Hi, I hope I don't waste anyone's time here, but am having trouble finding reference defences which we might be able to use against a February 2012 PCN from Excel at The Square, in Chorlton, Manchester.
I think we had about 10 letters from the previous solicitor acting for Excel, then after about a year, they stopped. Early last year, in a spring clean I threw all the letters away, which was possibly a mistake. More started arriving, this time from bw legal late last year, and now we have a Claim Form.
None of the correspondence from bw legal has included any evidence to support their claim.
My wife is the registered keeper.
The amount claimed is £190 + £25 Court fee + £50 Legal costs (£265)
I've acknowledged the service of the claim, on Sunday, as per the really useful advice from Bargepole, but am not at all clear about how to frame our defence, any advice would be very much appreciated.
Thanks in advance.
First of all edit your post so that the driver cannot be inferred.
So your wife is the defendant. This was before the introduction of keeper liability in October 2012. Only the driver, who Excel do not know and you will not be telling them, is liable.
Thanks ostell.
Delete the end of the first paragraph starting from the sentence that starts with "we remember"
There's no "we" in this, only 1 person - the defendant - your wife.
Plenty of threads discussing Excel court cases on here so start reading and steal/ plagurise/ amend other similar defences to create you own.
Post back here for critique/ further advice
Thanks lamilad.
Hi, after looking through defence drafts here, it seems that our main defence lies in the fact that the PCN was for February 2012, ahead of the October 2012 Keeper liability ruling. Additionally, no evidence of a ticket not having been purchased and displayed has ever been offered. So here's a first draft, feedback very much appreciated.
Draft Defence
It is admitted that the Defendant is the registered keeper of the vehicle in question.
However it is denied that the Claimant has authority to bring this claim on the following grounds:-
1. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements. The Protection of Freedom Act 2012 Schedule 4 has not been complied with.
2. 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.
3. Excel Parking Services Ltd are not the lawful occupier of the land. 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 right to bring action regarding this claim.
4. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle do not constitute a proven contravention of the parking conditions.
5. 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 Claimant claims a sum of £190.72 as the ‘amount claimed’’ (for which liability is denied) plus The Particulars of Claim include £50 that the claimant has untruthfully presented as legal representative’s costs. In contradiction the claimant's solicitor has, however, described the Principal Debt as £154 and solicitor's costs as a further £50 in correspondence with the keeper. The Claimant is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims court. They are unjustified and should be struck out as unrecoverable.
The defendant also has the reasonable belief that the charges have not been invoiced and/or paid
5. Inadequate Illuminated signs incapable of binding the driver – this distinguishes this case from the Beavis case:
(a) This case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage (see Appendix F IPC Code of Practice) forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes, and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
(b) The 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:
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.”
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”
Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”
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.”
Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable
Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.
(d) The signage at the The Square is sporadic and illegible (charge not prominent nor large lettering) – breach of the POFA 2012 schedule 4 and the BPA Code of Practice, which the signage also states it abides by. Therefore, no contract is formed to pay any clearly stated sum.
(e) Binding case law from the Beavis case would therefore appear to support the assertion that the charge of £100 in The Square would be a penalty and therefore not enforceable.
8. 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.
To summarise:
- There is no evidence the keeper was driving the car at the time the parking charge was issued
- There is no evidence a valid ticket was not purchased
- The claimant is not the landholder and therefore not in a position to issue this charge.
- Inadequate and unlit signage at the site at the time of the alleged event did not meet accepted code of practice.
- The Protection of Freedoms Act does not permit the Claimant to recover such an inflated amount.
‘Parkingeye v Beavis’ clearly does not apply in this case
1. The registered keeper has not been proven as the driver. There is no keeper liability.as such the keeper can only be held liable if the claimant has fully complied with the strict requirements. The Protection of Freedom Act 2012 Schedule 4 has not been complied with.
POFA had not been enacted at that time.
5) (the first one) Again POFA not enacted so any mention is superfluous. Delete it.
What happened to 6 & 7 ?
Thanks Iamilad, will research, make the changes and repost.
OK, here's the updated defence. I've also included another version of Parking Eye v Beavis which seems clearer and to the point to me, but might not be? And have added 2 other points, one disputing the additional costs incurred by the claimant, the other, point 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.' I'm inferring as meaning that the signage at the location was not explicitly clear about the terms and conditions?
Thanks for your help so far, it's a great help.
Draft Defence
It is admitted that the Defendant is the registered keeper of the vehicle in question.
However it is denied that the Claimant has authority to bring this claim on the following grounds:-
1. The defendant neither admits nor denies that he was the driver.
As a result of the Claimant's unreasonable delay, it is impossible to identify which of several equally likely drivers made a routine journey more than five years ago and what conduct of their driving I should be defending.
The parking event took place before the introduction of the Protection of Freedoms Act (POFA) and the Claimant cannot pursue the registered keeper for payment if it cannot identify the driver. Nor am I required to name the driver. It remains for the claimant to prove its case.
2. 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. 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.
4. Excel Parking Services Ltd are not the lawful occupier of the land. 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 right to bring action regarding this claim.
5. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle do not constitute a proven contravention of the parking conditions.
6. Inadequate Illuminated signs incapable of binding the driver – this distinguishes this case from the Beavis case:
(a) This case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage (see Appendix F IPC Code of Practice) forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes, and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
(b) The 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:
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.”
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”
Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”
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.”
Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable
Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.
(d) The signage at the The Square is sporadic and illegible (charge not prominent nor large lettering) – breach of the POFA 2012 schedule 4 and the BPA Code of Practice, which the signage also states it abides by. Therefore, no contract is formed to pay any clearly stated sum.
(e) Binding case law from the Beavis case would therefore appear to support the assertion that the charge of £100 in The Square would be a penalty and therefore not enforceable.
[
Or, should I use this one?
6. 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 landowner 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.
]
[
And, is there any value in including the following?
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 Claimant cannot recover additional charges as the Defendant 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 expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.
]
9. 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.
To summarise:
- There is no evidence the keeper was driving the car at the time the parking charge was issued
- There is no evidence a valid ticket was not purchased
- The claimant is not the landholder and therefore not in a position to issue this charge.
