Printable Version of Topic

Click here to view this topic in its original format

FightBack Forums _ Private Parking Tickets & Clamping _ Excel going to town on me!

Posted by: lamilad Wed, 6 Jul 2016 - 19:00
Post #1190910

Ok, so I already have one thread on the go after receiving a CC claim from BW Legal/Excel parking a couple of weeks ago. I have now received papers for another claim and this one is big! Strangely this has come directly from Excel - no mention of BW and the specifics of the claim are different.

I received a letter from Excel dated 1st July which quoted a claim number. It said 'detailed' POC were enclosed and a copy had also been filed at the court. Enclosed was a 7 point list describing the POC with a statement of truth.

Today I received the court papers, not from Northampton (as before) but from MCOL. The POC are different from the list Excel sent and very different from the other claim I'm dealing with. Breakdown of claim is:

Amount Claimed: £627.55
Court Fee: £60.00
Legal rep costs: £0.00
Total amount: £687.55

Point 2 of the excel POC reads:
"The claim is for the sum of £627.55 being monies due from the defendant to the claimant in respect of a parking charge notice issued between the dates 30/08/2014 and the 05/12/2015 in the car park known as ******** Retail Park"

The is no reference to any dates or specific PCNs in the court POC.

I find it strange that they can bring a claim against me without actually referring to anything specific - just a range of dates - it doesn't even say how many PCNs they're talking about. I am the RK of the vehicle but not the driver.

As with my other claim I will send a part 18 then submit a defence but I'm guessing I can't send the same defence due to the POC being very different. I will upload pics of the correspondance received so far. I would really appreciate some advice about what my part 18 and defence should focus on. It would be especially helpful if anyone could advise how to modify my previous defence so it becomes suitable for this case. My other thread is here:
http://forums.pepipoo.com/index.php?showtopic=106663

I think excel have declared war on me as I am receiving letters galore from them/ BW/ DCBL for other 'contraventions' in the same car park - all threatening court action. I fear defending myself is going to become a full time job sad.gif

PLEASE HELP!

Posted by: Jlc Wed, 6 Jul 2016 - 19:53
Post #1190927

It's a lazy PoC but at the end of the day they just want it paid but probably won't back of easily. Sounds like 4 PCN's to me - the £100 'artificially' escalated to £150 each + statutory interest.

QUOTE (lamilad @ Wed, 6 Jul 2016 - 20:00) *
I am the RK of the vehicle but not the driver.

This could be critical.

What is interesting is that they changed from BPA to IPC on 18/11/2014 - so a mix of tickets.

From memory they used to use keeper liability when in the BPA but dropped it when moving to the IPC.

For a 'not the driver' defence to work you must specifically deny being the driver and push the balance of probabilities strongly against any presumption. (Any 'proof' would be much better)

Posted by: lamilad Wed, 6 Jul 2016 - 20:01
Post #1190934

Thanks Jlc, my other defence focusses on PoFA non compliance and differences from Beavis case. Hopefully I won't need to modify it too much to use it for this as well.

The links to the correspondance are as follows:

http://i1249.photobucket.com/albums/hh508/lamilad/Court%20POC_zps5bdjw9mw.jpg
http://i1249.photobucket.com/albums/hh508/lamilad/Excel%20Letter_zpszecuyqbr.jpg
http://i1249.photobucket.com/albums/hh508/lamilad/Excel%20detailed%20POC_zps7qsjjg3k.jpg

Posted by: Jlc Wed, 6 Jul 2016 - 20:23
Post #1190945

If one was being picky then it states a single PCN over a very long period. £600 is clearly unconscionable for a single ticket... cool.gif

Posted by: Fluffykins Thu, 7 Jul 2016 - 09:14
Post #1191039

They say very clearly it is "a parking charge notice". Not "several" or any other defined number. Simply "a parking charge notice"

Posted by: SchoolRunMum Thu, 7 Jul 2016 - 09:22
Post #1191041

On MSE it was pointed out that Excel have lumped BPA PCNs with (completely different terms on signs and different Codes of Practice) IPC PCNs, due to the dates:

http://forums.moneysavingexpert.com/showthread.php?t=5490298

You need that in your defence.

Also I suggested that a SAR is a good plan, in this case, even though the answer won't come back until after you've submitted your defence.


Posted by: peterguk Thu, 7 Jul 2016 - 09:50
Post #1191044

QUOTE (Fluffykins @ Thu, 7 Jul 2016 - 10:14) *
They say very clearly it is "a parking charge notice". Not "several" or any other defined number. Simply "a parking charge notice"


Easily rectified by an amended POC.

Posted by: Jlc Thu, 7 Jul 2016 - 11:57
Post #1191088

QUOTE (peterguk @ Thu, 7 Jul 2016 - 10:50) *
QUOTE (Fluffykins @ Thu, 7 Jul 2016 - 10:14) *
They say very clearly it is "a parking charge notice". Not "several" or any other defined number. Simply "a parking charge notice"


Easily rectified by an amended POC.

Yes, but it's really sloppy and lazy. But should we be surprised?

Posted by: peterguk Thu, 7 Jul 2016 - 12:00
Post #1191089

QUOTE (Jlc @ Thu, 7 Jul 2016 - 12:57) *
QUOTE (peterguk @ Thu, 7 Jul 2016 - 10:50) *
QUOTE (Fluffykins @ Thu, 7 Jul 2016 - 10:14) *
They say very clearly it is "a parking charge notice". Not "several" or any other defined number. Simply "a parking charge notice"


Easily rectified by an amended POC.

Yes, but it's really sloppy and lazy. But should we be surprised?


I agree 100%.

Posted by: lamilad Sun, 10 Jul 2016 - 10:34
Post #1191704

Thanks guys, my next steps are to send part 18 request and SAR (using BMPA template) I will then get my defence sorted. I plan to use the defence from my other case (linked above) but I want to include a strong paragraph, as per SRMs comment about them lumping PCNs together from when they were with both BPA and IPC when they would have been displaying different signs in the car park and 'adhereing' to different CoP's. Does anyone have suggestions/ examples of wording for this?

If Gan or any other posters who are good with this type of wording are reading - your advise would be greatly appreciated. Thanks

Posted by: SchoolRunMum Fri, 22 Jul 2016 - 17:07
Post #1195460

Show us your draft defence and we will help further.

Posted by: henrik777 Fri, 22 Jul 2016 - 17:17
Post #1195463

You should be writing to them asking them to replead in accordance with cpr and relevant practice directions failing which you'll be filing for summary judgement. Normally it's not worth it due to small value claim but since it's £600 then that's a different ball game.

Posted by: emsgeorge Fri, 22 Jul 2016 - 20:23
Post #1195494

How many tickets in total are you looking at (not only the court claimed ones, but all the others too).

If they decree that you have been 'taking the pee' and identified you as a massive serial offender, then I have a feeling they will try to push as many as possible to court - leaving you fighting lots of cases.

Its important to make sure you win these first and second cases, or get them to discontinue, as it then makes them think twice about going after you for the rest.


Posted by: lamilad Fri, 29 Jul 2016 - 17:11
Post #1197460

Thanks everyone for your comments. I've just got back from holiday which is why I haven't updated for a while. I was hoping to spend a bit of time working on this while I was away but the internet was rubbish. So that leaves me with about a week to get my defence sorted and submitted - Issue date was 4th July so I work out the deadline is 6th Aug (28 days + 5 for service) - Is that right.

Due to limited time I'm going to have rely heavily on my other defence statement and hope that it is suitable for this case too (obviously with some editing) I'll post it here shortly. Please can anyone give me advice on what needs to be edited/ added/ removed and particularly how I can incorporate a strongly worded paragraph (as per SRMs comments above) about the fact the PCNs cover dates where excel was members of both BPA and IPC and would have had different signs. Many Thanks

Posted by: lamilad Fri, 29 Jul 2016 - 17:29
Post #1197466

The defence from my other case is as follows. I will obviously change all the references to BW Legal. I'll also remove the part 18 stuff as I haven't sent one (yet). All advice and feedback will be gratefully received. Thanks

Statement of Defence: Claim No. XXXXXXXX; Date: xx/06/2016

It is admitted that Defendant is the registered keeper of the
vehicle in question.

However the Claimant has no cause of action against the Defendant
on the following grounds:-
1. The Defendant was not the driver of the vehicle on the date in
question.
2. The Protection of Freedom Act 2012 Schedule 4 has not being
complied with.
a) Notwithstanding that the Claimant claims no right to pursue the
Defendant as the registered keeper under PoFA, the Claimant has
failed to meet the conditions of the Act and has never acquired
any right to pursue the Defendant in this capacity if it cannot
identify the driver.
b) The keeper can only be held liable if the Claimant has fully
complied with the strict requirements including 'adequate notice'
of £100 charge and prescribed Notice to Keeper letters in time and
with mandatory wording
c) The claimant has no right to assert that the defendant is
liable based on ‘reasonable assumption’. 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'
(2015).

3. This case can be distinguished from ParkingEye v Beavis [2015]
UKSC 67 (the Beavis case) which was dependent upon an undenied
contract, formed by unusually prominent signage forming a clear
offer and which turned on unique facts regarding the location and
the interests of the landholder. Strict compliance with the BPA
Code of Practice (CoP) was paramount and Mr Beavis was the driver
who saw the signs and entered into a contract to pay £85 after
exceeding a licence to park free. None of this applies in this
material case.

4. The signage on and around the site in question was small,
unclear and not prominent and did not meet the British Parking
Association (BPA) Code of Practice or the Independent Parking
Committee (IPC) Code of Practice. The Claimant was a member of the
IPC at the time and committed to follow its requirements. The
claimant was also formerly a member of the BPA, whose requirements
they also did not follow. Therefore no contract has been formed
with driver to pay £100, or any additional fee charged if unpaid
in 28 days.

5. It is denied that the Claimant has authority to bring this
claim. The proper Claimant is the landholder. Strict proof is
required that there is a chain of contracts leading from the
landholder to Excel Parking Services Ltd.
a) Excel Parking Services Ltd is not the lawful occupier of the
land
b) Absent a contract with the lawful occupier of the land being
produced by the claimant, or a chain of contracts showing
authorisation stemming from the lawful occupier of the land, I
have the reasonable belief that they do not have the authority to
issue charges on this land in their own name and that they have no
locus standi to bring this case.

6. No sum payable to this Claimant was accepted nor even known
about by any driver; as they were not given a fair opportunity to
discover the onerous terms by which they would later be bound.

7. The claimant has yet to respond to part 18 Request sent by
the defendant to BW Legal and Excel Parking Services Ltd on the
xx/06/2016.
a) A request to explain if Excel Parking Services Ltd are making a
claim as an agent of the landowner or making the claim as occupier
in their own right.
b) A request to explain if the amount claimed by Excel Parking
Services Ltd is for a breach of contract or a contractual sum.
c) A request to provide copies of the signs on which Excel Parking
Services Ltd rely and confirm the signs were in situ on the date
of the event. Also to provide the date the signs were installed.
d) A request to confirm that the signs were at the entrance to the
site on the date in question. Also to confirm that the signs meet
the British Parking Association's Code of Practice Appendix B
(Entrance signs) or the Independent Parking Committee’s Schedule
1.

8. The amount is a penalty, and the penalty rule is still engaged,
so can be clearly distinguished from ParkingEye v Beavis which the
Judges held was 'entirely different' from most ordinary economic
contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landholder and suffers no loss
whatsoever as a result of a vehicle parking at the location in
question
d) The amount claimed is a charge and evidently disproportionate
to any loss suffered by the Claimant and is therefore
unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference
to the fact that their decision was NOT relevant to pay-per-hour
type car parks.

9. The Protection of Freedoms Act does not permit the Claimant to
recover a sum greater than the parking charge on the day before a
Notice to Keeper was issued. The Claimant cannot recover
additional charges. The Defendant also has the reasonable belief
that the Claimant has not incurred the stated additional costs and
it is put to strict proof that they have actually been incurred.
Even if they have been incurred, the Claimant has described them
as 'Legal representative’s costs'. These cannot be recovered in
the Small Claims Court regardless of the identity of the driver.

10. If the driver on the date of the event was considered to be a
trespasser if not allowed to park there, then only the landholder
can pursue a case under the tort of trespass, not this Claimant,
and as the Supreme Court in the Beavis case confirmed, such a
matter would be limited to the landholder themselves claiming for
a nominal sum.

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

Therefore I ask the court to respectfully strike out this claim
with immediate effect.

I believe that the facts stated in this Statement of defence,
xx/06/2016 are true.

Signed: XXXXXXXXXXXXXX

Posted by: lamilad Thu, 4 Aug 2016 - 10:54
Post #1199009

Ok I've edited a previously used defence statement (shown above) to make it applicable in this case. I've changed some wording, removed a paragraph and added a new one. Please could I have some advice on para. 3 - this is something I've added myself and, as I'm not good with legal wording, it may need changing. I need to submit my defence by 4pm tomorrow (5th Aug). Thanks

Statement of Defence: Claim No. XXXXXXXX; Date: xx/08/2016

It is admitted that Defendant is the registered keeper of the
vehicle in question.

However the Claimant has no cause of action against the Defendant
on the following grounds:-

1. The Defendant was not the driver of the vehicle on the dates in
question.

2. The Protection of Freedom Act 2012 Schedule 4 has not being
complied with.
a) Notwithstanding that the Claimant claims no right to pursue the
Defendant as the registered keeper under PoFA, the Claimant has
failed to meet the conditions of the Act and has never acquired
any right to pursue the Defendant in this capacity if it cannot
identify the driver.
b) The keeper can only be held liable if the Claimant has fully
complied with the strict requirements including 'adequate notice'
of any charges and prescribed Notice to Keeper letters in time and
with mandatory wording
c) The claimant has no right to assert that the defendant is
liable based on ‘reasonable assumption’. 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'
(2015).

3. No specific event of or alleged contravention is referred to in the particulars of claim (PoC) which would form the basis of this claim. The PoC refer to “a parking charge notice issued between the dates 30/08/2014 and the 05/12/2015” suggesting the claim is for a single alleged contravention that occurred sometime within a period of 16 months. On that basis, the amount claimed of £687.55 is clearly unconscionable.

4. This case can be distinguished from ParkingEye v Beavis [2015]
UKSC 67 (the Beavis case) which was dependent upon an undenied
contract, formed by unusually prominent signage forming a clear
offer and which turned on unique facts regarding the location and
the interests of the landholder. Strict compliance with the BPA
Code of Practice (CoP) was paramount and Mr Beavis was the driver
who saw the signs and entered into a contract to pay £85 after
exceeding a licence to park free. None of this applies in this
material case.

5. The signage on and around the site in question was small,
unclear and not prominent and did not meet the British Parking
Association (BPA) Code of Practice or the Independent Parking
Committee (IPC) Code of Practice. The Claimant was a member of both the
IPC and BPA during the dates in question and committed to follow their requirements. Therefore no contract has been formed with driver to pay any charge, or any additional fees if unpaid
in 28 days.

6. It is denied that the Claimant has authority to bring this
claim. The proper Claimant is the landholder. Strict proof is
required that there is a chain of contracts leading from the
landholder to Excel Parking Services Ltd.
a) Excel Parking Services Ltd is not the lawful occupier of the
land
b) Absent a contract with the lawful occupier of the land being
produced by the claimant, or a chain of contracts showing
authorisation stemming from the lawful occupier of the land, I
have the reasonable belief that they do not have the authority to
issue charges on this land in their own name and that they have no
locus standi to bring this case.

7. No sum payable to this Claimant was accepted nor even known
about by any driver; as they were not given a fair opportunity to
discover the onerous terms by which they would later be bound.

8. The amount is a penalty, and the penalty rule is still engaged,
so can be clearly distinguished from ParkingEye v Beavis which the
Judges held was 'entirely different' from most ordinary economic
contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landholder and suffers no loss
whatsoever as a result of a vehicle parking at the location in
question
d) The amount claimed is a charge and evidently disproportionate
to any loss suffered by the Claimant and is therefore
unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference
to the fact that their decision was NOT relevant to pay-per-hour
type car parks.

9. The Protection of Freedoms Act does not permit the Claimant to
recover a sum greater than the parking charge on the day before a
Notice to Keeper was issued. The Claimant cannot recover
additional charges. The Defendant also has the reasonable belief
that the Claimant has not incurred the stated additional costs and
it is put to strict proof that they have actually been incurred.

10. If the driver on the date of the event was considered to be a
trespasser if not allowed to park there, then only the landholder
can pursue a case under the tort of trespass, not this Claimant,
and as the Supreme Court in the Beavis case confirmed, such a
matter would be limited to the landholder themselves claiming for
a nominal sum.

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

Therefore I ask the court to respectfully strike out this claim
with immediate effect.

I believe that the facts stated in this Statement of defence,
xx/08/2016 are true.




Posted by: nosferatu1001 Thu, 4 Aug 2016 - 11:02
Post #1199013

FOr 3 you are presumably aiming for:

THe PoC fail to disclose a cause of action against the defendant, merely referencing ".....". THis indicates a single PCN issued sometime in a 16 month period with a cost of over £600. This is clearly a penalty, and fails to allow the defendant any opportunity to know the specific conduct that was allegeded to give rise to such a charge. I ask thec ourt strikes out the claim for failing to disclose any cause of action. Failing this I ask the court to order Furthe rand Better Particulars of Claim to be issued, and leave to amend my defence as necessary.

Posted by: lamilad Thu, 4 Aug 2016 - 11:27
Post #1199024

QUOTE (nosferatu1001 @ Thu, 4 Aug 2016 - 12:02) *
FOr 3 you are presumably aiming for:

THe PoC fail to disclose a cause of action against the defendant, merely referencing ".....". THis indicates a single PCN issued sometime in a 16 month period with a cost of over £600. This is clearly a penalty, and fails to allow the defendant any opportunity to know the specific conduct that was allegeded to give rise to such a charge. I ask thec ourt strikes out the claim for failing to disclose any cause of action. Failing this I ask the court to order Furthe rand Better Particulars of Claim to be issued, and leave to amend my defence as necessary.


Thanks nosferatu1001, that's much better wording. I'll update my statement. thanks again

Posted by: lamilad Thu, 4 Aug 2016 - 19:20
Post #1199202

I've amended para 3 as per Nosferatu's post above. I'm going to submit my defence tonight or tomorrow morning to ensure its received in time. Could any one suggest any final amends/ builds I need to make before submitting? Thanks

Posted by: lamilad Fri, 5 Aug 2016 - 06:26
Post #1199268

Hi just giving this one last 'bump' before I submit my defence in about an hour or so. Just want to see if anyone can recommend any changes/ additions to my statement. Many thanks.

Posted by: nosferatu1001 Fri, 5 Aug 2016 - 07:48
Post #1199290

Sorry was out last night.

If you dont hear anything bakc, youre good to go

remember you can EXPAND this defence later on - while you cannot add new legal arguments (e..g if you didnt include standing to offer contracts, you cant just add it in, not without posibly having to pay £255) this does give you chance to further refine it.

Make sure you have READ UP on the next steps - the DQ (google it!) and the procedure for sending everything to claimant AND the court. Anything sent by post - FIRST CLASS, FREE PROOF OF POSTING, EVERYTIME!

Posted by: Gan Fri, 5 Aug 2016 - 08:31
Post #1199299

If you haven't already sent it, I would add to #3 :

In the alternative that the claimant intended to refer to multiple parking notices, the claimant has disclosed no details of them.

and a slight adjustment of Para #11 :

The Particulars of Claim provide no information to explain how the charge has arisen and I respectfully ask the court to order the claimant to provide further and better particulars or strike out this claim as disclosing no cause of action

Posted by: lamilad Fri, 5 Aug 2016 - 15:47
Post #1199449

Thanks for these comments, guys

nosferatu1001, - I will keep your advice in mind whilst moving forward with this process.

Gan - Unfortunately I had already submitted my defence when you commented but thank you very much, nonetheless.

The other claim which I was dealing with has been 'stayed' after they didn't respond to my defence. I'm hoping the same happens with this. Although the other one was BW Legal whereas this is excel on their own and a much bigger claim so I have the feeling they'll keep pushing sad.gif

I'll update this when I have some info. Thanks again.

Posted by: lamilad Wed, 10 Aug 2016 - 20:49
Post #1201084

Hi, quick update. Although nothing unexpected. I have received completed DQ from Excel see attached photos. I haven't received my own DQ yet but according to Mcol it's been sent. They've stated their preferred court as Sheffield because it's local to them but as their bringing the claim against me surely I get to choose the court. I didn't even realise they had a say in it. How is the court chosen?

They're certainly moving quicker than BWL in my other case. I get the feeling this one's going all the way.

http://s1249.photobucket.com/user/lamilad/library/Excel?sort=3&page=1

Posted by: SchoolRunMum Wed, 10 Aug 2016 - 21:37
Post #1201110

You get to choose the court in your DQ, as the consumer defendant, so don't worry, they are trying it on and it's another example of PPCs piling on the pressure to worry defendants and mislead them into thinking the defendant has to travel outside their area. It's another example of turning the screw to scare you.

Posted by: lamilad Wed, 10 Aug 2016 - 22:06
Post #1201123

QUOTE (SchoolRunMum @ Wed, 10 Aug 2016 - 22:37) *
You get to choose the court in your DQ, as the consumer defendant, so don't worry, they are trying it on and it's another example of PPCs piling on the pressure to worry defendants and mislead them into thinking the defendant has to travel outside their area. It's another example of turning the screw to scare you.

Thanks SRM.

Scare me? No!... Make me more determined to destroy them in court? Absolutely!

Just something else to make the regulars aware of... As you will note from the photo's - the letter and DQ are in the name of "Vehicle Control Services" I know they are Excel's sister company but the court docs say the claimant is "Excel Parking Services". Is this a cock up on their part and something I can use or are they allowed to do this?

Posted by: ostell Wed, 10 Aug 2016 - 22:43
Post #1201130

the mismatch should be brought to the court's attention. You have not had dealings with VCS, your argument was with Excel.

Posted by: nosferatu1001 Thu, 11 Aug 2016 - 09:40
Post #1201208

VCS are a stranger to the case, and you should query with the Court WHY VCS are contacting you, and not Excel.

You should ask when you will get your DQ from Excel, as they are the claimant on the case.

Acting "puzzled" can get you a long way when you call them up smile.gif

Follow up with a letter / email if the court indicates they will do anything about it - "to confirm understanding of phone call on X date with Y person" - that way it can be shown tothe court, if it gets to a hearing!

Posted by: lamilad Sat, 13 Aug 2016 - 16:15
Post #1202126

QUOTE (nosferatu1001 @ Thu, 11 Aug 2016 - 10:40) *
VCS are a stranger to the case, and you should query with the Court WHY VCS are contacting you, and not Excel.

You should ask when you will get your DQ from Excel, as they are the claimant on the case.

Acting "puzzled" can get you a long way when you call them up smile.gif

Follow up with a letter / email if the court indicates they will do anything about it - "to confirm understanding of phone call on X date with Y person" - that way it can be shown tothe court, if it gets to a hearing!

I wonder if there's another way I can use this to my advantage. I will send my DQ back to the court and Excel, then when the 14 day deadline has passed i could contact the court saying that excel haven't complied with DQ and now they have missed the deadline. I may be clutching at straws but could this tactic work in my favour, or should I just contact the court on Monday and be upfront about everything?

Posted by: SchoolRunMum Sun, 14 Aug 2016 - 15:02
Post #1202270

Hello lamilad. Sunday isn't my day off!

QUOTE
the mismatch should be brought to the court's attention. You have not had dealings with VCS, your argument was with Excel.


I'd suggest the time to bring this to the Court's attention is once it is allocated to your local court because then it's not floating around in a Central processing centre, where admin staff are more likely to be the only ones looking at it. You could then send a letter to your local court, quoting the claim number and marking it 'for the attention of the procedural Judge' pointing out the misleading issues and the confusing involvement of VCS, none of which has made it fair or clear to you how to defend the matter, as an unrepresented defendant.

A person who wrote a similar 'what is going on, this is unfair tactics/misleading' letter to a Judge immediately in the week before their hearing, won. They reported that they found it had great effect and the Judge started off on their side, with that letter at the top of his pile of papers.

Posted by: lamilad Tue, 13 Sep 2016 - 21:37
Post #1211705

Update on this: My case has been assigned the court I requested. It will be heard in mid November. Whats interesting is that my first case, which is BW Legal on behalf of Excel will be held at the same court on the same day immediately before this one. Don't know if that's a good thing or not. I'm worried if I lose my first case I may as well not bother sticking around for this.

Excel have responded to my SAR but have returned my cheque and said I didn't make the request properly - even though I used the BMPA template. They want to know specifically what information I want... but I want know everything they have on me. They have also said they will only accept my request if I make it using the form they have sent me but I don't see why I should fill in their form when my request was perfectly valid. I think they're stalling and will continue to deflect my request until it's less than 40 days til the hearing!

