 2011. The Defendant feels this delay is a punitive measure, having deliberately waited nearly 6 years from the date of the alleged contravention before taking the matter to court, resulting in the highest possible interest claimed for the period.

 

11. Again I have not been shown any evidence of signage and contracts with the landowners. This claimant is known for unfair and unacceptable practices in its signage that is incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' £53.50 costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park.

 

12. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. It is argued that at the time in 2011 the signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the ParkingEye Ltd v. Beavis case:

 

12.1 Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.

 

12.2 The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

 

12.3 The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.

 

12.4 No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.

 

12.5 Absent the elements of a contract, there can be no breach of contract.

 

13. It is expected that this Claimant may try to counter that article about their signs but it is worth noting that the Judge agreed with Mr Cutts, who is something of an expert on clear terms as he manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

 

14. It is also worth noting that Simon Renshaw-Smith (previously manager of 'Captain Clampit Ltd') who runs Excel, is in the public domain as having attacked the Judge’s integrity in the Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: ‘The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts'.

 

15. The Claimant’s solicitors BW Legal are known to be a serial issuer of generic claims similar to this one, with no diligence and no scrutiny of details. The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to the detriment of the unrepresented Defendant. The Defendant asserts that parking companies such as Excel are using the small claims track is a form of aggressive, automated debt collection and is a waste of court time and resources. Automated debt collection is not something the courts should be seen to support and I will be making a complaint to the Solicitors Regulation Authority about BW Legal’s conduction and misinformation.

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Thanks for the comments, it is really appreciated. I will work on this later today. Is there anywhere to send my witness statement to get feedback?

 

Also, looking at the photo's they sent, it says that the car was parked in a Taxi bay, but there is no evidence in the photos that this is the case (i.e. no markings on the road), it looks like a normal parking space. Is their word enough evidence?

 

 

purely tarmac graffiti.

means nothing on private land

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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recorded calls are evidence but as yours is with their lawyers it is worthless.

 

Your witness statement should be just that

do not make assumptions and comments,

stick to the facts

for example in point 2 where you say the claimant has had 6 years to produce something,

the law allows them the 6 years

commenting on their lawful rights in this way will not help your defence.

 

on point 9 you are making 2 separate assertions,

one about the parking event,

the other about their right to bring an action against you (or anyone at all).

 

Make these separate and put the challenge to their locus standi at the very top of your list

the new point 2 should be

"the defendant does not believe that Excel have a contract with the landowner that assigns the right to enter into contract with the public and to make civil claims in their own name.

 

A request for sight of this contract was made via a CPR 31.14 request but no evidence of that contract has been forthcoming

 

The defendant believes that Excel thus have no locus standi and therefore their actions are an abuse of the Civil Procedure".

 

make the point about the incoherent POC and again say this is unreasonable conduct under CPR's and quote other cases where the claim has been dismissed

( see parking prankster- they will be Gladstones claims but they modus operandi is the same) you can then edit point 7

 

Point 6 and 6.2, you didn't remind BW about anything, you reminded Excel.

Just because they have hired a useless mouthpiece you cant shift the responsibility to them, the judge may think that but it is the client's decision so thy carry the can.

 

becasue you cant use the phone call recording point 8.1 goes out of the window, again it want excel so irrelevant

 

point 21.1 you need to show that Excel were members of the BPA at the time and in any case their CoP's are the accepted CoP, not the johnny come lately IPC

 

every time you quote a previous case you must take with you your reference material, along with pictures of the site and signage now present to show how things are

so if Excel claim tat such and such a sign was there in 2011 and it has the IPC logo on their image you can prove that is untrue because they didn't exist then.

 

point 14 is just comment rather than your witness statement

use it elsewhere in your evidence bundle, not here.

this page should be about you, not others.

 

Point 15, again take evidence that this refers to so screen shots of Pranksters blog etc.

Edited by honeybee13
Paras
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Thanks for this, is there any 'legal speak' or references that I can add to make this point? I can't find anything online.

 

Cheer

 

P.

 

Hi Erics Brother, thanks for the advice. I have been working on this. Is this better?

