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

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

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

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

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

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

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

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

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

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

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

This could be critical.

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

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

For a 'not the driver' defence to work you must specifically deny being the driver and push the balance of probabilities strongly against any presumption. (Any 'proof' would be much better)
lamilad
Thanks Jlc, my other defence focusses on PoFA non compliance and differences from Beavis case. Hopefully I won't need to modify it too much to use it for this as well.

The links to the correspondance are as follows:

http://i1249.photobucket.com/albums/hh508/...zps5bdjw9mw.jpg
http://i1249.photobucket.com/albums/hh508/...zpszecuyqbr.jpg
http://i1249.photobucket.com/albums/hh508/...zps7qsjjg3k.jpg
Jlc
If one was being picky then it states a single PCN over a very long period. £600 is clearly unconscionable for a single ticket... cool.gif
Fluffykins
They say very clearly it is "a parking charge notice". Not "several" or any other defined number. Simply "a parking charge notice"
SchoolRunMum
On MSE it was pointed out that Excel have lumped BPA PCNs with (completely different terms on signs and different Codes of Practice) IPC PCNs, due to the dates:

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

You need that in your defence.

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

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


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


Easily rectified by an amended POC.

Yes, but it's really sloppy and lazy. But should we be surprised?
peterguk
QUOTE (Jlc @ Thu, 7 Jul 2016 - 12:57) *
QUOTE (peterguk @ Thu, 7 Jul 2016 - 10:50) *
QUOTE (Fluffykins @ Thu, 7 Jul 2016 - 10:14) *
They say very clearly it is "a parking charge notice". Not "several" or any other defined number. Simply "a parking charge notice"


Easily rectified by an amended POC.

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


I agree 100%.
lamilad
Thanks guys, my next steps are to send part 18 request and SAR (using BMPA template) I will then get my defence sorted. I plan to use the defence from my other case (linked above) but I want to include a strong paragraph, as per SRMs comment about them lumping PCNs together from when they were with both BPA and IPC when they would have been displaying different signs in the car park and 'adhereing' to different CoP's. Does anyone have suggestions/ examples of wording for this?

If Gan or any other posters who are good with this type of wording are reading - your advise would be greatly appreciated. Thanks
SchoolRunMum
Show us your draft defence and we will help further.
henrik777
You should be writing to them asking them to replead in accordance with cpr and relevant practice directions failing which you'll be filing for summary judgement. Normally it's not worth it due to small value claim but since it's £600 then that's a different ball game.
emsgeorge
How many tickets in total are you looking at (not only the court claimed ones, but all the others too).

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

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

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

Due to limited time I'm going to have rely heavily on my other defence statement and hope that it is suitable for this case too (obviously with some editing) I'll post it here shortly. Please can anyone give me advice on what needs to be edited/ added/ removed and particularly how I can incorporate a strongly worded paragraph (as per SRMs comments above) about the fact the PCNs cover dates where excel was members of both BPA and IPC and would have had different signs. Many Thanks
lamilad
The defence from my other case is as follows. I will obviously change all the references to BW Legal. I'll also remove the part 18 stuff as I haven't sent one (yet). All advice and feedback will be gratefully received. Thanks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



nosferatu1001
FOr 3 you are presumably aiming for:

THe PoC fail to disclose a cause of action against the defendant, merely referencing ".....". THis indicates a single PCN issued sometime in a 16 month period with a cost of over £600. This is clearly a penalty, and fails to allow the defendant any opportunity to know the specific conduct that was allegeded to give rise to such a charge. I ask thec ourt strikes out the claim for failing to disclose any cause of action. Failing this I ask the court to order Furthe rand Better Particulars of Claim to be issued, and leave to amend my defence as necessary.
lamilad
QUOTE (nosferatu1001 @ Thu, 4 Aug 2016 - 12:02) *
FOr 3 you are presumably aiming for:

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


Thanks nosferatu1001, that's much better wording. I'll update my statement. thanks again
lamilad
I've amended para 3 as per Nosferatu's post above. I'm going to submit my defence tonight or tomorrow morning to ensure its received in time. Could any one suggest any final amends/ builds I need to make before submitting? Thanks
lamilad
Hi just giving this one last 'bump' before I submit my defence in about an hour or so. Just want to see if anyone can recommend any changes/ additions to my statement. Many thanks.
nosferatu1001
Sorry was out last night.