Posted by: nosferatu1001 Tue, 13 Sep 2016 - 22:29
Post #1211730

Raise a complaint with the ICO. They're not permitted to respond in that way.

Posted by: lamilad Sat, 29 Oct 2016 - 12:50
Post #1224874

Hi Everyone, I have now recived the court bundle from Excel. It is a large file split into 9 sections as follows:

1. Claim form and POC
2. Defence
3. WS of Anita Dile
4. Exhibit AD1 - Copy partial lease agreement
5. Exhibit AD2 - Contravention photos, PCNs, NTKs, & notice of intended court proceedings.
6. Exhibit AD3 - Site overhead and site photos
7. Exhibit AD4 - Elliot vs Loake [1983] Crim LR
8. Exhibit AD5 - Vine vs Waltham Forest LBC [2002] 1 WLR
9. Exhibit AD5 - Thornton vs Shoe Lane Parking Ltd [1971] 2 QB

COURT NOTICES.

I am currently working on my WS and I need to send my bundle of on Tuesday. Any advice, as always, greatly appreciated. I understand Elliot vs Loake is easy to defend against.

I'll post their responses to my defence points below. I'd like to counter the responses with powerful replies. There's also still the issue discussed in #26 about the DQ and related letter being in the name of VCS... There's no reference to that in the bundle.

Posted by: lamilad Sat, 29 Oct 2016 - 20:45
Post #1224992

Ok I've not quite mastered photobucket but I think this is the link to the WS pages which I've uploaded. They won't be in any kind of order I'm afraid but there are page numbers at the bottom of each page. If the link doesn't work please could someone let me know. Thanks

http://s1249.photobucket.com/user/lamilad/embed/slideshow/Anita%20Dile%20WS

Posted by: lamilad Sat, 29 Oct 2016 - 21:29
Post #1225001

The lease agreement between the landholder and Excel

http://s1249.photobucket.com/user/lamilad/embed/slideshow/Lease


Elliot vs Loake as Excel have included it in the bundle

http://s1249.photobucket.com/user/lamilad/embed/slideshow/Elliot%20vs%20Loake


Vine vs Waltham Forest. Note the sections highlighted in yellow.

http://s1249.photobucket.com/user/lamilad/embed/slideshow/Vine%20vs%20Waltham%20Forest


Thornton vs Shoe Lane Parking

http://s1249.photobucket.com/user/lamilad/embed/slideshow/Thornton%20vs%20Shoe

Posted by: farmerboy Sat, 29 Oct 2016 - 22:27
Post #1225028

RE:Elliot v Loake http://forums.pepipoo.com/index.php?showtopic=108512

Moderator Southpaw summoned it up thus

It's pretty clear once you read the case that only a shaved chimp could conclude that it creates a presumption that the RK is the driver without more.

Came across this for Vine v Waltham Forest

OB Services Parking Consultancy Ltd vs Thirlow 10th February 2011- Arthur vs Anker and Vine vs Waltham Forest deemed irrelevant to private ticketing. Others can maybe provide the judgement if its relevant for this case.

Posted by: lamilad Sun, 30 Oct 2016 - 13:52
Post #1225111

QUOTE (farmerboy @ Sat, 29 Oct 2016 - 23:27) *
RE:Elliot v Loake http://forums.pepipoo.com/index.php?showtopic=108512

Moderator Southpaw summoned it up thus

It's pretty clear once you read the case that only a shaved chimp could conclude that it creates a presumption that the RK is the driver without more.

Came across this for Vine v Waltham Forest

OB Services Parking Consultancy Ltd vs Thirlow 10th February 2011- Arthur vs Anker and Vine vs Waltham Forest deemed irrelevant to private ticketing. Others can maybe provide the judgement if its relevant for this case.


Thanks farmerboy, I'll have a closer look into Vine vs Waltham.

Posted by: lamilad Sun, 30 Oct 2016 - 14:14
Post #1225112

Ok, with some amazing help from one of the regular posters, I now have the following draft witness statement, which, as well as putting my points forward, challenges what Anita Dile has said in hers. I think it looks really strong but if there's any suggestions that would strengthen it further I'd really appreciate them. In particular I'm wondering if I should mention that Excel's DQ was actually completed in the name of VCS. Please note this case is Excel acting on there own - BWL are not involved. Thanks

IN THE COUNTY COURT - Claim No.: [INSERT]

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

[YOUR NAME] (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. I have only driven this vehicle on 4 occasions, never to this retail park.

The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant’s paralegal, Anita Dile:

Re #6:

This is denied and Anita Dile was not there and has no knowledge of who was driving on any occasion. However, unlike Ms Dile, I do have knowledge and attest that I was not the driver.


Re #7:

The Claimant appears to be attempting to change their particulars of claim without filing the appropriate form nor paying the Court the necessary fee for this, so I object to this Witness Statement. For the first time they now state the breach is ‘having parked for longer than permitted’


Yet at #11 I see they state a completely different alleged contravention:

(that the ANPR camera) ‘identified that the vehicle was parked without purchasing a pay & display ticket’. This is denied and there is no evidence of any single period of parking, let alone evidence of not purchasing a ticket or not displaying it. An ANPR camera image shows none of these things.


Re #13 onwards: any ‘Liability Notices’ are ultra vires:

This Claimant should never have issued to a registered keeper, a document described as a ‘liability notice’ (LN) because they were not availing themselves of any right to ‘keeper liability’. This right is offered under statute to parking operators and landholders, ONLY if they comply with Schedule 4 of the POFA 2012, which Excel admit they do not. Under the applicable BPA Code of Practice at the time, a LN was a document only for cases where an operator could hold a keeper liable under the POFA. This LN was contrary to DVLA rules which prohibit misleading keepers as to whether they are the liable party. Excel know this.

I contend that they stopped using LNs in late 2014 and/or that any issued are ultra vires.

In fact I take issue with their claim that they sent LNs in 2015 or 2016. The Claimant moved to the IPC Trade Body on 1.1.2015 and had stopped issuing ‘LNs’ by then, since they chose to continue NOT to issue ‘POFA’ PCNs and were aware this risked a DVLA ban for misleading keepers re liability for non-POFA PCNs. Now, this Claimant seeks to bring me to Court as if I am liable for non-POFA PCNs!


Re #32

The claimant claims the map and photographs are a true representation of the signs. This is denied, not least because the map is undated and the signs in 2014 would have been completely different from those in 2015, due to the fact this Claimant moved to the IPC Trade Body on 1.1.15. The new signs from that date would have involved a completely different basis for the ‘parking charge’ since Excel started to follow the ‘IPC line’, that charges were not for breach of contract but were now a ‘fee’ for parking otherwise than in accordance with some terms on an IPC sign. It was not just a matter of covering the ‘BPA’ icon with an IPC sticker. Signs were physically changed in January 2015 at all Excel car park sites. The Claimant has omitted to mention this crucial difference to the Court.


Re #36

I did not respond to the brightly-coloured alarmist Notices sent to me by Excel because I believed they were spam (this sort of scam had been exposed on Watchdog). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason nor obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.


Re #38

The Claimant is clearly using copy & paste Witness Statements following the unscrutinised claim issued by BW Legal. At #38 they mention "Staines County Court" but as the presiding Judge will be fully aware - as am I - this is not the court I will attend. If a hearing takes place it is in Yorkshire.


Re #41

The Claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver. This is not an obligation nor a failure on my part; I had no reason to respond and this is supported by my exhibit number ** an extract from the POPLA Annual Report 2015.

Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

It is submitted that the main reason that the Claimant is ‘unable to take steps to enforce’ the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 prescribed wording in their Notice to Keeper letters. Had they done so, then they might have had cause to pursue me as registered keeper (subject to other evidence, such as adequate notice from signage that existed on each occasion). In the absence of such notices, there is no cause of action. It is noted that, at #43, the Claimant admits they ‘never acquired any right’ to hold me liable and indeed scrutiny of Schedule 4 (exhibit number **) proves the Notices were not worded accordingly.


Re #42

The Claimant mentions serving what they call the ‘relevant notices’. I submit that, as a registered keeper who was not driving and who only received non-POFA Notices to Keeper (NTKs) which were never my concern nor liability, these are better described as ‘irrelevant notices’.



Re #44 - #50

This argument is brazen and unsupported by the applicable law it tries to adduce. It seems the Claimant on the one hand admits that it does not comply with Schedule 4 of the POFA (due to not seeking to use the prescribed POFA wording in its PCNs) yet on the other hand…tries to use that Act anyway! This Act only applies if an operator has complied with the POFA paragraph 8 or 9 in issuing a compliant NTK as prescribed by that statute. Consequently, the Claimant is unable to rely on the keeper liability provisions of the Schedule.



Re # 54

Elliott v Loake [1982] has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.


Re #55 - an absolute contradiction of their own words in #43

Here the Claimant contradicts its own previous words at #43 (where they admit they never acquired any right to hold me liable under the POFA). At #55 they now say that I was ‘served with Notices Compliant with paragraph 8 of Schedule 4’ even though they admitted in #43, this was not the case.

Issuing Notices in accordance with paragraph 8 of Schedule 4 is in fact impossible, since paragraph 8 merely deals with NTKs which follow a PCN placed upon a car windscreen. Paragraph 8 does not deal with those notices issued by ANPR, as the Claimant described at #11. Neither did this Claimant comply with paragraph 9 (at all), nor the requirement for ‘adequate notice’ of the charge.

Further, they continue: ‘this places upon him a statutory obligation to provide the details of the driver’. No it most certainly does not (even if such compliant NTKs had been served). Indeed the Claimant themselves quoted Mr Greenslade the POPLA Lead Adjudicator in #43 and shot their own argument down.

It is in the public domain that when the POFA 2012 Bill was being heard in the House of Commons, Lynne Featherstone MP was vocal in rejecting calls to amend Schedule 4 (section 56 of the Bill) after considering lobbying by the BPA trying to impose a statutory obligation. Parliament refused.


Re #57

I found it odd when I received and acknowledged the court papers, that this Claimant could bring a claim against me without actually referring to anything specific - just a range of dates - it did not even say how many PCNs they were talking about. Nor did it inform me that the period spanned a time when they changed from the BPA to IPC, changed the signs, changed their Code of Practice, nor did this Claimant furnish me with any evidence nor even a description of the alleged contravention(s).

I was never shown the alleged signage contract photos (not even the original ‘PCNs’ showed the purported signs. As registered keeper, I never saw the ‘contract’ they are trying to hold me liable for, until this WS where they have sent some photos, not defining which were BPA - 2014 version - and which were 2015 IPC signs, and an aerial map which is no proof of the signs on those days.

The Claimant is again trying to change their Particulars of Claim without payment of the appropriate court fee or filing the required form. I object to these attempts to change woeful particulars which expose the robo-claim nature of their copy & paste claims. BW Legal issues tens of thousands of claims per month and are churning out claims for Excel and its sister company VCS, in the thousands.

Further evidence of the cut & paste nature of this claim is shown at #85 where the Witness Statement says it is ‘an employment car park’. It is not any such location! It is just a retail park, in my defence I certainly never said anything about it being my "employment car park" and, for the record, I work 12 miles away - and was not the driver, as already pleaded.


Conclusion – no evidence of contravention and the Particulars lack any basis for a claim

I am an unrepresented consumer who has never attended Court before and was not even the driver so I have no knowledge of the events, dates, or signage terms. I strongly object to this Claimant at the eleventh hour, showing me a range of ‘PCNs’ in an attempt to change the Particulars and trying to excuse their legal representative’s failure to comply with CPR 16.4 as an ‘administrative error’.

I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers paid and displayed.

In order to demonstrate that the driver(s) on these occasions failed to pay & display, the Claimant should have evidenced that, of course. Where are the photos of the dashboard showing no P&D ticket displayed? Failing that, as this is an ANPR site, where are the system records showing no payment made on these days? They have not even supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle.

I did not even know the dates they were referring to or how many incidents until I got the court bundle. I wonder how I am supposed to know what I am defending.

I hope that I am not going to be ambushed on the day (or late) with reams of lists where any omission could just as well be evidence of their own repeated (well known) machine failure to record a VRN, as was recorded in two Excel cases recently, Excel v Ms C (Stockport) C8DP36F0 and Excel Parking v Mrs S. C8DP11F9 09/09/2016, Oldham Court (exhibit ** is the transcript for the latter case). This transcript is provided despite me having no idea whether the Claimant plans to amend their particulars to adduce that there was a failure by the driver(s) to input a VRN. I am having to cover all possible scenarios known in Excel claims, due to the lack of information and evidence.

A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

I believe the facts stated in this Defence Statement are true.


……………………………………………………………………
…. (add name and sign)
………………………
(add Date)

Posted by: lamilad Sun, 30 Oct 2016 - 15:03
Post #1225119

Quick question...

I want to upload the site photos that Excel have included in their bundle. There's loads of them so I've scanned them and saved them to one PDF file. Thing is I can't upload the file to photobucket so does anyone know how I can publish the file on here? Thanks

Posted by: cabbyman Sun, 30 Oct 2016 - 18:32
Post #1225158

I would suggest that, as well as the paragraph number, you precis a brief description of each point before you rebut it. A judge is not going to go backwards and forwards between referencs more than a couple of times. Make it easy for him to see your arguments.

Posted by: lamilad Sun, 30 Oct 2016 - 22:07
Post #1225228

QUOTE (cabbyman @ Sun, 30 Oct 2016 - 19:32) *
I would suggest that, as well as the paragraph number, you precis a brief description of each point before you rebut it. A judge is not going to go backwards and forwards between referencs more than a couple of times. Make it easy for him to see your arguments.


Thanks, cabbyman. I have taken your advice and amended my WS. It will be in my next post

My WS, as it cuurently stands. Bulids, additions, amends, further advice greatfully accepted and humbly requested. Thanks

IN THE COUNTY COURT - Claim No.:

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

************ (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, ****************** of **************, *********, ***********, **** *** am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. I have only driven this vehicle on 4 occasions, never to this retail park.

4. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant’s paralegal, Anita Dile:

5. Re #6: The claimant submits that the defendant is the responsible person in charge of the vehicle which has incurred the charges referred to in Ms Dile’s witness statement.

6. This is denied and Anita Dile was not there and has no knowledge of who was driving on any occasion. However, unlike Ms Dile, I do have knowledge and attest that I was not the driver.

7. Re #7: The claimant states that the defendants vehicle was captured by the claimants ANPR system having parked in the car park for longer than the maximum stay period permitted.

8. The Claimant appears to be attempting to change their particulars of claim without filing the appropriate form nor paying the Court the necessary fee for this; so I object to this Witness Statement. For the first time they now state the breach is ‘having parked for longer than permitted’

9. Yet at #11 I see they state a completely different alleged contravention:

10. (that the ANPR camera) ‘identified that the vehicle was parked without purchasing a pay & display ticket’. This is denied and there is no evidence of any single period of parking, let alone evidence of not purchasing a ticket or not displaying it. An ANPR camera image shows none of these things.

11. Re #13 onwards: any ‘Liability Notices’ are ultra vires:

12. This Claimant should never have issued to a registered keeper, a document described as a ‘liability notice’ (LN) because they were not availing themselves of any right to ‘keeper liability’. This right is offered under statute to parking operators and landholders, ONLY if they comply with Schedule 4 of the POFA 2012, which Excel admit they do not. Under the applicable BPA Code of Practice at the time, a LN was a document only for cases where an operator could hold a keeper liable under the POFA. This LN was contrary to DVLA rules which prohibit misleading keepers as to whether they are the liable party. Excel knows this.

13. I contend that they stopped using LNs in late 2014 and/or that any issued are ultra vires.

14. In fact I take issue with their claim that they sent LNs in 2015 or 2016. The Claimant moved to the IPC Trade Body on 1.1.2015 and had stopped issuing ‘LNs’ by then, since they chose to continue NOT to issue ‘POFA’ PCNs and were aware this risked a DVLA ban for misleading keepers re liability for non-POFA PCNs. Now, this Claimant seeks to bring me to Court as if I am liable for non-POFA PCNs!

15. Re #32 & 33: The claimant submits that the images of the car park and signs in exhibit AD3, specifically specifically detail the terms and conditions of parking and the consequences of failing to comply with said terms and conditions. The claimant claims the map and photographs are a true representation of the signs.

16. This is denied, not least because the map is undated and the signs in 2014 would have been completely different from those in 2015, due to the fact this Claimant moved to the IPC Trade Body on 1.1.15. The new signs from that date would have involved a completely different basis for the ‘parking charge’ since Excel started to follow the ‘IPC line’, that charges were not for breach of contract but were now a ‘fee’ for parking otherwise than in accordance with some terms on an IPC sign. It was not just a matter of covering the ‘BPA’ icon with an IPC sticker. Signs were physically changed in January 2015 at all Excel car park sites. The Claimant has omitted to mention this crucial difference to the Court.

17. Re #36: The claimant states that the defendant did not respond to any of the notices referred to in Ms Dile’s WS, nor were the parking charges settled or appealed.

18. I did not respond to the brightly-coloured alarmist Notices sent to me by Excel because I believed they were spam (this sort of scam had been exposed on Watchdog). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.

19. Re #38: The claimant states “Subsequently the matter was listed to be heard in the Staines County Court on 17th November 2016 at 11:30am”.

20. The Claimant is clearly using copy & paste Witness Statements following the unscrutinised claim issued by BW Legal. They mention "Staines County Court" but as the presiding Judge will be fully aware - as am I - this is not the court I will attend. If a hearing takes place it is in Skipton, North Yorkshire.

21. Re #41: The Claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver.

22. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit IL1, an extract from the POPLA Annual Report 2015.

23. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

24. It is submitted that the main reason that the Claimant is ‘unable to take steps to enforce’ the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 prescribed wording in their Notice to Keeper letters. Had they done so, then they might have had cause to pursue me as registered keeper (subject to other evidence, such as adequate notice from signage that existed on each occasion). In the absence of such notices, there is no cause of action. It is noted that, at #43, the Claimant admits they ‘never acquired any right’ to hold me liable and indeed scrutiny of Schedule 4, Exhibit IL2 proves the Notices were not worded accordingly.

25. Re #42: The claimant states that they “served the defendant with the relevant notices; however the defendant failed to provide a response. Therefore the claimant has had no alternative but to issue proceedings against the defendant”.

26. The Claimant mentions ‘relevant notices’. I submit that, as a registered keeper who was not driving and who only received non-POFA Notices to Keeper (NTKs) which were never my concern nor liability, these are better described as ‘irrelevant notices’.

27. Re #44 - #50: The argument put forward by the claimant in these paragraphs is brazen and unsupported by the applicable law it tries to adduce. It seems the Claimant on the one hand admits that it does not comply with Schedule 4 of the POFA (due to not seeking to use the prescribed POFA wording in its PCNs) yet on the other hand…tries to use that Act anyway! This Act only applies if an operator has complied with the POFA paragraph 8 or 9 in issuing a compliant NTK as prescribed by that statute. Consequently, the Claimant is unable to rely on the keeper liability provisions of the Schedule.

28. Re # 54: The claimant states that “if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving. The claimant would wish to rely on the precedent of Elliot vs Loake [1982]

29. Elliott v Loake [1982] has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.



30. Re #55: The claimant states the following “Although this relates to the road traffic act 1972, the defendant was duly served with notices compliant with paragraph 8 schedule 4 of the Protection of Freedoms Act 2012. This places upon him a statutory obligation to provide the details of the driver. The defendant took not steps whatever [sic], he gave no evidence to explain why he did not do so and therefore under the aforementioned precedent the claimant is able to reasonable [sic] assume that the defendant was the driver of the vehicle on the date of the contraventions.

31. Here the Claimant contradicts its own previous words at #43 (where they admit they never acquired any right to hold me liable under the POFA). At #55 they now say that I was ‘served with Notices Compliant with paragraph 8 of Schedule 4’ even though they admitted in #43, this was not the case.

32. Issuing Notices in accordance with paragraph 8 of Schedule 4 is in fact impossible, since paragraph 8 merely deals with NTKs which follow a PCN placed upon a car windscreen. Paragraph 8 does not deal with those notices issued by ANPR, as the Claimant described at #11. Neither did this Claimant comply with paragraph 9 (at all), nor the requirement for ‘adequate notice’ of the charge.

33. Ms Dile staes: ‘this places upon him a statutory obligation to provide the details of the driver’. No, it most certainly does not (even if such compliant NTKs had been served). Indeed the Claimant themselves quoted Mr Greenslade the POPLA Lead Adjudicator in #43 and defeated their own argument.

34. It is in the public domain that when the POFA 2012 Bill was being heard in the House of Commons, Lynne Featherstone MP was vocal in rejecting calls to amend Schedule 4 (section 56 of the Bill) after considering lobbying by the BPA trying to impose a statutory obligation. Parliament refused.

35. Re #57: The claimant states that the statement in their particualrs of claim which refers to “a parking charge notice” was a genuine administrative error, but they do not address any of the other inadequacies in their POC that were brought to their, and the courts, attention in my initial defence.

36. I found it odd when I received and acknowledged the court papers that this Claimant could bring a claim against me without actually referring to anything specific - just a range of dates - it did not even say how many PCNs they were talking about. Nor did it inform me that the period spanned a time when they changed from the BPA to IPC, changed the signs, changed their Code of Practice, nor did this Claimant furnish me with any evidence nor even a description of the alleged contravention(s).

37. I was never shown the alleged signage contract photos (not even the original ‘PCNs’ showed the purported signs. As registered keeper, I never saw the ‘contract’ they are trying to hold me liable for, until this WS where they have sent some photos, not defining which were BPA - 2014 version - and which were 2015 IPC signs, and an aerial map which is no proof of the signs on those days.

38. The Claimant is again trying to change their Particulars of Claim without payment of the appropriate court fee or filing the required form. I object to these attempts to change woeful particulars which expose the robo-claim nature of their copy & paste claims. BW Legal issues tens of thousands of claims per month and are churning out claims for Excel and its sister company VCS, in the thousands.

39. Further evidence of the cut & paste nature of this claim is shown at #85 where the Witness Statement says it is ‘an employment car park’. It is not any such location! It is just a retail park, in my defence I certainly never said anything about it being my "employment car park" and, for the record, I work 12 miles away - and was not the driver, as already pleaded.

40. Conclusion – no evidence of contravention and the Particulars lack any basis for a claim

41. I am an unrepresented consumer who has never attended the County Court before and was not even the driver so I have no knowledge of the events, dates, or signage terms. I strongly object to this Claimant at the eleventh hour, showing me a range of ‘PCNs’ in an attempt to change the Particulars and trying to excuse their legal representative’s failure to comply with CPR 16.4 as an ‘administrative error’.

42. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers paid and displayed.

43. In order to demonstrate that the driver(s) on these occasions failed to pay & display, the Claimant should have evidenced that, of course. Where are the photos of the dashboard showing no P&D ticket displayed? Failing that, as this is an ANPR site, where are the system records showing no payment made on these days? They have not even supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle.

44. I did not even know the dates they were referring to or how many incidents until I got the court bundle. I wonder how I am supposed to know what I am defending.

45. I hope that I am not going to be ambushed on the day (or late) with reams of lists where any omission could just as well be evidence of their own repeated (well known) machine failure to record a VRN, as was recorded in two Excel cases recently, Excel v Ms C (Stockport) C8DP36F0 and Excel Parking v Mrs S. C8DP11F9 09/09/2016, Oldham Court - Exhibit IL3 is the transcript for the latter case. This transcript is provided despite me having no idea whether the Claimant plans to amend their particulars to adduce that there was a failure by the driver(s) to input a VRN. I am having to cover all possible scenarios known in Excel claims, due to the lack of information and evidence.

46. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

47. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

I believe the facts stated in this Defence Statement are true.


……………………………………………………………………
…. (add name and sign)
………………………
(add Date)

Posted by: lamilad Sun, 30 Oct 2016 - 22:25
Post #1225241

Link to the site photographs that excel have included in their bundle. Hopefully it works, let me know if it doesn't thanks

https://www.dropbox.com/s/lw7xze0k76ncmkb/Ex%20AD3%20Site%20Photos.pdf?dl=0

Posted by: Chitlord Sun, 30 Oct 2016 - 22:26
Post #1225242

Here is a template to follow.

http://childlawadvice.org.uk/wp-content/uploads/Witness-Statement.jpg

note the part top right.

Posted by: SchoolRunMum Sun, 30 Oct 2016 - 22:33
Post #1225247

Looks like it is getting there.