 

Not having been in court before I have responded to the court summons stating that I would defend my case. It is not cost effective to employ a solicitor in this case, so I have had to arrange this defence myself, please excuse me if I fail to use the correct legal terms.

 

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 defendant denies the Claim in its entirety, asserts that he is not liable to the Claimant (Excel) for the sum claimed, or any amount. The defendant denies any contract existed between himself and the Claimant and put it to Strict Proof of the same. There is no
keeper liability in this matter. There are many cases which illustrate this, including VCS v Quayle C1DP0H0J Liverpool, 04/05/2017 where DDJ Gourley found that that the Claimant had no evidence of keeper liability.

 

2. The defendant does not believe that the Claimant has a contract with the landowner that assigns the right to enter into contract with the public and to make civil claims in their own name. A request for sight of this contract was made via a CPR 31.14 request but no evidence of that contract has been forthcoming. The defendant believes that Excel thus have no locus standi and therefore their actions are an abuse of the Civil Procedure. The Particulars of the Claim are incoherent, similar cases have been dismissed including PPM v Keeper. C7GF75EN. Wakefield. 20/07/2017 (the judge found no evidence of proof of signage, that no keeper liability was evidenced and that there was no right to claim for additional monies other than the original ticket. In Excel v Mr W. C7DP8T7D Stockport 10/07/2017. DJ Lettall found that the Claimant had no evidence that there was a contract in place and that there was no basis to assume that the registered keeper is the driver.

 

3. The event in question as well as being almost 6 years ago, is prior to the introduction of the Protection of Freedoms Act 2012. The claimant has no proof of the driver.

 

4. The action is no more than an abuse of the court process. As suggested previously, a coherent statement of fact about the driver and the evidence to support this, is key to the case.

 

5. The defendant requests the court to strike out the Claim under CPR 3.4 as there is no liability. The Claimant has failed to answer the CPR 31:14 request, the evidence received from a SAR (Subject Access Request) is vague and doesn't t state what the claim is for as there is no evidence of a breach of contract. Similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to the Claimant’s template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

 

If this proceeds to court, the Defendant requests costs for defending this claim, which will be submitted separately and in a timely manner.

 

6. The Claimant has failed to answer my CPR 31:14 request made on 02/05/2017 to their Solicitors BW Legal. This requested any documentation or relevant contracts with the landowners at the time of the alleged offence that allow the Claimant to issue claims upon the landowners’ behalf. No information was received relating to planning permission for signage etc under the Town and Country Planning Act 2007. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to the Claimant at the time of alleged contravention, and no proof has been provided.

 

7. Excel were given 14 days to responded to the CPR 31:14 request. The Defendant received a letter from their Solicitor (BW Legal) on 17/05/2017, included in their letter was the following line:

 

7.1 “We have referred the request to Our Client and will be forwarded to you upon receipt”.

 

7.2 The Defendant reminded Excel about the failure to respond to the CPR 31.14 request when sending their Solicitor a copy of the Directions Questionnaire on 26/05/2017. Still no evidence has been received. Therefore they have failed to follow through with their agreement to send this ‘upon receipt’.

 

8. I firmly believe that to pursue me as registered keeper when the Claimant has no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious. And a breach of DATA protection can occur when a parking company pursues a charge which is not valid, or an over inflated charge, or both and the defendant believes this has happened and use this case as ref case D6GM2199 v Mr B, Bury county court, before DJ Osborne.

 

9. BW Legal’s correspondence In support of this Claim has at best been extremely confusing, if not misleading. BW Legal’s Notice of County Court Claim Issued on 20/04/2017 did not include the Vehicle registration number (therefore the Defendant did not know what it was for) and also previous correspondence stated that the contravention was “Parked in a restricted area of the car park”, but no description or evidence of this has been shown. The Defendant called BW Legal on 26/04/2017 to ask what the Claim was for and to state that there was no keeper liability. The Defendant has a recording of this call where the following statement was made in response to no keeper liability:

 

8.1 “If someone else was driving the car Mr Andrews, you need to ask them, whoever was driving the car to call us to accept liability”.

