BW Legal 'letter of claim'

marknopark

Umkomaas wrote: »

You haven't really given much info about the important issues like:

Was the Notice to Keeper PoFA compliant?

What does the signage say at the location? Is it 'contractual', 'permit only' or 'prohibitive'? Do you have your own photos of it? Do you have your own site map with the location of each sign shown on it? Was there a sign in close proximity to where your vehicle was parked? Do you have a photo of the parking spot showing no sign in proximity?

You have to challenge their landowner authorisation to issue charges and whether that authorisation allows them to pursue through the courts?

You need to do some forum searches on 'BWL Residential Defence' to find other similar (but won't be exactly the same) recent cases with well developed defences from which you can copy and paste sections.

Doesn't the NEWBIES FAQ sticky, post #2 link to a residential defence? Have a look.

Here is the PCN - http://i68.tinypic.com/1snwk9.jpg


And here are the signs that were up, The vehicle was parked pretty much underneath the first sign;
http://i63.tinypic.com/qqv69h.jpg
http://i64.tinypic.com/kcf7ra.jpg

KeithP

But your latest post doesn't answer [STRIKE]any[/STRIKE] many of the questions posed by Umkomaas.

This is a self help forum.

You need to study the NtK and compare it with the legislation (there's a link to that in post #2 of the NEWBIES thread) and decide whether it is PoFA compliant or not.

You need to look at the signs and decide whether they are 'contractual', 'permit only' or 'prohibitive'.


What is the Date of Issue on your Claim Form?

marknopark

KeithP wrote: »

But your latest post doesn't answer [STRIKE]any[/STRIKE] many of the questions posed by Umkomaas.

This is a self help forum.

You need to study the NtK and compare it with the legislation (there's a link to that in post #2 of the NEWBIES thread) and decide whether it is PoFA compliant or not.

You need to look at the signs and decide whether they are 'contractual', 'permit only' or 'prohibitive'.


What is the Date of Issue on your Claim Form?

As far as I can see it seems to be POFA compliant.


I am assuming as the signs say 'contractual' on them they would be regarded as contractual.


The date of issue on my claim form is 17/07

KeithP

marknopark wrote: »

The date of issue on my claim form is 17/07

With a Claim Form Date of Issue of 17th July and the AoS having been done in a timely manner, you have until 4pm on Monday 20th August 2018 to file your Defence.

That's nearly three weeks to hone your Defence to perfection, but please don't leave it until the last minute.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

marknopark

KeithP wrote: »

With a Claim Form Date of Issue of 17th July and the AoS having been done in a timely manner, you have until 4pm on Monday 20th August 2018 to file your Defence.

That's nearly three weeks to hone your Defence to perfection, but please don't leave it until the last minute.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to [EMAIL="CCBCAQ@Justice.gov.uk"]CCBCAQ@Justice.gov.uk[/EMAIL]
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

OK thanks. I have just noticed whilst re-reading this thread that on the signage pictures I attached it states ''VEHICLES MUST BE PARKED WITHIN A MARKED BAY' but the pictures of the car parked that BW legal have provided show there are no bays marked out. Is this something that could used in the defense or is that trivial at this point?

Redx

there is no S in defence, so please change to the english spelling

yes, no marked bays where the signage talks about marked bays is a defence point


ie:- poor and indequate signage also means signs on the floor , bays , markings etc, not just on a sign up a pole or on a lamppost

KeithP

That Notice to Keeper says "A Parking Charge Notice (Notice to Driver) was affixed to the windscreen of the vehicle at the Issued Time".

Is that true? You haven't mentioned a NtD.


Your second sign picture shows two signs.
One stating "Countrywide Parking Management Ltd", and the other stating "Bluemarlin Limited".

At best that combination of signs are confusing.
Even if a contract was entered into, it really isn't clear who the other party to the contract might be.


This tells me that both the CPM signs are forbidding:



Note the words - NO EXCEPTIONS.

marknopark

KeithP wrote: »

That Notice to Keeper says "A Parking Charge Notice (Notice to Driver) was affixed to the windscreen of the vehicle at the Issued Time".

Is that true? You haven't mentioned a NtD.


Your second sign picture shows two signs.
One stating "Countrywide Parking Management Ltd", and the other stating "Bluemarlin Limited".

At best that combination of signs are confusing.
Even if a contract was entered into, it really isn't clear who the other party to the contract might be.


This tells me that both the CPM signs are forbidding:



Note the words - NO EXCEPTIONS.

Apologies - Yes there was a notice to driver on the windscreen, and they have provided a picture of the car and the NtD on the windscreen.


I too noticed the other parking companies sign, there was also a third sign which read along the lines of 'unauthorized parking will be clamped' or something to that effect although this sign was a basic sign with no T&Cs and looked like one you would get at B&Q or somewhere like that.

KeithP

marknopark wrote: »

...there was also a third sign which read along the lines of 'unauthorized parking will be clamped' or something to that effect although this sign was a basic sign with no T&Cs and looked like one you would get at B&Q or somewhere like that.

As clamping is now illegal in that situation, a picture of that sign will also help your case.

marknopark

First draft of my defense, would appreciate any feedback;





Preliminary1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defense. The Defendant reserves the right to seek from the Court permission to serve an Amended Defense should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

1.1 The Claimant!!!8217;s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified thousands of similar poorly pleaded claims.

1.2 The Defendant believes the term for such conduct is !!!8216;robo-claims!!!8217; which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.






Background

3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark xxxxx which is the subject of these proceedings.

4. It is admitted that on xx/xx/xxxx the Defendant's vehicle was parked at xxxxxxx.

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ;relevant obligation; either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offense has been committed. Those provisions do not apply to this matter.


Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park.

7. It is denied that there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.1. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.




Alternative Defence - Failure to set out clearly parking terms


8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation also the Defendant avers that the operator's signs along with multiple other signs at the location are at best confusing and at worst deliberately ambiguous. There are signs from multiple parking enforcement companies, one of which claims !!!8220;vehicles must be parked within a marked bay!!!8221; when there are no marked bays at the location.
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.
9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.



STATEMENT OF TRUTH
I confirm that the contents of this Defense are true.