I think I forgot to add, where you talk about unclear signs, add another exhibit = the Beavis case sign, as an example of a brief, clear sign with the charge not hidden in small print like Excel do in their signs (always did, whether BPA or IPC):

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

Oh, and this poster's issue is at the same retail park and she is struggling, can you talk to her by pm to share what you know about the signs?:

http://forums.pepipoo.com/index.php?showtopic=109495

I was wondering if she would be local enough to watch your hearing and learn from it, if you are agreeable to that - or at least see the evidence you have put together - I'll leave that up to you but she is floundering and needs some help there! Bargepole is right, she's narrowed her chances but I also agree with hoohoo, all is not lost and I think you could help her see that!


Posted by: lamilad Sun, 30 Oct 2016 - 22:50
Post #1225255

My WS again with references to BWL removed.

This is my WS as it stands with BWL removed, paragraphs numbered and citation of the paragraphs challenged in Anita's WS (as advised on pepipoo). As always further advice, amends, builds, very welcome. Thanks

IN THE COUNTY COURT - Claim No.: *********

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

************(Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, ************** of 3 *********** ********** ********** am the defendant in this case.



1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief



2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. I have only driven this vehicle on 4 occasions, never to this retail park.

4. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant’s paralegal, Anita Dile:

5. Re #6: The claimant submits that the defendant is the responsible person in charge of the vehicle which has incurred the charges referred to in Ms Dile’s witness statement.



6. This is denied and Anita Dile was not there and has no knowledge of who was driving on any occasion. However, unlike Ms Dile, I do have knowledge and attest that I was not the driver.

7. Re #7: The claimant states that the defendants vehicle was captured by the claimants ANPR system having parked in the car park for longer than the maximum stay period permitted.



8. The Claimant appears to be attempting to change their particulars of claim without filing the appropriate form nor paying the Court the necessary fee for this; so I object to this Witness Statement. For the first time they now state the breach is ‘having parked for longer than permitted’

9. Yet at #11 I see they state a completely different alleged contravention:

10. (that the ANPR camera) ‘identified that the vehicle was parked without purchasing a pay & display ticket’. This is denied and there is no evidence of any single period of parking, let alone evidence of not purchasing a ticket or not displaying it. An ANPR camera image shows none of these things.



11. Re #13 onwards: any ‘Liability Notices’ are ultra vires:



12. This Claimant should never have issued to a registered keeper, a document described as a ‘liability notice’ (LN) because they were not availing themselves of any right to ‘keeper liability’. This right is offered under statute to parking operators and landholders, ONLY if they comply with Schedule 4 of the POFA 2012, which Excel admit they do not. Under the applicable BPA Code of Practice at the time, a LN was a document only for cases where an operator could hold a keeper liable under the POFA. This LN was contrary to DVLA rules which prohibit misleading keepers as to whether they are the liable party. Excel knows this.

13. I contend that they stopped using LNs in late 2014 and/or that any issued are ultra vires.

14. In fact I take issue with their claim that they sent LNs in 2015 or 2016. The Claimant moved to the IPC Trade Body on 1.1.2015 and had stopped issuing ‘LNs’ by then, since they chose to continue NOT to issue ‘POFA’ PCNs and were aware this risked a DVLA ban for misleading keepers re liability for non-POFA PCNs. Now, this Claimant seeks to bring me to Court as if I am liable for non-POFA PCNs!



15. Re #32 & 33: The claimant submits that the images of the car park and signs in exhibit AD3, specifically specifically detail the terms and conditions of parking and the consequences of failing to comply with said terms and conditions. The claimant claims the map and photographs are a true representation of the signs.

16. This is denied, not least because the map is undated and the signs in 2014 would have been completely different from those in 2015, due to the fact this Claimant moved to the IPC Trade Body on 1.1.15. The new signs from that date would have involved a completely different basis for the ‘parking charge’ since Excel started to follow the ‘IPC line’, that charges were not for breach of contract but were now a ‘fee’ for parking otherwise than in accordance with some terms on an IPC sign. It was not just a matter of covering the ‘BPA’ icon with an IPC sticker. Signs were physically changed in January 2015 at all Excel car park sites. The Claimant has omitted to mention this crucial difference to the Court.



17. Re #36: The claimant states that the defendant did not respond to any of the notices referred to in Ms Dile’s WS, nor were the parking charges settled or appealed.

18. I did not respond to the brightly-coloured alarmist Notices sent to me by Excel because I believed they were spam (this sort of scam had been exposed on Watchdog). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.



19. Re #38: The claimant states “Subsequently the matter was listed to be heard in the Staines County Court on 17th November 2016 at 11:30am”.

20. The Claimant is clearly using copy & paste Witness Statements. They mention "Staines County Court" but as the presiding Judge will be fully aware - as am I - this is not the court I will attend. If a hearing takes place it is in Skipton, North Yorkshire.



21. Re #41: The Claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver.



22. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit IL1, an extract from the POPLA Annual Report 2015.

23. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

24. It is submitted that the main reason that the Claimant is ‘unable to take steps to enforce’ the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 prescribed wording in their Notice to Keeper letters. Had they done so, then they might have had cause to pursue me as registered keeper (subject to other evidence, such as adequate notice from signage that existed on each occasion). In the absence of such notices, there is no cause of action. It is noted that, at #43, the Claimant admits they ‘never acquired any right’ to hold me liable and indeed scrutiny of Schedule 4, Exhibit IL2 proves the Notices were not worded accordingly.



25. Re #42: The claimant states that they “served the defendant with the relevant notices; however the defendant failed to provide a response. Therefore the claimant has had no alternative but to issue proceedings against the defendant”.

26. The Claimant mentions ‘relevant notices’. I submit that, as a registered keeper who was not driving and who only received non-POFA Notices to Keeper (NTKs) which were never my concern nor liability, these are better described as ‘irrelevant notices’.



27. Re #44 - #50: The argument put forward by the claimant in these paragraphs is brazen and unsupported by the applicable law it tries to adduce. It seems the Claimant on the one hand admits that it does not comply with Schedule 4 of the POFA (due to not seeking to use the prescribed POFA wording in its PCNs) yet on the other hand…tries to use that Act anyway! This Act only applies if an operator has complied with the POFA paragraph 8 or 9 in issuing a compliant NTK as prescribed by that statute. Consequently, the Claimant is unable to rely on the keeper liability provisions of the Schedule.



28. Re # 54: The claimant states that “if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving. The claimant would wish to rely on the precedent of Elliot vs Loake [1982]



29. Elliott v Loake [1982] has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.




30. Re #55: The claimant states the following “Although this relates to the road traffic act 1972, the defendant was duly served with notices compliant with paragraph 8 schedule 4 of the Protection of Freedoms Act 2012. This places upon him a statutory obligation to provide the details of the driver. The defendant took not steps whatever [sic], he gave no evidence to explain why he did not do so and therefore under the aforementioned precedent the claimant is able to reasonable [sic] assume that the defendant was the driver of the vehicle on the date of the contraventions.



31. Here the Claimant contradicts its own previous words at #43 (where they admit they never acquired any right to hold me liable under the POFA). At #55 they now say that I was ‘served with Notices Compliant with paragraph 8 of Schedule 4’ even though they admitted in #43, this was not the case.



32. Issuing Notices in accordance with paragraph 8 of Schedule 4 is in fact impossible, since paragraph 8 merely deals with NTKs which follow a PCN placed upon a car windscreen. Paragraph 8 does not deal with those notices issued by ANPR, as the Claimant described at #11. Neither did this Claimant comply with paragraph 9 (at all), nor the requirement for ‘adequate notice’ of the charge.



33. Ms Dile staes: ‘this places upon him a statutory obligation to provide the details of the driver’. No, it most certainly does not (even if such compliant NTKs had been served). Indeed the Claimant themselves quoted Mr Greenslade the POPLA Lead Adjudicator in #43 and defeated their own argument.



34. It is in the public domain that when the POFA 2012 Bill was being heard in the House of Commons, Lynne Featherstone MP was vocal in rejecting calls to amend Schedule 4 (section 56 of the Bill) after considering lobbying by the BPA trying to impose a statutory obligation. Parliament refused.



35. Re #57: The claimant states that the statement in their particualrs of claim which refers to “a parking charge notice” was a genuine administrative error, but they do not address any of the other inadequacies in their POC that were brought to their, and the courts, attention in my initial defence.



36. I found it odd when I received and acknowledged the court papers that this Claimant could bring a claim against me without actually referring to anything specific - just a range of dates - it did not even say how many PCNs they were talking about. Nor did it inform me that the period spanned a time when they changed from the BPA to IPC, changed the signs, changed their Code of Practice, nor did this Claimant furnish me with any evidence nor even a description of the alleged contravention(s).



37. I was never shown the alleged signage contract photos (not even the original ‘PCNs’ showed the purported signs. As registered keeper, I never saw the ‘contract’ they are trying to hold me liable for, until this WS where they have sent some photos, not defining which were BPA - 2014 version - and which were 2015 IPC signs, and an aerial map which is no proof of the signs on those days.



38. The Claimant is again trying to change their Particulars of Claim without payment of the appropriate court fee or filing the required form. I object to these attempts to change woeful particulars which expose the robo-claim nature of their copy & paste claims.



39. Further evidence of the cut & paste nature of this claim is shown at #85 where the Witness Statement says it is ‘an employment car park’. It is not any such location! It is just a retail park, in my defence I certainly never said anything about it being my "employment car park" and, for the record, I work 12 miles away - and was not the driver, as already pleaded.



40. Conclusion – no evidence of contravention and the Particulars lack any basis for a claim



41. I am an unrepresented consumer who has never attended the County Court before and was not even the driver so I have no knowledge of the events, dates, or signage terms. I strongly object to this Claimant at the eleventh hour, showing me a range of ‘PCNs’ in an attempt to change the Particulars and trying to excuse their legal representative’s failure to comply with CPR 16.4 as an ‘administrative error’.



42. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers paid and displayed.



43. In order to demonstrate that the driver(s) on these occasions failed to pay & display, the Claimant should have evidenced that, of course. Where are the photos of the dashboard showing no P&D ticket displayed? Failing that, as this is an ANPR site, where are the system records showing no payment made on these days? They have not even supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle.



44. I did not even know the dates they were referring to or how many incidents until I got the court bundle. I wonder how I am supposed to know what I am defending.



45. I hope that I am not going to be ambushed on the day (or late) with reams of lists where any omission could just as well be evidence of their own repeated (well known) machine failure to record a VRN, as was recorded in two Excel cases recently, Excel v Ms C (Stockport) C8DP36F0 and Excel Parking v Mrs S. C8DP11F9 09/09/2016, Oldham Court - Exhibit IL3 is the transcript for the latter case. This transcript is provided despite me having no idea whether the Claimant plans to amend their particulars to adduce that there was a failure by the driver(s) to input a VRN. I am having to cover all possible scenarios known in Excel claims, due to the lack of information and evidence.



46. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.



47. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.

I believe the facts stated in this Defence Statement are true.


……………………………………………………………………
…. (add name and sign)
………………………
(add Date)


Posted by: lamilad Sun, 30 Oct 2016 - 23:22
Post #1225262

Ok something strange has just happened. i went to update my thread on MSE (as I have done on here) and it says the administrator has banned my IP address... Why would they do that? I haven't posted anything unusual or contraversial... Confused sad.gif

QUOTE (SchoolRunMum @ Sun, 30 Oct 2016 - 23:33) *
Looks like it is getting there.

I think I forgot to add, where you talk about unclear signs, add another exhibit = the Beavis case sign, as an example of a brief, clear sign with the charge not hidden in small print like Excel do in their signs (always did, whether BPA or IPC):

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

Oh, and this poster's issue is at the same retail park and she is struggling, can you talk to her by pm to share what you know about the signs?:

http://forums.pepipoo.com/index.php?showtopic=109495

I was wondering if she would be local enough to watch your hearing and learn from it, if you are agreeable to that - or at least see the evidence you have put together - I'll leave that up to you but she is floundering and needs some help there! Bargepole is right, she's narrowed her chances but I also agree with hoohoo, all is not lost and I think you could help her see that!


I will be glad to help this poster with her case and she is welcome to come to court with me. I will probably make contact after I've submitted my court bundle as, between this and work, I'll be flat out over the next few days

Posted by: Chitlord Sun, 30 Oct 2016 - 23:54
Post #1225273

OP does not understand the process, the Claim form only need contain an outline of the claim, i.e.

"Claim is for invoice no. 123 dated xxxxx"


Particulars of claim
6.1 Where the claimant does not include the particulars of claim in the claim form, they may be served separately:
(1) either at the same time as the claim form, or
(2) within 14 days after service of the claim form provided that the service of the particulars of claim is within 4 months after the date of issue of the claim form2 (or 6 months where the claim form is to be served out of the jurisdiction3).
6.2 If the particulars of claim are not included in or have not been served with the claim form, the claim form must contain a statement that particulars of claim will follow4.


The POC are a joke.

It is pointless serving a Part 18 request because Part 18 does not apply to small claims and this case is small claims.

The best course of action is to pay £255 (free if you are on low income) and apply to the court to strike out the claim
because the POC para 2 fail to give sufficient detail for the claim to have any reasonable prospect of succeeding.

Those on here who say that faulty POC of claim can be rectified by serving amended version clearly do not realise that this
can only be done with the consent of the claimant or permission of the court.

Where is the defence?

Posted by: SchoolRunMum Mon, 31 Oct 2016 - 00:05
Post #1225276

QUOTE
OP does not understand the process, the Claim form only need contain an outline of the claim, i.e.

"Claim is for invoice no. 123 dated xxxxx"

The OP here understands the situation fully. You have missed the point that the PoC state it was about ONE parking charge falling within a range of dates. There are so many things wrong with Excel's WS that the OP needs to tear it apart in their WS, deliberately longer than usual and deliberately NOT all written in legalese.

QUOTE
The POC are a joke.

It is pointless serving a Part 18 request because Part 18 does not apply to small claims and this case is small claims.

The best course of action is to pay £255 (free if you are on low income) and apply to the court to strike out the claim
because the POC para 2 fail to give sufficient detail for the claim to have any reasonable prospect of succeeding.

Those on here who say that faulty POC of claim can be rectified by serving amended version clearly do not realise that this
can only be done with the consent of the claimant or permission of the court.
??

Where is the defence?

Not quite sure what you are talking about. The OP is past the defence stage, does not need to pay £255 and no-one here says what you say above?! We agree the PoC are a joke but that has been fully covered all along, including in this WS.




QUOTE
Ok something strange has just happened. i went to update my thread on MSE (as I have done on here) and it says the administrator has banned my IP address... Why would they do that? I haven't posted anything unusual or contraversial...


That was discussed the other day on MSE:

http://forums.moneysavingexpert.com/showthread.php?t=5540037


QUOTE
I will be glad to help this poster with her case and she is welcome to come to court with me. I will probably make contact after I've submitted my court bundle as, between this and work, I'll be flat out over the next few days
Sounds good, if she's local to Skipton.

Posted by: Chitlord Mon, 31 Oct 2016 - 00:15
Post #1225278

If the case has been allocated to the small claims track it is pointless trying to strike out as you wont get costs unless you can prove unreasonable behaviour.


People here need to understand the difference between a witness statement which is about FACTS and a skeleton argument which is about the law.

Do no mix the two up.


If standard directions apply then the OP must file and serve bundle asap.


This is standard directions:

Appendix B: STANDARD DIRECTIONS
(For use where the district judge specifies no other directions)
THE COURT DIRECTS:
1 Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ ] [14 days before the hearing]. (These should include the letter making the claim and the reply.)
2 The original documents must be brought to the hearing.
3 [Notice of hearing date and time allowed.]
4 The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. However the court must be informed immediately if the case is settled by agreement before the hearing date.
5 No party may rely at the hearing on any report from an expert unless express permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary.


The defence should be based partly on the POC being deficient - A parking charge and a wide date period. Your ability to file a fully pleaded
defence was prejudiced by virtue of deficient POC.

Is there a statement of truth on the POC and WS?

Posted by: lamilad Mon, 31 Oct 2016 - 00:39
Post #1225282

QUOTE (Chitlord @ Mon, 31 Oct 2016 - 01:15) *
If the case has been allocated to the small claims track it is pointless trying to strike out as you wont get costs unless you can prove unreasonable behaviour.


People here need to understand the difference between a witness statement which is about FACTS and a skeleton argument which is about the law.

Do no mix the two up.


If standard directions apply then the OP must file and serve bundle asap.


This is standard directions:

Appendix B: STANDARD DIRECTIONS
(For use where the district judge specifies no other directions)
THE COURT DIRECTS:
1 Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ ] [14 days before the hearing]. (These should include the letter making the claim and the reply.)
2 The original documents must be brought to the hearing.
3 [Notice of hearing date and time allowed.]
4 The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. However the court must be informed immediately if the case is settled by agreement before the hearing date.
5 No party may rely at the hearing on any report from an expert unless express permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary.


The defence should be based partly on the POC being deficient - A parking charge and a wide date period. Your ability to file a fully pleaded
defence was prejudiced by virtue of deficient POC.


Hi Chitford, thank you for your input. I'm not sure if your intention here is to help or critisize but you seem to be unaware that my situation is well beyond the stage of initial defence, part 18 requests etc. My hearing is in just over 2 weeks and I am working on my WS. If you wish to familiarise yourself with my case please read it all the way through from the beginning. Whilst I appreciate any help and advice I am very cautious about comments from people with very few posts to their name. If you understand the nature of this forum then you'll understand why. Thanks

Posted by: Chitlord Mon, 31 Oct 2016 - 00:44
Post #1225283

If you are two weeks away you need to file and serve documents asap. This means letters and emails photos etc.

Skeleton arguments should be sent no later than 3 days before hearing marked URGENT SKELETON ARGUMENT

Did they reply to part 18 request if so where is the reply?

I suggest you read this handbook all the way.

https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/A_Handbook_for_Litigants_in_Person.pdf

many of the rules mentioned in the booklet do not apply to small claims, such as preparing a trial bundle.

And yes, I do not what I am talking about.

Posted by: lamilad Mon, 31 Oct 2016 - 00:57
Post #1225284

QUOTE (Chitlord @ Mon, 31 Oct 2016 - 01:44) *
And yes, I do not what I am talking about.


Your comments are, bizarre, irrelevant and most of all unhelpful. Please cease posting on my thread. Thanks

Link to the letters and notices Excel have included in their bundle:

https://www.dropbox.com/s/t1rs60qup60cls5/Notices%206.png?dl=0

QUOTE (SchoolRunMum @ Mon, 31 Oct 2016 - 01:05) *
That was discussed the other day on MSE:

http://forums.moneysavingexpert.com/showthread.php?t=5540037


Please could you let me know what it says. I cannot read the thread as the site has blocked me. Thanks

Posted by: Lynnzer Mon, 31 Oct 2016 - 07:28
Post #1225295

QUOTE (lamilad @ Mon, 31 Oct 2016 - 01:57) *
QUOTE (Chitlord @ Mon, 31 Oct 2016 - 01:44) *
And yes, I do not what I am talking about.


Your comments are, bizarre, irrelevant and most of all unhelpful. Please cease posting on my thread. Thanks

Link to the letters and notices Excel have included in their bundle:

https://www.dropbox.com/s/t1rs60qup60cls5/Notices%206.png?dl=0

QUOTE (SchoolRunMum @ Mon, 31 Oct 2016 - 01:05) *
That was discussed the other day on MSE:

http://forums.moneysavingexpert.com/showthread.php?t=5540037


Please could you let me know what it says. I cannot read the thread as the site has blocked me. Thanks

Everyone to their own taste I say, but I find that MSE is a mess of linked words for advertising, strict and often bizarre moderation and has the same people posting there as they do on this forum.
I have the greatest respect for the likes of SRM (Coupon Mad) and others but fail to understand the need to have loads of links from PPP to MSE when the same content is generally on PPP as well.

I hate the place. It's like a nightclub that has bouncers who throw you out for drinking.
Anyway, all the topic says is to clear your cache, and try a different router.

Posted by: lamilad Mon, 31 Oct 2016 - 11:16
Post #1225346

The link to notices above isn't right. Hopefully this one shows everything

https://www.dropbox.com/sh/fel65edb3r70fho/AADChptQ5l57tfDOjakHZdJPa?dl=0


Posted by: selwonkenilroac Mon, 31 Oct 2016 - 15:47
Post #1225486

Thanks for the offer lamilad. Skipton is very close. It is true - I am floundering! Look forward to speaking with you later.

Posted by: lamilad Mon, 31 Oct 2016 - 22:34
Post #1225682

To further debunk the elliot vs loake argument I would like to include this statement immediately after the paragraph where I talk about E vs L. Thoughs and advice please...

"30. In fact it was forensic evidence, coupled with a sharp-eyed officer in addition to an eye-witness account of the incident, which proved it was the appellant's vehicle that was involved in the incident.

31. In this case it was not that the appellant was the registered keeper, but that he lied when questioned about the incident. Since it was proved that it was unquestionably his vehicle that was involved in the incident, the question had to be asked as to why he had no knowledge of the driver at that time. The car wasn't stolen, the keys never left his possession, no-one had permission to use it and there was forensic evidence that showed it was his car but he still denied having been the driver at the time. It was the lying that caused the conviction and not (per se) the fact that he was the registered keeper."


Posted by: lamilad Mon, 31 Oct 2016 - 22:50
Post #1225685

I also want to counter the vine vs waltham argument. I found this statement on another thread... Any advice on if and how I should include it in my WS? Thanks

"Vine v Waltham Forest concerned the principle of volenti non fit injuria - he who consents to the risk cannot complain of injury. That used to be able to be used as a shield to protect the clamper from what would otherwise be a claim from the motorist for immobilising their car until the indicated de-clamping fee was paid. It cannot be used as a sword to enforce payment of the fee through the courts.

Vine decided that acceptance was subjective rather than objective - if the motorist was not actually aware of the risk they could not have consented to it. This differs from the contract offer and acceptance position which is objective - if a reasonable person in the motorist's position would have read the signs, then the motorist would be deemed to have done so, but contract law does not allow for penalty clauses, so that distinction is of little benefit to the PPCs.

Posted by: SchoolRunMum Mon, 31 Oct 2016 - 23:12
Post #1225687

Chitlord reminds me of the aggressive poster 'DAB' who recently used to 'bomb' threads with irrelevant but pushy 'no-one else knows what they are talking about' style of advice. Best to ignore such posters, quite right lamilad.


QUOTE (lamilad @ Mon, 31 Oct 2016 - 23:34) *
To further debunk the elliot vs loake argument I would like to include this statement immediately after the paragraph where I talk about E vs L. Thoughs and advice please...

"30. In fact it was forensic evidence, coupled with a sharp-eyed officer in addition to an eye-witness account of the incident, which proved it was the appellant's vehicle that was involved in the incident.

31. In this case it was not that the appellant was the registered keeper, but that he lied when questioned about the incident. Since it was proved that it was unquestionably his vehicle that was involved in the incident, the question had to be asked as to why he had no knowledge of the driver at that time. The car wasn't stolen, the keys never left his possession, no-one had permission to use it and there was forensic evidence that showed it was his car but he still denied having been the driver at the time. It was the lying that caused the conviction and not (per se) the fact that he was the registered keeper."


Cite this case number from Stockport from today:

http://parking-prankster.blogspot.co.uk/2016/10/excel-parking-youve-been-gladstoned.html


and re 'Vine' I usually say this (below) about it, in appeals (which can be adapted for a defence/WS):

QUOTE
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.





Posted by: lamilad Tue, 1 Nov 2016 - 08:28
Post #1225721

QUOTE (SchoolRunMum @ Mon, 31 Oct 2016 - 23:12) *
and re 'Vine' I usually say this (below) about it, in appeals (which can be adapted for a defence/WS):

QUOTE
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.



Thanks SRM, with a couple of minor tweaks I'd like to insert this as para. 40 (before the "conclusion"). Is it appropriate?

Re #70: The claimant cites Vine vs Waltham Forest LBC [2002] in response to my statement that any driver did not have fair opportunity to discover the onerous terms by which they would later be bound.

Even though I was not the driver. I submit that the case of Vine vs Waltham Forest LBC [2002] supports my case not the claimants.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal.

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established

Posted by: lamilad Tue, 1 Nov 2016 - 08:55
Post #1225729

I'm nearly ready with my WS now - subject to further advice and recommendations. There's two other things which I think I need to mention but I'm not sure how best to word them.

1. As post #26 in this thread the DQ was completed in the name of VCS not excel

2. Excel refused my SAR

Advice appreciated. thanks

Posted by: nosferatu1001 Tue, 1 Nov 2016 - 09:05
Post #1225737

1) State you are confused why the DQ was completed by an unrelated company
2) Not totally relevant to this cae, however yo ucould state the court should draw the reaosnable conclusion that providing the documents would have further undermined their case.

