Thursday, 14 December 2017

Excel lose parking case against company. No reason for filing claim ever apparent

Excel Parking Services Ltd vs Clever Car Finance Ltd. D6DP7R03.12/12/17. Skipton County Court. 

Judge Faye Wright presiding
Claimant represented by Mr Pickup of Elms Legal
Defendant represented by Mrs R – company director
Lay Representative for the defendant – Ian Lamoureux

Guest Report


The company was the owner of the vehicle but not the Registered Keeper. The driver – Mrs R, was an employee and insured to drive the vehicle. On the date in question Mrs R was using the vehicle for personal reasons, on a shopping trip with her 3 year old child.

The Pay and Display machines at Cavendish Retail Park were not accepting coins and so Mrs R was unable to obtain a valid ticket. She tried for several minutes. She then attempted to find the car park attendant for assistance but was unable to do so. Being unable to obtain a ticket or find assistance she left the car park.

The first communication received by the company defendant was a ‘Final Reminder Notice’ (FRN). The FRN explained that it was “now too late to appeal”. Mrs R immediately responded from her personal email account explaining that she was the driver.

Excel replied to say the “appeal” was rejected. Mrs R sought advice from a Facebook group, at the same time the company started receiving debt collection letters from BW Legal. She used a paid for appeal service to send further emails to Excel denying liability for any debt. The emails were ignored and the BWL letters continued. Eventually court papers arrived addressed to the company.

In total 4 emails were sent to Excel, all in the name of the driver with no mention of, or reference to, the company.

Not understanding the particulars of claim or the legal difference between herself and the company, Mrs R submitted an internet template defence which did not address the pertinent points and made irrelevant arguments. The case was allocated to the claimant’s home court in Leeds.

Seeking advice from another Facebook group, Barry Beavis put Mrs R in touch with Ian Lamoureux who agreed to assist with the case and Lay Rep for the defendant.

IL advised Mrs R to request the case be re-allocated to the defendant’s home court in Skipton, which was granted. He then advised on an email to Skipton requesting an ‘unless order’ for the claimant to state their cause of action against the company defendant. No response was received. It never became known what cause or reason the claimant had to pursue the company.

IL assisted with writing a witness statement. This inevitably contained statements contradictory to the defence. The evidence relied upon was the first email from Mrs R; proof that the company was not the RK; a sworn affidavit by Mrs R stating that she was using the vehicle for personal reasons unconnected with the company. Cases relied on were Excel vs Smith, C0DP9C4E and C1DP0C8E ( CPS vs AJH Films does not transfer liability from driver to keeper). IL also assisted with a skeleton argument to directly rebut the claimant’s witness statement and highlight their unreasonable conduct.
IL was advised and supported at various stages by Coupon-Mad (SchoolRunMum) and Bargepole.

Excel were relying on:

CPS vs AJH Films Ltd [2015] EWCA Civ 1453: A Court of Appeal refusal to allow an appeal for a case where on the (undisclosed) facts the driver was found to be acting as an agent of the company
Excel v Jennings C6QZ0T47, a small claims hearing where the judge surprisingly found that family members were acting as agents of the registered keeper.

The hearing

IL had assisted with creating a ‘preliminary matters’ document, amended from Bargepole’s template to include a section disputing the claimant’s witness statement being written by a paralegal who claimed to have “conduct of action” – a ‘reserved legal activity’.

The three preliminary matters were quickly dismissed by Judge Wright:

  1. The paralegal was authorised because BW Legal were regulated
  2. The claimant had not failed to comply with CPR 27.9 because they were represented by an advocate, therefore in attendance.
  3. The advocate had RoA because he was instructed by Elms Legal who were registered with the SRA.

The hearing began with Mr Pickup conducting a lengthy cross examination of Mrs R focussing mainly on the first email and the claimant’s assertion that it was sent on behalf of the company as it didn’t expressly state that it wasn’t. Mrs R stuck by the statements in her witness statement and skeleton argument that the email was written by her personally, in her name, and made no reference to the company.

Mr P’s delivery was shaky and nervous and some of his questions were directed to Mrs R personally rather than as the company representative. IL had to intervene more than once to point out that Mrs R was here as the company representative and not personally the defendant. IL was eventually reprimanded by the Judge for assisting Mrs R with her evidence under CE.

