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  • FIRST POST
    • Parkingabc
    • By Parkingabc 5th Sep 17, 9:03 PM
    • 12Posts
    • 2Thanks
    Parkingabc
    Claim Form - BWLegal
    • #1
    • 5th Sep 17, 9:03 PM
    Claim Form - BWLegal 5th Sep 17 at 9:03 PM
    Good Evening,

    On 22nd August (date of issue) I received a Claim for for a parking ticket I received back in February and I'm after any help possible to try and defend it. Newbies thread says to start a new thread so here I am. I have not yet responded to the claim but intend to in the next day or too (by my reckoning I have until the 10th Sept)

    PoC:

    The Claimant's Claim is for the sum of £90.00 being monies due from the Defendant to the Claimant in respect of a Fixed Penalty Notice (PCN) for a parking contravention which occurred on dd/01/2017 at *HH:33:14* in the car park at *address*, in relation to a Renault registration *XXXX XXX*. The defendant was allowed 28 days from the FCN issue date to pay, but failed to do so. Despite demand having been made, the Defendant has failed to settle their outstanding liability. The Claim also includes Statutory Interest pursuant to section 69 of the county Courts Act 1984 at a rate of 8% per annum (a daily rate of 0.02) from dd/mm/2017 to dd/m/2017 being an amount of £4.00. The claimant also claims £60.00 contractual costs as set out in the FCN Terms and Conditions"

    . Napier Parkng who issued the PCN claim the car was parked for a total of just under 7 minutes in total hh:26:33 - hh:33:14. Their PCN shows 2 photos of the car 1 of the windscreen with no pay and display ticket and 1 of the car with a car park sign in the distance. These photos were taken 6 seconds apart 1 minute before the car.allegedly left the car park (hh:32:07 and hh:32:13)

    The driver of the vehicle had left it to purchase a ticket, their coins didn't work in the machine so got back in the car and left, as no physical PCN was left on the car the first I was aware of it (as registered keeper) was receiving the letter from Napier Parking which I naively ignored. This was followed by letters from BWLegal, also ignored. There is no actual proof provided by Napier of the car being there any longer than the time between the 2 photos (6 seconds) nor no proof that the driver had gone anywhere other than to attempt to pay for a ticket. I would argue contract wasn't made between the driver and the car park due to the money being rejected?

    Legal writing really isn't my area, so any help is really appreciated.

    My first draft (edited from posts i've seen on the forum). Anything I can add to bulk it up would be greatly appreciated. I will try and get a photo of the signs in the car park this week

    In the County Court Business Centre
    Claim Number: ___

    Between:

    BW Legal v ___

    Defence Statement

    I am ___, the defendant in this matter and registered keeper of vehicle ___.

    I deny I am liable for the entirety of the claim for each of the following reasons:

    1. The Claim Form issued on the ____ by BW Legal was not
    correctly filed under The Practice Direction as it was not signed by a legal person but signed by “BW Legal Services Limited (Claimant’s Legal Representative)”.

    2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

    c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.

    d) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    e) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

    (i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    (ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
    (iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    (iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    (v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    (vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed.


    f) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

    Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, mentioned a possible £229 for outstanding debt and damages.

    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s costs' were incurred. The amount claimed has also changed from £90 on the original NTK to £154 on the Claim form with no explanation or justification. I deny the Claimant is entitled to any interest whatsoever.
    5. The claim amount does not add up to losses incurred by the vehicle being allegedly parked for 6 minutes and ** seconds

    6. The defendant refutes that fact that any contract was made, due to the meter at the car park rejecting coins and therefore rejecting any attempt by the driver to enter a contract with the claimant. The defendant also points out the predatory nature fixed charge notice leaving less than a 10 minute grace period for the defendant to read relevant signage and purchase a pay and display ticket.
    6. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

    7. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    8. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