Posted by: lamilad Tue, 1 Nov 2016 - 10:24
Post #1225764

QUOTE (nosferatu1001 @ Tue, 1 Nov 2016 - 09:05) *
1) State you are confused why the DQ was completed by an unrelated company
2) Not totally relevant to this cae, however yo ucould state the court should draw the reaosnable conclusion that providing the documents would have further undermined their case.


Thanks, Nos. How does this sound re: the VCS issue?

** I would also like to bring to the courts attention the Directions Questionnaire [DQ] that I have received in relation to this case. The document that was sent to me and Northampton County Court Bulk Center was completed in the name of “Vehicle Control Services” [VCS]. The covering letter included with the DQ was also letter-headed and signed in the name of VCS.

** I have no idea who VCS are or what they have to do with this case. They are not mentioned in the PoC or in any other documents relating to this claim. I have never had any dealings with VCS nor have I ever received any letters or correspondence from them in relation to parking activities or anything else.

** I am very confused as to why a company called VCS have completed the DQ and this has made it difficult for me to know how to proceed with my defence. I do not know what their function is or what authority they have
I would ask the question – is it acceptable practice in a county court claim for another company, who have no connection to the case, to complete official court documents in their name, or should the claimant complete such documents?

Posted by: nosferatu1001 Tue, 1 Nov 2016 - 10:55
Post #1225782

I wouldnt ask that question at the end. You should also ask the data protection implicaitons of a company that is a stranger to the claim having been given sufficient details to answer a directions Q!

Posted by: Lynnzer Tue, 1 Nov 2016 - 11:26
Post #1225792

You gotta make that point as a pre-amble to the defence so that the judge reads it before anything else.

It has to be worded very carefully and be quite blunt at the same time.
Who is the claim being brought by? VCS or Exel Parking Services. It cannot be both as they are different legal entities. Nor can one of them bring a claim then have it taken over by the other.

http://parking-prankster.blogspot.co.uk/2016/10/excel-parking-youve-been-gladstoned.html#comment-form

Although it isn't case law, it is a finding that is persuasive to this case as the same keeper liability v known driver arguments were considered by Judge and rejected.

Posted by: lamilad Tue, 1 Nov 2016 - 11:48
Post #1225799

QUOTE (nosferatu1001 @ Tue, 1 Nov 2016 - 10:55) *
I wouldnt ask that question at the end. You should also ask the data protection implicaitons of a company that is a stranger to the claim having been given sufficient details to answer a directions Q!


I will replace the question with this statement:
"I have very serious concerns about how Excel have handled my personal information by allowing this unknown company who I know nothing about and have no connection with, to, not only know my personal details, but to have enough information about my case to be able to complete the DQ"

QUOTE (Lynnzer @ Tue, 1 Nov 2016 - 11:26) *
You gotta make that point as a pre-amble to the defence so that the judge reads it before anything else.

It has to be worded very carefully and be quite blunt at the same time.
Who is the claim being brought by? VCS or Exel Parking Services. It cannot be both as they are different legal entities. Nor can one of them bring a claim then have it taken over by the other.

http://parking-prankster.blogspot.co.uk/2016/10/excel-parking-youve-been-gladstoned.html#comment-form

Although it isn't case law, it is a finding that is persuasive to this case as the same keeper liability v known driver arguments were considered by Judge and rejected.


Thank you. I have edited one of the sentences to read as follows:
"I am very confused as to why a company called VCS have completed the DQ and this has made it difficult for me to know how to proceed with my defence. VCS and Excel are separate legal entities. One cannot bring a claim against me and then allow the other to take over"

QUOTE (Lynnzer @ Tue, 1 Nov 2016 - 11:26) *
http://parking-prankster.blogspot.co.uk/2016/10/excel-parking-youve-been-gladstoned.html#comment-form

Although it isn't case law, it is a finding that is persuasive to this case as the same keeper liability v known driver arguments were considered by Judge and rejected.


I have already referenced this case and have the transcript (redacted) as an exhibit

Posted by: Janeo Tue, 1 Nov 2016 - 13:02
Post #1225838

QUOTE (SchoolRunMum @ Mon, 31 Oct 2016 - 23:12) *
Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

Should Lamilad refer to the earlier Act as well, as some of the multiple PCN's could well date to before 1st October 2015? I only mention it because I read a case on Prankster's site which, although the Defendant won, this point failed due to the alleged contravention occurring before the Act came into force.

Posted by: lamilad Tue, 1 Nov 2016 - 20:36
Post #1226082

Just something I've noticed. The first of the 6 PCN's involved in this is when excel were with BPA and the NTK is POFA compliant. Is this likely to hinder my defence? Could the judge say "well your defence works for 5 of the PCNs but you're liable for this one"? As my defence focusses heavily on POFA i'm not sure what to say if challenged about the first PCN

Posted by: lamilad Tue, 1 Nov 2016 - 21:13
Post #1226114

Also the POPLA annualy report 2015 will be one of my exhibits. Should i include the whole document or just the pages relevant tomy defence i.e. the Henry Greenslade comment?

Posted by: Janeo Tue, 1 Nov 2016 - 23:23
Post #1226181

QUOTE (lamilad @ Tue, 1 Nov 2016 - 20:36) *
Just something I've noticed. The first of the 6 PCN's involved in this is when excel were with BPA and the NTK is POFA compliant. Is this likely to hinder my defence? Could the judge say "well your defence works for 5 of the PCNs but you're liable for this one"? As my defence focusses heavily on POFA i'm not sure what to say if challenged about the first PCN

The short answer is I think you are safe with POFA non-compliance.
Now the long answer. Your first PCN was 30/08/2014, it seems likely therefore, that most of the PCN' s you received are Excel NTK version PCN_0914_NP - e.g. from September 2014. This was the last good go they had at getting it right before giving up and leaving BPA for IPC at the very end of 2014, according to the Prankster. This version is not POFA compliant, and from the posts ive seen was used by Excel long into 2015. I got one at the end of February 2015 and can see that Excel tried hard, and it fools you at first (mentions the creditor, etc) but look closely. Hoohoo was quite firm that this version did not meet Schedule 4 9.2(e) and 9.2(f). For me, it also fails on 9.2.a (as it fails to mention the "period of parking" (it just has says entry and exit time and duration of stay), 9.2.b (it doesn't do this full stop), or 9.2.d "specify the total amount of those parking charges that are unpaid" - it just says "under the applicable terms and conditions a payment of £100 is required". 9.2.c is also suspect, as this requires description of how the requirement to pay parking charges was brought to the attention of the driver. Excel's NTK says they EITHER got your details from the DVLA, OR you contacted us as driver, or you were identified as the driver.
It seems highly unlikely that the version prior to this was any better!
Hope this helps

Posted by: lamilad Tue, 1 Nov 2016 - 23:36
Post #1226186

Ok I this is the final draft of my witness statement. I will be delivering it to the court in person on Thursday, so I still have time to make amendments, edits etc. I don't really want to make it longer as it's already 9 pages. To the experienced posters on this forum, please let me know what you think. Many thanks

I intent to index my court bundle as follows:
1 DEFENCE
2 WITNESS STATEMENT OF ANITA DILE
3 WITNESS STATEMENT OF [MY NAME]
4 EXHIBIT IL1 – CLAIMANT DIRECTIONS QUESTIONNAIRE [DQ]
5 EXHIBIT IL2 – POPLA ANNUAL REPORT 2015
6 EXHIBIT IL3 – PROTECTION of FREEDOMS ACT 2012, SCHEDULE 4
7 EXHIBIT IL4 – EXCEL PARKING SERVICES LTD VS MRS S [09/09/16]
8 EXHIBIT IL5 – PARKING EYE SIGN (Re: The Beavis Case)
9 EXHIBIT IL6 – IPC CODE OF PRACTICE
10 EXHIBIT IL7 – BPA CODE OF PRACTICE
11 EXHIBIT IL8 – EXCEL CAR PARK SIGN

IN THE COUNTY COURT - Claim No.:

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

*********** (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, ************ of **************************************** am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. I have only driven this vehicle on 4 occasions, never to this retail park.

4. I would like to bring to the courts attention the Directions Questionnaire [DQ] that I have received in relation to this case. The document that was sent to me and Northampton County Court Bulk Centre was completed in the name of “Vehicle Control Services” [VCS]. The covering letter included with the DQ was also letter-headed and signed in the name of VCS.

5. I have no idea who VCS are or what they have to do with this case. They are not mentioned in the PoC or in any other documents relating to this claim. I have never had any dealings with VCS nor have I ever received any letters or correspondence from them in relation to parking activities or anything else.

6. I am very confused as to why a company called VCS have completed the DQ and this has made it difficult for me to know how to proceed with my defence. I do not know what their function is or what authority they have

7. I have very serious concerns about how Excel have handled my personal information by allowing this unknown company who I know nothing about and have no connection with, to, not only know my personal details, but to have enough information about my case to be able to complete the DQ

8. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant’s paralegal, Anita Dile:

9. Re #6: The claimant submits that the defendant is the responsible person in charge of the vehicle which has incurred the charges referred to in Ms Dile’s witness statement.

10. This is denied and Anita Dile was not there and has no knowledge of who was driving on any occasion. However, unlike Ms Dile, I do have knowledge and attest that I was not the driver.

11. Re #7: The claimant states that the defendants vehicle was captured by the claimants ANPR system having parked in the car park for longer than the maximum stay period permitted.

12. The Claimant appears to be attempting to change their particulars of claim without filing the appropriate form nor paying the Court the necessary fee for this; so I object to this Witness Statement. For the first time they now state the breach is ‘having parked for longer than permitted’

13. Yet at #11 I see they state a completely different alleged contravention:

14. (that the ANPR camera) ‘Identified that the vehicle was parked without purchasing a pay & display ticket’. This is denied and there is no evidence of any single period of parking, let alone evidence of not purchasing a ticket or not displaying it. An ANPR camera image shows none of these things.

15. Re #13 onwards: any ‘Liability Notices’ are ultra vires:

16. This Claimant should never have issued to a registered keeper, a document described as a ‘liability notice’ (LN) because they were not availing themselves of any right to ‘keeper liability’. This right is offered under statute to parking operators and landholders, ONLY if they comply with Schedule 4 of the POFA 2012, which Excel admit they do not. Under the applicable BPA Code of Practice at the time, a LN was a document only for cases where an operator could hold a keeper liable under the POFA. This LN was contrary to DVLA rules which prohibit misleading keepers as to whether they are the liable party. Excel knows this.

17. I contend that they stopped using LNs in late 2014 and/or that any issued are ultra vires.

18. In fact I take issue with their claim that they sent LNs in 2015 or 2016. The Claimant moved to the IPC Trade Body on 1.1.2015 and had stopped issuing ‘LNs’ by then, since they chose to continue NOT to issue ‘POFA’ PCNs and were aware this risked a DVLA ban for misleading keepers re liability for non-POFA PCNs. Now, this Claimant seeks to bring me to Court as if I am liable for non-POFA PCNs!

19. Re #32 & 33: The claimant submits that the images of the car park and signs in exhibit AD3, specifically specifically detail the terms and conditions of parking and the consequences of failing to comply with said terms and conditions. The claimant claims the map and photographs are a true representation of the signs.

20. This is denied, not least because the map is undated and the signs in 2014 would have been completely different from those in 2015, due to the fact this Claimant moved to the IPC Trade Body on 1.1.15. The new signs from that date would have involved a completely different basis for the ‘parking charge’ since Excel started to follow the ‘IPC line’, that charges were not for breach of contract but were now a ‘fee’ for parking otherwise than in accordance with some terms on an IPC sign. It was not just a matter of covering the ‘BPA’ icon with an IPC sticker. Signs were physically changed in January 2015 at all Excel car park sites. The Claimant has omitted to mention this crucial difference to the Court.

21. Re #36: The claimant states that the defendant did not respond to any of the notices referred to in Ms Dile’s WS, nor were the parking charges settled or appealed.

22. I did not respond to the brightly-coloured alarmist Notices sent to me by Excel because I believed they were spam (this sort of scam had been exposed on Watchdog). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway.

23. Re #38: The claimant states “Subsequently the matter was listed to be heard in the Staines County Court on 17th November 2016 at 11:30am”.

24. The Claimant is clearly using copy & paste Witness Statements. They mention "Staines County Court" but as the presiding Judge will be fully aware - as am I - this is not the court I will attend. If a hearing takes place it is in Skipton, North Yorkshire.

25. Re #41: The Claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver.

26. This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit IL2, an extract from the POPLA Annual Report 2015.

27. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel was under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn from my choice not to respond to what appeared to be spam.

28. It is submitted that the main reason that the Claimant is ‘unable to take steps to enforce’ the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 prescribed wording in their Notice to Keeper letters. Had they done so, then they might have had cause to pursue me as registered keeper (subject to other evidence, such as adequate notice from signage that existed on each occasion). In the absence of such notices, there is no cause of action. It is noted that, at #43, the Claimant admits they ‘never acquired any right’ to hold me liable and indeed scrutiny of Schedule 4, Exhibit IL3 proves the Notices were not worded accordingly.

29. Re #42: The claimant states that they “served the defendant with the relevant notices; however the defendant failed to provide a response. Therefore the claimant has had no alternative but to issue proceedings against the defendant”.

30. The Claimant mentions ‘relevant notices’. I submit that, as a registered keeper who was not driving and who only received non-POFA Notices to Keeper (NTKs) which were never my concern nor liability, these are better described as ‘irrelevant notices’.

31. Re #44 - #50: The argument put forward by the claimant in these paragraphs is brazen and unsupported by the applicable law it tries to adduce. It seems the Claimant on the one hand admits that it does not comply with Schedule 4 of the POFA (due to not seeking to use the prescribed POFA wording in its PCNs) yet on the other hand…tries to use that Act anyway! This Act only applies if an operator has complied with the POFA paragraph 8 or 9 in issuing a compliant NTK as prescribed by that statute. Consequently, the Claimant is unable to rely on the keeper liability provisions of the Schedule.

32. Re # 54: The claimant states that “if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely to be held that they were driving. The claimant would wish to rely on the precedent of Elliot vs Loake [1982]

33. Elliott v Loake [1982] has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.

34. In fact it was forensic evidence, coupled with a sharp-eyed officer in addition to an eye-witness account of the incident, which proved it was the appellant's vehicle that was involved in the incident.

35. In this case it was not that the appellant was the registered keeper, but that he lied when questioned about the incident. Since it was proved that it was unquestionably his vehicle that was involved in the incident, the question had to be asked as to why he had no knowledge of the driver at that time. The car wasn't stolen, the keys never left his possession, no-one had permission to use it and there was forensic evidence that showed it was his car but he still denied having been the driver at the time. It was the lying that caused the conviction and not (per se) the fact that he was the registered keeper.

36. Re #55: The claimant states the following “Although this relates to the road traffic act 1972, the defendant was duly served with notices compliant with paragraph 8 schedule 4 of the Protection of Freedoms Act 2012. This places upon him a statutory obligation to provide the details of the driver. The defendant took not steps whatever [sic], he gave no evidence to explain why he did not do so and therefore under the aforementioned precedent the claimant is able to reasonable [sic] assume that the defendant was the driver of the vehicle on the date of the contraventions.

37. Here the Claimant contradicts its own previous words at #43 (where they admit they never acquired any right to hold me liable under the POFA). At #55 they now say that I was ‘served with Notices Compliant with paragraph 8 of Schedule 4’ even though they admitted in #43, this was not the case.

38. Issuing Notices in accordance with paragraph 8 of Schedule 4 is in fact impossible, since paragraph 8 merely deals with NTKs which follow a PCN placed upon a car windscreen. Paragraph 8 does not deal with those notices issued by ANPR, as the Claimant described at #11. Neither did this Claimant comply with paragraph 9 (at all), nor the requirement for ‘adequate notice’ of the charge.

39. Ms Dile states: ‘this places upon him a statutory obligation to provide the details of the driver’. No, it most certainly does not (even if such compliant NTKs had been served). Indeed the Claimant themselves quoted Mr Greenslade the POPLA Lead Adjudicator in #43 and defeated their own argument.

40. It is in the public domain that when the POFA 2012 Bill was being heard in the House of Commons, Lynne Featherstone MP was vocal in rejecting calls to amend Schedule 4 (section 56 of the Bill) after considering lobbying by the BPA trying to impose a statutory obligation. Parliament refused.

41. Re #57: The claimant states that the statement in their particualrs of claim which refers to “a parking charge notice” was a genuine administrative error, but they do not address any of the other inadequacies in their POC that were brought to their, and the courts, attention in my initial defence.

42. I found it odd when I received and acknowledged the court papers that this Claimant could bring a claim against me without actually referring to anything specific - just a range of dates - it did not even say how many PCNs they were talking about. Nor did it inform me that the period spanned a time when they changed from the BPA to IPC, changed the signs, changed their Code of Practice, nor did this Claimant furnish me with any evidence nor even a description of the alleged contravention(s).

43. I was never shown the alleged signage contract photos (not even the original ‘PCNs’ showed the purported signs. As registered keeper, I never saw the ‘contract’ they are trying to hold me liable for, until this WS where they have sent some photos, not defining which were BPA - 2014 version - and which were 2015 IPC signs, and an aerial map which is no proof of the signs on those days.

44. The Claimant is again trying to change their Particulars of Claim without payment of the appropriate court fee or filing the required form. I object to these attempts to change woeful particulars which expose the robo-claim nature of their copy & paste claims.

45. Further evidence of the cut & paste nature of this claim is shown at #85 where the Witness Statement says it is ‘an employment car park’. It is not any such location! It is just a retail park, in my defence I certainly never said anything about it being my "employment car park" and, for the record, I work 12 miles away - and was not the driver, as already pleaded.

46. Re #59: The claimant agrees that the circumstances of this case are different from that of Parking Eye [PE] vs Beavis [2015], but states the principles are the same.

47. This is not the case. There are many significant and crucial differences between this and PE vs Beavis, as laid out in my defence para. 4. In the Beavis case one of the key factors was the clear and prominent signage in the car park the parking charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge

48. he Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

49. Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

50. Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”

51. Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

52. Ms Dile even refers to para 108 from The Beavis Case judgement in #59, proving the claimant understands the importance of clear and prominent signage. The sign referred to in the Beavis case is enclosed as Exhibit IL5. When compared to the excel car park sign – Exhibit IL8, I submit that no reasonable person would agree that their terms are brief, clear and prominently proclaimed.

53. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

54. Re #61: The claimant submits that the signs around the carpark are clearly visible and meet the requirements set by the IPC and BPA. They further claim that their signs adhere to both codes of practice (CoP) and are therefore deemed reasonable.

55. Both the IPC and BPA state that signs should be simple and easy to read, and there should be strong colour contrast between text and background. Both also recommend black on white as a good example.

56. I submit that Excel’s do not comply with IPC or BPA CoP. The dominant colours on Excel signs are blue and yellow against a background packed with confusing patterns and symbols.

57. The sign is a mass of confusing and contradictory words. The icon showing the PCN charge of £100 is hidden in the small print at the bottom of the sign. It is not prominent or obvious and not easy to see by a motorist driving, even very slowly, past the sign.

58. In support of the above 3 points I enclose Exhibit IL6 – the IPC code of practice; Exhibit IL7 – the BPA code of practice; and Exhibit 8 – an Excel sign from the car park in question.

59. Re #70: The claimant cites Vine vs Waltham Forest LBC [2002] in response to my statement that any driver did not have fair opportunity to discover the onerous terms by which they would late be bound.

60. Even though I was not the driver. I submit that the case of Vine vs Waltham Forest LBC [2002 supports my case not the claimants.

61. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

62. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

63. This judgment is binding case law from the Court of Appeal.

64. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established
65. Conclusion – no evidence of contravention and the Particulars lack any basis for a claim

66. I am an unrepresented consumer who has never attended the County Court before and was not even the driver so I have no knowledge of the events, dates, or signage terms. I strongly object to this Claimant at the eleventh hour, showing me a range of ‘PCNs’ in an attempt to change the Particulars and trying to excuse their legal representative’s failure to comply with CPR 16.4 as an ‘administrative error’.

67. I also point out to the presiding Judge that the Claimant has not supplied any evidence at all that the alleged contraventions even occurred. ANPR camera photos merely show a vehicle arriving and leaving. All vehicles will have been recorded thus (assuming their VRNs were captured). All vehicles, including those whose drivers paid and displayed.

68. In order to demonstrate that the driver(s) on these occasions failed to pay & display, the Claimant should have evidenced that, of course. Where are the photos of the dashboard showing no P&D ticket displayed? Failing that, as this is an ANPR site, where are the system records showing no payment made on these days? They have not even supplied lists of the VRNs input by drivers on those days, e.g. showing a mismatched payment, wrong VRN or no entry at all that corresponds with this vehicle.

69. I did not even know the dates they were referring to or how many incidents until I got the court bundle. I wonder how I am supposed to know what I am defending.

70. I hope that I am not going to be ambushed on the day (or late) with reams of lists where any omission could just as well be evidence of their own repeated (well known) machine failure to record a VRN, as was recorded in two Excel cases recently, Excel v Ms C (Stockport) C8DP36F0 and Excel Parking v Mrs S. C8DP11F9 09/09/2016, Oldham Court - Exhibit IL4 is the transcript for the latter case. This transcript is provided despite me having no idea whether the Claimant plans to amend their particulars to adduce that there was a failure by the driver(s) to input a VRN. I am having to cover all possible scenarios known in Excel claims, due to the lack of information and evidence.

71. A similarly poorly pleaded and evidenced ‘private parking ticket’ claim was struck out by District Judge Cross of St Albans County Court on 20/09/16 without a hearing, due to a the law firm’s template particulars being held to be ‘incoherent’, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

72. The Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant admits they have no such right, and to submit such incoherent particulars and lacking ‘evidence’ is wholly unreasonable and vexatious.



73. I believe the facts stated in this Defence Statement are true.


……………………………………………………………………
…. (add name and sign)
………………………
(add Date)

Posted by: ostell Wed, 2 Nov 2016 - 08:43
Post #1226237

Elliot v Loake Would it be helpful to mention the case where this was disallowed by the judge? It's in Parking Prankster's blog.

Posted by: nosferatu1001 Wed, 2 Nov 2016 - 09:21
Post #1226249

I think it would be helpful to refer to it for sure. Attacks every basis of their claim against the defendant then.

Are you taking to the court AND sending witness statement to the claimant? you MUSt do both

Posted by: lamilad Wed, 2 Nov 2016 - 10:07
Post #1226263

QUOTE (nosferatu1001 @ Wed, 2 Nov 2016 - 09:21) *
I think it would be helpful to refer to it for sure. Attacks every basis of their claim against the defendant then.

Are you taking to the court AND sending witness statement to the claimant? you MUSt do both


Thanks Nos, I will add this new case to my WS. I am delivering my bundle to the court by hand tomorrow - the hearing is 2 weeks from then (17th). I have every document scanned and stored electronically so I will email everything to Excel - I've checked and it's apparently fine to do that.

Posted by: hexaflexagon Wed, 2 Nov 2016 - 10:37
Post #1226271

[Pedant mode on]

Just a few corrections.
You never know how m'learned might be a stickler for grammar, punctuation and logic.
I also think it might be useful where you cite any claim by the appellant that any subsequent point of rebuttal you make has the same item ref with a suffix.
e.g.

33 - appellants's citing of EvL
33.1 your first rebuttal (currently point 34)
33.2 your second rebuttal (currently point 35)



7. I have very serious concerns about how Excel have handled my personal information by allowing this unknown company, about whom I know nothing and with whom I have no connection, to not only know my personal details but to have enough information about my case to be able to complete the DQ

11. First mention of 'ANPR' Spell it out for the judge, i.e. 'Automatic Number Plate Recognition (ANPR)' so that you can cite 'ANPR' later

14. Replace 'or' with 'nor'

16. Better with 'Excel must know this'.
You also mention the abbreviation 'POFA' for the first time. Better to spell it in full and put the abbreviation in parentheses

17. .'.that any issued after this are ultra vires.'

33. 'which turned on compelling forensic evidence that the accused was in fact the driver...'

41. 'that were brought to their, and the courts, attention in my initial defence.' Leave out the comma after 'courts'

45. 'It is not any such location! It is just a retail park,' Full stop after 'park' followed by Capital 'In my defence....'

47. ' was the clear and prominent signage in the car park' Full stop after 'park' followed by new sentence capital 'The parking charge....'

48. Missing the 'T' of 'The'

53. ..'that the signage be ample, the charge clear.' Add 'and' between 'ample,' and 'the'

57. ..'It is not prominent or' replace 'or' with 'nor'

62. Rather... 'The Beavis case signs are not similar to the signs in this appeal at all. I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently being found that they were NOT bound by them.

67. I think you perhaps mean in the last sentence...'That includes all vehicle whose drivers have paid and displayed.'

69. Better with 'I did not even know to which dates nor how many incidents they were referring until I got the court bundle. I wonder how I am supposed to know what I am defending.