- Inadequate and unlit signage at the site at the time of the alleged event did not meet accepted code of practice.
- The Protection of Freedoms Act does not permit the Claimant to recover such an inflated amount.
‘Parkingeye v Beavis’ clearly does not apply in this case
I don't like this, sounds like you are trying to hide something, so just say you are the registered keeper and the burden rests with the Claimant to show who was driving on that occasion, many years ago:
Thanks SchoolRunMum, I'll make the changes this evening then post again. Is there any advantage do you think in making a part 18 request? Perhaps it's too late, by my calculation (28 days plus 5 days) there's 3 weeks to go for the deadline to enter the defence.
Thanks.
"8. The Claimant cannot recover additional charges as the Defendant 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 expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver."
That is from a BW defenec. HAS the claimant described them as "legal expenses"? If not then DONT SAY SO!
It needs the usual headings and a statement of truth at the end, as shown by bargepole in the links showing example defences in post #2 here:
http://forums.moneysavingexpert.com/showthread.php?t=4816822
Show us how it looks with the extra stuff added about Martin Cutts, DJ Lateef, Simon Renshaw-Smith and the fact Excel were banned by the DVLA for saying what they are now saying to a court...
Thanks for you advice so far. I have, I hope, managed to make the changes suggested, though I am unsure about what specifically I should include about Simon Renshaw-Smith and how that would form part of the defence.
nosferatu1001, re: point 8., the claim form says 'Legal representative's costs', I have adjusted the text accordingly - does that help?
SchoolRunMum, again, thanks for your help, but I am having difficulty finding 'the usual headings' beyond those already used. Also, am wary of including any further quotation from DJ Lateef as the signs she looked at in-situ were at the Peel Centre.
Anyway, latest version, and, thanks in advance, again. You folks are amazing.
It is admitted that the Defendant is the registered keeper of the vehicle in question.
However it is denied that the Claimant has authority to bring this claim on the following grounds:-
1. The registered keeper has not been proven as the driver. There is no keeper liability.
2. 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. 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.
4. Excel Parking Services Ltd are not the lawful occupier of the land. 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 right to bring action regarding this claim.
5. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle do not constitute a proven contravention of the parking conditions.
6. Inadequate Illuminated signs incapable of binding the driver – this distinguishes this case from the Beavis case:
(a) This case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage (see Appendix F IPC Code of Practice) forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes, and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
(b) The 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:
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.”
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”
Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”
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.”
Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable
Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.
(d) The signage at the The Square is sporadic and illegible (charge not prominent nor large lettering) – breach of the POFA 2012 schedule 4 and the BPA Code of Practice, which the signage also states it abides by. Therefore, no contract is formed to pay any clearly stated sum.
(e) Binding case law from the Beavis case would therefore appear to support the assertion that the charge of £100 in The Square would be a penalty and therefore not enforceable.
7. This Claimant is known for providing incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel Parking Services Ltd and ordered the company to pay Mr Cutts' costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel Parking Services Ltd had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park.
8. In 2012, Excel Parking Services Ltd was banned by the DVLA for for a period of three months, from access to keeper data:
''stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was'':
9. 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.
10. The Claimant cannot recover additional charges as the Defendant 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.
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.
Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
Thanks for all that, especially the point about the 'serious breach' of the relevant BPA Code of Practice. I think this adds a bit more balance to the defence around Keeper Liability, I was worried that it was becoming too reliant on the incoherent signage argument. Thanks too for the link to Lt.Columbo's case, great to hear that he won. It also makes me realise how much more work there is to do.
I'll add the headers and footer, and format the defence as described by Bargepole, and via your link too. For now, the following is the updated version, I'm hoping it's more or less ready to be sent!
.......................................................
Draft Defence
It is admitted that the Defendant is the registered keeper of the vehicle in question.
However it is denied that the Claimant has authority to bring this claim on the following grounds:-
1. The registered keeper has not been proven as the driver. There is no keeper liability.
2. 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. 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.
4. Excel Parking Services Ltd are not the lawful occupier of the land. 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 right to bring action regarding this claim.
5. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle do not constitute a proven contravention of the parking conditions.
6. Inadequate Illuminated signs incapable of binding the driver – this distinguishes this case from the Beavis case:
(a) This case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage (see Appendix F IPC Code of Practice) forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes, and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
(b) The 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:
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.”
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”
Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”
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.”
Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable
Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.
(d) The signage at the The Square is sporadic and illegible (charge not prominent nor large lettering) – breach of the POFA 2012 schedule 4 and the BPA Code of Practice, which the signage also states it abides by. Therefore, no contract is formed to pay any clearly stated sum.
(e) Binding case law from the Beavis case would therefore appear to support the assertion that the charge of £100 in The Square would be a penalty and therefore not enforceable.
7. This Claimant is known for incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel Parking Services Ltd had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park.
In an article for The Plain Language Commission, 23 April 2012, Martin Cutts cites DDJ Lateef speaking to the Manchester Evening News after her visit:
“The notices that I have seen have reference to failure to comply in an area of lettering that is about four times larger than the lettering that confirms that it is a pay and display car park. To my mind, that suggests that perhaps the claimant’s real interest lies in a failure to comply, [rather] than actually seeking to bring to a driver’s attention the fact that they are about to enter a pay and display car park.”
8. In 2012, Excel Parking Services Ltd was banned by the DVLA for for a period of three months from access to keeper data for:
''stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was’’.
This claimant is repeating the very assertions that they were banned for by the DVLA in 2012, which were deemed a 'serious breach' of the relevant BPA Code of Practice. Therefore they remain in serious breach of the CoP they signed up to at the material time and appear to be hoping that neither a Judge or a Defendant knows that these assertions are unsupported by any applicable rule of law, statute or even their own Trade Body's code.
9. 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.
10. The Claimant cannot recover additional charges as the Defendant 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.
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.
Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
..................................................................
Does this look OK?
Thanks
I've been away for a few days and only able to return to this now. Am wondering if you think it's OK to send as it now stands? I have set the defence out as recommended, Times Roman, 12 pt, 1.5pt spacing and used the headers as recommended. I'd like to get this off in the post tomorrow if at all possible. Thanks in advance.
