Excel/BW Claimform - PCN 14/12/2016 Cavendish Retail Park Keighley - *** Claim Dismissed with Costs ***

[TDRW333]

Ok, I just wondered because on a previous forum thread, the defendant had had a letter also offering to drop the claim for a reduced payment and was given this advice:

 

 

does the letter say "without prejudice"?

 

Even if it does you can use it against them as they are too late for such communications not to be considered as evidential.

 

take it with you to show that the claimant clearly acknowledges that their claim is for a ficticious amount

 

So I wondered whether I could use it to demonstrate that the amounts they are claiming are not reasonable?

[ericsbrother]

I suggested that you ask them to pay you money and ask them how much they are offering!

 

ignore them as they know they are going to lose again and hope that you dont know anything about the previous case.

 

As for without prejudice letters, they can be used as evidence of certain things but dont constitutes a binding offer so if you ignore the letter and then tell the court that they said they would settle for £50 it wont be taken into consideration.

 

I suggested that a letter of this sort if sent at a time very close to the hearing would indicate that they know they don't have a claim in the first place.

 

I would expect them to discontinue at short notice once they get to know what your defence is.

[TDRW333]

Hello all,

 

Just received a letter from the County Court to say court date has been adjourned.

 

When I rang to ask if there was any specific reason the woman was initially a bit shirty with me as it is technically my husband's case.

 

I explained that I will be acting as his Lay representative and that I am dealing with it for him. She asked whether I had written to the judge and informed them or requested permission.

 

I said I hadn't as this was not mentioned in any of the info we have received and that I understood that the point of the small claims court was that people did not pay for legal representation and did it themselves.

 

Then she put me on hold to check coming back to me to say that if he was attending it should be ok but had i informed the court.

 

Please can anyone confirm

- do i need do inform them in writing that I will be doing the talking and that my husband will not be giving evidence as he will tie himself in knots and undoubtedly say something unhelpful.

 

Thanks

 

T

Edited June 6, 2018 by dx100uk
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[ericsbrother]

dont have to inform that a lay rep is presenting, same as the opposition doesnt have to say they will be using a solicitor. Read and take a copy of the stuff about lay reps, it will be linked via the parking pranksters blogspot or website

[TDRW333]

Hi All,

 

Thought I would give an update and brief outline of how my case went in Court – hopefully might be of benefit and reassurance to other people who are being taken to court by Excel/ BW.

 

I can see a couple of other cases relating to this car park and would be willing to share relevant photos and the witness statement they sent to me.

 

Court date was 18th July case was heard by DJ Wright.

The representative sent by BW Legal was a Miss Kayani.

 

She introduced herself and asked if we wanted to go and have a discussion in a private room, I politely declined, this threw her a bit, she explained it would be more private. I advised her we were happy to discuss anything in the waiting room.

 

She stated that obviously the client intended to proceed with the claim for the full amount and proceeded to list of sums of money including her fee of £160 for the day, apparently “its 50/50 so could go wither way”. I politely smiled and said yes well let’s see what happens (im not sure how she came to that conclusion).

 

She then asked why I was representing my husband

– I said because he didn’t feel confident to do it himself.

 

Had we sent a request into the court

– no, we have not been instructed that that is necessary.

 

She then explained the process;

I will outline the case, you can’t ask me any questions.

I stopped her there to say that was not strictly true was it.

 

The Judge introduced herself and then asked who we were, she explained that if I was representing my husband then she would direct questions to me, if we wanted to have a quiet chat before responding that was fine.

 

Judge invited Miss K to explain her client’s case.

Their witness statement stated they would not be relying on POFA, instead they would be allowing on Elliott Vs Loake and CPS vs AJH Films. Great!

 

DJ Wright asked if Miss K had brought these cases with her for the Judge to read – she hadn’t as BW had only supplied the WS.

 

DJ Wright also asked if Mr. W had been supplied with these documents if they intended to rely on them in court – they had not.

