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N1 form Excel/BW Legal, served 13th March. Alleged contravention May 2011
Dub_cat
post Thu, 23 Mar 2017 - 10:44
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Hi kind people of PePIPoo

I hope you are able to help me please.

I received N1 claim form from County Court Business Centre in respect of an alleged contravention PCN in May 2011. Claimant is Excel Parking Services via BW Legal.

Back in 2011, the prevailing advice online was to ignore it. The driver had actually purchased a ticket for one hour, around 10 minutes after arriving at the car park. Leaving after a total of 31 minutes. This ticket is currently misplaced, so must assume it will not be found in time to be useful.

The registered keeper received the PCN in the post some days later, which has photos of the vehicle entering and leaving (still in possession of original letters) which although not distinct, does partially show the driver. The registered keeper also attended the car park and took photos of the main signs, and the metadata shows it as original and unmodified since 22/6/11. The signs do not mention a timeframe in which one should buy a ticket.

The driver then drafted a letter to Excel stating there must have been a mistake, but I do not believe this was sent, nor did Excel acknowledge it (also no proof of postage, so fairly confident it wasn't sent).

N1 form is dated 8 March (served date 13th) and the particulars state:

The Claimant's Claim is for the sum of £100.00 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) issued on 25/05/2011 (Issue Date) at xxxxx at George Street - Wakefield Anpr Charging Scheme Std (60-100). This PCN relates to under registration XXXXXXX.
The terms of the PCN allowed the defendant 28 days from the issue date to pay the PCN, but the Defendant failed to do so. Despite demand having been made, the defendant has failed to settle their outstanding liability.
The claim also includes Statutory Interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum a daily rate of 0.02 from 25/5/11 to 7/3/17 being an amount of £42.28. The claimant also claims £54 contractual costs pursuant to PCN Terms and Conditions.

Amount claimed: £196.28
Court Fee: £25
Legal Representative's cost: £50
Total £271.28

A letter received from BW Legal on 9th March states that they have issued legal proceedings and state the amounts of:
Principal Debt: £100
Interest: £42.28
Court Fees: £25
Solicitor's costs: £104
Outstanding balance to pay now: £271.28

So there's an obvious discrepancy between the amounts on the N1 and the amounts stated by BW, but this may not be relevant? Should the defense include that solicitors fees cannot be claimed as has been shown in other defenses?

Citizen's Advice suggest putting together a timeline, with all letters and photos being made available in the defense. They said the timeline should state all of the facts - arrival time, ticket bought, wrote to Excel (even though there's confusion on this) etc etc. Do you agree this should be included in the Defense?

I have done loads of research on here over the last week and read many cases and will continue to read many more. The acknowledgement has been done and a draft defense will be prepared and posted over the next day or so. So I am seeking advice please as to what should / should not be included.

Do you think it is worth mentioning that a ticket was purchased for one hour at the cost of £1.20? Should there be a mechanism on their Anpr system which would tally tickets to cars? The sign does not mention how soon after arrival a ticket should be purchased. Should the discrepency in costs be raised?

Is it worth mentioning any of the points above, or should one just stick to the standard defense points?

Is there any other specifics that should be included?

I really appreciate your support and time and thank you so very much for all your good fighting!
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post Thu, 23 Mar 2017 - 10:44
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nosferatu1001
post Sun, 23 Jul 2017 - 16:55
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It's in literally every thread....

Send it now. Don't delay.
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Dub_cat
post Sun, 23 Jul 2017 - 18:39
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Thanks Nos - I know it's just other stresses made it drop out my head. I have until 4th August to submit my documents. I'm on with it... but my head is spinning!
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nosferatu1001
post Mon, 24 Jul 2017 - 15:04
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Ok
Make sure your dice are uniquely referenced INITIALS/001 - a photo showing... hand write this as needed.

EVERYTHING you want yo include as evidence is introduced in the WS. Everything.
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Dub_cat
post Mon, 24 Jul 2017 - 15:16
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Thanks Nosferatu!!

I now have information that Excel were paying business rates at the time, but in my defence I had said that I didn't think they were the lawful landholder (sight of lease pending.... won't see that until their bundle arrives) .... should I address this in my witness statement? or simply deal with it in person on the day?
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Dub_cat
post Mon, 24 Jul 2017 - 16:44
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Hi folks, please let me know improvements/thoughts or if anything else should be included in this first draft witness statement. I have borrowed some phrases from elsewhere which apply to my case (THANK YOU FOLKS!)

Questions:
Should I include something more about signage in this?
Is there anything I should not include?
do I say more, or less, about the paid for P&D ticket?


1. I, xxxxxxxxxxxxxxxx, am the defendant in this claim. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

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, dated xxxxxxx, filed and served in response to the original N1 Claim Form, and verified by a Statement of Truth. 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 10/6/11 which was 16 days after the alleged contravention on 25/5/11 and which I received on 16/6/2011.

