Excel Parking/BW Legal Form N180 *** Discontinued ***

[J English]

Hi , I've had a letter from the courts they have asked the claimant to file the trial fee £25 and completed application before 1st July, if they dont it will be struck out. I'm sure they will.

 

They have set a hearing for the 13th August which they indicate will last no more than 1 hour.

 

I was thinking of asking Excel for a list of car registation plates that they logged on the day in question, I noticed a case that Excel failed to supply ALL details and it was struck out. Any thoughts ?

[AndyOrch]

This letter wouldn't happen to be Notice of Allocation by chance ?

 

Dont miss the directions that you have to comply with by the dates stated.

 

Andy

[J English]

Its a notice of allocation to the small claims tack. It appears I have to deliver all documents no later than 14 days before the hearing. Thanks for pointing that out.

[AndyOrch]

And a witness statement..particularising your defence.

[ericsbrother]

when you write your WS for your defence you should itemise the main points and then if you aksed for certi information under a CPR 31.14 request ask that they either be forced to produce this or request that the claim be dimissed for lack of a cause for action as they ahvent furnished the necessay proof thy have the right permissions etc.

 

If you didnt ask for something under that request then you cnat really ask for it now but you can comment on the lack of proof so if you say that they have double dipped and you invite them to show otherwise they will have to produce evidence that this isnt so if you make this a main point or risk gtting the claim chucked out for failing to show a cause for action.

 

Showing you were elsewhwere would be the icing on the cake but just giving enough to make someone doubt their statement will be enugh. what you cant do is ambush them on the day though so word it carefully

Edited June 20, 2018 by dx100uk
spacing

[J English]

Ok will do. My WS needs to be sent at the end of July but I'm away 20th so I have a month to get it all sorted I presume I can send it via e-mail again so I could get it all ready before I'm away then just send it last min.

[AndyOrch]

You could if they accept electronic submission....but always follow it up with a hard copy.

[ericsbrother]

I woud always send a paper copy to court as a back up and never email the claimant, paper only.

 

 

Ok will do. My WS needs to be sent at the end of July but I'm away 20th so I have a month to get it all sorted I presume I can send it via e-mail again so I could get it all ready before I'm away then just send it last min.

[J English]

First draft of witness statement: Any comments greatly appreciated.

 

1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimants case :

 

a)The Defendant does not recognize the date of the alleged parking contravention in para 1 of the Claimants particulars of claim.

 

The Operator did not identify the driver and since the incident occurred prior to the Protection of Freedoms Act 2012 there can be

no Keeper Liability.

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.

 

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.

 

b. The Operator is not the land owner and therefore has no standing

c. The Operator had no capacity to offer a contract with the Defendant

d. The signage did not offer a contract with the Defendant

e. No consideration passed from either the Operator or the Defendant

f. The Claimant has disclosed no cause of action to give rise to any debt

g. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty

 

2. The Defendant denies that she was the driver. The incident occurred before the Protection of Freedoms Act 2012 and therefore there can be no 'keeper liability'.

The Operator therefore has no right to pursue the Registered Keeper for payment when it cannot identify the driver; the Defendant is also under no obligation

to disclose who was the driver even if the Defendant could recollect who was driving on a particular day more than six years ago..

 

3. The Particulars of Claim state that the Operator managed the car park on behalf of the Douglas Greg (Keighley) Ltd . The Operator was not therefore the Land-owner.

Since the Claimant is not the landowner, it has no standing to file for damages.

The land-owner that the claimant had a lease with changed names in 2013 and no evidence has been offered to show that the lease was renewed after 2010 under the same terms.

 

4. The Defendant was not the '' registered keeper and/or driver of the Vauxhall Astra bearing vehicle registration mark (VRM) xxxxx (the vehicle)''

nor does she recognise the dates claimed in section 1.

 

5.The Defendant denies being the driver of the vehicle on the contravention date and the Claimant has failed to produce any evidence to prove otherwise.