The claimant had stated in their witness statement that the first email response to the FRN was sent by the company from a company email address. They had adduced the email into evidence but the print out (perhaps deliberately) did not show the top of the email with the ‘from’ address.

The defence had adduced the same email showing that the email was sent from Mrs R’s personal address. This was damning to the claimant. Judge Wright went through the rest of their witness statement which offered nothing by way of actual proof or even persuasive evidence that the company was liable. She dismissed CPS vs AJH Films as irrelevant and said the Jennings case did not bind her, nor did she find it persuasive.

She drew attention to some of the irrelevant and contradictory statements in the defence but accepted the defendant had submitted an internet template defence which it did not really understand. She said this was a common problem for defendants.

In summing up Judge Wright said the case rested on whether Mrs R had been given either expressed or implied authority from the company to enter into a contract on its behalf at the material time. It was incumbent on the claimant to prove or convince her of such on the balance of probabilities, which it had failed to do.

Claim dismissed.

IL made a strong argument for costs pursuant to CPR 27.14(2)(g) on the basis that the claimant never had any right or reason to pursue the company in the first place and had full knowledge of who was driving prior to action being commenced.

It had ignored all reasonable attempts by Mrs R to engage in pre-action correspondence in order to narrow the issues and avoid litigation. It had also submitted false evidence in order to mislead the court.

Judge Wright disagreed that this crossed the threshold of unreasonable behaviour and awarded costs only for travel and parking.

Interestingly, after dismissing the case and dealing with costs. Judge Wright gave Mr P a lengthy ‘talking to’ about Excel’s woeful particulars saying they did not comply with CPR part 7 or the accompanying practice direction. She said she sees this all the time and all the judges at Skipton are fed up with it.

She went on to say that she understands there are a limited number of characters that can be used but that most other PPCs get around this by submitting separate, more detailed particulars. She explained that if the PoC had been brought to the attention of the court earlier she would have issued an order for further and better particulars. She urged Mr P to make sure this message was delivered back to his client.

Prankster Notes

It would be clear to anyone with the slightest legal knowledge that there was no possibility of  successful claim against the company. They were not the driver or keeper of the vehicle. The driver was not acting as their agent and the vehicle was not being used for company business.

This was therefore nothing more than clumsy attempt at bullying.

From the conduct of this case it is clear that the owners of Excel and BW Legal are morally bankrupt and it is especially worrying that they have apparently attempted to present evidence in a clearly false way. They are essentially demanding money under false pretences.

The Prankster therefore has no hesitation in stating that in his opinion Simon Renshaw-Smith of Excel and  Sean Barton and Rachael Withers of BW Legal are morally corrupt individuals who should not be in the industries they work in. Their businesses are run in a shambolic way with woeful understanding of the legislation and responsibilities in their industry sector. They have poor regard to consumer rights and their responsibilities to their customers.

Mr Pickup does not escape censure for his behaviour either. He needs to be reminded that his primary duty is to the court, and that if his client is attempting to mislead the court in the way it presents evidence he should not allow this. Perhaps he can take a moral lead from the prosecuting barrister in this case.

There, as soon as the barrister, Jerry Hayes, found that the police were withholding evidence which undermined their case, he disclosed it.

The Prankster believes that as soon as it was clear to Mr Pickup that his witness had lied, he should have requested to halt the hearing to ask for instructions, and if his client refused to drop the claim, then he should have considered his next actions carefully.

On a legal note, it is worth pointing out that CPS vs AJH Films refusal to appeal, it was found that "This case involves a decision on the particular facts." Therefore, while it is clear that a driver can be acting as an agent of a company in some circumstances, it is also clear that in other circumstances they are not. As the facts themselves were not disclosed, this is not therefore useful case law. The judgment is concerned whether or not an appeal would be allowed, and as one of the reasons was that the appellant did not turn up, this further lessens the usefulness of the case.

In The Prankster's view, Mr Pickup was therefore either legally incompetent to try and use this case; or, if he was actually aware of its shortcomings without clearly bringing these to the attention of the judge, then he was underhand and despicable; his duty is to the court.

On a separate note, if you are fighting a parking claim in Skipton, and the particulars of claim are not clear, you should bring it to the attention of the court. Excel have a long track history of not bothering to file proper particulars at any court, let alone Skipton.

The Prankster congratulates Mr Lamilad, for his assistance to the defendant, along with Coupon mad, Bargepole and everyone else who assisted.

Happy Parking

The Parking Prankster


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