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

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

    Hi, would appreciate any advice going.

    Almost 6 years ago (18th 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.
    Tags: None

  • Amethyst
    replied
    That's really good, very well written IMO.... I'm sure it will be useful for others looking a similarly brought claims almost at the 6 year stat barred limit, pre-POFA.

    Quite disgusting they were attempting to claim 6 years interest on it too !

    If the claimant is prosecuting me as the keeper then I believe there is no case to answer. The date of the alleged contravention (18/5/2012) occurred before the enactment of Schedule 4 of the Protection of Freedoms Act 2012 (the POFA) which took effect from 1st October 2012, therefore the Keeper cannot be held liable in law.

    Leave a comment:


  • NIGELP
    replied

    I hope this may be of some use to anyone facing similar charges from these robbing barstewards.
    This was my Witness statement.

    Excel Parking Services vs Me



    Excel Parking Services Claimant
    Me Defendant
    1. I am the defendant in this case.
    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 Car at Middlesbrough Leisure Park, Middlesbrough that resulted in the issue of a parking charge notice by the claimant.
    1. 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. I could therefore not have entered into any parking contract with Excel Parking Services.
    1. It has proved difficult to file an adequate defense as the claimant has not yet stated if they are intending to claim against me as the driver or the keeper. I wrote to them on 29th of January 2018 asking for clarification of this (see enclosed copy of letter and proof of postage provided in evidence). No answer to any of my questions was ever received.
    1. If the claimant is prosecuting me as the keeper then I believe there is no case to answer. The date of the alleged contravention (18/5/2012) occurred before the enactment of Schedule 4 of the Protection of Freedoms Act 2012 (the POFA) which took effect from 1st October 2012, therefore the Keeper cannot be held liable in law.
    1. In Excel Parking Services Ltd v Mr Lamoureux, claim number C3DP56Q5 at Skipton on 17/11/2016 (court transcript provided in evidence-see page 25) the Judge made it clear that without proof of the driver’s identity (the burden of proof resting with the Claimant) and without invoking Keeper Liability under the POFA, there can be no claim against the Keeper.
    1. This is also confirmed by wording from barrister and parking law expert, Henry Greenslade, the erstwhile 'Parking on Private Land Appeals' (POPLA) Lead Adjudicator, on ‘Understanding Keeper Liability’ where he stated that there is no lawful presumption that a car’s keeper was the driver. This is confirmed in the POPLA Annual Report 2015 (Page 13-Report included in evidence).
    1. It follows that in a case which pre-dates Schedule 4 of the Protection of Freedoms Act 2012 (the POFA), a keeper in 2012 cannot be held liable for the conduct of another driver.
    1. In 2012 Excel Parking Services were banned for three months under severe sanctions imposed by the DVLA for stating or implying in signs or documents that a registered keeper could be held 'liable for the payment of charges' and/or had any 'legal responsibility' to name the driver (copy of freedom of information letter from DVLA included in evidence).
    1. Implying that a keeper could be 'assumed' liable/responsible for the actions of a driver was identified by the DVLA as 'a significant breach' of the Trade Body Code of Practice. Excel Parking was a member of the British Parking Association at the time. It is contended that this is exactly what the claimants are now doing in this vexatious and wholly unreasonable claim.
    1. It is believed that this Claimant may try to rely upon Combined Parking Solutions Ltd v AJH Films Ltd [2015] EWCA Civ 1453, and/or Elliott v Loake [1982] neither of which have any application to the matter in hand. CPS v AJH Films dealt with a company keeper/employee driver and vicarious liability of the employer. I have no employees plus there was no possible obligation/liability between an individual keeper and driver prior to the POFA; Elliot v Loake turned on forensic and other evidence produced in that criminal case, which is completely different from this case where there is no evidence that I was the driver. I believe neither ruling’s have any legal bearing on this case. Resume’s of both cases included in evidence.
    1. The original first two Penalty Charge Notices posted 6 years ago by this Claimant, Excel Parking Services, state very clearly 'Liability for the parking charge notice (PCN) lies with the driver of the vehicle' Copies of both are included in evidence.
    2. The fact that I was not the driver of my car on the date of the alleged incident has been stated to Excel, Roxburghe Debt Collectors and BW Legal on at least 5 if not more separate occasions (copies of letters from me included with evidence).
    3. I believe the onus is on the claimant to prosecute the driver. Or provide evidence that I was the driver. They cannot produce any evidence that I was the driver as it simply doesn’t exist. I wasn’t driving my car on the date of the alleged parking infraction.
    4. Should the Claimant attempt to claim six years interest, the court is urged to disallow that possibility entirely, since the delay in proceeding to court in this instance is the Claimant's alone. Old, unclaimed 'parking charges' are now being relentlessly and suddenly resurrected by this Claimant using BW Legal to file scattergun copy & paste 'robo-claims' since 2016, whereas previously these archive (pre-POFA) matters like this were reasonably considered long-since closed. The delay is entirely caused by almost six years of inaction of this Claimant.
    5. Therefore I ask the court to respectfully strike out this claim with immediate effect.
    6. I believe that the facts stated in this witness statement are true.