 

6. PATAS and POPLAicon 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).

 

7. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant is in no position to confirm what signs were in

place more than six years ago.The Defendant was unaware of the content of any signs until alerted to it by the Operators parking charge Notice.

A clear sign stating the terms and conditions at the entrance to the car park is a specific requirement of the British Parking Association Code of Practice that the

Claimant is required to follow. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by

a driver entering the car park this is clearly not the case from the evidence given.

 

8.The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract

were present and therefore no contract could possibly have existed. The driver was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges,

a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the land-owner.

 

Whether there was a contract or a licence, only the Land-owner has standing to bring a claim, not the Claimant.

 

The Defendant has no idea what terms and conditions were stated on the signs as its too small and unclear from the evidence given but disputes the Claimants statement that

such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable

belief that the Operators intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to

enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton county courticon appeal) that was decided by Mr Recorder Gibson QC in

almost identical words (21 February 2014).

 

The court is invited to consider whether a document titled parking chargeicon Notice would ever be sent between the parties to a genuine contract. The Claimant's claim for

Breach of terms and conditions and recover the charges and additional costs incurred further confirms that the sum is neither a contractual term nor a genuine assessment of

pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.

 

The Claimant has stated that, as a result of the Defendants conduct, a charge was incurred. Notwithstanding that the Defendant does not know if she was the driver, the

Claimant has given no indication of the nature of the alleged conduct in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.

 

The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia

to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and

Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.

 

The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company.

The Defendant asserts that the Claimant has also ignoredicon the Governments official position on parking charges as expressed clearly in the Department for Transport Guidance on

the Recovery of Parking Charges :

 

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are

likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to

recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

 

The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimants loss. The Claimant has at no time provided an explanation how the

sum has been calculated.

 

9. and point 27 - 29.1 - 29.2 The Claimants images of the signage offered as evidence of the Terms and Conditions, it states a £100 charge is reduced to £40 yet the Claimant

has claimed more than this in the NTK. The core terms of the sign don't say anything about a charge being payable for not buying a ticket and the small print is not clear,

this is an unfair contract under S62 of the Consumer Rights Act.

 

29.2 POFA says only the original billed in the NTK applies to keeper. The claiment are claiming £60 in costs agreed if they were suing the driver but at point 31 they say

the sum is £54. They both cant be right.

 

10. Under a CPR 31.14 request I have asked for a list of car regisrtation plates that they logged on the day in question so far they have failed to produce this information , I ask the court to dismiss this case as they havent furnished the necessary proof.

 

The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

 

As such, I am keeping a note of my wasted time/costs in dealing with this matter.

I request the court strike out this claim for the reasons stated above

I confirm that the contents of this statement are true to the best of my knowledge and belief.

[dx100uk]

Urm imho to much..war and peace...

[AndyOrch]

CPR 31.14 can only be used to request documents referred to within the claimants particulars of claim.

 

Andy

[J English]

Ok I'll take that out, can I still mention it but not under CPR 31.14 ?

 

I need to get this WS done and sorted over the next 7 days.

[dx100uk]

https://cse.google.co.uk/cse?cx=partner-pub-8889411648654839:6449422593&ie=UTF-8&q=Excel+bw+witness+statement&sa=Search+CAG

 

Plenty above

[J English]

Thanks I'll take a look.

 

Received BWL WS today, they have now corrected the mistakes make in the defence . Also quoting CPS v AJH and Elliot v Loacke !!! I realise from waht I've read not applicable.

[ericsbrother]

you need to take copies of cases where those cases have been cited and then copiously spat out. Gladdys always used to quote these and they are not relevant, the POFA overrides them anyways.

 

 

The Parking Pranksters blogspot has a number of references, you copy them as reported there (screen shots will do) so the case ref and the precis are clear to see. No good just saying in the case of Bloggs v Widgets 1929, no judge is ever going to look it up!