Yes it is getting there; we must use the DVLA point #8 against Excel more often, IMHO, it reads well and seems to me a hard one for Excel to wriggle away from if you make a note to include the FOI in your evidence with your WS in due course.
Re #7 I think it just needs a line to pull it together to state that the signs at the Peel Centre at the time were of a generic, very wordy/small print style used by Excel at the square, too, such that there is little difference in the woefully inadequate signs in this material case and the Cutts case.
This needs the POFA bit removing because your case it pre-POFA:
(d) The signage at the The Square is sporadic and illegible (charge not prominent nor large lettering) – breach of the POFA 2012 schedule 4 and the BPA Code of Practice, which the signage also states it abides by. Therefore, no contract is formed to pay any clearly stated sum.
And because this is pre-POFA, they must evidence (not assume) who was driving so you need point #1 from this defence, as suggested by Southpaw82:
http://forums.pepipoo.com/index.php?showtopic=112635
The Claimant must prove that the Defendant was the driver of the vehicle at the time it was parked. The Claimant cannot rely on the Protection of Freedoms Act 2012 to transfer liability to the keeper because the parking incident in question occurred prior to the Act coming into force.
...and you might fine other useful snippets to crib from that defence and add to yours. Very similar.
Don't forget to make sure the right person's name goes on this - your wife is the defendant.
Thanks Lamilad .... amended here for all our benefit
The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the Particulars of Claim, it can be seen the date of the alleged contravention is XX/XX/2011 which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced. This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the driver’s identity. Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for several offences including failing to provide information under s172 (previously section168 RTA 1972). PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).
Thanks DC.
I'm been picky now but I would remove 'surely' from this line. just doesn't sound right.
"This being the case, the claimant cannot surely hold the registered keeper liable
I've just realised that there was this second page of responses to the defence - for which much thanks - but the defence went off yesterday, registered post as I'd thought no one was responding. Feeling like a bit of an idiot now. I guess this will make putting together a witness statement and defending the charge at court all the harder.
Given that my defence went off without making any of the changes since the last posted version, should my witness statement include the changes recommended above, or do I need to stick to what has gone to the court?
Personally I would stick it in
Its small claims, so yuo may get some leniency . You can also go with them being expansions of existing points
REMember your witness statement is FACTS, not legal arguments, if youre doing it properly. Legal arguments go into a skeleton argument, and that can be delivered much later - AT LEAST 2 days before the hearing - to both claimant and court.
email it - it's possible they haven't processed the paper copy yet
Yes, you search this forum for other witnesss statements and start work It is a reciounting of facts in your knowledge or that you could reasonably know. THis bit is important to understand - because PPC witness statements seem to always include items they CANNOT *know*, but have *assumed*, such as the identity of the driver.
Set the WS out as per the defence statement, with numbered para etc. Youre also collating your evidence and labelling it "INITIALS/001 - a photo showing...." so you can refer to it in your WS and the skeleton argument.
I've now received a Notice of Proposed Allocation to the Small Claims Track, along with information about mediation. I've been working on the witness statement, but, in truth, am beginning to get nervous and wonder if mediation is a route to follow? I'm concerned about what the costs will be if I loose in the Small Claims court - are these standard costs, or can they be anything at all? Advice appreciated.
Attached below is the first draft of my witness statement, which is an updated version of the defence statement, again, feedback would be greatly appreciated. Thanks. (Dates left blank for now)
WITNESS STATEMENT
___________________________________________________________________________
It is admitted that the Defendant is the registered keeper of the vehicle in question.
However it is denied that the Claimant has authority to bring this claim on the following grounds:-
1. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the Particulars of Claim, it can be seen the date of the alleged contravention is xx/xx/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot hold the registered keeper liable, only the driver, of which no evidence has been produced. This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the driver’s identity. Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for several offences including failing to provide information under s172 (previously section168 RTA 1972). PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).
2. 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.
3. Excel Parking Services Ltd are not the lawful occupier of the land. 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 right to bring action regarding this claim.
4. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle do not constitute a proven contravention of the parking conditions. They 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.
5. Inadequate Illuminated signs incapable of binding the driver – this distinguishes this case from the Beavis case:
(a) This case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage (see Appendix F IPC Code of Practice) forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes, and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
(b) The 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:
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.”
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”
Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”
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.”
Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable
Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.
(d) The signage at the The Square is sporadic and illegible (charge not prominent nor large lettering). Therefore, no contract is formed to pay any clearly stated sum. The Claimant must prove that the Defendant was the driver of the vehicle at the time it was parked. The Claimant cannot rely on the Protection of Freedoms Act 2012 to transfer liability to the keeper because the parking incident in question occurred prior to the Act coming into force.
(e) Binding case law from the Beavis case would therefore appear to support the assertion that the charge of £100 in The Square would be a penalty and therefore not enforceable.
6. This Claimant is known for incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel Parking Services Ltd had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park. In an article for The Plain Language Commission, 23 April 2012, Martin Cutts cites DDJ Lateef speaking to the Manchester Evening News after her visit:
“The notices that I have seen have reference to failure to comply in an area of lettering that is about four times larger than the lettering that confirms that it is a pay and display car park. To my mind, that suggests that perhaps the claimant’s real interest lies in a failure to comply, [rather] than actually seeking to bring to a driver’s attention the fact that they are about to enter a pay and display car park.”
This material case occurred shortly after the Cutts case and as Excel are known to use signs in their pay and display car parks which are all of generally the same style, layout and design, the defendant asserts that DDJ Lateef's comments and assessment of Excel's signs in the Cutts case also applies to the signs in this material case. As does her conclusion that they do not make the driver aware of the terms and conditions.
7. In 2012, Excel Parking Services Ltd was banned by the DVLA for for a period of three months from access to keeper data for:
''stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was’’.
This claimant is repeating the very assertions that they were banned for by the DVLA in 2012, which were deemed a 'serious breach' of the relevant BPA Code of Practice. Therefore they remain in serious breach of the CoP they signed up to at the material time and appear to be hoping that neither a Judge or a Defendant knows that these assertions are unsupported by any applicable rule of law, statute or even their own Trade Body's code.
8. 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.