    9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    10 If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

    a Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

    b At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has, sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    Signed
    Date
    Last edited by Parkingabc; 12-09-2017 at 7:14 PM. Reason: updated defence
Page 1
    • Redx
    • By Redx 5th Sep 17, 10:10 PM
    • 16,579 Posts
    • 20,739 Thanks
    Redx
    • #2
    • 5th Sep 17, 10:10 PM
    • #2
    • 5th Sep 17, 10:10 PM
    except that is not a defence , its a witness statement which comes at or after the DQ stage much further down the line (see the bargepole timeline)

    have a look at other 2017 defences , and yours will be similar because the defence sets out the legal arguments (like IPC CoP grace periods) for the initial judge to see
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Parkingabc
    • By Parkingabc 5th Sep 17, 10:32 PM
    • 12 Posts
    • 2 Thanks
    Parkingabc
    • #3
    • 5th Sep 17, 10:32 PM
    • #3
    • 5th Sep 17, 10:32 PM
    Ah, OK I must have misread! I will have another look after work tomorrow. Thanks a lot
    • Parkingabc
    • By Parkingabc 12th Sep 17, 7:15 PM
    • 12 Posts
    • 2 Thanks
    Parkingabc
    • #4
    • 12th Sep 17, 7:15 PM
    • #4
    • 12th Sep 17, 7:15 PM
    I have now totally updated my defence in the OP. Please could you look over it and let me know if this look ok/any amendments that should be made.

    Thank you all very much
    • Lamilad
    • By Lamilad 12th Sep 17, 9:59 PM
    • 1,186 Posts
    • 2,345 Thanks
    Lamilad
    • #5
    • 12th Sep 17, 9:59 PM
    • #5
    • 12th Sep 17, 9:59 PM
    BW Legal v ___
    The claimant is Napier Parking, not BW Legal.
    • Lamilad
    • By Lamilad 12th Sep 17, 10:14 PM
    • 1,186 Posts
    • 2,345 Thanks
    Lamilad
    • #6
    • 12th Sep 17, 10:14 PM
    • #6
    • 12th Sep 17, 10:14 PM
    cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis
    I wouldn't say this as their PoC doesn't mention Beavis.

    which ignores the fact that this claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.
    Are you sure about this? Napier usually do use PoFA wording on their NTKs
    • Parkingabc
    • By Parkingabc 12th Sep 17, 10:46 PM
    • 12 Posts
    • 2 Thanks
    Parkingabc
    • #7
    • 12th Sep 17, 10:46 PM
    • #7
    • 12th Sep 17, 10:46 PM
    Thank you, I will change to Napier and remove the Beavis part.

    The PoFA wording - no I'm not sure at all, I'm totally clueless to be honest I just copied another defence and changed/removed bits I didn't think applied. I shall remove this part also.

    Is there anything else I could add?

    Thanks again, much appreciated
    • nosferatu1001
    • By nosferatu1001 13th Sep 17, 12:40 AM
    • 887 Posts
    • 990 Thanks
    nosferatu1001
    • #8
    • 13th Sep 17, 12:40 AM
    • #8
    • 13th Sep 17, 12:40 AM
    No, you instead go and check their NtK against pofa sched 4 para 8 where a windscreen ticket was issued, or para 9. For example was it received within the required timescales?
    • Parkingabc
    • By Parkingabc 13th Sep 17, 12:25 PM
    • 12 Posts
    • 2 Thanks
    Parkingabc
    • #9
    • 13th Sep 17, 12:25 PM
    • #9
    • 13th Sep 17, 12:25 PM
    OK, thanks I will check that after work this evening. There was no window ticket it was through the post, so I'll check para 9. Thanks again
    • Loadsofchildren123
    • By Loadsofchildren123 13th Sep 17, 3:37 PM
    • 1,651 Posts
    • 2,748 Thanks
    Loadsofchildren123
    Any contract offered to you and accepted by you must be void for impossibility of performance (machine wouldn't let you pay) or frustrated (again you couldn't pay even though you tried).
    Or no contract formed because they didn't accept your payment.
    • Parkingabc
    • By Parkingabc 13th Sep 17, 6:09 PM
    • 12 Posts
    • 2 Thanks
    Parkingabc
    Thanks all. I have changed my wording about not entering a contract to what you have said LoC123. Lamilad/Nosferatu101, I have removed the PoFA wording after reading para 9, it appears they have folowed the timescales and wording. I have also added a line to state why im mentioning Beavis (as on BW Legals letters to me they have "drawn my attention to it"

