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Input of incorrect registration
furious88
post Thu, 10 Dec 2015 - 19:54
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Sorry if this is not seen as new item but cannot find anything on forums that covers issue exactly.

Have received PCN from Excel for alleged non payment of parking charges.
The car was being driven by my partner who is adamant that they paid the appropriate parking fee. However they do admit to the possibility of inputting an incorrect registration number. This was only the third time they had driven this new car alone. On returning home, I remember removing the ticket from the top of the dashboard from where they had left it. Unfortunately I saw no need to keep it.
Is it reasonable to challenge them to access the input registrations from that day and prove that there was no input that was obviously close to the actual cars number.

In mitigation, my argument is that Excel have not been financially deprived, in that the fee was paid.
Please could you advise on best way forward.

Thank you

This post has been edited by furious88: Sun, 13 Dec 2015 - 11:28
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post Thu, 10 Dec 2015 - 19:54
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emanresu
post Tue, 17 May 2016 - 06:14
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QUOTE
Should I continue to ignore or do I have to reiterate my refusal to accept any claim as already sent to Excel.


You are still in "debt" collection mode. Wait to see if they produce a compliant Letter before County Claim which must be either from Excel themselves or solicitors.
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nosferatu1001
post Tue, 17 May 2016 - 22:40
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That's debt collector rubbish

Look for WILL commence proceedings.
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furious88
post Tue, 19 Jul 2016 - 17:28
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Have now received letter from BW Legal "Letter of Claim". repeating previous claims along with potential court costs and advising me of consequences "in the event County Court proceedings are issued" . Mr Beavis also gets a mention.

Pease advise if I need to progress any response at this stage.

Thank you.
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cabbyman
post Tue, 19 Jul 2016 - 19:40
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It may be an idea to post a copy of that letter, scrubbed of all identifying detail. If it is what it purports to be, it will require a detailed reply.


--------------------
Cabbyman 11 PPCs 0
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SchoolRunMum
post Tue, 19 Jul 2016 - 22:59
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And there are dozens of examples on BW Legal threads already here, already discussing responses. Posters fare so much better by reading other similar threads.
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furious88
post Wed, 20 Jul 2016 - 21:22
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Thanks for your replies,

I have spent three hours viewing previous threads and unfortunately cannot find a response that fits. The gist of their letter states that if payment is not received by the 25th then "we place you on notice that we will commence legal proceedings for the recovery of the balance without further notice." In the absence of any suitable response I have used parts of GAN,s draft letters.
Please could you advise as if to whether this is suitable. The letters already sent to Excell relate to the late receipt of the PCN (19 days after alleged contravention) and the incorrect assumption that I was the driver.

Thank you

Sir,

In respect of your letter of claim, received by myself on the 19th inst, in reference to the above ticket number.

Please find enclosed and READ, copies of previous letters, sent to excel, in which I clearly state my stance and reasons for refuting your claim.

I deny any debt to Excel Parking Services

For your information, I was not the driver and your client failed to meet the conditions of The Protection of Freedoms Act to recover the parking charge from the keeper.

Your client has no right to pursue me and the legal action you threaten is nothing more than vexatious.

The matter is therefore closed
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DAB
post Wed, 20 Jul 2016 - 21:43
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have any of these wrong reg. number cases gone to hearing?

Issues:

Causation
Forseeablitily
Calculable

What happens if you have to put in the vehicle colour and you put cream instead of white? lol
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SchoolRunMum
post Wed, 20 Jul 2016 - 21:52
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You can fight back much more robustly:

http://forums.pepipoo.com/index.php?showtopic=107222

They really are scraping the barrel and have even tried to pursue cases out of time, after six years has passed. A couple of good threads on MSE show people really tearing into BW Legal and reporting them formally to the CSA and SRA for misleading letters:

http://forums.moneysavingexpert.com/showth...59#post71007759 (see post #32)

http://forums.moneysavingexpert.com/showthread.php?t=5490266 (post #41)

You can also demand as registered keeper (if the driver was never admitted at all) that Excel & BW Legal cease processing your data under the DPA because Excel cannot hold a keeper liable and Elliot v Loake doesn't apply. i.e. issue a section 10 Notice under the DPA, objecting to them processing your data, giving them 21 days to respond (and they have to).