9. The Claimant cannot recover additional charges as the Defendant 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. 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.
Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
That's not a Witness statement, that's a defence. The witness statement is a story about what happened that day, like the car entered the car park at... The driver bought a ticket. A NTK was received on.
NO NO NO! to mediation. All the mediator wants to do is keep this out of court and, as they know the claimant won't budge, their only chance of doing that is by convincing you to pay - and, boy, will they try. Were heard all kinds of nonsense on here about mediators telling defendants they will 'probably lose' and the 'costs will be much higher'... Utter claptrap!
The vast majority of forum assisted defendants are successful in court - yours truly is only one of many examples.
If you did lose then then you would remind the judge that their £50 "legal costs" are not recoverable in small claims as per CPR 27.14 and they have clearly artificially inflated their claim well above the original parking charge amount, using meaningless figures plucked out of thin air, in a blatant attemp at double recovery.
Unless you get a dippy judge you should end up paying the original PCN £100 + Court fee £25 + Interest £??. Or he might allow the £190 + court fee, but should definitely not allow the legal costs
....but that's unlikely you should win this case, assuming they don't discontinue first.
Re, your WS read post #2 "Small claim" of the thread below loads of info about preparing a WS and links to good examples.
http://forums.moneysavingexpert.com/showthread.php?t=4816822#2
Hi, I'm working on my witness statement at the moment - thanks for the links. We have the Small Claims Track Allocation notice and I'm wondering if there's recommended posting advice for the Form N180 to be sent the County Court and BW Legal - i.e., registered post, signed for etc?
Thanks.
Ordinary First Class Post
Ask the Post Office for a free certificate of sending
The Interpretation Act deems the letter to be delivered two business days later
Send the court's copy quickly and check that it's been received while there's still time to send a replacement
Definitely No to mediation
As well as the reason already mentioned, you would be at a serious disadvantage
For you this is once-in-a-lifetime
For BWLegal, this is somebody's day-time job
I once made an analysis of the outcomes of its claims using the results published by a PPC
This was pre-POFA and Beavis when solid defences were available
Mediation typically resulted in a payment of 80-85% of the original claim - a better outcome for the PPC that avoided the fee and other costs of a hearing
It made no difference when the defendant wasn't driving and the PPC would have had no chance if a judge had heard the case
OK, thanks for the helpful links so far, here's my first draft of a witness statement. Can I also ask what you would advise in terms of contacting BW Legal for more information, as, at the moment I have nothing but the paperwork which started arriving in August 2016, which merely states I have a PCN for allegedly not displaying a valid ticket or permit. No ANPR or other photos of the car, of the carpark signs, nothing. So I don't really have much to go on in terms of defence.
Thanks
IN THE COUNTY COURT - Claim No.: *********
Between
EXCEL PARKING SERVICES LTD (Claimant)
-and-
************(Defendant)
Witness statement of *******, defendant
I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures and I trust the Court will excuse my inexperience if these documents are not set out perfectly.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.
1. Whilst I was the Registered Keeper of the vehicle concerned, no evidence of a driver has been offered and as this event occurred over 5 years ago, it is unreasonable to expect a keeper to recall who might have been driving.
2. The Defendant denies being the driver at the time of the supposed event, and therefore puts Excel to strict proof that any contract can exist between the Claimant and themselves.
3. At the time in 2012, my motoring insurance covered more than one driver. Moreover, at that time, other friends and family members had access to the vehicle and were allowed to drive it through the 'Driving other cars' extension on their own fully comprehensive vehicle insurance policy.
4. I did not then, nor have I ever parked at The Square car park Chorlton.
5. There was no requirement upon me as keeper to respond to what appeared to be junk mail, from February 2012, and in any event was not a matter where a registered keeper could be in any way legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the what appeared to be spam mail, impersonating a parking ticket yet with no basis in law.
6. At some point in 2012 the spam letters ceased to arrive. Then in August 2016, almost 5 years after the alleged parking contravention I received a letter and a court claim from Excel Parking Ltd. I researched online and discovered that I was only one of many thousands of people who have been similarly contacted by Excel Parking Ltd, and their solicitors, BW Legal about archived 'parking charges.'
7. I am no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report Excel to the Information Commissioner for misuse of my data, obtained from the DVLA in 2012.
8. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for five years then pursuing me as if I can now be held liable. I believe that Excel Parking Ltd hopes that I will not defend myself against their allegation, or hopes that I will have lost the paperwork or will have moved house, or that I will be so worried by the thought of going to court that I will pay over £260 including five years' interest, for what was apparently an unproven £60 charge, allegedly incurred by another party, if incurred at all.
9. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.
I believe that the facts stated in this Witness Statement are true.
Signed xxxxxxxxxxxxxxxx
Dated xxxxxxxxxxx
One & two are contradictory. You first state that you cannot be expected to know who was driving then go on to explicitly deny being the driver. We know what you mean but you need to phrase it differently i.e. multiple drivers and of who could have been driving on the day etc
I take it you plan to submit a skeleton argument, otherwise that WS is too brief? Nothing about Henry Greenslade, signage, locus standi, or differences to the beavis case. No references to evidence, exhibits or other persuasive cases (such as the judgement from my case)?
I think it needs more work. You should read more excel/VCS court threads and crib from good WS's
To assist you this poster recently put a good WS together for a case involving Excel
http://forums.moneysavingexpert.com/showthread.php?t=5573407&page=2#35
Thanks for all this Iamilad + NigelBB. Forgive me if I don't 'get' this. I thought the witness statement was just a statement of facts as far as I could possibly know them. The Defence Statement goes into depth about Beavis, Greenslade etc. I'm learning as I go! If I beef up the WS as advised, does this mean I don't need to put together a Skeleton Argument too?
Thanks
I have been very busy with work/life and not found the time to get on with this, and, in truth, hiding my head in the sand. Our case is next Thursday and I've not sent BW or the court a copy of our witness statement. Is it too late, are we doomed?
Send it now, what have you got to loase? It can only be rejected.
It's a shame because there has been a win today for an almost identical situation. Defeat out of the jaws of victory.