    One other thing, on BW Legals letters it states "If our client successfully obtains a County Court Judgment ("CCJ") against you (which is likely), then a CCJ will be recorded on your credit file for 6 years unless you satisfy the CCJ within a month.

    Are they allowed to write that it is likely that the client will win a case? Seems a bit misleading as they're predicting the outcome before it has even reached court?

    I have also removed a few other non-relevant lines which I felt do not apply to this case.
    My defence is now as follows:

    In the County Court Business Centre
    Claim Number: ___

    Between:

    Napier Parking Limited v ___

    Defence Statement

    I am ___, the defendant in this matter and registered keeper of vehicle ___.

    I deny I am liable for the entirety of the claim for each of the following reasons:

    1. The Claim Form issued on the ____ by Napier Parking Limited was not
    correctly filed under The Practice Direction as it was not signed by a legal person but signed by “BW Legal Services Limited (Claimant’s Legal Representative)”.

    2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

    c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail.

    d) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    e) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

    (i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    (ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
    (iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    (iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    (v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    (vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed.


    f) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

    Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, mentioned a possible £229 for outstanding debt and damages.

    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s costs' were incurred. The amount claimed has also changed from £90 on the original NTK to £154 on the Claim form with no explanation or justification. I deny the Claimant is entitled to any interest whatsoever.
    5. The claim amount does not add up to losses incurred by the vehicle being allegedly parked for 6 minutes and ** seconds

    6. The defendant refutes that fact that any contract was made, due to the meter at the car park rejecting coins and therefore rejecting any attempt by the driver to enter a contract with the claimant. Any contract offered to the driver and accepted must be void for impossibility of performance or frustrated (driver tried to pay but was unable). The defendant also points out the predatory nature of the fixed charge notice leaving less than a 10 minute grace period for the driver to read relevant signage and purchase a pay and display ticket.
    7. BW Legal (representing Napier Parking) in their correspondence have repeatedly drawn attention to ParkingEye vs Beavis [2015] UKSC 67. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

    8. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

    10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    11. If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

    a) Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

    b) At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has, sent a template, well-known to be generic cut and paste 'Particulars' of claim.

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    Signed
    Date


    Again any information/alterations or anything to add is gratefully received. Thanks a lot all
    Last edited by Parkingabc; 19-09-2017 at 6:05 PM.
    • beamerguy
    • By beamerguy 13th Sep 17, 6:31 PM
    • 6,353 Posts
    • 8,166 Thanks
    beamerguy
    [QUOTE=Parkingabc;73120984]

    One other thing, on BW Legals letters it states "If our client successfully obtains a County Court Judgment ("CCJ") against you (which is likely), then a CCJ will be recorded on your credit file for 6 years unless you satisfy the CCJ within a month.

    Are they allowed to write that it is likely that the client will win a case? Seems a bit misleading as they're predicting the outcome before it has even reached court?


