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Monday, 31 October 2016

Excel Parking - You've been Gladstoned. Judge rules Elliott v Loake as not relevant

Excel v Mr C C8DP37F1 Stockport 31/10/2016

Mr C's vehicle was parked at the Peel Centre. For some reason, Excel Parking issued a parking charge which Mr C did not think was appropriate. BW Legal filed a claim on behalf of Excel, and Ms Kauser from Elms Legal represented them at the hearing.

This was a PPA Production, with Bargepole preparing the papers and John Wilkie coming to court.

Mr C may, or may not, have been driving his car on 8 April 2014 when he and his wife went to PC World at the Peel Centre to buy her a laptop; he genuinely doesn't remember.

Excel issued a NtK that they claimed was compliant with POFA, including the warning that if, 28 days after the issue of the notice, the sum was not paid or the driver notified to Excel, they would invoke keeper liability.

Ms Kauser kept coming back to the fact that as Mr C was in the car, even if he wasn't driving, he knows who was, and if he's not prepared to name the driver, it's a reasonable inference that he was driving, quoting Elliott v Loake as case law.

Bunkum, said Mr Wilkie, Elliot and Loake is a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here.

The Claimant's witness statement was adjudged to be less than useful, and indeed part of it was entirely destructive to the case.

Locus and Agency were discussed and dismissed, and Mr C performed excellently on the witness stand, demonstrating memory issues making his failure to name the driver entirely credible and reasonable.

Following a long, hard discussion, the Judge asked for a few minutes, and when we returned made a finding of fact that the Excel wording does not comply with the mandatory requirements of POFA to invoke keeper liability. As Excel did not adduce evidence of the driver, and as Elliott v Loake
is not persuasive and can be distinguished, the claim was dismissed.

Defendant's costs of £98.60 to be paid by Excel in 14 days

This is another example of Simon Renshaw-Smith's competence knowing no beginnings. Excel must be fully aware that their NtK are not compliant with POFA, as they were losing for this reason at POPLA right up until the jump in with Skippy and the Team at the IPC - indeed it's one of the
reasons they did jump. For a "professional car parking management company" to be losing in court on this basis, a full four years after the implementation of POFA, is ludicrous.

This is yet another loss at the Peel Centre for BW Legal - this is looking less and less profitable for them if they are paying £2-300 per advocate-day, as there were 2 advocates for 2 Excel cases today as well as a third for a ParkingEye case. Mr Wilkie recognised all three faces and noted that he was likewise acknowledged and recognised.

Excel Parking - You've been Gladstoned


Prankster Note

The IPC's "Independent" Appeals Service swears by Elliott v Loake. and regularly rules that the keeper must therefore be the driver even when there is overwhelming evidence to the contrary. The Prankster has seen IAS decisions ruling Elliott v Loake applies in cases where the driver has proof of being elsewhere, where witness statements state the driver was not the keeper, and even when the driver according to the operator was a different sex to the keeper.

Following this bunkum, Messeurs Hurley and Davies quickly switch hats and file a claim using Gladstones solicitors, persuading their clients that their flawed legal reasoning is likely to hold up in court. Bunkum. All these court claims do is swell the Hurley and Davies bank balances.

Now BW Legal are following in Gladstones footsteps, with Sean Barton and Rachael Withers at the helm. These two are filing claims like confetti for Excel and VCS, with no due diligence to ascertain whether the claim has the remotest chance of succeeding.




The Prankster thought it was not possible for a legal firm to be more inept and incompetent that Gladstones, but BW Legal are certainly trying hard. The Prankster believes no competent solicitor would ever claim that Elliott v Loake is authority for the keeper being the driver.

The Government created the Protection of Freedoms Act, schedule 4, so that keepers could be held liable for the parking actions of drivers. If operators like Simon Renshaw-Smith are not intelligent enough to use this Act, then The Prankster respectfully suggests they are in the wrong business.

The Prankster considers that the Peel Centre is the worst run car park in the entire country. The Prankster received more complaints about this car park than any other. If Simon Renshaw-Smith can't sign this car park properly and make sure his machines work, then he is not competent to be a car park operator and the DVLA should remove his ability to get keeper data.

Happy Parking

The Parking Prankster

2 comments:

  1. Fantastic must be the first E v L confirmed argument to go wrong. Hopefully one on many to come. Bw legal bite the dust happy days for all.

    ReplyDelete