 

So without having to speak DJ Wright said that she would give an indication:

-The purpose of POFA was to address situations where private parking companies were unable to ID the driver

 

- Excel/ BW WS did not follow POFA therefore they sought to rely on caselaw which they have not brought to court

 

- They have relied on the two cases on many occasions but they do not assist me

 

– the facts are different, they do not support the claim registered keepers have liability for other drivers

 

- Mr W cannot be liable for this on basis of being keeper therefore they need to rely on establishing Mr. W as the driver

 

- Burden of proof is on claimant to prove this, no legal obligation on Mr W to ID driver. No inference in law

 

– indeed the introduction of POFA suggests that this would be wrong otherwise POFA would not have been required.

 

The Judge asked what specific evidence Miss K had to prove this……

. tumble weed……..

she asked if the Judge wanted her to go into the signage.

 

- The PCN did not outline the basis for which the PCN was issued and no evidence was provided with it to show who was driving.

 

- The WS does not give any factual evidence

– they are merely submissions

 

I had also raised the fact that we had not been given any evidence to show that we had not paid and displayed, the print out of registration numbers was missing data from a machine and the overhead photos of the car park provided by Excel had conveniently missed off one of the machines.

Excel and BW have lost several cases based on this point.

 

I remarked that they are aware of this and so in their witness statement to me one of the machines appears to have disappeared.

 

The judge remarked that if it is correct that the court has been provided with information that is untrue and only partial then that is very concerning and the defendant may wish to consider whether or not to take this further.

 

Case not proven and therefore dismissed.

 

She then went on to say she could now consider costs

– I was ready with a schedule of costs

– literally every penny I had had to spend.

 

We went through it.

She then outlined what she could award costs for and then that she could only award certain costs if claimant had acted unreasonably.

 

I argued:

- Correct info was not included in particulars of claim as to the alleged breach, we could not reasonably defend something we had no knowledge of.

 

Miss K tried to argue that money claim online only allowed so many characters however DJ Wright stated that they should have used the characters to better use and

 

- Claimant did not provide complete and correct info as requested under CPR 31:14 in the time allowed.

 

Miss K referred to the bundle of c#*p that we eventually received, but I argued that it did not even contain a copy of the original pcn, parking data or photos as I had requested.

 

- BW Legal sent a letter in which they threatened to hand us a CCJ if we did not respond to their letter

– argued this was threatening and intended to frighten into paying

 

- Excel and BW have brought this action and yet failed to turn up to answer questions about their evidence

 

The judge said she had to consider what was unreasonable:

 

- POC did not identify legal and factual basis for claim and this was only apparent from the evidence the defence filed.

 

- Strange for a Claimant to choose not to rely on POFA when they may be entitled to instead relying on criminal case law which they must know are not persuasive

 

- Claimant has made the defendant come to court despite knowing they had no reasonable prospect of success highlighted by previous cases brought to the same court.

 

Costs awarded £448.05 payable in 14 days.

 

Miss K argued for 28 days as it was a large amount of money…….

Denied.

Edited July 23, 2018 by dx100uk
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[honeybee13]

Excellent stuff, TDRW and very well done. I'd be happy to let you represent me.

 

 

I'll update your thread title and see that you've already added it to the successful cases forum. Thank you for letting us know.

 

 

 

HB

[ericsbrother]

What a shocking outcome- how dare the judge question the superpowers of Simon Renshaw-Smith and his lackeys.

Seriously though, well done for holding your nerve and getting the procedural points across that wre their undoing. Glad you also got the unreasonable costs order.

I would also like to think that as the court has dealt with Excal and their lazy useless lawyers before thsi will make Ms Kayani want to consider whether she takes any more of their duff masterpieces to present to the grown-ups.

[ploddertom]

Good to see a resounding result & better still to give them a bloody nose with costs. If this happened a few more times then they make think long & hard before trying it on all the time.

[DragonFly1967]

Oh dear. Poor old Simon.

 

*wanders off chuckling*

[ploddertom]

It's a shame the costs hadn't been a little bit more and they fail to pay within the timescale given & could then employ HCEO to collect if it was over £600.

[TDRW333]

The judge made comments about considering whether we should take the issue further regarding them bringing the case to court when they know they have failed to win in the past and also giving incomplete/ incorrect info.

 

I thought probably not a good idea to start accusing them of lying or being purposefully dishonest in regards to the submissions they made.

 

Any thoughts on this

- where would it be appropriate to take this and what would prospect be of any changes occurring as a result?

[fkofilee]

Who pays costs...