Edited July 16, 2018 by honeybee13
Paras

[TDRW333]

Hi,

 

Ive just won a case regarding a PCN in this car park a few days ago

- ive posted a bit about the judgement and how the judge came to those decisions on the thread i started

- might be of some use for your case

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?484531-Excel-BW-Claimform-PCN-14-12-2016-Cavendish-Retail-Park-Keighley

[ericsbrother]

there you go,

another case that can be quoted as long as TDRW is happy in passing over the case ref number and court details.

 

As it is now public record perhaps she would be kind enough to post it up as Excel v Mr W, whatever CC, date and ref no.

The precis is alrerady here

[TDRW333]

Hi yes I will happily,

just don't have the details to hand but will post them up when get five minutes when home.

 

Wasn't sure whether you can get a written copy of the judgement or whether there is just a transcript of the tape recorded court session?

[AndyOrch]

Hi,

 

Ive just won a case regarding a PCN in this car park a few days ago

- ive posted a bit about the judgement and how the judge came to those decisions on the thread i started

- might be of some use for your case

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?484531-Excel-BW-Claimform-PCN-14-12-2016-Cavendish-Retail-Park-Keighley

 

Well technically you have not won as the claim was dismissed ...the claimant lost...you can only win a court claim if you are the claimant...the issuer of the claim....or Part 20 Claimant (Counter Claim)

 

Lower courts decisions can not be used as precedents .....but well done TDRW for fighting your claim and getting it dismissed.

 

Regards

 

Andy

[TDRW333]

Righto Andy - i meant won as in successfully defended the case, as opposed to lost -to a lay person, its a win. You clearly have a lot of knowledge in this area which is massively helpful to people like me who don't, but please be aware that sometimes when experts make little posts like this - they can come across as a little pedantic and possibly put people off asking for your help!

 

I'm sure you're right, but in the hours of research I did I have come across cases where the judges attitude clearly seems to have been influenced by other cases that they were unaware of until raised by defendants.

[DragonFly1967]

Whilst I'm sure that Andy is technically correct. I'm with you TDRW. If the claimant hasn't won, it means the defendant has, however it was arrived at and whatever you want to call it. That's a win in my book, all day long

[lookinforinfo]

Too right DragonFly.

Any other member reading the thread with a potential Court case coming up will take heart from the fact that if you say the right things prior to the hearing the parking company may cut their losses and not turn up. That is a win.

[ericsbrother]

the reason you mention all of these aother cases where they dont set precednt is because judges dont actually like to set precedents themselves when there are other cases they can refer to.

 

Judges have meetings at least once a year where they discuss various claims and try and be consistent in how they all deal with these matters and for that they use examples as being "persuasive" rather than case law, which is compeeling.

 

can you imagine a judge listeneing to 6 parking cases brought in the same court by the same company and delivering different decisions based solely on a random person's oratory skills?

No, they will try and allpy consistency even when they have make a boo boo in case 1 so they look for reasons to ignore their own determinations because that firts case may well be persuasive as far as they are concerned.

 

This was a common thing when the POFA was new and shiny because judges hadnt read it and we started to use it to beat the parking co's.

 

Nowadays most judges will have come across dozens of parking claims but you still have to do the legwork because the courts system replaces trial by combat so you will get winners and losers by result and that menas showing the judge something, not just relying on the fact that they know the parking co are inveterate liars. you dont turn up to a sword fight without a sword!

Edited July 24, 2018 by DragonFly1967
Added some spacing

[J English]

Hi, just picked up your message TDRW333. Hopefully I'll get the same judge and we can all go home happy. I'll message you if I need more info.

[J English]

I'm just putting the paperwork together for the hearing and I've noticed the land leased to Excel according to the lease is not all the car park area that they claim to operate on. Its clearly outlined on the lease whats been leased but Excel have highlighted it all. Just wondering if

TDRW333 noticed this ?