As long as you have never said who was driving, you can use BW legal's words and state that the fact that Excel do not use compliant POFA wording 'eliminates the main cause of action that Excel might have had, should the matter go to court, and will be relied upon as proof that the claim would be wholly unreasonable and vexatious, such that the defendant will seek their full wasted costs for defending such baseless proceedings.
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furious88
post Mon, 29 Aug 2016 - 20:03
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Please can anyone help.

I have now received an official looking claim form from Northampton County Court business centre in which the claimant, Excel is stated and that the address of BW Legal for sending payment if I so desire. It eludes to payment, Part payment and defence and counter claim using the enclosed form N9B.
I have already sent a letter denying that I was the driver and a number of defences in respect of their inability to understand that their original claim arrived too late in respect of POFA. I have also pointed out their breaches of DPA and asked them to desist as suggested by yourselves. I have also stated on several occasions that I was not the driver and can prove it if required in court. The fee was paid at the time but with incorrect registration input. They have never provided actual evidence of this other than stating that they could not find a registration resembling mine .
What now please?

These parasites have really got me and my family concerned now and are finding this whole debacle stressful.

Thanks
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Gan
post Mon, 29 Aug 2016 - 21:17
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It's a genuine claim form

Fill in the Acknowledgement of Service
Tick the box that you dispute the whole of the claim

Don't write anything in the defence box

This gives you 28 days to prepare your defence
Go back thorough the last dozen or so pages on this forum to find examples of defences that can be adapted

In your case, make very clear that you weren't the driver and they failed to meet the requirements of The Protection of Freedoms Act to pursue you as keeper
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nosferatu1001
post Tue, 30 Aug 2016 - 08:58
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Do this ONLINE - dont send it by post.

There are lots of defences on here. Post them here for critique

Do this THIS WEEK - do NOT prevaricate!
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furious88
post Sat, 10 Sep 2016 - 09:07
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I am in the process of writing my defence, Should I also be issuing a part 18 request against them for further information such as unredacted copy of Registration numbers and proof of their rights to operate contractually on the land in question.
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Lynnzer
post Sat, 10 Sep 2016 - 09:38
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QUOTE (furious88 @ Sat, 10 Sep 2016 - 10:07) *
I am in the process of writing my defence, Should I also be issuing a part 18 request against them for further information such as unredacted copy of Registration numbers and proof of their rights to operate contractually on the land in question.

Yes. Put them to proof of there NOT being a wrong registration input.
Require them to make a printout of ALL data for the period an hour before your visit to an hour afterwards.

As it's gone this far, there's no real need to be secretive so if you can let us know which car park it was at, a check on the permissibility of the signs and ANPR may well find them as being unauthorised.


--------------------
The Asda shopping trolley parking ticket enthusiast
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nosferatu1001
post Sat, 10 Sep 2016 - 22:45
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In the part 18 simply ask if full copies of X are available , will be made available before the hearing and originals produced on the day. Harder for them yo refuse to answer by stating the cost of supplying would be excessive.

Your clock is ticking and you're in danger of timing out. Wrote the defence FIRST. If you were going to send a part 18 this should have been done 10 days ago....
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furious88
post Sun, 11 Sep 2016 - 18:01
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The car park was The Peel centre in Stockport. How do I check on the permissibility of the signs.
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Jlc
post Sun, 11 Sep 2016 - 18:11
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This post has been edited by Jlc: Sun, 11 Sep 2016 - 18:12


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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nosferatu1001
post Sun, 11 Sep 2016 - 21:57
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Write the defence

Then do the checks

But write the defence first. Advertising consent, or the lack of it, MAY be a defence point. But it's certainly not the main one

You're being distracted. Get something here for critique. Then deal with the side issues.
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furious88
post Mon, 12 Sep 2016 - 18:49
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Nosferatu1001,

Please could you critique this first draft of defence. It is difficult to know what stance to take when defending an alleged breach that you were not responsible for.Skhould I be eluding to the signage when I am unsure as to whether it is legitimate?