70. 'This transcript is provided despite me having.. ' that should be 'despite my' not having...'

[\Pedant mode off]

Posted by: lamilad Wed, 2 Nov 2016 - 12:18
Post #1226309

QUOTE (hexaflexagon @ Wed, 2 Nov 2016 - 10:37) *
[Pedant mode on]

Just a few corrections.
You never know how m'learned might be a stickler for grammar, punctuation and logic.
I also think it might be useful where you cite any claim by the appellant that any subsequent point of rebuttal you make has the same item ref with a suffix.
e.g.

33 - appellants's citing of EvL
33.1 your first rebuttal (currently point 34)
33.2 your second rebuttal (currently point 35)



7. I have very serious concerns about how Excel have handled my personal information by allowing this unknown company, about whom I know nothing and with whom I have no connection, to not only know my personal details but to have enough information about my case to be able to complete the DQ

11. First mention of 'ANPR' Spell it out for the judge, i.e. 'Automatic Number Plate Recognition (ANPR)' so that you can cite 'ANPR' later

14. Replace 'or' with 'nor'

16. Better with 'Excel must know this'.
You also mention the abbreviation 'POFA' for the first time. Better to spell it in full and put the abbreviation in parentheses

17. .'.that any issued after this are ultra vires.'

33. 'which turned on compelling forensic evidence that the accused was in fact the driver...'

41. 'that were brought to their, and the courts, attention in my initial defence.' Leave out the comma after 'courts'

45. 'It is not any such location! It is just a retail park,' Full stop after 'park' followed by Capital 'In my defence....'

47. ' was the clear and prominent signage in the car park' Full stop after 'park' followed by new sentence capital 'The parking charge....'

48. Missing the 'T' of 'The'

53. ..'that the signage be ample, the charge clear.' Add 'and' between 'ample,' and 'the'

57. ..'It is not prominent or' replace 'or' with 'nor'

62. Rather... 'The Beavis case signs are not similar to the signs in this appeal at all. I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently being found that they were NOT bound by them.

67. I think you perhaps mean in the last sentence...'That includes all vehicle whose drivers have paid and displayed.'

69. Better with 'I did not even know to which dates nor how many incidents they were referring until I got the court bundle. I wonder how I am supposed to know what I am defending.

70. 'This transcript is provided despite me having.. ' that should be 'despite my' not having...'

[\Pedant mode off]


Hi Hexaflexagon, Not 'pedantic' at all. This is brilliant, thank you very much. I was going to get a friend to sense check before finalising so I really appreciate you taking the time to do this for me. I really like the sound of some of the changes you've suggested and the grammar/punctuation stuff is really important too. I'm something of a perfectionist so I feel better know this has been checked. If you spot anything else let me know. Thanks again

Posted by: lamilad Mon, 14 Nov 2016 - 00:00
Post #1229976

Hi, I've found someone online with a very similar case to mine - same car park, court etc, and similar defence points. They won there case at Skipton, albeit with a different judge to the one I will have (and who Juke joint had).

Should i ask them for the transcript of their case and if so would I be able to add it to my bundle at this late stage. Or could I use it on the day?

Posted by: 4consumerrights Mon, 14 Nov 2016 - 01:12
Post #1229990

QUOTE (lamilad @ Mon, 14 Nov 2016 - 00:00) *
Hi, I've found someone online with a very similar case to mine - same car park, court etc, and similar defence points. They won there case at Skipton, albeit with a different judge to the one I will have (and who Juke joint had).

Should i ask them for the transcript of their case and if so would I be able to add it to my bundle at this late stage. Or could I use it on the day?


1. Unlikely you can add any more to your bundle at this late stage - although this is small claims and would depend on the judge

2. Did the 'someone online' obtain their court transcript ? Court transcripts are not readily given out after cases - you need to apply to the court and pay the appropriate fee to the authorised transcription provider - Apple Transcription Ltd are one such provider. Fees for court transcripts depend on the length of the judgment and number of words calculated in 'folios' and can cost well over £100.

Posted by: farmerboy Mon, 14 Nov 2016 - 01:27
Post #1229993

QUOTE (4consumerrights @ Mon, 14 Nov 2016 - 02:12) *
1. Unlikely you can add any more to your bundle at this late stage - although this is small claims and would depend on the judge

2. Did the 'someone online' obtain their court transcript ? Court transcripts are not readily given out after cases - you need to apply to the court and pay the appropriate fee to the authorised transcription provider - Apple Transcription Ltd are one such provider. Fees for court transcripts depend on the length of the judgment and number of words calculated in 'folios' and can cost well over £100.


I would get as much info out of the other defendant as possible. Call the court, even if you cant include anything in your bundle they can be helpful. You never know with a judge but you should tell him/her that you received information at a very late date about a similar case. They may dismiss it, they may be sympathetic.

Posted by: Lynnzer Mon, 14 Nov 2016 - 08:24
Post #1230018

QUOTE (farmerboy @ Mon, 14 Nov 2016 - 02:27) *
QUOTE (4consumerrights @ Mon, 14 Nov 2016 - 02:12) *
1. Unlikely you can add any more to your bundle at this late stage - although this is small claims and would depend on the judge

2. Did the 'someone online' obtain their court transcript ? Court transcripts are not readily given out after cases - you need to apply to the court and pay the appropriate fee to the authorised transcription provider - Apple Transcription Ltd are one such provider. Fees for court transcripts depend on the length of the judgment and number of words calculated in 'folios' and can cost well over £100.


I would get as much info out of the other defendant as possible. Call the court, even if you cant include anything in your bundle they can be helpful. You never know with a judge but you should tell him/her that you received information at a very late date about a similar case. They may dismiss it, they may be sympathetic.

And if you get the same sort of $hit about the queen owning the land etc then think right n ow whether or not to ask for leave to appeal.
It'll cost you but if you win it'll be a wonderful smack in the face for the crazy judge who seems to make the rules up as she sees fit rather than as laid out in legislation.

I wonder......
Any way one of the lads could take this on with you, ie John Wilkie?

Posted by: Gan Mon, 14 Nov 2016 - 09:06
Post #1230023

Have you complained yet to the ICO ?

Either BWL completed the DQ themselves in the wrong name = complaint to the Solicitors Regulatory Authority or they passed it to the wrong company = claim for £750 damages for breach of the Data Protection Act section 13

Posted by: Spudandros Mon, 14 Nov 2016 - 18:15
Post #1230248

QUOTE (lamilad @ Mon, 14 Nov 2016 - 01:00) *
Hi, I've found someone online with a very similar case to mine - same car park, court etc, and similar defence points. They won there case at Skipton, albeit with a different judge to the one I will have (and who Juke joint had).

Should i ask them for the transcript of their case and if so would I be able to add it to my bundle at this late stage. Or could I use it on the day?


If you've mentioned PoFA failure, take in a full hatchet job on their NtK to ensure she understands where they failed and can't just skip over it and declare the complied. Her argument appears to be that PoFA (and Beavis) is the only law that allows keeper liability to be transferred. Whether Excel like it or rely on it or not, its the law that stands, so make use of it and make sure you emphasis the paragraphs they failed on. When's your court date?

Posted by: lamilad Tue, 15 Nov 2016 - 21:24
Post #1230757

QUOTE (Gan @ Mon, 14 Nov 2016 - 09:06) *
Have you complained yet to the ICO ?

Either BWL completed the DQ themselves in the wrong name = complaint to the Solicitors Regulatory Authority or they passed it to the wrong company = claim for £750 damages for breach of the Data Protection Act section 13


Thanks Gan, I haven't complained yet, but I will. BWL are involved in my other case, not this one. It is Excel who have completed the DQ in the name of VCS.

Posted by: lamilad Tue, 15 Nov 2016 - 21:38
Post #1230762

QUOTE (Lynnzer @ Mon, 14 Nov 2016 - 08:24) *
And if you get the same sort of $hit about the queen owning the land etc then think right n ow whether or not to ask for leave to appeal.
It'll cost you but if you win it'll be a wonderful smack in the face for the crazy judge who seems to make the rules up as she sees fit rather than as laid out in legislation.

I wonder......
Any way one of the lads could take this on with you, ie John Wilkie?


I don't like to admit defeat just yet but tbh it's not looking good, so I am already considering how I will appeal wouldn't what inevitibly (it seems) will be an unfair judgement. Can anyone tell what the process is to appeal? Do I need to state my intentions to the judge immediately after she's stitched me up like kipper, or do I do it afterwards. Any idea how much it's gonna cost me? And will I get my costs back if I win the appeal? Finally - do I get to choose where the appeal will be heard?

Posted by: lamilad Wed, 16 Nov 2016 - 09:15
Post #1230848

Yesterday I sent this letter to the judge as per SRMs + emanresu's advice. Interesting to see if it makes any difference.

"Dear  Judge

 

I am the defendant in these cases. As you will be aware they are due to be heard on Thursday 17th November.

 

I wish to draw your attention to the vexatious and unreasonable behavior of the claimant by bringing these cases against me separately when the details and alleged contraventions are essentially the same.

 

As a lay person who cannot afford any form of legal representation or advice to help defend myself; it is unfair that Excel have made me go through the process of doing everything twice. I have had to complete the Acknowledgement of Service (AOS) twice, as well as write two defences, complete two directions questionnaires (DQ), write two witness statements, and put together two court bundles. Not to mention all the paper I’ve had to use and printing that has had to be done… Twice.

 

In fact Excel have made me complete an AOS and defence on three occasions as they have brought another case against me, which, for all intents and purposes, is identical to the first mentioned in the subject line. The claim number is C9DP8C5D. This claim has been ‘stayed’ due to Excel/ BW Legal’s failure to respond to my defence. I found it most confusing when BW Legal wrote to me saying that Excel intend to proceed with the case when clearly, they have no such intent. Further evidence, I submit, of Excel/ BW Legal’s vexatious and unreasonable behavior.

 

It is surely a waste of mine and the court’s time and resources to go through two hearings which involve the same claimant, same defendant, and essentially, the same alleged contraventions.

 

If the presiding Judge still wishes to proceed with these cases despite the claimant’s conduct then I would respectfully request that the hearings are merged into one for the benefit of all concerned.

 

Yours Faithfully

Posted by: Janeo Wed, 16 Nov 2016 - 13:00
Post #1230975

Looks like the other case is dead in the water. This kind of sloppy tardiness seems part of the course with BW - excellent news!

Best of luck for tomorrow - is your case morning or afternoon?

Posted by: lamilad Wed, 16 Nov 2016 - 14:30
Post #1231003

QUOTE (Janeo @ Wed, 16 Nov 2016 - 13:00) *
Best of luck for tomorrow - is your case morning or afternoon?


Thanks, Janeo. First one at 10am, Second one 11:30am

Posted by: cabbyman Wed, 16 Nov 2016 - 14:33
Post #1231004

Good luck. Hope it all goes well. smile.gif

Posted by: lamilad Wed, 16 Nov 2016 - 17:23
Post #1231065

Ok, with my hearings about 17 hours away. I'm doing some last minute swotting up. Students might call it "cramming". Focussing on PoFA S4 as the judge seems to believe that Excel comply with it (even though they admit they don't) So I need to relentlessly hammer the point home that S4 has not been complied with and as such the RK cannot be held liable. I need make this indisputable, and to do so I'll need have all my facts in order....


So as I'm going through S4 (for about the 20th time) I'm gonna be postings lots of questions along the way about aspects I'm unsure about or don't fully understand - I apologise in advance for all the posts i'll be making - I'm only one person and I know you have lots of people to assist.


Ok, so first question:
Para 5 (1) states: "Conditions that must be met for the purposes of para 4"
The first condition is that the creditor -
(a) "has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but
(b) "is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver"


Para 5 (2) states "sub paragraph (1) (b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper."


Excel have begun proceedings to recover from the RK so have they breached this condition or not?

Posted by: nosferatu1001 Wed, 16 Nov 2016 - 18:19
Post #1231098

No, of course they can proceed against the keeper. What ceases to apply is that they DO NOT know the name of the driver so CAN enforce against the keeper. If AFTER proceedings have begun they are told the name of the driver, they CAN STILL chase the keeper .

Posted by: lamilad Wed, 16 Nov 2016 - 18:43
Post #1231110

QUOTE (nosferatu1001 @ Wed, 16 Nov 2016 - 18:19) *
No, of course they can proceed against the keeper. What ceases to apply is that they DO NOT know the name of the driver so CAN enforce against the keeper. If AFTER proceedings have begun they are told the name of the driver, they CAN STILL chase the keeper .


Thanks Nos, I'm also wondering about this 28 day thing. S4 mentions the 28 day rule several times. Is this something excel comply with or not?

Posted by: nosferatu1001 Wed, 16 Nov 2016 - 18:52
Post #1231113

The 28 day rule is simply: you have to wait 28 days before you can chase the keeper.
Thats basically it.

Posted by: Trax Wed, 16 Nov 2016 - 19:06
Post #1231123

Good luck tomorrow.

Are there amy other issues you think they have with the PCN and Keeper liability?

Posted by: lamilad Wed, 16 Nov 2016 - 19:13
Post #1231130

QUOTE (nosferatu1001 @ Wed, 16 Nov 2016 - 18:52) *
The 28 day rule is simply: you have to wait 28 days before you can chase the keeper.
Thats basically it.


Ok thanks. It's just that a few people have said excel do not comply with "adequate notice to keeper" do you know what they're referring to?

Posted by: Stevedee Wed, 16 Nov 2016 - 19:27
Post #1231135

Excel don't try to make the keeper liable any more, they apparently tried a few times when in BPA but failed and just gave up when they moved to IPC and prefer to rely on keeper likely being the driver as per the crap they sent you about an old court case. They only try, and can only, chase the driver as they don't use the POFA wording that allows them to chase the keeper.

Examples of there latest NTK's here, https://bmpa.zendesk.com/hc/en-us/articles/203618061-Excel-Parking-Services-Ltd

But you know they don't rely on POFA anyway., it's getting the judge to see that this matters and they can't 'assume' keeper was the driver that's vital. Good luck,

Posted by: nosferatu1001 Wed, 16 Nov 2016 - 20:12
Post #1231151

Ok thought you'd understood that!

Notices to keeper MUST CONTAIN statutory wording. Pofa schedule 4 para 8 (windscreen ticket) or 9 (anpr) and detail exactly what they do not have there. For example they HAVE to actually state they are using pofa to hold the keeper liable!

Posted by: henrik777 Wed, 16 Nov 2016 - 20:26
Post #1231158

QUOTE (nosferatu1001 @ Wed, 16 Nov 2016 - 20:12) *
For example they HAVE to actually state they are using pofa to hold the keeper liable!


Where does it say that ?

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Posted by: Spudandros Wed, 16 Nov 2016 - 21:03
Post #1231177

QUOTE (lamilad @ Wed, 16 Nov 2016 - 19:43) *
QUOTE (nosferatu1001 @ Wed, 16 Nov 2016 - 18:19) *
No, of course they can proceed against the keeper. What ceases to apply is that they DO NOT know the name of the driver so CAN enforce against the keeper. If AFTER proceedings have begun they are told the name of the driver, they CAN STILL chase the keeper .


Thanks Nos, I'm also wondering about this 28 day thing. S4 mentions the 28 day rule several times. Is this something excel comply with or not?


Excels Ntk fails to comply with 9.2(f) Paragraph 9.2(f) require the operator to to warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given, provided a number of actions have not been taken by the keeper, certain actions will follow. “Date given” is defined 9.6 as two working days following the date of posting of the NtK, making a total of 30 days, or day 31. Instead Excel replace that with a condition that it must be done withing 28 days of issue with no mention of the 'given date'

They frequently fail to comply the with timescales to serve the PCN, so check that out 9.4(b)

It also fails 9.2(e) as it replaces a form of words that clearly states it is an invitation, with one suggesting there is an obligation.

There's no clearly identified creditor named, as required by 9.2(f). Excel frequently mix up themselves with VCS and issue incorrect PCNs, so it is important that the creditor is clearly identified.

You absolutely must hammer home to this woman that failure of even one of these conditions is fatal to their ability to transfer liability to keeper and they can't simply pick and choose those they comply with. There compliance must be complete or there is no keeper liability. Bung in the Henry Michael Greenslade comment about if they don't comply, liability does not pass.

Also attack their use of "legal fees" as an attempt at double recovery, which is not permitted by PoFA. Para 4(5) only permits the face value of the NtK the day following its issue to be collected and 4(6) specifically identifies double recovery as not being permitted.

Be aware, she will warn you that if you do not name the driver, you're skating on very thin ice, but stick to your guns. If you've had a NtD, replace 9.x with 8.x

Break a leg and let us know how it goes.

Posted by: SchoolRunMum Wed, 16 Nov 2016 - 21:41
Post #1231191

QUOTE (lamilad @ Wed, 16 Nov 2016 - 18:23) *
Ok, with my hearings about 17 hours away. I'm doing some last minute swotting up. Students might call it "cramming". Focussing on PoFA S4 as the judge seems to believe that Excel comply with it (even though they admit they don't) So I need to relentlessly hammer the point home that S4 has not been complied with and as such the RK cannot be held liable. I need make this indisputable, and to do so I'll need have all my facts in order....


So as I'm going through S4 (for about the 20th time) I'm gonna be postings lots of questions along the way about aspects I'm unsure about or don't fully understand - I apologise in advance for all the posts i'll be making - I'm only one person and I know you have lots of people to assist.


Ok, so first question:
Para 5 (1) states: "Conditions that must be met for the purposes of para 4"
The first condition is that the creditor -
(a) "has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but
(b) "is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver"


Para 5 (2) states "sub paragraph (1) (b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper."


Excel have begun proceedings to recover from the RK so have they breached this condition or not?



Lamilad you are reading the wrong part of the POFA Schedule 4; the above is irrelevant to what you are saying.

- some PCNs were allegedly from 2014 when Excel were in the BPA.

- Before August 2014 they used a version which didn't comply with paragraph 9 and usually didn't arrive by day 14 (if these were ANPR postal tickets). It didn't comply because it didn't have the statutory words as set out in para 9*.

- after August 2014 they changed their wording to completely stop trying to comply with paragraph 9*. Removed the warning about keepers being liable.

- on 1.1.15 Excel moved to the IPC. New signs needed and new PCNs. They continued NOT to try to claim keeper liability. No attempt at para 9*.


JUST READ AND HIGHLIGHT PARAGRAPH 9*

Henry Greenslade's POPLA Annual Report 2015 (have the link available as well as a printout) covers 'misunderstandings about keeper liability'. You were not the driver. You can't be liable from a non-POFA PCN, can't be assumed to be the driver nor assumed 'liable' by any other law.

There is no reason for you to name the driver so don't apologise for that or feel you have to excuse that decision. Again, Henry Greenslade's words assist.






*as Spudandros says, it's paragraph 8 INSTEAD, if any were windscreen PCNs followed by the postal NTK between day 29 and day 56).



Posted by: lamilad Thu, 17 Nov 2016 - 02:26
Post #1231245

Thanks SRM I think I know P9 word for word now. There were no NtDs so P8 doesn't apply.

I'm ready to do battle but I have to keep in mind no argument I put forward will be strong enough to change this judge's mind, which will likely already be made up before I go in.

So I'm already considering how I will appeal. I know there is a fee... Think it's £528 but do I have to tell the judge I intend to appeal at the end of the hearing... Do I need her permission?

Posted by: ManxRed Thu, 17 Nov 2016 - 07:57
Post #1231266

And remember, if the judge thinks you can just transfer liability to the keeper without following the legislation, then why was the legislation enacted in the first place? And it's not like it's centuries old and no longer relevant. Its four years old.

Posted by: Umkomaas Thu, 17 Nov 2016 - 08:15
Post #1231269

QUOTE (ManxRed @ Thu, 17 Nov 2016 - 08:57) *
And remember, if the judge thinks you can just transfer liability to the keeper without following the legislation, then why was the legislation enacted in the first place? And it's not like it's centuries old and no longer relevant. Its four years old.

Absolutely.

Why should Excel benefit from an Act of Parliament when they fail to comply with it on many fronts, when the whole purpose of S4 of the Act was to protect you, the keeper - there's a definite clue in the word 'Protection'!

Posted by: Janeo Thu, 17 Nov 2016 - 08:16
Post #1231270

QUOTE (lamilad @ Thu, 17 Nov 2016 - 02:26) *
Thanks SRM I think I know P9 word for word now. There were no NtDs so P8 doesn't apply.

I'm ready to do battle but I have to keep in mind no argument I put forward will be strong enough to change this judge's mind, which will likely already be made up before I go in.

So I'm already considering how I will appeal. I know there is a fee... Think it's £528 but do I have to tell the judge I intend to appeal at the end of the hearing... Do I need her permission?

Hopefully it won't come to that, but in the event that it does, I would contact the Parking Prankster at drafting an assisting in an appeal. If this judge really is as ignorant as she has been painted, then she needs to be challenged!

Good luck

Posted by: bargepole Thu, 17 Nov 2016 - 08:25
Post #1231272

QUOTE (lamilad @ Thu, 17 Nov 2016 - 02:26) *
Thanks SRM I think I know P9 word for word now. There were no NtDs so P8 doesn't apply.

I'm ready to do battle but I have to keep in mind no argument I put forward will be strong enough to change this judge's mind, which will likely already be made up before I go in.

So I'm already considering how I will appeal. I know there is a fee... Think it's £528 but do I have to tell the judge I intend to appeal at the end of the hearing... Do I need her permission?


The fee to lodge a Notice of Appeal is £120, and you need Form N164.

You can ask for leave to appeal if the ruling goes against you, but if that is not given, you can still send in the Notice within 21 days, and the Circuit Judge will decide whether to allow an appeal.

Posted by: lamilad Thu, 17 Nov 2016 - 10:02
Post #1231302

Well the moment has finally arrived. I'm sat in the waiting room. Just had a chat with BWLs rep. Told him I was willing to let it go if he was. He wasn't up for that. Also told him I'd complained to the judge about the separate cases. He looked stumped by that. He's sat down now at the furthest seat from mine. (Chuckle)

Posted by: Janeo Thu, 17 Nov 2016 - 10:19
Post #1231309

QUOTE (lamilad @ Thu, 17 Nov 2016 - 10:02) *
Well the moment has finally arrived. I'm sat in the waiting room. Just had a chat with BWLs rep. Told him I was willing to let it go if he was. He wasn't up for that. Also told him I'd complained to the judge about the separate cases. He looked stumped by that. He's sat down now at the furthest seat from mine. (Chuckle)

He's probably just a hired goon acting on BW's behalf. Doubt he has a clue!

Posted by: nosferatu1001 Thu, 17 Nov 2016 - 10:54
Post #1231327

Likely wasnt given the file until last minute

Absolutely rip into them if theyre unprepared.

Posted by: lamilad Thu, 17 Nov 2016 - 11:01
Post #1231332

QUOTE (nosferatu1001 @ Thu, 17 Nov 2016 - 10:54) *
Likely wasnt given the file until last minute

Absolutely rip into them if theyre unprepared.


I certainly will. I've got my battle plan all laid out in front of me. I'm gonna destroy their WS. Still don't know if it will be enough but it will be fun. Need to restrain myself as think I'm a bit too fired up. Still waiting to go in. 1 hr overdue now

Posted by: nosferatu1001 Thu, 17 Nov 2016 - 11:12
Post #1231341

Has the person who signed the witness statement turned up?

I would ask the court why their witness hasnt turned up, if not. How can you ask questyions otherwise?

Posted by: lamilad Thu, 17 Nov 2016 - 11:25
Post #1231342

QUOTE (nosferatu1001 @ Thu, 17 Nov 2016 - 11:12) *
Has the person who signed the witness statement turned up?

I would ask the court why their witness hasnt turned up, if not. How can you ask questyions otherwise?


No this guy doesn't even work for BWL. Looks pretty nervous. He's frantically leafing through his paperwork

Just been told the judge is reading through the bundles so should be in pretty soon. Their guy has just gone out to top his parking up... Ironic! Lol

Excel haven't arrived yet and their case is supposed to start in 5 mins

Posted by: nosferatu1001 Thu, 17 Nov 2016 - 11:26
Post #1231352

Make sure that, if you win or lose, you elain their unreasonable behaviour ad ask if a costs order can be made in your favour. This would be CPR27.14 I believe - as normally costs arent allowed unless one side has been unreasonable. Refusing to communicate meaningfully, resurrecting old cases, etc.

Posted by: ostell Thu, 17 Nov 2016 - 11:27
Post #1231354

So if they don't turn up then ask for full costs because of their unresaonable behaviour.

Posted by: lamilad Thu, 17 Nov 2016 - 11:27
Post #1231355

Ah, she's here now. It's not Anita Dile though just an agent. Again no witness present. I'm sooo appealing if I lose either of these!