If you dont hear anything bakc, youre good to go

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

Make sure you have READ UP on the next steps - the DQ (google it!) and the procedure for sending everything to claimant AND the court. Anything sent by post - FIRST CLASS, FREE PROOF OF POSTING, EVERYTIME!
Gan
If you haven't already sent it, I would add to #3 :

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

and a slight adjustment of Para #11 :

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

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

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

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

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

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

http://s1249.photobucket.com/user/lamilad/...rt=3&page=1
SchoolRunMum
You get to choose the court in your DQ, as the consumer defendant, so don't worry, they are trying it on and it's another example of PPCs piling on the pressure to worry defendants and mislead them into thinking the defendant has to travel outside their area. It's another example of turning the screw to scare you.
lamilad
QUOTE (SchoolRunMum @ Wed, 10 Aug 2016 - 22:37) *
You get to choose the court in your DQ, as the consumer defendant, so don't worry, they are trying it on and it's another example of PPCs piling on the pressure to worry defendants and mislead them into thinking the defendant has to travel outside their area. It's another example of turning the screw to scare you.

Thanks SRM.

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

Just something else to make the regulars aware of... As you will note from the photo's - the letter and DQ are in the name of "Vehicle Control Services" I know they are Excel's sister company but the court docs say the claimant is "Excel Parking Services". Is this a cock up on their part and something I can use or are they allowed to do this?
ostell
the mismatch should be brought to the court's attention. You have not had dealings with VCS, your argument was with Excel.
nosferatu1001
VCS are a stranger to the case, and you should query with the Court WHY VCS are contacting you, and not Excel.

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

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

Follow up with a letter / email if the court indicates they will do anything about it - "to confirm understanding of phone call on X date with Y person" - that way it can be shown tothe court, if it gets to a hearing!
lamilad
QUOTE (nosferatu1001 @ Thu, 11 Aug 2016 - 10:40) *
VCS are a stranger to the case, and you should query with the Court WHY VCS are contacting you, and not Excel.

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

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

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

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

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


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

A person who wrote a similar 'what is going on, this is unfair tactics/misleading' letter to a Judge immediately in the week before their hearing, won. They reported that they found it had great effect and the Judge started off on their side, with that letter at the top of his pile of papers.
lamilad
Update on this: My case has been assigned the court I requested. It will be heard in mid November. Whats interesting is that my first case, which is BW Legal on behalf of Excel will be held at the same court on the same day immediately before this one. Don't know if that's a good thing or not. I'm worried if I lose my first case I may as well not bother sticking around for this.

Excel have responded to my SAR but have returned my cheque and said I didn't make the request properly - even though I used the BMPA template. They want to know specifically what information I want... but I want know everything they have on me. They have also said they will only accept my request if I make it using the form they have sent me but I don't see why I should fill in their form when my request was perfectly valid. I think they're stalling and will continue to deflect my request until it's less than 40 days til the hearing!
nosferatu1001
Raise a complaint with the ICO. They're not permitted to respond in that way.
lamilad
Hi Everyone, I have now recived the court bundle from Excel. It is a large file split into 9 sections as follows:

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

COURT NOTICES.

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

I'll post their responses to my defence points below. I'd like to counter the responses with powerful replies. There's also still the issue discussed in #26 about the DQ and related letter being in the name of VCS... There's no reference to that in the bundle.
lamilad
Ok I've not quite mastered photobucket but I think this is the link to the WS pages which I've uploaded. They won't be in any kind of order I'm afraid but there are page numbers at the bottom of each page. If the link doesn't work please could someone let me know. Thanks

http://s1249.photobucket.com/user/lamilad/...ita%20Dile%20WS
lamilad
The lease agreement between the landholder and Excel

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


Elliot vs Loake as Excel have included it in the bundle

http://s1249.photobucket.com/user/lamilad/...ot%20vs%20Loake


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

http://s1249.photobucket.com/user/lamilad/...altham%20Forest


Thornton vs Shoe Lane Parking

http://s1249.photobucket.com/user/lamilad/...ton%20vs%20Shoe
farmerboy
RE:Elliot v Loake http://forums.pepipoo.com/index.php?showtopic=108512