 

BW Legal? Or Excel? I hope its BW...

[Gick]

The judiciary like the term disingenuous. A polite way of saying lying gits.

[ericsbrother]

ha, the parking co does as they are the ones making the claims. Mopre foo them for believeing the soft soap fo the parking worlds second best solicitors. Funny how they seem to rely on the same FAILED points about Elliot v Laoke and AJH films. I would give them zero marks for their plagiarism.

 

 

Who pays costs...

 

BW Legal? Or Excel? I hope its BW...

[ericsbrother]

as they havent followed the POFA then you have grounds to sue them for breach of the DPA as they lied when they accessed the DVLA database to get your keeper details. See VCS v Philip, Liverpool CC dec 2016. That sets the bar for damages without showing a schedule of loss and is based on Vidal Hall and others v Google that sets the principle of damages for unlawful processing of data.

 

 

Your claim would stand a very good chance of success where others suing for example PE over incorrect timings of ANPR cameras woudl find it harder because PE by and large use the POFA even where their claims for money are wrong for other reasons.

Edited July 24, 2018 by honeybee13
Paras

[fkofilee]

Seriously tho... I might get my knuckles wrapped for this but...

 

Prankster Notes

 

BW Legal has been awarded “Legal Team of the Year” at the CICM British Credit Awards 2016. The Chartered Institute of Credit Management (CICM) is the recognised standard in the credit and collections industry and is Europe’s largest professional association for the credit community

 

It is incredible that such an incompetent no-hoper legal firm like BW Legal are apparently the best of the legal teams in the credit industry. This means there are worse legal teams out there**

 

BW Legal CEO Sean Barton claims to be a solicitor but his team seem to fail to understand the basics of litigation, including how to obey practice directions when filing particulars of claim or signing a claim. Sean Barton's team file template witness statements with incorrect facts and with matters clearly not in the knowledge of the witness. His understanding of the legal situation around parking is deeply flawed and the advocates Sean Barton uses are poorly briefed. His team send out letters deliberately misrepresenting the situation and provide false information to try and bully motorists into paying charges they do not owe. On the phone, Sean Barton's operatives lie and provide false information.

 

Sean Barton advises his clients to file claims they have no hope of winning if properly defended apparently in the hope that the victim does not realise the true legal position and so pay up rather than defending the claim.

 

His operatives are so incompetent they expose their clients to large counterclaims and to extra costs under the unreasonableness rule.

 

Sean Barton therefore appears to the Prankster to be a particularly incompetent solicitor, who is bringing the legal profession into disrepute and it is poor reflection on the legal regulators that they allow such people to continue in practice.

 

It is an even worse reflection on the legal regulators that there are apparently many more incompetent people than Sean Barton people in the credit industry, as the 2016 award clearly show.

 

https://parking-prankster.blogspot.com/2016/12/excel-bw-legal-incompetence-hits-new-low.html

[TDRW333]

Well we received a cheque from BW last Friday, paid from their office account

- I wonder if they get paid by Excel on a no win - no fee basis!

 

I was expecting to have to send them a reminder.

Discontinuation notice from the court also received.

 

In response to the "Legal Team of the Year" award, i might nominate myself next year.

 

In all seriousness the professional standards are shocking

- I can't believe they are allowed to practice and refer to themselves as solicitors!

 

Would a Complaint to the SRA come to anything?

Are they interested in companies like this and the way they practice?

Edited July 30, 2018 by dx100uk
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[fkofilee]

BW paid you? That's new...

Yes they are as they are regulated by the SRA

[fkofilee]

No win no fee? Nope its a no win we pay costs fee...

[DragonFly1967]

As for a complaint to the SRA.... You could, but it's probably a waste of your own time to be honest. If the SRA were serious about 'regulating' the industry, Gladrags et al would have been struck off years ago

[TDRW333]

yes i was expecting the cheque to come from Excel. Although BW Legal letters kept referring to out "account" with them as though they had taken over our supposed "debt" so maybe Excel have already received their expected costs from BW?

[ericsbrother]

nah, BW now bill Excel for £210 on top of what the court order said had oto be paid to you. however, as BW also send out successful threatograms and collect those £160's and pass on the flat £100's they probably have a few quid on account in their coffers for such eventualities.