Posted by: nosferatu1001 Thu, 17 Nov 2016 - 11:30
Post #1231357

So the person who signed the WS isnt present? Raise this to the judge immediately,a nd ask how you will be able to conduct a defence. Although take yuor lead - if the WS is as poor as usual they may already be on your side.

Posted by: lamilad Thu, 17 Nov 2016 - 11:32
Post #1231358

Bl**dy hell, the BWL rep and Excel's have just gone into a private room together to confer with each other. Obviously comparing notes. Hardly seems fair them ganging up on me sad.gif

Posted by: Lynnzer Thu, 17 Nov 2016 - 11:33
Post #1231359

And remember that even IF all the conditions for Keeper Liability under PoFA have been met, which they won't have been, you would have needed to be told at the onset that they were invoking it. No way they can get around that.
Good luck

Posted by: lamilad Thu, 17 Nov 2016 - 11:34
Post #1231360

And we're in

Posted by: Spudandros Thu, 17 Nov 2016 - 11:36
Post #1231362

QUOTE (lamilad @ Thu, 17 Nov 2016 - 11:34) *
And we're in


Go get 'em.

Posted by: nosferatu1001 Thu, 17 Nov 2016 - 11:40
Post #1231363

Best of luck

Remember its still a crap shoot, but even if you lose you WILL have cost them more than they can ever make.

Posted by: Robbo223 Thu, 17 Nov 2016 - 12:11
Post #1231379

It's 12:10 and as I write there are 42 people live-watching this thread, so we're all rooting for you!

Posted by: instrumentsofjoy Thu, 17 Nov 2016 - 12:17
Post #1231383

43 !



Posted by: lamilad Thu, 17 Nov 2016 - 12:20
Post #1231385

Ok their rep has asked for the hearing to be stood down. While he takes advice (didn't know he could do that) I completely tied him up in knots about pofa compliance. He's now back conferring with the other rep - really annoys me that! Back on in 15 mins

No mention of E vs L yet but I sense that's coming next once he realised pofa is gonna lose him this case

Posted by: nosferatu1001 Thu, 17 Nov 2016 - 12:20
Post #1231386

Wow, perhaps ask the court why someone representing on parking matters doesnt know aboutthe key UK piece of legislation covering parking law...

Posted by: lamilad Thu, 17 Nov 2016 - 12:23
Post #1231388

He's brought a print out of comments from Pepipoo which he says are posts I've made. He hasn't let me see and hasn't mentioned it to the judge yet. But I've told him I know nothing about it and will object if he tries to use it. I will also add it to my list of vexatious and unreasonable behaviour

Posted by: catfunt Thu, 17 Nov 2016 - 12:23
Post #1231389

Presumeably separate hearings for each case?

Posted by: lamilad Thu, 17 Nov 2016 - 12:30
Post #1231391

QUOTE (catfunt @ Thu, 17 Nov 2016 - 12:23) *
Presumeably separate hearings for each case?


Yes judge hasn't discussed my complaint yet other than to say she received it

Back in

Judge wants us back and he's nowhere to be seen

Posted by: Jlc Thu, 17 Nov 2016 - 12:31
Post #1231392

We have seen PePiPoo threads submitted correctly as part of claims - particularly where the poster has confirmed being the driver for example...

Posted by: Umkomaas Thu, 17 Nov 2016 - 12:39
Post #1231397

This is far better than anything Judge Rinder could muster.

Posted by: ostell Thu, 17 Nov 2016 - 12:46
Post #1231402

So you will be objecting to the late introduction of evidence.

Posted by: emanresu Thu, 17 Nov 2016 - 13:05
Post #1231409

Is this not contempt of court?

Posted by: lamilad Thu, 17 Nov 2016 - 13:23
Post #1231422

So... The outcome...

No.1: Excel/ BW Legal vs Lamilad
** Case Dismissed **
Claim is misconceived.

No. 2: Excel vs Lamilad
** Case adjourned **
Until after 11th January
Court ran out of time.

Claimant is allowed to submit new evidence including print outs from Pepipoo. They are allowed to amend their WS.
Rep was virtually doing cartwheels out of the court room at this stroke of good fortune for her.

Still it's:
Lamilad 1, Excel 0 smile.gif

Posted by: Richy_m_99 Thu, 17 Nov 2016 - 13:31
Post #1231428

I take it you will also be able to submit new evidence as well to rebut their new evidence.

Posted by: Gan Thu, 17 Nov 2016 - 13:36
Post #1231430

Can't at first glance see anything in the thread that is damaging to the OP

As we know that Excel is following the thread, anyone who spots something shouldn't point it out

There still remains the possibility of a claim by the OP for Excel's breach of the DPA

Posted by: Lynnzer Thu, 17 Nov 2016 - 13:38
Post #1231431

QUOTE (lamilad @ Thu, 17 Nov 2016 - 14:23) *
So... The outcome...

No.1: Excel/ BW Legal vs Lamilad
** Case Dismissed **
Claim is misconceived.

No. 2: Excel vs Lamilad
** Case adjourned **
Until after 11th January
Court ran out of time.

Claimant is allowed to submit new evidence including print outs from Pepipoo. They are allowed to amend their WS.
Rep was virtually doing cartwheels out of the court room at this stroke of good fortune for her.

Still it's:
Lamilad 1, Excel 0 smile.gif

Good fortune?
Losing one with another sitting waiting in similar circumstances?

The judge is off limits as far as I'm concerned. They have had loads of time to prepare their case and there's nothing but hearsay and opinion on forum cases anyway.

Posted by: Spudandros Thu, 17 Nov 2016 - 13:41
Post #1231432

QUOTE (lamilad @ Thu, 17 Nov 2016 - 13:23) *
So... The outcome...

No.1: Excel/ BW Legal vs Lamilad
** Case Dismissed **
Claim is misconceived.

No. 2: Excel vs Lamilad
** Case adjourned **
Until after 11th January
Court ran out of time.

Claimant is allowed to submit new evidence including print outs from Pepipoo. They are allowed to amend their WS.
Rep was virtually doing cartwheels out of the court room at this stroke of good fortune for her.

Still it's:
Lamilad 1, Excel 0 smile.gif


Well done! Although she does seem to be bending over backwards to accomodate them. Did she say why she thought their case was misconceived and did she consider EvL at all?

Posted by: Janeo Thu, 17 Nov 2016 - 13:42
Post #1231433

Good news, well done! - was it the same judge as Juke Joint?

Posted by: Richy_m_99 Thu, 17 Nov 2016 - 14:15
Post #1231445

It's going to bring on a lot of pain for Excel if they lose in January. Three lots of costs for both sides plus BW legals fees for the one they have already lost.

Did you get to ask for costs for that one, since the judge ruled that, presumably, she thought it should never have been brought in the first place.

Posted by: bargepole Thu, 17 Nov 2016 - 14:33
Post #1231455

Well done Lami, a great result which goes to prove what a complete crock of shyte these Excel / BW Claims really are.

It also underlines for anyone with an upcoming case, the importance of thorough and meticulous preparation.

And if any Excel drones are reading this, I suggest you crawl back under a stone and don't go anywhere near a court in future, as you (and BW Legal) clearly haven't got a bloody clue!

Posted by: lamilad Thu, 17 Nov 2016 - 14:57
Post #1231463

QUOTE (Richy_m_99 @ Thu, 17 Nov 2016 - 14:15) *
It's going to bring on a lot of pain for Excel if they lose in January. Three lots of costs for both sides plus BW legals fees for the one they have already lost.

Did you get to ask for costs for that one, since the judge ruled that, presumably, she thought it should never have been brought in the first place.


I did ask for costs but she refused. I'd not prepared anything to bring with me (costs schedule) as I was concentrating all my attention on the case itself. So when she asked me why I deserved costs all I could think to say was litigant in person costs. She scowled and shook her head. With another case about to start I didn't want to push it and get on the wrong side of her.

QUOTE (Janeo @ Thu, 17 Nov 2016 - 13:42) *
Good news, well done! - was it the same judge as Juke Joint?


Yes it was

QUOTE (Spudandros @ Thu, 17 Nov 2016 - 13:41) *
Well done! Although she does seem to be bending over backwards to accomodate them. Did she say why she thought their case was misconceived and did she consider EvL at all?


She is certainly giving them a lot of leeway. She summed the case up by saying it boiled down to two things.
1. Either the claimant could PROVE I was the driver... Which they obviously couldn't.
Or
2. They would comply with PoFA to pursue me as the keeper... Which I proved they did not.

Claim dismissed.

She mentioned the Henry Greenslade comment about no reasonable presumption, several times. This turned out to be the strongest part of my defence.

Didn't get to EvL but the second rep mentioned it before we adjourned and the judge was shaking her head.

QUOTE (Gan @ Thu, 17 Nov 2016 - 13:36) *
There still remains the possibility of a claim by the OP for Excel's breach of the DPA


I definitely want to pursue this claim against. It's the first step to complain to the bottom ICO. Or should I wait until the case is heard in Jan?

Posted by: Gan Thu, 17 Nov 2016 - 15:00
Post #1231471

Complain now

If the IPO has already upheld your complaint by the time you bring a claim, Excel has no defence and can only argue over the amount

Posted by: lamilad Thu, 17 Nov 2016 - 15:09
Post #1231472

QUOTE (bargepole @ Thu, 17 Nov 2016 - 14:33) *
Well done Lami, a great result which goes to prove what a complete crock of shyte these Excel / BW Claims really are.

It also underlines for anyone with an upcoming case, the importance of thorough and meticulous preparation.

And if any Excel drones are reading this, I suggest you crawl back under a stone and don't go anywhere near a court in future, as you (and BW Legal) clearly haven't got a bloody clue!


Couldn't of said it better myself, they obviously are following this thread so, to Mr Pickup (bw agent) I'd just like to say "unlucky Fella, but the best man won. To prove there's no hard feelings - after your boss beats you with your worthless WS and boots you out the door, there a job going at the bakery down the road from me. They're looking for someone to squirt the jam into doughnuts. No experience necessary but a steady hand needed. I'd put a good word in for you but you were shaking that much during the hearing that I'm not sure you're ready for it. Chin up bro!

Mr Pickup, btw was also the advocate at the Excel vs Mrs S case as referred to in the pranksters blog.

Rough couple of months for Mr Pickup!

Posted by: lamilad Thu, 17 Nov 2016 - 15:24
Post #1231481

QUOTE (Richy_m_99 @ Thu, 17 Nov 2016 - 13:31) *
I take it you will also be able to submit new evidence as well to rebut their new evidence.


Yes I have 14 days after their submission to submit my rebuttal evidence

Posted by: bargepole Thu, 17 Nov 2016 - 15:41
Post #1231488

QUOTE (lamilad @ Thu, 17 Nov 2016 - 14:57) *
I did ask for costs but she refused. I'd not prepared anything to bring with me (costs schedule) as I was concentrating all my attention on the case itself. So when she asked me why I deserved costs all I could think to say was litigant in person costs. She scowled and shook her head. With another case about to start I didn't want to push it and get on the wrong side of her.


You definitely missed a trick there regarding costs.

Litigant In Person costs (hourly rate £19 per hour) would only be awarded if Unreasonable Behaviour by the Claimant could be established - CPR 27.14(2)(g)

But before you get to that, you are entitled to Ordinary Costs, as follows:

Loss of earnings through attending court - max. £95
Return mileage from home @ 45p per mile
Parking near the court - about £5

Remember those next time!

Posted by: lamilad Thu, 17 Nov 2016 - 15:41
Post #1231489

After the 'stand down' he asked if he could cross examine me under oath and use the Pepipoo evidence. The judge didn't say he could use it as evidence but said he could ask me about... Bit annoying but I just said I didn't know what he was talking about. His cross examination went badly wrong and ended working in my favour coz I brought everything back to PoFA. He was clearly embarrassed and gave it up as a bad job.

Posted by: Umkomaas Thu, 17 Nov 2016 - 15:46
Post #1231490

QUOTE
Mr Pickup, btw was also the advocate at the Excel vs Mrs S case as referred to in the pranksters blog.

Rough couple of months for Mr Pickup!

I wonder whether they will trust him to ever pick-up any other case now.

Tears are rolling down my cheeks.

Posted by: Janeo Thu, 17 Nov 2016 - 15:47
Post #1231492

QUOTE (lamilad @ Thu, 17 Nov 2016 - 15:09) *
QUOTE (bargepole @ Thu, 17 Nov 2016 - 14:33) *
Well done Lami, a great result which goes to prove what a complete crock of shyte these Excel / BW Claims really are.

It also underlines for anyone with an upcoming case, the importance of thorough and meticulous preparation.

And if any Excel drones are reading this, I suggest you crawl back under a stone and don't go anywhere near a court in future, as you (and BW Legal) clearly haven't got a bloody clue!


Couldn't of said it better myself, they obviously are following this thread so, to Mr Pickup (bw agent) I'd just like to say "unlucky Fella, but the best man won. To prove there's no hard feelings - after your boss beats you with your worthless WS and boots you out the door, there a job going at the bakery down the road from me. They're looking for someone to squirt the jam into doughnuts. No experience necessary but a steady hand needed. I'd put a good word in for you but you were shaking that much during the hearing that I'm not sure you're ready for it. Chin up bro!

Mr Pickup, btw was also the advocate at the Excel vs Mrs S case as referred to in the pranksters blog.

Rough couple of months for Mr Pickup!

More like Mr F**kup!

Posted by: Spudandros Thu, 17 Nov 2016 - 16:36
Post #1231525

QUOTE (lamilad @ Thu, 17 Nov 2016 - 14:57) *
QUOTE (Spudandros @ Thu, 17 Nov 2016 - 13:41) *
Well done! Although she does seem to be bending over backwards to accomodate them. Did she say why she thought their case was misconceived and did she consider EvL at all?


She is certainly giving them a lot of leeway. She summed the case up by saying it boiled down to two things.
1. Either the claimant could PROVE I was the driver... Which they obviously couldn't.
Or
2. They would comply with PoFA to pursue me as the keeper... Which I proved they did not.

Claim dismissed.

She mentioned the Henry Greenslade comment about no reasonable presumption, several times. This turned out to be the strongest part of my defence.

Didn't get to EvL but the second rep mentioned it before we adjourned and the judge was shaking her head.



Well, that's all good to know. Great job. Maybe she's not quite the ogre made out to be, just a bit particular about the defence.


Posted by: ostell Thu, 17 Nov 2016 - 16:41
Post #1231529

Perhaps she's been reading the forum !!!!!!

Posted by: lamilad Thu, 17 Nov 2016 - 16:43
Post #1231531

Well even though this process isn't over - the BIG claim is still to be heard. I have to be pleased with a good start. And this is the perfect time to say a massive 'thank you' to all those who have helped me during this process.

Some of you have only posted once or twice but have offered brilliant advice, some of you have posted frequently to answer my many many... many questions (nod to Nosferatu1001) icon_thumleft.gif - and there'll be lots more to come.

I have to say a special thank you to SchoolRunMum (Coupon Mad) ,without your incredible support and advice there'd have been no point me turning up today, never mind having a chance of winning. I owe you a huge bunch of flowers, although not sure how I'll get them to you, lol. Your advice has been rock solid, and my result today was down to you far more than it was down to me. Thank you very, very much. love5.gif

But thank you to everyone who has posted. When good people come together like this the PPC scammers don't stand a chance!

Posted by: Janeo Thu, 17 Nov 2016 - 16:43
Post #1231533

[/quote]

Yes it was

[/quote]
She doesn't sound how "Juke Joint" portrayed her at all. She seems to have been flexible with BW's rep but otherwise reasonable.

I'm definitely calling bullsh*t on Juke Joint's thread - maybe you should submit that thread as evidence!

Well done again!

Posted by: nosferatu1001 Thu, 17 Nov 2016 - 16:54
Post #1231537

Thanks for the nod, but SRM is indeed owed many flowers, chocolates and probably wine by hundreds smile.gif

Posted by: Chitlord Thu, 17 Nov 2016 - 17:40
Post #1231554

QUOTE (lamilad @ Thu, 17 Nov 2016 - 15:41) *
After the 'stand down' he asked if he could cross examine me under oath and use the Pepipoo evidence. The judge didn't say he could use it as evidence but said he could ask me about... Bit annoying but I just said I didn't know what he was talking about. His cross examination went badly wrong and ended working in my favour coz I brought everything back to PoFA. He was clearly embarrassed and gave it up as a bad job.


You don't have to give evidence, and no judge can order you to do so.

I would say that forum posts are client/legal advisor communications and are therefore privileged. Using them would breach right to a fair hearing under Art. 6 ECHR.

The PPC is supposed to file and serve any documents 14 days before hearing. If they have not filed forum posts already then too late.

Posted by: Spudandros Thu, 17 Nov 2016 - 17:42
Post #1231556

QUOTE (lamilad @ Thu, 17 Nov 2016 - 16:43) *
Well even though this process isn't over - the BIG claim is still to be heard.


Did you get to see the forum "evidence" he was waiving about? I thought you weren't allowed to ambush people.

Posted by: lamilad Thu, 17 Nov 2016 - 17:57
Post #1231559

QUOTE (Spudandros @ Thu, 17 Nov 2016 - 17:42) *
QUOTE (lamilad @ Thu, 17 Nov 2016 - 16:43) *
Well even though this process isn't over - the BIG claim is still to be heard.


Did you get to see the forum "evidence" he was waiving about? I thought you weren't allowed to ambush people.


The judge allowed him to question me on it under oath but said I wasn't compelled to answer. He read the opening post from another thread which referred to a case to be heard today where the op had stated they have driven to the (unstated) car park many times and couldn't remember if they were the driver on the date in question. He suggested that I was the op and that meant I could've been the driver. It was all very confusing so I simply said I didn't know what he was taking about - which I didn't. So he left it at that. I have no doubt that he was handed this "evidence" by the other excel rep before we went in because he didn't really seem to understand it himself whereas she referred to it several times before we adjourned.

Posted by: Chitlord Thu, 17 Nov 2016 - 18:01
Post #1231561

I don't know why you gave evidence, you could have just submitted a Witness Statement and told the judge you would not be giving evidence. You can still act as your own advocate.

Posted by: John Foxe Thu, 17 Nov 2016 - 18:16
Post #1231566

Forum posts are not confidential, and are not from legally qualified advisors so they are not privileged.

Posted by: Chitlord Thu, 17 Nov 2016 - 18:21
Post #1231569

QUOTE (John Foxe @ Thu, 17 Nov 2016 - 18:16) *
Forum posts are not confidential, and are not from legally qualified advisors so they are not privileged.


Do you know what qualifications people here have?


Posted by: bargepole Thu, 17 Nov 2016 - 19:12
Post #1231581

QUOTE (Chitlord @ Thu, 17 Nov 2016 - 18:01) *
I don't know why you gave evidence, you could have just submitted a Witness Statement and told the judge you would not be giving evidence. You can still act as your own advocate.


You don't have to formally give evidence, but if your Witness Statement is your evidence, the Judge is entitled to ask you questions about it. So it amounts to the same thing, really.

Posted by: Chitlord Thu, 17 Nov 2016 - 19:15
Post #1231583

QUOTE (bargepole @ Thu, 17 Nov 2016 - 19:12) *
QUOTE (Chitlord @ Thu, 17 Nov 2016 - 18:01) *
I don't know why you gave evidence, you could have just submitted a Witness Statement and told the judge you would not be giving evidence. You can still act as your own advocate.


You don't have to formally give evidence, but if your Witness Statement is your evidence, the Judge is entitled to ask you questions about it. So it amounts to the same thing, really.



If you tell the judge you are not giving evidence that is the end of it, but the judge can then ignore you WS

Posted by: lamilad Thu, 17 Nov 2016 - 19:24
Post #1231589

QUOTE (Chitlord @ Thu, 17 Nov 2016 - 19:15) *
QUOTE (bargepole @ Thu, 17 Nov 2016 - 19:12) *
QUOTE (Chitlord @ Thu, 17 Nov 2016 - 18:01) *
I don't know why you gave evidence, you could have just submitted a Witness Statement and told the judge you would not be giving evidence. You can still act as your own advocate.


You don't have to formally give evidence, but if your Witness Statement is your evidence, the Judge is entitled to ask you questions about it. So it amounts to the same thing, really.



If you tell the judge you are not giving evidence that is the end of it, but the judge can then ignore you WS


Looks like you had a little argument with yourself there Chitlord... but, yeah, thats really helpful... Cheers!

Posted by: hhn88 Thu, 17 Nov 2016 - 19:27
Post #1231591

QUOTE (Chitlord @ Thu, 17 Nov 2016 - 18:21) *
QUOTE (John Foxe @ Thu, 17 Nov 2016 - 18:16) *
Forum posts are not confidential, and are not from legally qualified advisors so they are not privileged.


Do you know what qualifications people here have?


It doesn't matter, the posts are not confidential and so there can be no privilege.

Posted by: Chitlord Thu, 17 Nov 2016 - 19:32
Post #1231596

QUOTE (lamilad @ Thu, 17 Nov 2016 - 19:24) *
QUOTE (Chitlord @ Thu, 17 Nov 2016 - 19:15) *
QUOTE (bargepole @ Thu, 17 Nov 2016 - 19:12) *
QUOTE (Chitlord @ Thu, 17 Nov 2016 - 18:01) *
I don't know why you gave evidence, you could have just submitted a Witness Statement and told the judge you would not be giving evidence. You can still act as your own advocate.


You don't have to formally give evidence, but if your Witness Statement is your evidence, the Judge is entitled to ask you questions about it. So it amounts to the same thing, really.



If you tell the judge you are not giving evidence that is the end of it, but the judge can then ignore you WS


Looks like you had a little argument with yourself there Chitlord... but, yeah, thats really helpful... Cheers!



Every case I have ever done (including Mags Ct.) I alway start by saying I am not giving evidence. Giving evidence can be stressful and waste of time. Let the other side prove their case is my approach.

Posted by: Stevedee Thu, 17 Nov 2016 - 19:33
Post #1231598

I see the Parking Prankster's now blogged about an Excel v Mr L case and the now notorious Mr Pickup.

Very, Nice win Lamilad, and good luck for next one, you know your stuff but maybe got snowblind last night re-reading POFA. biggrin.gif

Posted by: Chitlord Thu, 17 Nov 2016 - 19:58
Post #1231608

Is Mr Pickup a solicitor, barrister or legal executive?

is it him?

http://www.vincentssolicitors.co.uk/the-team/45/allan-pickup

Posted by: Albert Ross Thu, 17 Nov 2016 - 20:32
Post #1231624

It Seems that the Prankster has identified, as far as is necessary who the Excel [sic] advocate was.
acquiring a brief on the day is not going to be very helpful against someone that has been practising their own defence for months. Especially when the Particulars are amateurishly blobbed together.

If you have a right of audience then there is no reason not to accept SCS or BW legals offer of a case. do the best that you can and get paid handsomely, why not?

I am wondering how the CH is pronounced in the username CHitlord!
Is it like CHef

We are not here to vilify anyone.

Posted by: farmerboy Thu, 17 Nov 2016 - 21:09
Post #1231632

QUOTE (Albert Ross @ Thu, 17 Nov 2016 - 21:32) *
I am wondering how the CH is pronounced in the username CHitlord!
Is it like CHef

We are not here to vilify anyone.


ouch!! laugh.gif


QUOTE (Albert Ross @ Thu, 17 Nov 2016 - 21:32) *
We are not here to vilify anyone.


Not strictly true... Trev and Duff have been pretty vilified on here for example but more deservedly so than Mr Pickup. Hopefully he can learn from his experiences.

Posted by: Chitlord Thu, 17 Nov 2016 - 21:18
Post #1231637

QUOTE (Albert Ross @ Thu, 17 Nov 2016 - 20:32) *
It Seems that the Prankster has identified, as far as is necessary who the Excel [sic] advocate was.
acquiring a brief on the day is not going to be very helpful against someone that has been practising their own defence for months. Especially when the Particulars are amateurishly blobbed together.

If you have a right of audience then there is no reason not to accept SCS or BW legals offer of a case. do the best that you can and get paid handsomely, why not?

I am wondering how the CH is pronounced in the username CHitlord!
Is it like CHef

We are not here to vilify anyone.



I did not vilify anyone. Why are trying to start an argument by taking the piss?








Posted by: hoohoo Thu, 17 Nov 2016 - 21:29
Post #1231643

QUOTE (Chitlord @ Thu, 17 Nov 2016 - 19:58) *
Is Mr Pickup a solicitor, barrister or legal executive?

is it him?

http://www.vincentssolicitors.co.uk/the-team/45/allan-pickup


That Mr Pickup is a DDJ, so I'm guessing not

Posted by: Chitlord Thu, 17 Nov 2016 - 21:31
Post #1231645

QUOTE (hoohoo @ Thu, 17 Nov 2016 - 21:29) *
QUOTE (Chitlord @ Thu, 17 Nov 2016 - 19:58) *
Is Mr Pickup a solicitor, barrister or legal executive?

is it him?

http://www.vincentssolicitors.co.uk/the-team/45/allan-pickup


That Mr Pickup is a DDJ, so I'm guessing not



I think you're right. If Mr the 'other' Mr Pickup is not a lawyer why is he appearing at final hearing? No right of audience.