Claim No. *************
Excel Parking Services Ltd V ****************

Statement of Defence

I am ***********, defendant in this matter.


1. It is likely to be a matter of common ground that this claim arises as the result of an alleged infraction brought about by the parking of a Make/model motor vehicle registration number VRN on Date at the Peel Centre, Stockport that in turn resulted in the issue of a parking charge notice by the Claimant.

2. I Deny any liability in this claim

3.The Protection of Freedom Act 2012 Schedule 4 has not been complied with. Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged event it is averred that the Defendant was not the driver at the relevant time and the Claimant is put to strict proof in this respect.
In the original PCN notice and in several of the subsequent letters sent by Excel Parking Services and their Legal representatives, B W Legal, the case against the defendant is based on “reasonable assumption” that the defendant was the driver.
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)

4. If it is so pleaded before seeking to rely on the keeper liability provisions of Schedule 4 Protection of Freedoms Act (the “Act”) the Claimant must demonstrate that there was a “relevant obligation” either by way of a breach of contract, trespass or other tort. The Claimant is put to strict proof that such a “relevant obligation” existed.

5. In the absence of strict proof as to the existence or otherwise of a “relevant obligation” the court is invited to strike the matter out.

6. On the other hand it is believed that the Claimant may seek to rely on a rather unique interpretation of the judgment in Elliott –v- Loake and endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations.

7. I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.

8. The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Ltd.

9. Excel Parking Services Ltd is not the lawful occupier of the land.
a) 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.

10. The signage on the site in question was unclear and not prominent as per Excel Parking Services Ltd v Martin Cutts, 2011. The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore, no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days. There can therefore be no contract through performance.

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

12. 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.

13.The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.

The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company. The Defendant asserts that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges :

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss.

14. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.



15. The defendant has the reasonable belief that the claim is vexatious and has no purpose other than to cause distress and induce the defendant into making a payment that is not owed. The defendant will invite the court to have regard to the claimant's unreasonable behaviour when it considers the costs of the case.
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nosferatu1001
post Mon, 12 Sep 2016 - 22:35
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I'm on holiday, but it's not bad stuff all. I could only skim read . Yes it's hard, hence you need to include reference to vague particulars, that disclose no,cause of action, and thus breach CPR 16.4 and PD 16 paragraphs 7.3 - 7.5. As such you request the court strikes it out.

Always query every possible part of w claim. The claimant has to prove their claim remember!
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Gan
post Tue, 13 Sep 2016 - 06:58
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Suggest as a reworking :

3.It is averred that the Defendant was not the driver.
In the original PCN notice and in several of the subsequent letters sent by Excel Parking Services and their Legal representatives, B W Legal, the case against the defendant is based on “reasonable assumption” that the defendant was the driver.
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)
Notwithstanding that the claimant has not sought to rely on the Protection of Freedoms Act to pursue the Defendant as keeper, it has not complied with its requirements


#4 and #5 merged

The Claimant has not demonstrated that there was a “relevant obligation” either by way of a breach of contract, trespass or other tort.
In the absence of any cause of action, the court is invited to strike the matter out.


#6 and #7 merged and consider following #3

The Claimant may seek to rely on a unique interpretation of the judgment in Elliott –v- Loake and endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations. This interpretation actually represents a very considerable reworking of the case and does not accurately summarise the findings.

10. The signage on the site in question was unclear and not prominent as per Excel Parking Services Ltd v Martin Cutts, 2011 where the judge took the unusual step of visiting this specific site to decide that it was inadequate. The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore, no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days. There can therefore be no contract through performance.

12(e) The Supreme Court did not contradict the Appeal Court's finding that the penalty could not be disengaged in a pay car park

#13 and #14 : Delete. The Supreme Court dismissed the arguments
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