Have you received BW's Witness Statement and evidence?
p.s - they probably haven't informed you that they have moved address!!! They are now based at Enterprise house NOT The Tannery
Yes Dub_cat, we have their WS and evidence. Do you think we will lose, or just be struck out? Feeling very bad about this.
Get a WS pronto... Right now! Copy Dub Cats or mine and quickly edited it to suit. Get a draft on here tonight.
Send it with a covering letter to the court apologising for it being late... Roll off a few excuses as to why... Then add that the claimant - a professionally represented serial litigant will, in no way, be disadvantaged by the late submission of an LiP and as such the hearing should proceed as normal.
Don't count on getting any costs.
I'll upload mine to dropbox now and send a link - also, maybe point out that they are sending an advocate who will only likely be given documents a day prior anyway - check the letter they sent with the WS as that may confirm if they are - mine did.
I've PM'd you a link
Litigant in Person (you).
Thank you! Am feeling more positive by the moment...
Good, that's what we do, Manchester is a 'good court' but big, so get there early to get through security and to send a text to the BMPA to check the reps' Right of Audience (RoA).
That important point for the first two minutes once in the hearing, is discussed and explained in this Manchester court thread:
http://forums.moneysavingexpert.com/showthread.php?t=5641009&page=3
...where it proves that a brief defence put in by a newbie can still be expanded upon at WS stage, and the case can still be won. The winner there, lafferdog, said:
''I just wanted to add, my overall impression was so different to what I expected. Their representative was a joke, I was surprised how incompetent he came across, it makes me think that they don't really aim or try that hard to win cases but get all their revenue off people who either ignore and lose by default, or they get scared and pay. They must make a fortune and it is a total waste of the courts time''.
Yours is not a Gladstones (like that) but a BW Legal case and they do also use hired guns who often do not have RoA nor conduct of the case and can be silenced like in Publican Paul's case on this forum (and IIRC, he completely overlooked any WS until 24 hours before his hearing!).
I can't find Publican Paul's thread to show you right now, but here's an Excel case like yours, where the OP also submitted their WS a bit late (a week before):
http://forums.pepipoo.com/index.php?showtopic=108183&st=60
And of course they also won...! Well worth reading.
OK, here's my current stab at the WS, using the one I'd been helped with previously, and with input from Dub_cat. It hangs on the argument that I was not the driver, that no evidence of a ticket having not been purchased has ever been provided and that in any case the signage was inadequate. How does it look?
IN THE COUNTY COURT - Claim No.: *********
Between
EXCEL PARKING SERVICES LTD (Claimant)
-and-
************(Defendant)
Witness statement of *******, defendant
1. I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures and I trust the Court will excuse my inexperience if these documents are not set out perfectly.
2. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.
3. The facts of the case are as set out in my Defence, (exhibit 1), filed and served in response to the original N1 Claim Form, (exhibit 2 – Particulars of Claim). They do not bear further repetition here, but this document will lead the evidence to support my case.
CONTEXT
4. As the Registered Keeper, I received a PCN from Excel parking dated 05/03/12 which was 6 days after the alleged contravention on 27/02/12. (exhibit 3)
5. Excel Parking Services continued to issue me with PCN letters throughout early 2012. Having never parked at The Square Chorlton, and, as the letters did not look very official – like those issued by a Local Authority or Council – and after further research and discussions with others subsequently, I followed the prevailing advice that these PCNs were a scam. I therefore disregarded all further correspondence regarding this matter. No adverse inference can be drawn from this.
6. There was no requirement upon me as keeper to respond to what appeared to be junk mail, from early 2012, and in any event this was not a matter where a registered keeper could be in any way legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the what appeared to be spam mail, impersonating a parking ticket yet with no basis in law.
7. At some point in 2012 the spam letters ceased to arrive. Then in August 2016, almost 5 years after the alleged parking contravention I received a letter from Excel Parking Ltd, dated 12 August 2016 (exhibit **) and shortly afterwards another from BW Legal, also dated 12 August 2016 (exhibit**). There followed 3 Letters of Claim from BW Legal (exhibit **). I researched further and discovered that I was only one of many thousands of people who have been similarly contacted by Excel Parking Ltd, and their solicitors, BW Legal about archived 'parking charges.'
8. I am no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report Excel to the Information Commissioner for misuse of my data, obtained from the DVLA in 2012.
NO KEEPER LIABILITY
9. It is admitted that the Defendant is the registered keeper of the vehicle in question.
10. However it is denied that the Claimant has authority to bring this claim on the following grounds:-
11. Whilst I was the Registered Keeper of the vehicle concerned, no evidence of a driver has been offered.
22. The Defendant denies being the driver at the time of the supposed event, and therefore puts Excel to strict proof that any contract can exist between the Claimant and themselves.
13. The defence requests the court explore, as a preliminary matter, whether the claimant has any actual evidence of the defendant's liability in this case. In the absence of such evidence, there is no case to answer and the presiding judge is invited to strike out the claim as having no prospect of success.
14. At the time of the alleged contravention in 2012, my motoring insurance covered more than one driver. Moreover, at that time, other friends and family members had access to the vehicle and were allowed to drive it through the 'Driving other cars' extension on their own fully comprehensive vehicle insurance policy.
15. Further to my Defence Statement, as I have not seen a copy of the contract between the Landholder and Excel Parking Services, I cannot be certain that Excel had the legal right to enter into contract with drivers. To support this point of view, I reference the transcript of Judgement of the case of Pace v Lengyel as exhibit ** in which the Judge concluded
'the agreement amounts to nothing more than an agency agreement that allows the Claimant to issue charge notices on behalf of Westcott (which would be for Westcott to sue upon) but no more'.
16. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the Particulars of Claim (exhibit **), it can be seen that the date of the alleged contravention is 27/02/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot hold the registered keeper liable, only the driver, of which no evidence has been produced.
17. This distinguishes the case from Elliot vs Loake (exhibit**), in which there was irrefutable evidence of the driver’s identity. Far from creating a presumption as to the driver’s identity, as the claimant will misleadingly state, it in fact showed there is no such presumption available in law. As such, the claimant is put to strict proof as to the identity of the driver. I also bring to the court’s attention that the claimant and their solicitors have tried on multiple occasions to use these cases to get around their inability to identify the driver, and to somehow excuse their refusal to follow the clear will of parliament in transferring liability to the Keeper by using the legislative means created specifically for the parking industry to use. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).