    Leave a comment:


  • Amethyst
    replied
    You can post what you like about a court case as it was your case … just redact your personal details

    ostell

    Leave a comment:


  • NIGELP
    replied
    All I can say is champagne was drunk....thanks.
    Not sure what I'm allowed to post about a court case but if anyone is facing keeper liability (and wasn't the driver) please ask and I'll publish my witness statement with skeleton defense.
    Please note this case predated POFA, so may not be applicable now. Their hired paralegal ( we went for a coffee afterwards...decent chap) tells me BWLegal are now using.this to prosecute keepers.
    Judge also told me Excel/BWLegal lost another similar case vs Metcalf, not sure where this was held though.

    Leave a comment:


  • MIKE770
    replied
    good one

    Leave a comment:


  • Amethyst
    replied
    Oh FANTASTIC !!! Sorry we missed your posts somewhat lately eek......….. but well done it sounds like you handled it perfectly

    CONGRATULATIONS.

    Leave a comment:


  • NIGELP
    replied
    YESSSSS GET IN.

    Case dismissed as they had no basis in law to pursue me as the keeper.
    In fact the judge complimented me on an excellent well thought out defense and thanked me for providing him with the POPLA guide to appeals on parking on private land as he is seeing quite an increase in parking cases.
    Got awarded my travelling costs as well just to rub a little more salt in BWLegals.wounds. Their advocate cost them £160 + VAT as well....been a bad day for them.

    So Excel Parking and BWLegal you can both kiss my &ss.

    Thanks to all who provided valuable information

    Leave a comment:


  • NIGELP
    replied
    Case is being heard at 10 tomorrow....Wish I could say I was not nervous....

    Here's a question...in their original £25 court fee notice BWLegal (aka Excel parking) asked for £270.
    In their disclosure they are now asking for nearer £500.
    Any thoughts?

    Leave a comment:


  • NIGELP
    replied
    Finally received BWlegal's witness statement (disclosures).
    It contains a lot non essential legalese that has nothing much to do with the case. Essentially they are intending to rely on Combined Parking Solutions Ltd v AJH Films Ltd [2015].. I have already refuted this in my own witness statement in saying that this is not applicable to the matter in hand. CPS v AJH Films dealt with a company keeper/employee driver and vicarious liability of the employer.. If anyone can add anything further as to why this doesn't apply to a civil case where there is no employer/employee action I'd appreciate it.

    I've also challenged them on the legality of their original court application as being signed BWLegal. "Practise direction 22 sets out who may sign a statement of truth. Para 3.10 states that “A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer”.
    Is this likely to be sufficient for the magistrate to dismiss this case? Because if it is It would be one of the first points I would raise at the hearing.

    Leave a comment:


  • NIGELP
    replied
    Originally posted by Phaeton View Post
    Good luck
    Appreciated, but hope it relies on facts not luck ;-)

    Leave a comment:


  • Phaeton
    replied
    Good luck

    Leave a comment:


  • NIGELP
    replied
    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.

    Leave a comment:


  • NIGELP
    replied
    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?

    Leave a comment:


  • NIGELP
    replied
    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.

    Leave a comment:

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