5. I subsequently visited the site detailed on the PCN on 22/6/11 and took photos of the two signs. The first sign (exhibit xxx – a photo showing xxx) was next to the ticket machine and after some searching, I located the Terms and Conditions on a small notice, elsewhere in the car park and photographed this (exhibit xxx – a photo showing xxx). I also append photos of both of these signs blown up so as to make reading easier (exhibits xxx to xxx) and provide evidence of the Metadata showing the time and date the photo was taken. (exhibit xxX - screenshot of xxx).

6. I was aware the driver had purchased a pay and display ticket for the period of 1 hour (the minimum allowable for this site according to the signage) at a cost of £1.20. The ANPR photos provided by Excel on the original PCN state the vehicle entered at 15:15:00 and left at 15:46:00, which is a total of 31 minutes and well within the one hour which had been paid for. Although the Claim Form did not state a cause of action, the original PCN stated 'parked without displaying a valid ticket/permit', which I knew to be factually incorrect.

7. Having seen a BBC’s Watchdog documentary segment in April 2011 and after some further research and discussions with others subsequently, the prevailing advice was that these PCNs were a scam and I thusly disregarded all further correspondence from Excel.

8. I received no further correspondence regarding this matter from September 2011 until receiving the Claim Form in March 2017.

NO KEEPER LIABILITY
9. I was the Registered Keeper of the vehicle at the time of the event in question.

10. The claimant has produced no evidence of who was driving.

11. At the time of the event there was no law that would allow a claimant to transfer liability for an alleged private parking contravention from the driver to the registered keeper (RK). As such only the driver can be held liable in this matter, if any contravention has even occurred. This claim has nothing whatsoever to do with the RK.

12. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person

NO “REASONABLE PRESUMPTION”
13. The claimant cannot “presume” that the defendant and RK was the driver at the time of the alleged contravention. For the following reasons:

14. There is no law that allows them to do this

15. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Assosciation (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit XXX) 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.

16. The claimant will rely on the case of Elliott v Loake [1982] to argue that they can presume the RK was the driver.

17. Elliott v Loake [1982] has no relevance whatsoever in small claims or any civil matters. It is a criminal case which turned on forensic evidence and an eye witness statement. The defendant was prosecuted for, amongst other things, offences under S172 of the Road traffic Act. There is nothing about that criminal case that is comparable or relevant to this small claims matter

18. I refer to Excel v Mr C C8DP37F1 at Stockport 31/10/2016. In this case the judge recognised that Elliot vs Loake was completely irrelevant. In dismissing the claim the judge stated amongst his reasons for doing so that - Excel did not adduce evidence of the driver, and - Elliott v Loake is not persuasive, and can be distinguished.

19. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper was not the driver, so he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for the claimant. As Mr B was not the driver, there would be no way they could offer any proof. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper.

20. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016. 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”. I enclose the transcript of the judgement in this case as Exhibit XXX

21. Several other people including friends and family members had use of the vehicle, around the time in question, though the ‘Driving Other Cars’ (DOC) extension on their own fully comprehensive car insurance policies.

22. If the defendant’s assertion that he was not the driver was to be tested against the ‘balance of probabilities’ then it would be unlikely that he was the driver due to the number of other people having access to the vehicle.

CLAIMANT UNREASONABLE BEHAVIOUR/ LACK OF CREDIBILITY
23. In 2012 after complaints about them for stating or implying on their documentation /signage that the vehicle owner/keeper is liable for the payment of parking charges in respect of parking contraventions and following an investigation, Excel were banned by the DVLA from access to keeper data. From their action in my case it is clear they have not changed their tactics. They are attempting to hold me liable as they RK when, in law, they can do no such thing.

24. I refer to Exhibit XXX- Freedom of Information (FOI) Request, 139931

25. As the RK, on 11 March 2017 I received the N1 County Court Claim Form from Excel Parking Services. On 13th March 2017 I received a letter from the claimant’s solicitor - BW Legal, stating they had issued court proceedings which included £104 solicitor’s costs. Further to the detail in point 11 of my Defence, they are attempting to recover an additional £54 for legal costs (hidden within the £104 Solicitors Costs), which they claimed are detailed in the car park terms and conditions.

26. In this matter the claimant is lying. No such “legal costs” were detailed on any of their signs at the location in question at the material time. The claimant is put to strict proof otherwise.

27. This is an attempt by the claimant to fraudulently claim costs that, under CPR 27.14 they are not entitled to.

28. As a serial litigant with professional legal representation the claimant knows they cannot claim these costs. Therefore, by attempting to do so they are deliberately misleading the defendant and the court.

29. The claimant has acted unreasonably by failing to take legal action for more than five and a half years after the alleged parking event, resulting in the highest possible interest accumulation.

30. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for more than five years then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or that I will be so scared that I will pay over £270 including the legal insult of almost six years' interest, for what was apparently an unproven £100 charge, if incurred at all.

31. 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.