Moderator Southpaw summoned it up thus

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

Came across this for Vine v Waltham Forest

OB Services Parking Consultancy Ltd vs Thirlow 10th February 2011- Arthur vs Anker and Vine vs Waltham Forest deemed irrelevant to private ticketing. Others can maybe provide the judgement if its relevant for this case.
lamilad
QUOTE (farmerboy @ Sat, 29 Oct 2016 - 23:27) *
RE:Elliot v Loake http://forums.pepipoo.com/index.php?showtopic=108512

Moderator Southpaw summoned it up thus

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

Came across this for Vine v Waltham Forest

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


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

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

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

[YOUR NAME] (Defendant)
____________________________
WITNESS STATEMENT
__________________________

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

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

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

Re #6:

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


Re #7:

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


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

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


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

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

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

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


Re #32

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


Re #36

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


Re #38

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


Re #41

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

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

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


Re #42

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



Re #44 - #50

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



Re # 54

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


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

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

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

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

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


Re #57

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

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

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

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


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

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

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

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

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

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

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

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

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


……………………………………………………………………
…. (add name and sign)
………………………
(add Date)
lamilad
Quick question...

I want to upload the site photos that Excel have included in their bundle. There's loads of them so I've scanned them and saved them to one PDF file. Thing is I can't upload the file to photobucket so does anyone know how I can publish the file on here? Thanks
cabbyman
I would suggest that, as well as the paragraph number, you precis a brief description of each point before you rebut it. A judge is not going to go backwards and forwards between referencs more than a couple of times. Make it easy for him to see your arguments.
lamilad
QUOTE (cabbyman @ Sun, 30 Oct 2016 - 19:32) *
I would suggest that, as well as the paragraph number, you precis a brief description of each point before you rebut it. A judge is not going to go backwards and forwards between referencs more than a couple of times. Make it easy for him to see your arguments.


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

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

IN THE COUNTY COURT - Claim No.:

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


……………………………………………………………………
…. (add name and sign)
………………………
(add Date)
lamilad
Link to the site photographs that excel have included in their bundle. Hopefully it works, let me know if it doesn't thanks

https://www.dropbox.com/s/lw7xze0k76ncmkb/E...Photos.pdf?dl=0
Chitlord
Here is a template to follow.

http://childlawadvice.org.uk/wp-content/up...s-Statement.jpg

note the part top right.
SchoolRunMum
Looks like it is getting there.

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

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbC...%2Bsign_001.jpg

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

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

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

lamilad
My WS again with references to BWL removed.

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

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

Between

EXCEL PARKING SERVICES LTD (Claimant)

-and-

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

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



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



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

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

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

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



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

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



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

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

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



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



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

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

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



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

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



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

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



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

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



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



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

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

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



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

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



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



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



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




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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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

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


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

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

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

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

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbC...%2Bsign_001.jpg

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

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

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


I will be glad to help this poster with her case and she is welcome to come to court with me. I will probably make contact after I've submitted my court bundle as, between this and work, I'll be flat out over the next few days
Chitlord
OP does not understand the process, the Claim form only need contain an outline of the claim, i.e.

"Claim is for invoice no. 123 dated xxxxx"


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


The POC are a joke.

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

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

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

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

"Claim is for invoice no. 123 dated xxxxx"

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

QUOTE
The POC are a joke.

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

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

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

Where is the defence?

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




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


That was discussed the other day on MSE:

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


QUOTE
I will be glad to help this poster with her case and she is welcome to come to court with me. I will probably make contact after I've submitted my court bundle as, between this and work, I'll be flat out over the next few days
Sounds good, if she's local to Skipton.
Chitlord
If the case has been allocated to the small claims track it is pointless trying to strike out as you wont get costs unless you can prove unreasonable behaviour.


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

Do no mix the two up.


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


This is standard directions:

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


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

Is there a statement of truth on the POC and WS?
lamilad
QUOTE (Chitlord @ Mon, 31 Oct 2016 - 01:15) *
If the case has been allocated to the small claims track it is pointless trying to strike out as you wont get costs unless you can prove unreasonable behaviour.


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

Do no mix the two up.


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


This is standard directions:

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


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


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