    Dear oh dear, BWLegal should get itself on the Comedy Channel

    It was said that a judge came up against BWL
    and he whispered to his clerk ... "who are these wa**ers"

    That's why this thread was born
    http://forums.moneysavingexpert.com/showthread.php?t=5672664&highlight=bwlegal

    Let them play their silly games .... it's all up to a judge not BWL
    Last edited by beamerguy; 13-09-2017 at 6:40 PM.
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Parkingabc
    • By Parkingabc 13th Sep 17, 6:54 PM
    • 12 Posts
    • 2 Thanks
    Parkingabc
    Thanks, I will have a read through some of those! Do you think I should add it into my defence that they added that and that it was intended to scare the defendant into early settlement or anything like that?
    • beamerguy
    • By beamerguy 13th Sep 17, 7:11 PM
    • 6,353 Posts
    • 8,166 Thanks
    beamerguy
    Thanks, I will have a read through some of those! Do you think I should add it into my defence that they added that and that it was intended to scare the defendant into early settlement or anything like that?
    Originally posted by Parkingabc
    Well, it's not part of the defence

    Personally if this was me, I would, given the opportunity say
    to the judge that you feel very intimidated by this letter
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Parkingabc
    • By Parkingabc 13th Sep 17, 7:12 PM
    • 12 Posts
    • 2 Thanks
    Parkingabc
    Thanks Beamerguy. Will do.
    • nosferatu1001
    • By nosferatu1001 14th Sep 17, 10:41 AM
    • 887 Posts
    • 990 Thanks
    nosferatu1001
    6) is a mess

    Youre going down the no keeper liability route. Yet in that para you identify the driver. Read it CAREFULLY.
    • Parkingabc
    • By Parkingabc 19th Sep 17, 6:08 PM
    • 12 Posts
    • 2 Thanks
    Parkingabc
    Thanks Nosferatu - edited.

    Ok this is my (hopefully final) draft before I need to send it in tomorrow.

    In the County Court Business Centre
    Claim Number: ___

    Between:

    Napier Parking Limited v ___

    Defence Statement

    I am ___, the defendant in this matter and registered keeper of vehicle ___.

    I deny I am liable for the entirety of the claim for each of the following reasons:

    1. The Claim Form issued on the ____ by Napier Parking Limited was not
    correctly filed under The Practice Direction as it was not signed by a legal person but signed by “BW Legal Services Limited (Claimant’s Legal Representative)”.

    2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

    c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail.

    d) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    e) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

    (i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    (ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
    (iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    (iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    (v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    (vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed.


    f) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

    Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, mentioned a possible £229 for outstanding debt and damages.

    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s costs' were incurred. The amount claimed has also changed from £90 on the original NTK to £154 on the Claim form with no explanation or justification. I deny the Claimant is entitled to any interest whatsoever.
    5. The claim amount does not add up to losses incurred by the vehicle being allegedly parked for 6 minutes and ** seconds

    6. The defendant refutes that fact that any contract was made, due to the meter at the car park rejecting coins and therefore rejecting any attempt by the driver to enter a contract with the claimant. Any contract offered to the driver and accepted must be void for impossibility of performance or frustrated (driver tried to pay but was unable). The defendant also points out the predatory nature of the fixed charge notice leaving less than a 10 minute grace period for the driver to read relevant signage and purchase a pay and display ticket.
    7. BW Legal (representing Napier Parking) in their correspondence have repeatedly drawn attention to ParkingEye vs Beavis [2015] UKSC 67. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

    8. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

    10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    11. If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

    a) Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

    b) At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has, sent a template, well-known to be generic cut and paste 'Particulars' of claim.

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    Signed
    Date


    If i can add or change anything to help my case please let me know

    Thanks all
    • Coupon-mad
    • By Coupon-mad 20th Sep 17, 1:26 AM
    • 51,584 Posts
    • 65,205 Thanks
    Coupon-mad
    Looks good to me.
    • nosferatu1001
    • By nosferatu1001 20th Sep 17, 9:09 AM
    • 887 Posts
    • 990 Thanks
    nosferatu1001
    Looks good to me as well
    • Parkingabc
    • By Parkingabc 22nd Sep 17, 8:53 AM
    • 12 Posts
    • 2 Thanks
    Parkingabc
    Hi, sorry I've been searching all morning, can someone let me know the email address to send my defence to as I don't think it will fit on mcol. Is there anything I need to do to prove I've sent it? Thanks
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