18. I also adduce the transcript of the recent judgement of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016 (Exhibit **). The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”.
19. The PCN claimed that the vehicle was parked without displaying a valid ticket/permit. In order to demonstrate that the driver failed to pay and display, I believe the Claimant should have provided evidence that this was the case. Whilst I have since disposed of the original notices, which I believed to be junk mail, no evidence of a failure to purchase or display such a ticket or permit was provided then or since. The Square Chorlton was at the time an ANPR site, however, no ANPR system records showing the alleged failure of payment has been provided to the defendant by the Claimant.
20. Photographs of the keeper’s vehicle registration do not constitute a proven contravention of the parking conditions.
21. Additionally, when I received the first PCN from Excel Parking, I subsequently visited the location. At the time of the alleged Contravention, there were in The Square, Chorlton, inadequate illuminated signs incapable of binding a driver.
22. I refer also to point 6 in my original Defence – that this case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) (exhibit **) which was dependent upon an un-denied contract, formed by unusually prominent signage.
23. The claimant has acted unreasonably by failing to take legal action for more than five years after the alleged parking event, resulting in the highest possible interest accumulation.
24. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for five years then pursuing me as if I can now be held liable. I believe that Excel Parking Ltd hopes that I will not defend myself against their allegation, or hopes that I will have lost the paperwork or will have moved house, or that I will be so worried by the thought of going to court that I will pay over £260 including five years' interest, for what was apparently an unproven £60 charge, allegedly incurred by another party, if incurred at all.
25. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.
26. The Defendant is at a serious disadvantage in this case:
a) The case involves a well-funded Claimant who is a serial litigant with unlimited access to the services of qualified legal professionals, and who will be legally represented in this case; against an unrepresented Litigant in Person with no legal knowledge or experience of court process.
b) The Claimant has at no point since 12 August 2012 provided anything other than a 'Letter of Claim' or a 'Discount Offer' or 'Notice Of County Court Claim Issued'. No evidence whatsoever of the alleged contravention - which occurred over 5 years ago - has been provided. As such, the Defendant does not have enough information to know how to properly defend this claim.
CONCLUSION
27. For all of the reasons stated above, the Court is invited to dismiss this Claim. I firmly believe that to pursue me as registered keeper when the Claimant has no right in law to do so, and to submit vague, incoherent particulars, is wholly unreasonable and vexatious.
28. I believe that the facts stated in this Witness Statement are true.
Signed xxxxxxxxxxxxxxxx
Dated xxxxxxxxxxx
Great stuff, IMHO.
Here, you could add the info about the fact Excel were BANNED by the DVLA in 2012 for saying EXACTLY what their WS says now:
That one was a very good WS, and covered the Cutts case as well. Good call by lamilad.
All great stuff, thanks. Just going to eat, then will get back on the case.
OK, it getting late, but I've refined the WS as prompted. In doing so, and looking at the WS from BW discovered that they refer to evidence in the pack which isn't even there! Also, their 'Leaseholder witness statement' seems to me to be nothing other than a statement from Excel that says they, 'as the lawful occupier of the site' are able to exercise the same rights as the landowner. There's no evidence of a chain of contracts between the landowner and themselves which would clarify that this is in fact the case. Not sure if this is relevant of not. Anyway, here's the latest draft of the WS:
IN THE COUNTY COURT - Claim No.: *********
Between
EXCEL PARKING SERVICES LTD (Claimant)
-and-
************(Defendant)
Witness statement of *******, defendant
1. I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures and I trust the Court will excuse my inexperience if these documents are not set out perfectly.
2. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.
3. The facts of the case are as set out in my Defence, (exhibit 1), filed and served in response to the original N1 Claim Form, (exhibit 2 – Particulars of Claim). They do not bear further repetition here, but this document will lead the evidence to support my case.
CONTEXT
4. As the Registered Keeper, I received a PCN from Excel parking dated 05/03/12 which was 6 days after the alleged contravention on 27/02/12. (exhibit 3)
5. Excel Parking Services continued to issue me with PCN letters throughout early 2012. Having never parked at The Square Chorlton, and, as the letters did not look very official – like those issued by a Local Authority or Council – and after further research and discussions with others subsequently, I followed the prevailing advice that these PCNs were a scam. I therefore disregarded all further correspondence regarding this matter. No adverse inference can be drawn from this.
6. There was no requirement upon me as keeper to respond to what appeared to be junk mail, from early 2012, and in any event this was not a matter where a registered keeper could be in any way legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the what appeared to be spam mail, impersonating a parking ticket yet with no basis in law.
7. At some point in 2012 the spam letters ceased to arrive. Then in August 2016, almost 5 years after the alleged parking contravention I received a letter from Excel Parking Ltd, dated 12 August 2016 (exhibit **) and shortly afterwards another from BW Legal, also dated 12 August 2016 (exhibit**). There followed 3 Letters of Claim from BW Legal (exhibit **). I researched further and discovered that I was only one of many thousands of people who have been similarly contacted by Excel Parking Ltd, and their solicitors, BW Legal about archived 'parking charges.'
8. I am no more liable now than I was then, but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, such that I intend to report Excel to the Information Commissioner for misuse of my data, obtained from the DVLA in 2012.
NO KEEPER LIABILITY
9. It is admitted that the Defendant is the registered keeper of the vehicle in question.
10. However it is denied that the Claimant has authority to bring this claim on the following grounds:-
11. Whilst I was the Registered Keeper of the vehicle concerned, no evidence of a driver has been offered.
22. The Defendant denies being the driver at the time of the supposed event, and therefore puts Excel to strict proof that any contract can exist between the Claimant and themselves.
13. The defence requests the court explore, as a preliminary matter, whether the claimant has any actual evidence of the defendant's liability in this case. In the absence of such evidence, there is no case to answer and the presiding judge is invited to strike out the claim as having no prospect of success.
14. At the time of the alleged contravention in 2012, my motoring insurance covered more than one driver. Moreover, at that time, other friends and family members had access to the vehicle and were allowed to drive it through the 'Driving other cars' extension on their own fully comprehensive vehicle insurance policy.