 

10. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the particulars of claim, it can be seen the date of the alleged incident is 25/07/2011 which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced. This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the drivers identity. Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here.

 

PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015). There are countless of other pre-PoFA cases which have been dismissed as the Claimant could not provide evidence of the driver including Excel Parking Services Ltd v Mrs. Lynzi Evans Judge: DJ McKay, Claim no: C8DP79CC.

 

11. The claimant hasn't provided any evidence at all that the alleged contraventions even occurred. The Particulars of Claim only contains the Parking Charge Notice reference (PCN), photographs of the car parked in an unmarked bay and a photograph of the PCN on the windscreen with a date stamp. These are vague and lack pertinent information. The evidence fails to establish any link to the alleged contravention, which has been claimed differently as “Parked in a Taxi Bay” or “Parked in a restricted area of the car park”. The photos do not show that the car is parked in a restricted area or in a taxi bay, but is in what appears to be a normal marked bay. It is noted that Excel v M. X C8DP5C7T, Manchester County Court - 25/05/2017 the pictures provided were unsatisfactory quality as they did not place the vehicle anywhere, which is similar to this case.

 

12. There is no evidence of signs or contracts with the landowner to authorise the Claimant to make any claim. The Defendant repeats the request that the court to strike out the claim for failure to disclose a cause of action and failure to comply with CPR 16.4 Contents of the particulars of claim and Practice Direction 16 paras 7.3 - 7.5.

 

13. The claimant has produced a figure of £270.92. This is a completely unsubstantiated and inflated three-figure sum, incoherently adduced by the claimant's solicitors. The Defendant has the reasonable belief that the sum is simply a number made up out of thin air, and an attempt to artificially inflate recovery by the Claimant. Any time and resources allegedly spent by the Claimant are staff employed performing their normal duties for the express purpose of operating its business model and whose cost would have been incurred if the ticket had been displayed or not. Furthermore, Interest is included at 8% p.a. as part of this alleged debt which would have been avoided if court action were issued in 2011. The Defendant feels this delay is a punitive measure, having deliberately waited nearly 6 years from the date of the alleged contravention before taking the matter to court, resulting in the highest possible interest claimed for the period.

 

14. It is noted that BW Legal and other solicitors have attempted to use the CPS v AJH films case on a number of occasions to imply a contract exists. It is noted that this has been dismissed many times in court as this is based on an employee/employer relationship and is not relevant in other cases. Examples of this are Excel v M. X C8DP5C7T. Manchester County Court - 25/05/2017 and Excel Parking Services Ltd v Mrs. Lynzi Evans Judge: DJ McKay, Claim no: C8DP79CC in the Cardiff Civil Justice Centre. In the later case Judge: DJ McKay explained that the Claimant should have withdrawn their case before court as they should know that both CPS v AJH films and Elliot vs Loake are not relevant and they cannot provide the relevant evidence.

 

15. Again I have not been shown any evidence of signage and contracts with the landowners. This claimant is known for unfair and unacceptable practices in its signage that is incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' £53.50 costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park.

 

16. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. It is argued that at the time in 2011 the signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the ParkingEye Ltd v. Beavis case:

 

16.1 Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.

 

16.2 The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

 

16.3 The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.

 

16.4 No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.

 

16.5 Absent the elements of a contract, there can be no breach of contract.

 

17. It is expected that this Claimant may try to counter that article about their signs but it is worth noting that the Judge agreed with Mr Cutts, who is something of an expert on clear terms as he manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English.

 

18. The Claimant’s solicitors BW Legal are known to be a serial issuer of generic claims similar to this one, with no diligence and no scrutiny of details. The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to the detriment of the unrepresented Defendant. The Defendant asserts that parking companies such as Excel are using the small claims track is a form of aggressive, automated debt collection and is a waste of court time and resources. Automated debt collection is not something the courts should be seen to support and I will be making a complaint to the Solicitors Regulation Authority about BW Legal’s conduction and misinformation and my local MP to support this issue in Parliament.

 

I believe that the facts stated in this witness statement are true.

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