Actually there are few Pickups on the Law Soc website, none are listed at working at ELMS legal who are legal execs. There is no Legal Exec listed on the LE website.

Posted by: lamilad Fri, 18 Nov 2016 - 09:16
Post #1231679

So, for those that are interested, I’ve written a summaryof yesterdays events while it's fresh in my memory - although it already seems like a blur.

The judge thanked me for getting my bundle in in-time for the fact it was well laid out and contained useful exhibits. She asked if either of us would like to say anything before we started. I said I was concerned that the person who completed the WS was not here as I had lots of things in their WS I wanted to challenge. The judge shared my concern and looked at Mr P. He said he was familiar with the WS and authorised to answer questions about it.

The judge started by going through the nature of the car park, the way it operates and the way it is managed by Excel. She mentioned signage briefly but could see I was about to jump in with my defence points so said 'we'll come back to signs later' ...We never got back to them.

She went onto the alleged contravention and read out the PCN and FRN. When she got to the bit about pursuing the keeper she read out Henry Greenslade (HG) and thanked me for including it. She then started on my defence - one of the first points was PoFA non compliance; and tbh we never got any further down my defence points. She started reading PoFA S4 P9 and asking question along the way which allowed me to land loads of punches about poFA being the only option in law to pursue me as the RK and them having no case without it.

She asked Mr P if they complied with PoFA and read HG to him again, he said we not relying on it. She got annoyed and said 'I asked if you comply with it' he said Well we don't rely on it but it's up to the defendant to prove we don't comply with it. I said I'd be happy to and pulled out my copy of PoFA with loads of highlighted sections and side notes. The judge could see I was about to go off on one so said we'll go through P9 together and Mr L can explain where you don't comply and why. She thanked me for including PoFA as an exhibit for her.

So 9.(2).(b) I said didn't comply he argued it was implied strongly enough that it did. I said the wording wasn't right. The judge sort of agreed but said she'd reserve judgement.
9.(2).(d) Same responses as above but judge agreed with me
9.(2).(e) I said completely failed. He again said it was implied strongly enough. I countered 'it doesn't say you should imply it, it says you should "STATE" it'. The judge fully agreed with me.
At this point the judge was satisfied they did not comply with PoFA but I still asked to mention 9.(2).(f) which is another total failure. He tried to mention the yellow box on back of PCN which mentions action if not paid in 28 days. I countered that was irrelevant as this was about warning the driver about action the 'day after' 28 days. Judge agreed.

My final nail in his PoFA coffin was "the creditor will (if ALL the applicable conditions under this schedule are met) have the right to recover from the keeper (I shouted the "ALL" bit smile.gif
This where the judge turned on him. She read HG again and asked if he could prove I was the driver, he stuttered and stammered, she asked if they're not relying on PoFA how can they pursue me as RK he muttered something about me having the chance to tell them who the driver was but as I didn't they had to pursue me. The judge asked why I didn't tell them who the driver was. I said if I knew who the driver was I was under no obligation to give that information to excel. i said it was their choice not to use PoFA wording and not my responsibility to cover their failings. I said if they complied with PoFA I may have a different obligation but it was their fault not mine that I had no obligation. I went on - if someone who I don't know and have no connection with sends me a letter saying I owe them money but have no legal basis for saying such a thing then why would I respond to this? And I certainly wouldn't give them confidential information about my family and friends.

By now the judge was totally on my side. She was cross and asked him very sternly how, if they don't rely on PoFA and couldn't prove I was the driver, could they pursue me as the RK while referring again to HG. He stammered repeatedly but she kept firing this and similar questions at him as well as the HG comment. She asked him to explain his understanding of PoFA and how he could proceed without it. He looked like he was going to throw up. At this point he asked for it to be stood down so he could take advice. The judge said yes I think you should.

On his (late) return he said he hadn't been unable to get hold of anyone at excel so was non the wiser. He asked if he could submit the forum evidence the judge was reluctant and when I objected she said he couldn't. He asked if he could cross examine me, she said yes and he could ask me about the forum stuff. She firstly said it wouldn't be under oath but then said she would make me take the oath if he wanted, which he did. He asked if I was the driver, I said 'No', he asked who was insured on the vehicle, I said me, my wife are on the policy but anyone else who has fully comp insurance can drive it with my permission such as several of my friends and family members (he didn't like this answer). He said can you tell me who the driver was; I said no; He said are you telling me under oath that you don't know who the driver was? I said No I'm saying that I have no obligation in law to tell you who the driver was. The judge agreed and said anyone could have been the driver, but I didn't have to say who or even if I knew or not. He said if you know will you disclose it, I said I would only have to disclose it if they'd complied with PoFA which through their own choice they had not. He said yes but it would help the court. I replied it would help the court if you'd complied with PoFA before bringing this claim instead of wasting time, The judge smirked and told him to stop asking me who the driver was. He read the forum stuff and said do you agree that proves you have driven to this car park many times and could have been the driver. I said I had no idea what he was talking about. He tried to think of some other questions to ask but they were working against him so he just OK and gave up.

The judge was utterly bamboozled as to why they thought they could pursue the RK without PoFA or evidence. She referred to P.19 in their WS where they state they do not rely on PoFA or keeper liability so my ref to it was irrelevant. She couldn't get her head round this and kept asking how can they state they don't rely on keeper liability and then pursue the keeper. He couldn't answer. She asked why don't they just use PoFA wording and comply with the act. He couldn't answer.

She summarised the hearing - which must have been painful for him. She said as the claim lacked any grounds to pursue the keeper and any proof that he was the driver, it was misconceived and she no option but to dismiss the case.

Posted by: Lynnzer Fri, 18 Nov 2016 - 09:45
Post #1231688



Cracking stuff but I can't see why you even bothered with answering the questions posed and left him hanging on a cotton thread over a very high cliff.

I'd hazard a guess that they will now abandon the other cases. It'll be an expensive day out for them and you will certainly be better prepared to get costs the next time.

Posted by: catfunt Fri, 18 Nov 2016 - 10:11
Post #1231697

QUOTE (Chitlord @ Thu, 17 Nov 2016 - 21:31) *
QUOTE (hoohoo @ Thu, 17 Nov 2016 - 21:29) *
QUOTE (Chitlord @ Thu, 17 Nov 2016 - 19:58) *
Is Mr Pickup a solicitor, barrister or legal executive?

is it him?

http://www.vincentssolicitors.co.uk/the-team/45/allan-pickup


That Mr Pickup is a DDJ, so I'm guessing not



I think you're right. If Mr the 'other' Mr Pickup is not a lawyer why is he appearing at final hearing? No right of audience.

Actually there are few Pickups on the Law Soc website, none are listed at working at ELMS legal who are legal execs. There is no Legal Exec listed on the LE website.


To be honest, I feel a bit sorry for these legal reps who keep getting hospital passes with Roy Keane in a fiery mood lurking a few yards away. They have a thankless task with these cases. It's not their fault.

Posted by: SchoolRunMum Fri, 18 Nov 2016 - 11:06
Post #1231721

Well done Lamilad and I hope others with BW Legal letters and claims take heart from this experience. Juke Joint has gone very quiet!

Preparation is key. Every defendant keeper where there is a non-POFA PCN (or a bad attempt at one) must include in their exhibits, as has been said on the forums for a few weeks now, HG's words from the POPLA Annual Report 2015 which are relevant to private parking, come from 'the expert' and basically knock EvL into a cocked hat.

Also essential for all defences by keepers is a printout of the POFA Schedule 4 (and a clear understanding that para 8 or 9 says what a PCN 'MUST' state) and of course pics of signs in small font next to a ruler, and a copy of the Beavis sign as a comparison to show what really seems to be 'prominent terms'.

We also have other things up our sleeve like the CPUTRs, Consumer Rights Act and The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, if OP's are game to argue consumer regs in hearings.

Well done again Lamilad!

These Excel/VCS claims (and CEL ones and many Gladstones ones which are similarly flawed) are perched upon a shifting pile of sand which defendants just need to give a good kicking!

Posted by: pmj1991 Fri, 18 Nov 2016 - 11:34
Post #1231734

Well done Lamilad!

Very pleased to see you got this result and gave the other side a good hammering!!!

I have a question. You said they asked to use forum evidence, you objected, the judge then said no. But then he asked to cross-examine you and used forum evidence.......why was that then allowed? I thought the judge said no.

QUOTE (Lynnzer @ Fri, 18 Nov 2016 - 09:45) *


Cracking stuff but I can't see why you even bothered with answering the questions posed and left him hanging on a cotton thread over a very high cliff.

I'd hazard a guess that they will now abandon the other cases. It'll be an expensive day out for them and you will certainly be better prepared to get costs the next time.


If he is cross-examining you as a witness, are you able to refuse to answer his questions then?
And if you are able to, would you not look bad to the judge for this?

Posted by: lamilad Fri, 18 Nov 2016 - 12:00
Post #1231743

QUOTE (pmj1991 @ Fri, 18 Nov 2016 - 11:34) *
Well done Lamilad!

Very pleased to see you got this result and gave the other side a good hammering!!!

I have a question. You said they asked to use forum evidence, you objected, the judge then said no. But then he asked to cross-examine you and used forum evidence.......why was that then allowed? I thought the judge said no.


The judge said he could ask if he wanted but I was under no obligation to answer. I could have refused to answer every question in his CE at no detriment to myself but I knew I could use it to my advantage by referencing PoFA and/or HG in every answer. Put simply I was right and he had no case so nothing he could've said in his CE could've changed that fact.

Posted by: pmj1991 Fri, 18 Nov 2016 - 12:04
Post #1231746

That makes sense.
Well done on an amazing win!
I hope I can do the same!

Posted by: lamilad Fri, 18 Nov 2016 - 12:52
Post #1231760

QUOTE (SchoolRunMum @ Fri, 18 Nov 2016 - 11:06) *
We also have other things up our sleeve like the CPUTRs, Consumer Rights Act and The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, if OP's are game to argue consumer regs in hearings.

Well done again Lamilad!


I can't thank you enough, SRM.

I'm glad to hear there are other things to attack them with because in the short time that we were in the second hearing (the big one). The excel rep - who was far more bolshy and confident than Mr P - made it clear she was taking a different approach; obviously knowing that Mr P had been crushed. She made stressed to the judge that Excel do not rely on PoFA and do not attempt to use it in any way shape or form. She said their PCN's make no reference to it and they are not NTK's they simply PCNs.

She was speaking at 100mph as the judge wanted to adjourn but she spluttered something about not pursuing me on the basis of PoFA but on some breach of contract "like it used to be under the old system with notice to drivers" I didn't understand what she was on about and the judge looked as confused as me. She said she would be submitting evidence from an internet forum where I had made referencing to getting done for "contemp of court" I think she plans to use comments from PPP not only to suggest I may have been the driver (which I definitely wasn't) but also to discredit my character by suggesting I've spoken disrespectfully about the judge and/or court process.

She was full of attitude and I relish the opportunity to humiliate her.

By the way I have reason to believe she joined PPP as a member yesterday under the name "MBG"

Posted by: Castle Fri, 18 Nov 2016 - 13:09
Post #1231770

QUOTE (lamilad @ Fri, 18 Nov 2016 - 12:52) *
QUOTE (SchoolRunMum @ Fri, 18 Nov 2016 - 11:06) *
We also have other things up our sleeve like the CPUTRs, Consumer Rights Act and The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, if OP's are game to argue consumer regs in hearings.

Well done again Lamilad!


She said she would be submitting evidence from an internet forum where I had made referencing to getting done for "contemp of court" I think she plans to use comments from PPP not only to suggest I may have been the driver (which I definitely wasn't) but also to discredit my character by suggesting I've spoken disrespectfully about the judge and/or court process.


Well, according to the Daily Mail; Judges are "the enemy of the people!

Posted by: SchoolRunMum Fri, 18 Nov 2016 - 13:13
Post #1231772

QUOTE (SchoolRunMum @ Fri, 18 Nov 2016 - 11:06) *
We also have other things up our sleeve like the CPUTRs, Consumer Rights Act and The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, if OP's are game to argue consumer regs in hearings.

Well done again Lamilad!


QUOTE
I can't thank you enough, SRM.

Very glad to have assisted; your case was a challenge and still is, but the basis of their claim was just pants. ALways is, just needs arguing well. Anyone can do this with the right exhibits & prep although you sound like you 'really went to town' in the court room'!!


QUOTE
By the way I have reason to believe she joined PPP as a member yesterday under the name "MBG"

Really, what did she post? GET A SCREENSHOT AND SAVE IT NOW.

Posted by: nosferatu1001 Fri, 18 Nov 2016 - 13:18
Post #1231776

Just checked, MBG doesnt have any posts...

Posted by: lamilad Fri, 18 Nov 2016 - 13:30
Post #1231784

QUOTE (nosferatu1001 @ Fri, 18 Nov 2016 - 13:18) *
Just checked, MBG doesnt have any posts...


No, but MBG joined shortly before the hearing was stood down and when we reconvened he was really pushing the forum evidence with judge. MBG's last view was about one minute before the second hearing started. She has not viewed anything since. In the few mins we were with the judge she was really going on about the forum stuff. Maybe I'm being overly suspicious but it's a possibility.... Oh, and her last name started with 'G' - can't remember what it was though.

Posted by: henrik777 Fri, 18 Nov 2016 - 13:35
Post #1231790

QUOTE
He said he was familiar with the WS and authorised to answer questions about it.


WTF !

QUOTE
Well we don't rely on it but it's up to the defendant to prove we don't comply with it.


An interesting take on the burden of proof. Too much herbal tea ?

QUOTE
I would only have to disclose it if they'd complied with PoFA


No you wouldn't. PoFA only makes the keeper liable, it does not place an obligation on you.



Nuts that they decided 2/3 cases on very similar facts would not be heard together. 1 down cool.gif

Posted by: southpaw82 Fri, 18 Nov 2016 - 13:41
Post #1231794

QUOTE (Chitlord @ Thu, 17 Nov 2016 - 17:40) *
You don't have to give evidence, and no judge can order you to do so.


What's your authority for that?

QUOTE
I would say that forum posts are client/legal advisor communications and are therefore privileged. Using them would breach right to a fair hearing under Art. 6 ECHR.


No. Even if they were communications with a lawyer they have no privilege because they are public (on account of being published on the internet!).

Posted by: lamilad Fri, 18 Nov 2016 - 17:33
Post #1231899

This a letter someone received from the BPA about PoFA compliance. I think it will be something like this that forms the basis of excel's argument in my next case:

"The Protection of Freedoms Act 2012 is a piece of legislation introduced to provide Keeper Liability. This means if the Operator does not know the name and address of the driver they can hold the keeper liable under this legislation. To do this, they will need to meet the requirements contained within POFA – such as the timescales.

It is not mandatory that an operator issues a parking charge notice using the legislation as they can issue the parking charge under contract law. If there is no mention on the parking charge notice of the Protection of Freedoms Act 2012 then the operator will not be using the legislation and the strict timescales would not be applicable.

When a Notice to Keeper is issued the operator will give the keeper the opportunity to appeal the parking charge or provide the drivers details to transfer the liability within a given timeframe. If the driver’s details aren’t provided the operator will pursue the keeper for payment instead. Please note that even if a charge is issued under contract law and the driver’s details weren’t provided (within the given timeframe) they can still pursue the keeper. If the operator is pursuing the keeper without using the Protection of Freedoms Act 2012 the chances of winning in Court are reduced as they are not relying on the legislation.

Posted by: nosferatu1001 Fri, 18 Nov 2016 - 17:35
Post #1231901

By "reduced" they mean "zero", as it takes a perverse reading of the non-existent law to make the keeper liable without POFA...

Posted by: SchoolRunMum Sat, 19 Nov 2016 - 15:01
Post #1232118

I wonder what made Excel look at this thread this week, yet not before. Why the first rep didn't have it but the second rep did.

Not that it's a worry because Lamilad has been honest at all times as a defending registered keeper whose family use that car park.

And his exhibits including Schedule 4 (with an understanding of para 9) and HG's words from the POPLA Annual Report 2015 kill the EvL bluster stone dead and will do again.

Lamilad, how about enquiring of the court as to their approved transcribers and finding out how much a transcript will cost?

We would love to use your court hearing transcript to help future keeper defendants with non-POFA PCNs, to see how they can argue it well, like you did. A claim number isn't enough but a transcript is like gold dust when a particular point is argued well and the Judge finally 'gets' it and dismisses a case.

Posted by: lamilad Sat, 19 Nov 2016 - 15:25
Post #1232124

QUOTE (SchoolRunMum @ Sat, 19 Nov 2016 - 15:01) *
I wonder what made Excel look at this thread this week, yet not before. Why the first rep didn't have it but the second rep did.

Not that it's a worry because Lamilad has been honest at all times as a defending registered keeper whose family use that car park.

And his exhibits including Schedule 4 (with an understanding of para 9) and HG's words from the POPLA Annual Report 2015 kill the EvL bluster stone dead and will do again.

Lamilad, how about enquiring of the court as to their approved transcribers and finding out how much a transcript will cost?

We would love to use your court hearing transcript to help future keeper defendants with non-POFA PCNs, to see how they can argue it well, like you did. A claim number isn't enough but a transcript is like gold dust when a particular point is argued well and the Judge finally 'gets' it and dismisses a case.


Thanks SRM I will contact the court on Monday to arrange for the transcript. I don't care how much it costs. I owe this forum and MSE so much that it's the least I can do to give a little back. How long does it take to get the transcript?

Posted by: SchoolRunMum Sat, 19 Nov 2016 - 15:42
Post #1232125

Can be a few weeks/one or two months (January maybe, if you apply now - not sure). If you get it in time you can use it yourself as well, for your other cases.

Getting the transcript would be the very best way for you to return the compliment of the advice you got here and on MSE; we will make good use of it.

We'd also love to read it!

Posted by: bargepole Sat, 19 Nov 2016 - 20:51
Post #1232217

QUOTE (lamilad @ Sat, 19 Nov 2016 - 15:25) *
QUOTE (SchoolRunMum @ Sat, 19 Nov 2016 - 15:01) *
I wonder what made Excel look at this thread this week, yet not before. Why the first rep didn't have it but the second rep did.

Not that it's a worry because Lamilad has been honest at all times as a defending registered keeper whose family use that car park.

And his exhibits including Schedule 4 (with an understanding of para 9) and HG's words from the POPLA Annual Report 2015 kill the EvL bluster stone dead and will do again.

Lamilad, how about enquiring of the court as to their approved transcribers and finding out how much a transcript will cost?

We would love to use your court hearing transcript to help future keeper defendants with non-POFA PCNs, to see how they can argue it well, like you did. A claim number isn't enough but a transcript is like gold dust when a particular point is argued well and the Judge finally 'gets' it and dismisses a case.


Thanks SRM I will contact the court on Monday to arrange for the transcript. I don't care how much it costs. I owe this forum and MSE so much that it's the least I can do to give a little back. How long does it take to get the transcript?


All you need to do is contact Apple Trascription (0845 604 5642) and they will tell you the cost. You'll need to give them the estimated time length of the hearing. I would think probably around £150-£200 for the whole thing, or around £50 just for the approved judgment.

Then complete form EX107 (https://formfinder.hmctsformfinder.justice.gov.uk/ex107-eng.pdf) and send a copy to the court, and to Apple.

Posted by: lamilad Sat, 19 Nov 2016 - 21:40
Post #1232225

QUOTE (bargepole @ Sat, 19 Nov 2016 - 20:51) *
All you need to do is contact Apple Trascription (0845 604 5642) and they will tell you the cost. You'll need to give them the estimated time length of the hearing. I would think probably around £150-£200 for the whole thing, or around £50 just for the approved judgment.

Then complete form EX107 (https://formfinder.hmctsformfinder.justice.gov.uk/ex107-eng.pdf) and send a copy to the court, and to Apple.


Ok, thanks I'll contact them Monday. I'm curious though, how does this work, how do they produce a complete record of the hearing? There was no one taking notes or anything and the judge didn't say it was being recorded.

Considering how much the judge has on that day I doubt she'll recall the specifics in precise detail.

Posted by: bargepole Sat, 19 Nov 2016 - 22:34
Post #1232242

QUOTE (lamilad @ Sat, 19 Nov 2016 - 21:40) *
Ok, thanks I'll contact them Monday. I'm curious though, how does this work, how do they produce a complete record of the hearing? There was no one taking notes or anything and the judge didn't say it was being recorded.

Considering how much the judge has on that day I doubt she'll recall the specifics in precise detail.


All County Courts have microphones which record all the proceedings to a CD. You probably didn't notice them as you were busy trashing Excel's case.

When a transcript is requested, the court sends a copy of the CD to the MoJ-approved transcription agency, who will then type it up as a Word document.

It then gets sent back to the original Judge, who will check it and make any corrections, then it goes back to the agency who can then release it to the person who paid for it.

All of that can take a few weeks.

Posted by: hexaflexagon Tue, 24 Jan 2017 - 15:50
Post #1252169

Hi,

Post #130 mentioned case 2 would be heard after 11 January.
Just wondering if you've had a date yet?

Oh and belated congratulations on the demolition job you did re the 1st case. Well done.

Posted by: Pugnator Tue, 24 Jan 2017 - 20:41
Post #1252251

QUOTE (hexaflexagon @ Tue, 24 Jan 2017 - 15:50) *
Hi,

Post #130 mentioned case 2 would be heard after 11 January.
Just wondering if you've had a date yet?

Oh and belated congratulations on the demolition job you did re the 1st case. Well done.


There was a post on MSE saying he'd had to go off forum and was being assisted by the BMPA. Hopefully he'll update at some point

Posted by: lamilad Thu, 9 Feb 2017 - 18:48
Post #1258006

So, I've been away for a long time... As many of you will know this is because my forum posts were being used against me in the case that was adjourned following my victory against Excel/BWL back in November.

Anyway a lot has been happening behind the scenes since then. I have been assisted off-forum by SchoolRunMum (Coupon Mad) and Bargepole... I say "assisted" it's been much more than that, they've guided me through every step of the process, offering reassurance, solid advice, and writing brilliant letters and statements for me. I've bombarded them with emails and questions on an almost daily basis and they've been nothing but helpful and supportive the whole time. I can't thank them enough - not just for their help but how much I've learned from them.

So.... what about my second case? Well that was heard today. Jake Burgess was in attendance for Excel - he had submitted a second WS for them in December, which was basically a character assasination on me attacking my credibility and twisting my comments made on this forum. It was really quite offensive and borderline defamatory.... But I suppose desperation can lead to such behaviour.

The Result...
Justice served... Claim dismissed!

...A relief, considering this would've cost me £687. I was awarded costs of £104.50.

To be fair to JB, he fought his case well, and even though he was twisting my words and deliberately taking comments out of context he did it well. But the judge insisted it was either PoFA compliance or proof of driver and Excel had neither. in the end, his case, though well argued, was 2 dimensional and lacked any real substance. The judge wanted something concrete and he couldn't offer anything.

A satisfying victory but I'm not jumping for joy as this was hard fought and uncomfortable at times. It was also tiring as it went on for nearly 3 hours.

Is this the end for me and Excel? I'm not banking on it!




Posted by: Spudandros Thu, 9 Feb 2017 - 19:19
Post #1258014

QUOTE (lamilad @ Thu, 9 Feb 2017 - 18:48) *
So, I've been away for a long time... As many of you will know this is because my forum posts were being used against me in the case that was adjourned following my victory against Excel/BWL back in November.

Anyway a lot has been happening behind the scenes since then. I have been assisted off-forum by SchoolRunMum (Coupon Mad) and Bargepole... I say "assisted" it's been much more than that, they've guided me through every step of the process, offering reassurance, solid advice, and writing brilliant letters and statements for me. I've bombarded them with emails and questions on an almost daily basis and they've been nothing but helpful and supportive the whole time. I can't thank them enough - not just for their help but how much I've learned from them.

So.... what about my second case? Well that was heard today. Jake Burgess was in attendance for Excel - he had submitted a second WS for them in December, which was basically a character assasination on me attacking my credibility and twisting my comments made on this forum. It was really quite offensive and borderline defamatory.... But I suppose desperation can lead to such behaviour.

The Result...
Justice served... Claim dismissed!

...A relief, considering this would've cost me £687. I was awarded costs of £104.50.