15. Further to my Defence Statement, as I have not seen a copy of the contract between the Landholder and Excel Parking Services, I cannot be certain that Excel had the legal right to enter into contract with drivers. To support this point of view, I reference the transcript of Judgement of the case of Pace v Lengyel as exhibit ** in which the Judge concluded
'the agreement amounts to nothing more than an agency agreement that allows the Claimant to issue charge notices on behalf of Westcott (which would be for Westcott to sue upon) but no more'.
16. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the Particulars of Claim (exhibit **), it can be seen that the date of the alleged contravention is 27/02/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot hold the registered keeper liable, only the driver, of which no evidence has been produced.
17. This distinguishes the case from Elliot vs Loake (exhibit**), in which there was irrefutable evidence of the driver’s identity. Far from creating a presumption as to the driver’s identity, as the claimant will misleadingly state, it in fact showed there is no such presumption available in law. As such, the claimant is put to strict proof as to the identity of the driver. I also bring to the court’s attention that the claimant and their solicitors have tried on multiple occasions to use these cases to get around their inability to identify the driver, and to somehow excuse their refusal to follow the clear will of parliament in transferring liability to the Keeper by using the legislative means created specifically for the parking industry to use. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).
18. I also adduce the transcript of the recent judgement of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016 (Exhibit **). The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”.
19. The PCN claimed that the vehicle was parked without displaying a valid ticket/permit. In order to demonstrate that the driver failed to pay and display, I believe the Claimant should have provided evidence that this was the case. Whilst I have since disposed of the original notices, which I believed to be junk mail, no evidence of a failure to purchase or display such a ticket or permit was provided then or since. The Square Chorlton was at the time an ANPR site, however, no ANPR system records showing the alleged failure of payment has been provided to the defendant by the Claimant. The Claimant's Witness Statement (exhibit **) from 7 August 2017 states that it includes 'a log of all PDTs purchased at the car park between 19.15 hours (before the vehicle entered the Car Park) and 20.15 hours..' No such evidence is included in the witness statement provided to me.
20. Photographs of the keeper’s vehicle registration do not constitute a proven contravention of the parking conditions.
21. Additionally, when I received the first PCN from Excel Parking, I subsequently visited the location. At the time of the alleged Contravention, there were in The Square, Chorlton, inadequate illuminated signs incapable of binding a driver.
22. I refer also to point 6 in my original Defence – that this case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) (exhibit **) which was dependent upon an un-denied contract, formed by unusually prominent signage.
23. I refer also to point in my Defence. This Claimant is known for incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, (exhibit **) DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' costs. The Judge personally visited the site to view the signs in situ and found that the key issue was that Excel Parking Services Ltd had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park.
24. Mr Cutts' own published article '‘Phoney fines and dodgy signs take drivers for a ride'' which is specifically about Excel's signs is exhibit **
Mr Cutts encounter with Excel was discussed in the BBC television programme “Watchdog” which was heavily critical of Excel’s signage and tactics. I enclose the link here:
https://www.youtube.com/watch?v=OBV5tlCsaFI
25. It is clear to see from the link above, that the nature, style and design of the Excel signs is essentially the same in this case as it was then.
26. It is established in law that a contract cannot be formed unless the terms are sufficiently brought to the attention of the person to whom the contract is being offered.
27. At pages 7 – 14 of their evidence bundle in their Witness Statement, the Claimant shows several pictures and photographs of the signs they claim “clearly and prominently” state the T&C’s for parking. It is plain to see that the text is tiny and illegible. Even in these ‘close up’ pictures the T&C’s are unreadable.
28. The claimant has acted unreasonably by failing to take legal action for more than five years after the alleged parking event, resulting in the highest possible interest accumulation.
29. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for five years then pursuing me as if I can now be held liable. I believe that Excel Parking Ltd hopes that I will not defend myself against their allegation, or hopes that I will have lost the paperwork or will have moved house, or that I will be so worried by the thought of going to court that I will pay over £260 including five years' interest, for what was apparently an unproven £60 charge, allegedly incurred by another party, if incurred at all.
30. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here.
30.1 The Court's attention is drawn to the following evidence, (exhibit **) leading to my honest belief that Excel are abusing the court process and can be argued in view of their 2012 DVLA sanction/ban, to be now arguing wholly unreasonably and vexatiously in all pre-POFA cases in 2017, this appearing to be in contempt of court:
''DVLA received a number of complaints where members of the British Parking Association’s (BPA) Approved Operator Scheme (AOS) were allegedly stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was.
This behaviour is a significant breach of the AOS Code of Practice.
A complaint was made to DVLA in September 2012 about signage used by Excel at the Parc Tawe North Retail Park which apparently claimed that the vehicle keeper was liable in terms of charges imposed for parking contraventions. Following an investigation, and in line with guidance and communications issued by BPA, the Agency took the decision to suspend Excel’s access to keeper data for three months.''
31. The Defendant is at a serious disadvantage in this case:
a) The case involves a well-funded Claimant who is a serial litigant with unlimited access to the services of qualified legal professionals, and who will be legally represented in this case; against an unrepresented Litigant in Person with no legal knowledge or experience of court process.
b) The Claimant has at no point since 12 August 2017 provided anything other than a 'Letter of Claim' or a 'Discount Offer' or 'Notice Of County Court Claim Issued'. No evidence whatsoever of the alleged contravention - which occurred over 5 years ago – beyond ANPR photographs of the vehicle registration - has been provided. As such, the Defendant does not have enough information to know how to properly defend this claim.
CONCLUSION
32. For all of the reasons stated above, the Court is invited to dismiss this Claim. I firmly believe that to pursue me as registered keeper when the Claimant has no right in law to do so, and to submit vague, incoherent particulars, is wholly unreasonable and vexatious.
