The defendant's vehicle was parked in the Square at Chorley cum hardy, but he was not the driver. As Excel did not at the time use the keeper liability provisions of POFA, he therefore considered he was not liable.
The Hearing - defendant report
I had my day in court today with Excel Parking.
The initial case was scheduled for 15th May at Stockport County Court, but was adjourned at lunch time on that day due to other cases having overrun, The follow up was this morning, again at Stockport.
The judge was DJ Lettall and a Ms Devance represented BW Legal. I think she is an independent and not employed by BW, and was very pleasant on our first meeting and also today.
DJ Lettall was very friendly and first dealt with the fact that my witness statement wasn't signed on the MCOL form. Ms Devance agreed that it was appropriate to let me sign it there and then rather than dismiss the case.
Ms Devance then presented all of the evidence shown on the BW Legal witness statement followed by my own witness statement, the main point of my defence was regarding the fact that Excel weren’t relying on POFA and that they offered no proof of who the driver was.
The judge then asked us both for clarification on a couple of items where my evidence raised questions about the BW Legal evidence.
Firstly, Ian Callaghan the paralegal from BW Legal who had compiled the witness statement had stated, "I have conduct in this action subject to the supervision of my principal and the matters to which I refer are within my own knowledge save where expressly stated to the contrary and are true to the best of my knowledge, information and belief"
I challenged this in my defence as there is no way that a paralegal from BW had personal knowledge of the evidence put forward on Excel's behalf. The judge agreed, asking Ms Devance was there anything in the witness statement that Ian Callaghan had indicated was not from his own knowledge. Ms Devance said there was not.
Secondly, Excel had produced a laughable attempt at misdirecting the court using a document which they had produced themselves on their own letterhead paper. This document was supposed to lead the court to believe that there was a contract in place affording Excel to the same rights as the landowner but with “limited exceptions”. DJ Lettall didn’t like this and commented that this was evidence of nothing. Picking up on the “limited exceptions” aspect of this document, the judge noted that this expression was far too vague to be given any merit. Limited could be a broad range of things.
Then the judge summed up the evidence that he’d heard and dismissed the case, noting that Excel had produced no reliable evidence. It was unacceptable that the witness statement from Ian Callaghan asserted that he had personal, direct knowledge of the signage, Notice to Keeper and follow up letters, when this clearly isn’t the case.
DJ Lettall moved on to the Excel document mentioned above noting that this was also unacceptable and nowhere near the standard required to be classed as material evidence to back up Excel’s right to bring a claim in this instance, suggesting that the actual contract might have proved useful in ascertaining a right to bring the claim.
Finally on to POFA. The judge noted that he is unsure why Excel choose to disregard POFA when bringing these claims. There is no basis to assume that the registered keeper is the driver and Excel should not turn up to court without evidence of who was driving the vehicle unless they wanted to make life difficult for themselves.
The judge awarded £205 costs to paid within 14 days. £95 per hearing, (the first hearing was adjourned) plus £15 for parking both days. Ms Devance tried to challenge the costs awarded for the first hearing as this was through no fault of Excel’s, however the judge read through his notes and decided he was well within his rights to award for both hearings. I’d also tried to claim £38.00 for two hours of research to defend the claim but DJ Lettall wouldn’t allow this.
DJ Lettall has produced a number of consistent judgments on these points. The question is of course, why do Excel continue to bring these claims?
The answer is that this is a numbers game. Although Excel lose these claims when it gets to a hearing, many people are frightened by the thought of a court claim and are bullied into paying up. Excel also hope that the defendant may make a procedural error - some judges might treat not signing a witness statement in a different way - or that they win DJ Bingo and get a judge inexperienced in parking claims.
The Parking Prankster