Excel v Mr B C9DP35CY. Teesside Combined Court. DDJ Fiona Glenday. 29/06/2017
The full history is on pepipoo
Defendant report
The PCN was stuck to my car by Excel parking in Feb 2012 in the Middlesbrough Leisure Park. The supposed contravention being that the driver "was seen leaving the Leisure park"/parked in a restricted area of the car park.
I got the standard threatening letters, which were ignored by myself. These eventuality stopped and I got 2-3 years of peace. The letters then restarted in 2016, followed by a county claim form. 6 months later I was in court.
Hearing
I arrived at the court at about 10pm to find my case was on the 'floating list', meaning I would probably have to wait a few hours to get in.
The representative (local rep) who had been sent by BW Legal turned up a bit later and asked me for a chat. I had a chat with him, being very careful not to talk to much about the case and just smiling when he tried to lead me with questions. He also stated said that most of the arguments in my defence were negated by the Beavis case and "the warning signs were up".
I think he was trying to rattle me as he said that we would go into a big room and most likely have to take an oath and that I couldn't ask questions of him as he wasn't a witness.
He then said with a smile on his face "and of course, you haven't even submitted a witness statement have you?" When I said I had, and that it had been submitted on time, and that I had the email receipts to prove it, he looked a bit worried. Turns out, BW Legal hadn't bothered to supply him with my Witness Statement, my Skeleton Argument, or my evidence (which were all submitted before the two week deadline). He rushed off to make some frantic phone calls to see if he could find it.
Over the next few hours you could tell he was getting more and more frantic as he couldn't get hold of these documents. He said he'd had my "rebuttal of the Claimant's WS", but not the rest of the documents. He was angling to see my copy of my bundle, which I refused. He started making threats that he would tell the judge to adjourn the case as I was trying to ambush him. He also said I'd used the wrong email address at BW Legal (I used excel@bwlegal.co.uk) as I should have used the one on the claim form (there wasn't even an email address on the claim form).
Anyway, he applied to the court ushers for an adjournment of the case, which I contested. So we were told we would have to see a judge to decide whether the case would be adjourned or not.
We were called in to see the judge. She was very nice and sharp as a tack.
She began by asking the claimant why he wanted an adjournment. The BW rep said that I had submitted the WS to an email address at BW Legal that was no longer in use (I'm pretty sure that was just a downright lie, either by the rep, or by BW to the rep). I showed the judge copies of the emails I sent to BW Legal, and copies of the automatic email replies from BW Legal. The judge quite rightly pointed out that these auto-replies did not ever suggest the email was no longer being used, nor was the defendant ever told by the claimant not to use this email address anymore. I also showed the judge copies of all the letters I had received from BW Legal with the 'excel@bwlegal.co.uk' email address on, right up to the 'letter before action' Letter. They then switched to putting some other email address on their letters.
The rep also tried to say my "rebuttal of the Claimant's witness statement" was filed late. The judge didn't seem to care. She was quite satisfied that the Claimant had not been ambushed and that I had complied with the courts orders.
She then moved onto the fact that the driver hasn't been identified. She said that the parking attendant had identified that the driver was a "white male" and was basically asking why if he had seen the driver, he hadn't identified him further. She said that that's what makes this case different to the other parking cases she gets through. She said it was the Claimant's burden to show who was driving and that the driver issue was brought up in my original defence, so they couldn't claim they hadn't seen it.
The judge said the rep's options were to fight to the best of his ability with what little he had been given by BW, or he could ask for an adjournment, but that she would then have to consider my costs for the day if it was adjourned.
The rep initially said he wanted to go for an adjournment, but the judge talked him out of it by saying she couldn't see anything in the Claimant's WS that would beat my defence.
She dismissed the claim based on this and the driver issue. We didn't even get on to my main defences. She awarded my costs for a day off work, parking and mileage. It came to around £85.
She also said of BW Legal: "It seems to me, they don't engage in a thought process", to which the rep muttered his agreement.
Outside the room, the rep congratulated me. I told him he didn't really have a chance with what BW had given him. He said "it was crap".
Prankster Notes
It is worth noting that if you appear in a parking case in the small claims court you are likely to be up against the dregs of the legal position; people who could not get a good job elsewhere; people who are unable to win a case on its merits and therefore rely on bullying and intimidation to win; people who are willing to push the boundaries of what is truth, what is a lie and what is perhaps even perjury. Of course, not everyone is like this and there are also some decent people - just sadly few and far between.
It is also worth noting that despite the bullying and tricks judges are well aware of the situation and if you are well prepared you can still win a case on its merits, even when pitted against someone who is supposedly "legally trained".
Happy Parking
The Parking Prankster
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<< She said that the parking attendant had identified that the driver was a "white male" >>
ReplyDeleteOver 5 years on, what a freakin' good memory that parking attendant has. There again, he's not taking too many chances by describing the driver as a 'white male'.
FFS with a memory like that, he should be on Mastermind.
I'm more surprised by the fact that, over five years after the event, the warden presumably is still holding down such a sh*tty job for such a sh*tty employer.
DeleteTry something like the following at the LBA stage so you can open them up for a higher costs claim or Breach of the DPA damages claim:
ReplyDeleteSir,
Ref PCN *******
I have received a letter before action in relation to the above case and I have a strong belief that you are about to use the presumption of keeper liability based entirely upon Elliott v Loake and CPS v AJH Films. Unless you have evidence of who the driver was, and you don't in this case, then no such presumption can be made based on those cases.
Many attempts to use the cases in court have found little favour with judges and have resulted in numerous charges thrown out as a result.
What this means to the Parking Management Company is that costs are racked up as a result of having to pay for legal representation and the winning defendant's costs for the day.
Not only is this an expensive way to do "business" it also makes further cases of a similar nature likely to fail without much consideration in court as judges are becoming used to the incoherent charges laid before them. You are sullying your name and may well find the judiciary instigate some legal action to have such cases strictly controlled in future. You have made you own nest......
Of course, the debt management company whoever it is you employ, should be advising you of the foolishness of taking action where they have failed so many times in the past. They do not seem to care about your own rights and look to gain a useful income from their incompetence as they win every time regardless of the outcome to you. Doing the same thing again and again to try and obtain a different result seems not to be paying dividends for you.
Onto my specific case.
I did say that I believe you are going to tread down this same step using the cases mentioned, without any evidence of who the driver was at the time.
You had every right to invoke PoFA and properly lay liability at the door of the registered keeper but chose to use a circuitous route using that has no part to play in any Protection of Freedom or proper legal considerations.
Now, unless you have evidence of my being the driver and continue your case on that basis then you should immediately desist from further interest in this PCN and clear my personal data from your records.
To continue in these circumstances will be presented to the court as being vexatious in nature and a higher costs amount will be presented to the court. I may even add a counterclaim for the unreasonable use of my personal details if, and when the claim goes ahead from your collections company.
This letter will be shown to the court to support that higher cost claim.