33. I believe that the facts stated in this Witness Statement are true.
Signed xxxxxxxxxxxxxxxx
Dated xxxxxxxxxxx
just a note about the ANPR list (missing from your evidence apparently)... the judge was extremely critical of this document provided in my pack. It's possible they included it in the copy sent to the court, so you should be prepared for that in the courtroom. It's likely they have redacted the VRMs in any case. The judge in my case had said this should have been properly documented, with a header, details about when it was created and stored demonstrating that it was contemporaneous, a signed Witness Statement from whoever prepared it saying it hadn't been tampered with etc. She also noted that (as I said in my skeleton) there should have been a log showing that the machines were working and properly synchronised, which they couldn't provide.
In my case, Excel were still members of the BPA and therefore needed to adhere to strict codes about the storage and protection of data - this is one to save for the courtroom in case they have provided it to the judge. I have a few paragraphs saved for the courtroom which I can dig out.
Henrik, we know...but it is Manchester, who are ''PPC scam aware''. We've shown the OP cases where a late WS has been OK, e.g. Publican Paul filed his WS the day before and then went and won on no RoA, after a last minute bit of instruction (no lay rep needed).
This OP just needs to crack on and can't worry about that now, needs to submit their WS and evidence.
Right of Audience has already been mentioned to the OP as well, so the preliminary matters can be covered too, no worries.
Not recommending it, just dealing with it.
A WS will be submitted in the morning and the OP can then be prepped about Rights of Audience preliminary matters.
Just gathering my very late WS and supporting exhibits this morning. Will deliver by hand to the court and email.
Are you all set and understand everything with rights of audience etc? did you get the skeleton in to the court?
Good luck for tomorrow. Stay calm and composed. Be confident but not cocky. If don't understand something, say so... Doesn't hurt to show a bit of vulnerability to the judge. He/ she might 'look after' you.
Ask the their rep when bwl sent them the docs (drop in into casual conversation). My guess will be tonight or tomorrow morning. Then if they or the judge draw attention to your late submission you can give your reasons and point out that the claimant has not been prejudiced by it in any way.
The above is perfect advice. It's usual that these dropped in legal get the pack only the night before, meaning your bring late can't prejudice them.
No problem, and congrats!
A full report with case number, judge name, their sides name etc are all really helpful. Please do the same to the prankster as well 😊
Fantastic - we knew your partner could do this and hope she was facing DJ Iyers to assist the right outcome!
We understand you might want to celebrate tonight, but a 'court report' of how it went, when you can, is always great for us and for newbies to read, we can hardly wait!
Congrats! And what a life experience to recount to the family.
Delighted with this news. I had all my fingers crossed. DJ Lyer is becoming known as a bastion of common sense and justice.
Looking forward to that report. Especially discussions with rep/ RoA challenge - and DJ Lyer's judgement.
Well done!.... Especially for not giving up, even when it looked like you'd left it too late.
I wish people would get this Judge's name right!
It's Iyer - Indigo Yankee Echo Romeo.
Not Iyers, Lyer, or any of the other variants which appear on these forums. A parking case before this Judge usually spells doom for the PPC. Remember the name.
YES!! excellent news!! well done Bimbista and partner! I was worried when it went all quiet!! really pleased for you!!
Lamilad and I are now jointly and severally apologising for our typos, to bragepole...
No Iyers, or Lyers were harmed in the making of this post.
Firstly, many apologies for the Iyer/Lyer cockup - though I enjoyed the comebacks here...
Here's more or less how my partner recalls the case, it's brief as she said most of the discussion was between DJ Iyer and the BW Legal advocate, and was over in less than 20 mins:
The advocate did not introduce herself to me, before we went into court.
DJ Iyer established the context of the case and asked, "Is this about the infamous Chorlton Car Park?"
I asked about RoA, but he said it wasn't pertinent as he'd seen the advocate before on a number of occasions.
DJ Iyer asked me if I was happy for the case to proceed on the first point of my defence, the pre-POFA argument. Not understanding if this was a good or bad thing, I wondered about the other points in my defence and said as much. DJ Iyer looked at me and said "Just say yes." : ) He said it was for the claimant to prove the case, not me to defend it.
Then DJ Iyer questioned the advocate about how payments were made at the car park, what the set up was.
Also, the authority to claim was contested. The Witness Statement from Excel which makes the claim was dismissed as DJ Iyer said the evidence presented proves nothing, there's no evidence of a contract between the landholder and Excel showing the authority to do so. He asked the advocate if she had such a contract. The advocate agreed that she could see his point but that she had not been provided with a copy of the contract between the landholder and the leaseholder.
The advocate called on the Elliot vs Loake and CPS v AJH Films arguments, but DJ was having none of it, reminding her that they were entirely different circumstances and could not be used as arguments in this case.
He also asked if I'd ever admitted being the driver, which obviously I hadn't.
He looked at all the photographic evidence and wanted to know which was the entrance and exit, as far as advocate knew, you can enter and exit out of either side of car park. (You can drive right through the car park not even realising that it is a car park)
He didn't refer to our arguments about the non contemporaneous nature of the photos of signs, or overhead photos of the car park.
Shortly after this he went back to refer to POFA and told us that because of this it was case dismissed.
DJ Iyer asked if I wanted to claim any costs for loss of earnings or parking charges. He asked if I'd parked today, "So you've not driven in and incurred another parking fine today!"
One last point, on my way out, the advocate held the door open for me and smiled!
Right from the off, I felt that DJ Iyer knew the score, wanted me to keep quiet and to get the thing over and done with fairly smartly.
The part of me that was slightly annoyed that I didn't get to raise my other defence points, which had taken tons of work - and support from you on here - to put together, was far outweighed by the relief at the whole thing being over so quickly with a dismissal.
Sorry that this isn't a word by word, argument by argument documentation, which I know is helpful to others. Anyway, much relieved and again, thanks folks.
But then the judge would already have read your defence and just saved time by using it to throw the awkward bits at the other side.
Well done! Don't get too upset about the amount of work that you put in. You may have drawn a DDJ who was not up to speed with PPCs and needed leading through by the hand.
So, having established that the Vexatious Litigant route is a non-starter, how about Defendants adding the following paragraph at the end of each Defence or WS/Skeleton:
The Court is invited to take Judicial Notice of the fact that the Claimant, Excel Parking Services Ltd, is engaged in a course of conduct which involves issuing totally meritless Claims, which are routinely dismissed in short order by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).
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