To be fair to JB, he fought his case well, and even though he was twisting my words and deliberately taking comments out of context he did it well. But the judge insisted it was either PoFA compliance or proof of driver and Excel had neither. in the end, his case, though well argued, was 2 dimensional and lacked any real substance. The judge wanted something concrete and he couldn't offer anything.

A satisfying victory but I'm not jumping for joy as this was hard fought and uncomfortable at times. It was also tiring as it went on for nearly 3 hours.

Is this the end for me and Excel? I'm not banking on it!


Fab result. Very well done. Send it to Prankster, noit only as a win, but a warning that spies abound and be careful what you say on forums. Good to see you got a sensible judge. Was it Fay Wright.?


Posted by: lamilad Thu, 9 Feb 2017 - 19:40
Post #1258021

QUOTE (Spudandros @ Thu, 9 Feb 2017 - 19:19) *
Fab result. Very well done. Send it to Prankster, noit only as a win, but a warning that spies abound and be careful what you say on forums. Good to see you got a sensible judge. Was it Fay Wright.?


Thanks Spudandros. I'll certainly be letting the prankster know. No, it wasn't Faye Wright. Which brings me to a point about my previous case I've been wanting, but unable, to address, until now.

My previous case in Nov wasn't heard by DJ Wright - it was supposed to be but it was transferred at the last minute to another judge. i wasn't aware at the time and as the other judge was female and didn't introduce herself at the start of the hearing I assumed it was Faye Wright... It wasn't until I got the judgement through that I discovered it was Judge Skalskyj-Reynolds who heard my case. She also heard my case today.

I find her to be very intelligent and forthright. She is steadfast on PoFA compliance or proof of driver. She also puts a great deal of weight on case law. She kept asking JB if he had any case law to back up his argument. She dismissed EvL before he could even get to it. I didn't even need to bring it up. She said she was very famiiliar with it and "distinguished it". She went on that it had absolutely nothing whatsoever to do with this case as it was criminal not civil. Sensing her contempt for it JB had the audacity to say "Yes, I never use in cases I'm involved with"... Really?? I suppose he's not been involved in any other Excel/VCS cases before then!

Posted by: SchoolRunMum Thu, 9 Feb 2017 - 22:33
Post #1258083

Very well done again lamilad, we all look forward to your full court report when you have recovered!

Posted by: nosferatu1001 Fri, 10 Feb 2017 - 09:35
Post #1258179

Very well done!

AS ever a good case report will be a lovely read, and if you can stick ANOTHER win into completed cases maybe? Good to know as many details as possible smile.gif

Posted by: Panamajoe Fri, 10 Feb 2017 - 10:12
Post #1258189

Could a higher amount of cost have been claimed for all the hours of time you put in to defend your case?

Posted by: nosferatu1001 Fri, 10 Feb 2017 - 10:20
Post #1258198

Prove unreasonable behaviour under CPR 27.14(2)g and then yes, potentially

Posted by: bargepole Fri, 10 Feb 2017 - 10:31
Post #1258206

QUOTE (nosferatu1001 @ Fri, 10 Feb 2017 - 10:20) *
Prove unreasonable behaviour under CPR 27.14(2)g and then yes, potentially

That would not have been feasible in this case, as Excel complied with all court directions and deadlines.

Posted by: nosferatu1001 Fri, 10 Feb 2017 - 10:41
Post #1258210

Indeed, which is why I didnt say definitely smile.gif
It was more to point the new poster to the the relevant part of the CPRs smile.gif

As ever sounds like youve been amazing on this one smile.gif

Posted by: lamilad Fri, 10 Feb 2017 - 15:12
Post #1258311

QUOTE (nosferatu1001 @ Fri, 10 Feb 2017 - 09:35) *
Very well done!

AS ever a good case report will be a lovely read, and if you can stick ANOTHER win into completed cases maybe? Good to know as many details as possible smile.gif


Thanks, Nos. I owe you a massive thank you as well, for all the advice and guidance you've given me. icon_salut.gif

I'm working late today but I'll try get a report posted later tonight. I'll send something to the prankster as well. I have the transcript from my previous case which I will make available to anyone who wants it.

Posted by: nosferatu1001 Fri, 10 Feb 2017 - 20:52
Post #1258403

If you send it to the prankster, that helps get it to a wider audience as well!
Thanks for the thanks, I keep learning from the true experts here 😀

Posted by: lamilad Sun, 12 Feb 2017 - 16:48
Post #1258777

Apologies for the delay, I said I’d post this 2 days ago.

Be warned I’ve really babbled on with this one. It’s long, boring and probably full of spelling mistakes. Only read it if you’re sat in a comfortable chair and have plenty of popcorn.

Case Report:

SKIPTON COUNTY COURT - Claim No.: C7QZ5D00

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

LAMILAD (Defendant)
____________________________

Nov ’16 to Feb ’17:
Ok so I stopped updating my thread back in November after my case was adjourned and Excel had stated their intention to use comments from my Pepipoo (ppp) threads as evidence to prove that, on the balance of probabilities, I was likely to have been the driver. Bargepole (bp) and SchoolRunMum/ Coupon Mad (srm/cm) contacted me concerned that Excel had connected my thread to my real identity were obviously monitoring it. They offered to advise me off forum via email.

The Judge had given Excel permission to submit the ‘internet forum comments’ as evidence within 14 days. She gave me permission to serve rebuttal evidence 14 days after that. She also ordered that, after another 14 days both parties must file and serve evidence as to why PoFA does or does not need to be relied upon. I later received a letter stating that the hearing had been rescheduled for 9th Feb 2017

So, after the first 14 days I received their evidence from the ‘internet forums’ which was simply a complete print of my first two threads on ppp, one of which was related to my successful case against Excel/BW Legal (bwl) and the other related to this case which had been adjourned the same day (I actually have a third thread on ppp about a case that was stayed after Excel/bwl didn’t respond to my defence).

Bp and srm/cm wrote a brilliant ‘second witness statement’ (WS) for me to submit as a rebuttal to the ppp evidence. Then things took an interesting turn… I received another set of court papers from bwl/excel regarding another alleged contravention. This was the fourth N1 I had received… I then receieved a fifth a day later, and a sixth the day after that. So whilst I was in full on ‘panic mode’ bp & srm/cm were busy writing a “Request for Special Directions” to the judge which would ask for these cases to be stayed pending the outcome of the case in progress. The judge responded with a letter ordering the new claims to be stayed as requested… brilliant move by my expert advisors. I would have never known to do this in a million years.

The next thing was Excel’s second WS which arrived on xmas eve (lovely gift). Written by Jake Burgess (jb) it basically said they don’t have to rely on pofa, the claim was brought under general contract law, and I was not a credible witness – it went on into a character assassination saying my comments on ppp were contradictory to my WS and I must by lying. It accused me of ‘perverting the course of justice’ and ‘contemp of court’

After this I heard nothing else from Excel.

9th Feb 2017
Hearing was at 14:00, Judge had allocated 3 hours for it. I had booked a few days off work to go over and over the evidence and plan what I was going to say, how I would respond to questions, and where I could pick further holes in their case (srm/cm had already torn their first WS to shreds). By the night before I felt well prepared and confident. In the morning I rung the court to ask which judge was presiding – it was judge Skalskyj-Reynolds (SR), same as my previous case – I was relieved.

I arrived at 13:40 there was no-one in the waiting room – first thought. ‘maybe they haven’t turned up’. I asked the desk clerk who said My Burgess had been there for the past hour and was in a side room. I now felt the nerves kick in. We went in at 14:05, jb did not attempt to settle (as I thought he might), he didn’t even acknowledge me as we walked in.

The Hearing
The judge introduced the hearing and explained how it would be conducted. She said she had read all the evidence except the internet forum stuff and she was happy for jb to explain what part of this he wanted to talk about. She made clear to jb her position that if they couldn’t rely on pofa then they would have to prove the driver. She remembered her previous judgement (the transcript of which I had adduced into evidence) and she stood by her reasoning, therefore she would not go over the same points again.

Jb responded that he only had to establish on balance of probabilities (bop) that I was likely to have been the driver on one of the six material occasions. He went on that where the two sides had opposing arguments (my word against theirs) then he only needed to convince the judge of his case by 51% - the ‘weight of a feather is all that was needed’ for his case to be accepted as fact! SR accepted this but said it remained the claimants ‘burden of proof’ and, as I had said under statement of truth (sot), that I was not the driver then they must discharge their burden. Jb didn’t like this, he wanted her to start from a mindset of 50-50 but she indicated her mindset was 100-0 in my favour and it was up to the claimant to change that balance.

Jb focussed on 2 comments from ppp, one which said ‘I use the car park regularly and at times have forgotten to p&d’ and another which said ‘I cannot remember the event, it could have been me or my wife who was driving’. He said these contradicted my WS which said ‘I had never driven to the car park’ therefore I must be lying to evade liability and this threw all my evidence into doubt as it showed I was not a credible witness.

He went on about this for a good 20mins really stressing his points. I sat there relaxed, I knew this was coming and had my response ready. The judge said ‘yes Mr B, we need Mr L to explain this, so let’s ask him… Mr L can you explain these comments?’

“I’d be happy to, Ma’am… Firstly, I have been a regular user of that car park in the past; that is true! I refer you to my WS which actually states ‘I have never driven THIS CAR to this car park’. Secondly, if Mr B had bothered to properly read his own evidence, and evidence from the previous case which I have provided to him then he would see, as is plainly obvious, that the comments he’s referring to relate to my first ppp thread which discusses my previous case. The comments were made before this claim was even issued. They have no bearing on today’s hearing whatsoever. Everything Mr B has just said is completely irrelevant. He must have known this as the same paragraph mentions the date and claimed amount of the previous case and the fact bwl are involved, which they are not in this case. In fact, the claimant referred to this paragraph in their previous claim stating that is was about that case, therefore I question why Mr B is trying to mislead the court by suggesting they are connected to this case!

I went on that the two threads involved two different vehicles. The previous case involved the car of which I am the main driver whereas this involved a vehicle which I rarely drive and was only a named driver. I showed the judge the last two years insurance certificates that proved I wasn't the main driver. This proved to be very persuasive. I also referred her to the opening post for my second thread which specifically states “I was not the driver”

Slam dunk! I was doing the Doctor Evil laugh in my head. SR told Mr B he cannot use evidence from the previous case to support his claim today. Jb said there was another comment he wanted to discuss.

There was an awkward pause now of several minutes while jb frantically rifled through his paperwork. The prints of both ppp threads amounted to over 100 pages (double sided) and he’d not separated them (as I had). As he became more flustered the pages got more mixed up. He had to stand to try get things in order. I could’ve used this pause to go over my own evidence but I wanted to appear confident and assured so I sat drumming my fingers on the table, tapping my knee, clicking my pen and sighing loudly. Eventually the judge said ‘what comment are you looking for, I’ll help you find it’. He’d given the judge both threads as one huge bundle with the second thread at the front and the first at the back; and he hadn’t numbered the pages so SR couldn’t find it either. I knew exactly which comment he wanted but enjoyed watching him squirm. Eventually I took pity on him… “is this the comment you want, Mr B?”… It was!

He was referring to a line from an early draft of my defence I’d posted which said ‘I was not the driver’ I’d gone on to ask ‘should I change this to “it is not known who was driving”. Jb suggested this meant I didn’t know that I wasn’t the driver or I wouldn’t have asked that question. Therefore I could have been driving. I said that was ridiculous, I was just asking which wording was more appropriate in legal terms as I had no legal knowledge or experience of court.

SR then said if jb wanted ask me about comments in the threads then he should cross examine me. He agreed but didn’t ask me to take the oath.

JB: ‘ your defences and WS for both cases are the same aren’t they?’

Me: No

JB: yes, they are

Me: No, they’re not. My defences are similar but different and my Ws’s are completely different.

JB: but you’ve posted in your second thread a copy of your first defence saying you intend to use it again.

Me: No, the comment says I’m basing my second defence on my first but asking for advice to edit/ amend so it’s appropriate for this case. As further posts show my defence evolves with paragraphs and words added, removed or changed.

JB: No, all you’ve done is remove reference to bwl so the defences and WS’s for both cases are the same aren’t they?

(I’m becoming annoyed now, and my tone becomes raised and angry)

Me: For goodness sake! NO! my defences are not the same, they are both there in the threads – READ THEM! And my WS’s are completely different. What are you getting at?

(he starts shouting back)

JB: I’m saying your defences and WS’s are the same, Mr L. You’ve said in your posts they are, and now you’re saying they’re not.

SR: Where does it say that Mr B?

Me: It doesn’t Ma’am. I did base my second defence on the first simply because it was the same car park, same claimant, same alleged contravention. So, many of the defence points were the same. My WS’s are different because in this case I’ve focussed on the deficiencies in Anita Dile’s first WS.

SR: Well let’s have a look (reads some more of thread)." Clearly, Mr B the defence has been changed from the post you refer to" (she points out several posts where stuff has been added, removed or altered).

JB: Well yes but the WS’s are the same:

Me: (still annoyed) They are not, I would prove it but I have not brought my previous WS with me… why would I? Perhaps you have copy of it Ma’am.

SR: I do but it doesn’t matter. The only WS that is relevant is the one I have in front of me today. I will not hear evidence from the previous case. Mr B, I have to ask, where are you going with this?

- Jb explains that he is making the point that I am using both threads to discuss both cases, thereby trying to give credibility back to his opening argument. The judge isn’t interested in this and I point out that posting across threads is not allowed on ppp. I refer to a post from Southpaw explaining rule #1 to another poster.

JB is floundering now, he argues that it is my vehicle, I had made no attempt to resolve the issues with excel. I had not even contacted them to deny I was the driver. Therefore it is reasonable for them and the court to presume I was the driver. If I wasn't I at least had to offer something as proof.

Cue, Henry Greenslade, - the judge got in before me. 'no Mr B! Mr L is under no obligation to name the driver or respond to your letters.

JB argues that i have acted unreasonably and due to this they can reasonably assume I was driving.

SR: there is no law that says you can do that Mr B. She reads HG and says something about secretary of state vs Duff.

JB agrees there is no law but says he is arguing the bop. SR says 'in that case you need to convince me 51% and you are a long way from that'. She then did something really clever. She assigned points value to his arguments and mine and worked out that he'd only convinced her 7%. I felt utterly in control at this point and perhaps became a little complacent.

He came back to the comment about me using the car park regularly (from my first thread)and I said I used to do around 2011/2012. Then he asked when was the last time I used the car park. I had no idea but he somehow got me to say (or imply strongly) that it was 2011. He now said my comment - “I use this car park regularly” didn’t make sense if I hadn’t used it in 5 years. He suggested my comment would have said ‘I couldn’t have been the driver because I haven’t used the car park in years’ or ‘I used to use the car park regularly’

I said at the time of posting I had no reason to recall when I had last used the car park and was in a state of panic over receiving court papers. I wasn’t focussed on dates or finer details. I said it was as I investigated further that I was able to establish for definite that I wasn’t driving. He asked how came to know for definite that I wasn’t driving. I said I had looked back on text messages, emails, work schedules and worked out that I couldn’t have been in the car park on the day in question. He said if this was true, why weren’t these adduced into evidence previously? I replied that they were only useful to me and would not have stood up in court as credible evidence.

He was attacking with two main points now:
1. How I had established my whereabouts and why I had not mention this before or adduced anything in to evidence
2. My comment that I use the car park regularly, yet hadn’t used it in 5 years.
3.
- Now my mistake here was that I was allowing him to resurrect a discussion that had already been dismissed as ‘irrelevant’. I should have simply reminded the judge that that these comments had no bearing on today’s case and refused to discuss them. But I didn’t – I allowed him to draw me into an argument which I wasn’t prepared for and wasn’t on strong ground. I was worried that if I didn’t address his questions the judge might think I have something to hide… and I certainly didn’t want her to think I might have been dishonest in my previous case – A) because I wasn’t; and B) it might diminish my credibility.

He kept coming at me with the above 2 points and how they were inconsistent with my evidence and other things I’d said. This went on for a while, I can’t remember specifics of the exchange as I was flustered and struggling to answer at times but I remember feeling under pressure and worried about how the judge was perceiving me.

Eventually SR intervened saying people don’t really think much about what they’re saying on the internet and it should be taken that I had worded my comments loosely. She looked as if she was ready to sum up and asked if there was anything else. I felt I needed to win some points back so I asked if I could ask jb some questions. They both looked at the clock. Jb said there wasn’t time. SR asked what it was I wanted to discuss.

I wanted to turn the credibility issue back around on Excel. I had the DQ completed by VCS and I had a truck load of things I could attack about their first WS from Anita Dile (thanks to srm/cm). I got through some of the issues with AD’s WS one of which stated that they DO comply with pofa. I said this contradicted everything JB had said today and they were attempting to change the basis for their claim. JB didn’t respond but the judge wanted to go through pofa again, which we did. She said this established without doubt Excel do not comply.

She then gave Jb a lengthy reprimand about Excel bringing claims against people who deny being the driver and there being no proof otherwise. She told him to go back to his company and tell them in the strongest terms that they must comply with the act if they wish to pursue ‘not the driver’ claims.

She now read her judgement. I felt 70/30 it would go my way but was uneasy. She went over everything we’d discussed which seemed to take ages . She then said ‘so where does that leave me?’ [pause] I thought she’d announce the verdict but she didn’t. My 70/30 had dropped to 60/40. She talked about the claimant’s burden of proof and whether she felt they’d discharged it. She didn’t! JB was sinking in his chair. She then talked about bop and had they convinced her that I was more than likely the driver. She was not convinced. She then went on about pofa again before dismissing the claim. JB was gutted.

She asked if I wanted to apply for costs. I said I wanted 2 days loss of earnings, travel expenses and parking. Jb argued that it should only be one day as it was not their fault the case was adjourned in Nov. I countered that it was their fault I had to take the day off to defend the claim in the first place. Judge wouldn’t go fo it. He then said I could’ve worked the morning so can only claim half day. I said my shift would’ve started at 12pm. SR agreed with me. I got: £95 loss of earnings, £5 travel, £4.50 parking. When I asked for parking JB quipped ‘so you didn’t forget to pay for it today then’? cya.gif

Posted by: SchoolRunMum Sun, 12 Feb 2017 - 17:56
Post #1258797

A brilliant account, Lamilad!

We knew that Excel would try to hang you out to dry with their misleading rubbish but you were more than ready for them!

Posted by: Jlc Sun, 12 Feb 2017 - 18:10
Post #1258799

SoS v Duff... smile.gif

Posted by: lamilad Sun, 12 Feb 2017 - 18:24
Post #1258806

QUOTE (Jlc @ Sun, 12 Feb 2017 - 18:10) *
SoS v Duff... smile.gif


Jlc - you got a specific mention at my hearing the judge was reading one of my threads and got to a comment you made about pofa. She said "This is clearly someone who knows the law" icon_thumleft.gif

Posted by: Jlc Sun, 12 Feb 2017 - 19:09
Post #1258823

Aw, I'm blushing now icon_redface.gif

Posted by: freddy1 Sun, 12 Feb 2017 - 19:23
Post #1258826

QUOTE (Jlc @ Sun, 12 Feb 2017 - 19:09) *
Aw, I'm blushing now icon_redface.gif




I heard you had been removed from VCSs Christmas card list ,

Posted by: nosferatu1001 Sun, 12 Feb 2017 - 23:28
Post #1258887

😂 that's a great read. Thanks!

Posted by: The Rookie Mon, 13 Feb 2017 - 04:56
Post #1258904

Excellent result and well played, I'd read the shorter summary on PP's blog first but this really highlights how desperate they are to get one to stick!

Posted by: Lynnzer Mon, 13 Feb 2017 - 09:38
Post #1258933

Please do keep us informed on the claim for a breach of the DPA. One for each ticket should result in another good win.

Posted by: Jlc Mon, 13 Feb 2017 - 09:42
Post #1258934

QUOTE (The Rookie @ Mon, 13 Feb 2017 - 04:56) *
...how desperate they are to get one to stick!

It would have been interesting if they had actually taken the time to comply with the PoFA - the tables may have been turned.

I note they are trying to comply nowadays - it's not actually hard to comply and they've had over 4 years to work on it.

I have my suspicions on who was advising not to bother...

Posted by: Sir Gaz Mon, 13 Feb 2017 - 09:46
Post #1258935

Lamilad, did the judge actually tell JB to go back to Excel and tell them to think again before issue court proceedings where there is no proof of the driver and they do not comply with PoFA? If so then that is a very powerful tool in the box for anyone (like me) where they cannot legally prove they weren't driving. If they take me to court then I will certainly bring that up in my defence (if it's OK with you)

Posted by: lamilad Mon, 13 Feb 2017 - 10:01
Post #1258941

QUOTE (Sir Gaz @ Mon, 13 Feb 2017 - 09:46) *
Lamilad, did the judge actually tell JB to go back to Excel and tell them to think again before issue court proceedings where there is no proof of the driver and they do not comply with PoFA? If so then that is a very powerful tool in the box for anyone (like me) where they cannot legally prove they weren't driving. If they take me to court then I will certainly bring that up in my defence (if it's OK with you)


She did, and she was very clear about it. She said it again in her judgement. Thing is, I don't think me talking about on here is going to be seen as particularly meaningful in court. I think you'd need the transcript if you want the judge to take notice. I have the t/s from my previous case but I won't be getting this one as it went on for nearly 3 hours and would cost a fortune.

Posted by: nosferatu1001 Mon, 13 Feb 2017 - 10:11
Post #1258945

Having at least the case number, date and reference would be persuasive anyway - as its only SCC there is no binding element that I am aware of, so a full transcript isnt so need.

Posted by: bargepole Mon, 13 Feb 2017 - 11:03
Post #1258960

QUOTE (Lynnzer @ Mon, 13 Feb 2017 - 09:38) *
Please do keep us informed on the claim for a breach of the DPA. One for each ticket should result in another good win.


There's no case for a claim for DPA breach here.

Excel were entitled to request the keeper data, in order to write to the keeper to invite him to give the name of the driver.

Lamilad didn't engage with Excel at all, until the court proceedings were started. Therefore they had no reason to cease processing the data, on the assumption that the keeper was the driver. If he had served them with a Section 10 notice, that would have been different.

There is no point in issuing speculative or weak claims for DPA breaches, they should only be issued in cases where it can be clearly established that the PPC had no lawful reason to request the data, or to continue processing it.

I do wish people wouldn't raise this idea on every failed ticket - it just undermines the whole strategy. Battles must be carefully chosen.

Posted by: The Rookie Mon, 13 Feb 2017 - 11:33
Post #1258975

QUOTE (Sir Gaz @ Mon, 13 Feb 2017 - 10:46) *
Lamilad, did the judge actually tell JB to go back to Excel and tell them to think again before issue court proceedings where there is no proof of the driver and they do not comply with PoFA? If so then that is a very powerful tool in the box for anyone (like me) where they cannot legally prove they weren't driving. If they take me to court then I will certainly bring that up in my defence (if it's OK with you)

Shame they weren't asked to come back to confirm that action - and to bring their toothbrush!

Funny that was VCS don't they have some connection with Excel? biggrin.gif laugh.gif biggrin.gif

Posted by: southpaw82 Mon, 13 Feb 2017 - 12:58
Post #1259018

QUOTE (bargepole @ Mon, 13 Feb 2017 - 11:03) *
I do wish people wouldn't raise this idea on every failed ticket - it just undermines the whole strategy. Battles must be carefully chosen.

+ 1

Posted by: Janeo Tue, 14 Feb 2017 - 15:14
Post #1259442

Excellent result - looks like Excel has taken a vendetta out.

What's the score with the new claims that were stayed? Surely to proceed would now be unreasonable?

Posted by: lamilad Tue, 14 Feb 2017 - 16:00
Post #1259469

QUOTE (Janeo @ Tue, 14 Feb 2017 - 15:14) *
Excellent result - looks like Excel has taken a vendetta out.

What's the score with the new claims that were stayed? Surely to proceed would now be unreasonable?


I agree. The Judge ordered them to be stayed pending the outcome of this case. So I think they'd have to apply to the judge if they wanted them 'unstayed'. Can't see her allowing that after the dressing down she gave JB over no pofa - no proof of driver.

Saying that Excel are capable of anything, they have no interest in the law other than how they can twist it, and they'll eventually be called out for their ongoing and constant abuse of the small claims system.

Fankly, It wouldn't bother me if they did come after me again... after all the investigating I've done during my previous cases I'm well aware that I have not been the driver in any of the claims Excel have taken out against me. So if they want to keep wasting money on me and paying my costs then who am I to argue.

Posted by: Janeo Wed, 15 Feb 2017 - 22:33
Post #1259934

Yes, lets hope they waste even more money on their ridiculous spiteathon
I'm staying low as I know they are watching, but I will pm you the latest...

Powered by Invision Power Board (http://www.invisionboard.com)
© Invision Power Services (http://www.invisionpower.com)