** WON WON WON ** Pre Oct 2012 ticket - BWLegal and Excel vs Me Court Claim.

[NIGELP]

Hi, would appreciate any advice going.

Almost 6 years ago (18^th May 2012) PCN issued by Exel on a vehicle owned by me for parking in a restricted area.
I was not the driver.
Long and lengthy series of letters over nearly 6 years between myself and Excel, Roxbrought debt collectors and BWLegal. I have consistently explained that I was not the driver on the day of the alleged offence.
Received the court claim this week …..I’m assuming timing is because it is getting close to 6 year moratorium on civil debts and so they have been ramping up the pressure over the Christmas period, several letter's lots of phone calls from them (Unanswered). I've been polite and replied but eventually just stopped as going nowhere and so they have issued a County court claim.

I’ve been reading many related threads which have been both helpful and confusing in parts so I thought I should open a new one specific to my case and hopefully someone will be able to guide me. Apologies if this is adequately dealt with elsewhere.

Currently I understand that I need to file acknowledgement of service where I intend to defend all of the claim giving me 28 days to file a defense. This I am about to do online within the next 24 hours.
The wording on the Court forms gives no details of the alleged parking offence just that it is an unpaid PCN Blah Blah.
I’ve picked up from other similar threads that I need to write to BW legal asking them many questions.
Why should I do that? Is this to get them to clarify the nature of the offense and what right they have to act for Excel parking? (I have a letter from Excel explaining they are authorising BW legal to act for them……)

Secondary questions.

1. This offense happened the year the PofFI act was made law, I’m unclear if this was made law after or before the date of this alleged offense. I hasten to add PofFI has not been used by excel or BWLegal in their correspondence. Had Elliot and Loake and Beavis mentioned at various stages but feel confident I can rebut these.
2. What the first two original PCN state quite clearly in red capital letters is “Liability for the Parking charge notice (PCN) lies with the driver of the vehicle”.

This is my intended defense.

Would appreciate comments and in particular why I should write to BWLegal requesting further information.

Also the Claim form declaration of truth is unsigned by any individual, just BW Legal Services Limited (typed). I believe I can use this to ask for this claim to be booted into touch for being incorrectly filed. Is this correct?

Thanks for any advice in advance; it will go along way to help my confidence if it ever gets as far as court hearing.

[Kati]

tagging charitynjw ostell

[charitynjw]

Transfer of liability via PoFA was from Oct 2012.
Excel/BWL tend not to claim using PoFA.
In order to do so they have to be able to ID the driver (ie who was driving at the relevant time).
Have you given them this info?

[NIGELP]

Transfer of liability via PoFA was from Oct 2012.
Excel/BWL tend not to claim using PoFA.
In order to do so they have to be able to ID the driver (ie who was driving at the relevant time).
Have you given them this info?

No I have not given them any details of the driver.
Thanks for the clarification of when PoFA came into effect.

[charitynjw]

No I have not given them any details of the driver.
Thanks for the clarification of when PoFA came into effect.

They may well try to throw the old Elliott v Loake argument at you

[NIGELP]

Yes, they already have in correspondence.
My understanding from other threads is this case relied on forensic evidence to prove the owner/keeper was the driver. As there is no evidence to show I was the driver....it would be impossible for there to be any...I may need to refute this case study at some point in my initial defense. I have seen a few rebuttals but am always open to more suggestions.
OOOPs sorry just saw your link to the rebuttal. Many thanks once again.

[ostell]

Also point out the embarrassing lack of details in the particulars of claim to allow you to prepare a suitable defence. From the pepipoo forums : The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

[NIGELP]

Excellent, thanks very much.

I'm still puzzled why in so many other threads the accused writes to BWLegal at this point asking for more information? Is this to seek clarification over details of the claim?

[NIGELP]

I'd appreciate a little feedback about my defence statement which I am preparing at the moment.Currently it reads as follows.

I am Dr. XCXXXXXXXXXX, 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 parking infraction of my red XXXXXX car registration XXXXXXX on 18^th May 2012 at Middlesbrough Leisure Park, Middlesbrough that resulted in the issue of a parking charge notice by the claimant.

2. I deny any liability in respect of the claim. Whilst I fully admit to being the registered keeper of this vehicle I deny being the driver on the date of the alleged parking infringement.