CONCLUSION

32. For all of the reasons stated above, 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 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.
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lamilad
post Mon, 24 Jul 2017 - 19:13
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A good start, looks like you've done your research.

I would replace para 12 as it's basically a repetition of 11. Instead I would say

12. The defence requests the court to 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.

13. I refer to the case of VCS vs Sarah Quayle C1DP0H0J where Deputy District Judge Gourley dismissed VCS' claim as a "preliminary issue" once she had established the claimant had offered no proof whatsoever of the defendant's liability. In her judgement, DDJ Gourley stated:
"The claimant has produced absolutely no evidence that the defendant was the driver and simply says that they are entitled to presume that the defendant was the driver because effectively she was the registered keeper at the time. I disagree.
The transcript of the approved judgement from this case is enclosed as exhibit xxx
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lamilad
post Mon, 24 Jul 2017 - 19:13
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A good start, looks like you've done your research.

I would replace para 12 as it's basically a repetition of 11. Instead I would say

12. 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.

13. I refer to the case of VCS vs Sarah Quayle C1DP0H0J where Deputy District Judge Gourley dismissed VCS' claim as a "preliminary issue" once she had established the claimant had offered no proof whatsoever of the defendant's liability. In her judgement, DDJ Gourley stated:
"The claimant has produced absolutely no evidence that the defendant was the driver and simply says that they are entitled to presume that the defendant was the driver because effectively she was the registered keeper at the time. I disagree.
The transcript of the approved judgement from this case is enclosed as exhibit xxx

This post has been edited by lamilad: Mon, 24 Jul 2017 - 23:58
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Dub_cat
post Thu, 27 Jul 2017 - 19:18
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Thanks Lamilad!

[deleted to make page shorter]

This post has been edited by Dub_cat: Fri, 28 Jul 2017 - 21:24
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lamilad
post Thu, 27 Jul 2017 - 23:23
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What have you changed? It looks the same.
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nosferatu1001
post Fri, 28 Jul 2017 - 06:25
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It also looks like a defence, or skeleton argument, and not a WS.
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Gan
post Fri, 28 Jul 2017 - 08:36
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Very much so

The courts do not like legal arguments in witness statements
They're often an attempt at an ambush
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Dub_cat
post Fri, 28 Jul 2017 - 21:26
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I had changed a lot of little things, but I appreciate it's a bit like spot the difference and a moot point if I should strip this back and split into WS and SA. .... I'll be back with a rewrite Sunday.

Thanks for the advice! All other comments appreciated.

sorry.... shouldn't have reposted full version... just deleted to make the page shorter!

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Dub_cat
post Fri, 28 Jul 2017 - 21:38
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I've just taken a look at it and with my reduced brain capacity after a 100 hour week, I;m so confused as to how I can introduce the evidence without stating why I am doing so. Should I simply write something like: I expect the claimant to rely on EvL, Beavis etc and just add the evidence... but then keep all the actual arguments back for the SA?

Please help!
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nosferatu1001
post Sat, 29 Jul 2017 - 03:21
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Break it down. Bite size chunks.

Anything you witnessed you can bring evidence in easily. On x date a notice was received - see initials/001 - a copy of....


For something like evl or cps vs ajh films, I would leave it to the SA - which is written now and updated after you see their WS- as it is NOT something you have knowledge of. It was ideally written into the defence.
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Dub_cat
post Sun, 30 Jul 2017 - 09:52
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Thanks Nos! That is what I thought from your messages. I'm re-writing now.

The bit I'm still confused about is if I do not adduce evidence in the WS, and I cannot adduce new evidence in the SA, how do I work with it in the WS. Or do I allow the claimant to bring that to the table and I can rebut? I'll throw something up and hopefully this will become apparent from the comments and feedback.

I also feel like I should be saying that I had the original P&D ticket in my possession until I moved office in February this year and I believe it was lost from my pack of filing at that time.... I still have all the letters, but the P&D ticket must have slipped out.... is it worth this being included in my witness statement?
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Dub_cat
post Sun, 30 Jul 2017 - 10:31
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[reposting redraft below]

This post has been edited by Dub_cat: Mon, 31 Jul 2017 - 12:47
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Dub_cat
post Sun, 30 Jul 2017 - 19:11
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just to clarify what I mean.... can I adduce evidence in the bundle but not refer to it in the WS (but where it is still relevant to the defence)
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nosferatu1001
post Mon, 31 Jul 2017 - 01:19
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I would addduce all evidence int the WS. I am sure you can find a way of NOT making it an argument - for example EvL just point out that there is no presumption in law, and if possible reiterate driver identity being not you/ one of a number of people no reason you would rememebr after X years.
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Dub_cat
post Mon, 31 Jul 2017 - 10:29
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THANKS nOS

Should I include the full versions of Popla Report and Phony Signs (they re both many many pages)
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Dub_cat
post Mon, 31 Jul 2017 - 12:58
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[old draft removed (overpost error]

This post has been edited by Dub_cat: Mon, 31 Jul 2017 - 18:53
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