3. Both Notice to Owner (letter dated xxxxxxx) and Final Demand Notice (letter dated xxxxxxx) state explicitly in capital red letters that “Liability for the parking charge notice (PCN) lies with the driver of the vehicle”. The fact I was not driving the vehicle on the date of the alleged parking infringement has been conveyed to both Excel Parking and BWLegal in several letters over the near 6 year period since the date of the alleged incident. Both parties have ignored this fact in their harassment of me over their alleged claim.

4. Nevertheless the particulars of claim lack any specificity and are embarrassing. The defendant, as an unrepresented litigant-in-person is prejudiced and is unable to prepare a full and complete defence. The defendant asks the court if he may reserve the right to serve an amended defence should the claimant add to or expand his particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the current particulars.

5. The Claimant is a well-funded company with a dedicated legal staff and is a serial litigator. I submit that his issuing Particulars of Claim lacking in usable detail or one that does not disclose a clear cause of action is not only remiss but appears to be a “Cut and Paste” approach to the issuing of court proceedings. This demonstrates a disregard for the dignity of the court and little concern for the claimant’s duties in supporting the court to achieve the overriding correct legal objectives.
Such scant particulars leave defendants to respond to what, are at best, vague details. I have written to BW Legal (letter sent 29^th January 2018) requesting further clarification of the alleged offence and am still currently awaiting their response.

6. Further the particulars of the claim are not signed by an individual representing BW Legal services limited which is a clear violation of the Criminal Procedure (CPR) part 22 which states; “In a statement of case, a response or an application notice, the statement of truth must be signed by the legal representative of the party or litigation friend” and further “A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer”.
This has not been complied with in the particulars of claim which is simply signed BW Legal Service Limited.

7. In light of the above information I ask the court to strike out this matter out as incorrectly served.

8. On the other hand, from received correspondence for BW Legal it is believed that they 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.

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

10. The reality is that no such precedent was created and that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident which he had previously lied to the police about. Crucially this evidence proved the case to a criminal standard not simply on a balance of probabilities as applies in the instant matter. In this case there is no evidence that I was the driver and no such evidence can ever be produced to show I was. Because, as previously stated, I was not the driver of this car on the day the alleged infringement occurred.
In any event I submit that the case cited be disregarded

11. I further submit that such is the complexity and density of the text on the Claimant’s signs that the most onerous term – the £100 parking charge notice – is buried amongst a mass of small print and does not even begin to comply with Denning MR’s “Red Hand Rule”.

12. The Claimant is put to strict proof of all his assertions.

13. In the above circumstances I respectfully ask that the court dismiss the claim

[charitynjw]

I would make it much clearer that as the alleged contravention was pre-PoFA, there can be no keeper liability.

[NIGELP]

Thanks, that is a very good point. I shall add that it.
No rush at the moment as have approx 20 days left before I need to file my defence

[NIGELP]

To keep things updated....bwlegal are proceeding with court case. Despite their signing all document s as BWlegal.....Just about to send off the allocation questionnaire. I've ticked box suggesting arbitration but can't see any way this helps as denying any liability.

[NIGELP]

Just to keep the thread updated updated BWLegal are still pursuing the court case. Currently we have both filed the Directions Questionnaire....that BWLegal has still signed as BWLegal and no fee enclosed.
What are peoples thought on the mediation process?

And a matter ot law. The 6 year limitations for contract. If the claimant issues court proceedings before the 6 year limit but (due to say court backlog) the hearing does not take place until over 6 years from the original offence is this now barred? Or does the fact they issued proceedings before the 6 years allow this to still stand?
If we go to court it is unlikely to be heard before the 6 years limit.

[NIGELP]

Hvae declined Mediation, as there is no way I was going to back track. So it should now come to a court hearing.
As I wasn't the driver and the alleged offence took place prior to POF act is there a source for the case law for non keeper liability?

[NIGELP]

Okay we are going to court...managed to confirm that BW legal have actually paid the court fees. Thought they might be trying to pull a fast one as had two letters from them, one telling me I didn't have any chance of winning a court case....the other making a reduced offer to settle as long as I paid them within a few days. No chance.

Quite looking forward to it. I've done my witness statement and it all looks straight forward enough.
So keep your fingers crossed....Friday 13th of July at York county court at 10AM.

Any tips will be appreciated.