BW legal - Letter of Claim

Racing_snake

Apologies, i couldn't see where to start a new thread - can someone point me in the right direction

Thank you

Le_Kirk

Racing_snake wrote: »

Apologies, i couldn't see where to start a new thread - can someone point me in the right direction

Thank you

Back to the fist page of the parking sub-forum and click on the blue button marked New Thread.

Mountains

nosferatu1001 wrote: »

9) is also wrong
They are relying on POFA. POFA is very clear as to the extend of the liability of the Keeper

You should respond, and one of the queries will be to ask under what stattue the Keeper is liable for the £60 made up fee, because this is not claimable in small claims, as they are well aware under CPR27, and also they are entirely aware it cannot be due to POFA, as this limits the Keepers liability to the amount on the Notice to Keeper and no more.

They have also stated "you" a lot in the first. Ask where and how they have identified you as the driver. You require the evidence for this.

I had sent this letter off back then and heard nothing back so the £60 has just been added on and not justified. I had thought they disappeared but I have now been served court papers.

I have done the AOS online and I have had a look through the forum to draft my defense.I would appreciate any feedback. I havnt talked too much about the information requested following the initial letter of claim which was only partially answered from the first letter I sent to them as there is plenty in the defense as it stands

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

company name(Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt from a driver's alleged breach of contract, for entering XXXXXX on XX/XX/XXX for a period of 12 minutes

3. Despite being afforded a method within which to appeal, the appeal was subsequently ignored despite acknowledgement of receipt and no notice of the judgement was provided. As a result the an appeal could not have been made to POPLA

4. The Claimant has spent over 2 years harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters and causing the Defendant and their family significant distress, despite having no basis to charge £100

5. The Particulars of Claim state that the Defendant ;was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. The Claimants are known to be serial issuers of generic claims similar to this one. I believe the term for such behaviour is roboclaims and as such is against the public interest.

5.1 On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’

6. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.

6.1 The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery as stated in paragraph 11.

7. At the material time, the Claimant operated strictly subject to the October 2015 British Parking Association ('BPA') CoP, which stated:
“Grace Period:
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

7.1 Further, and in support of the submission that it is reasonable to conclude that the grace period should certainly be more than a mere twelve minutes, the Defendant has found a BPA article published in 2013 so PPS would be expected to have regard to it, being a BPA member at the time. The article is by Kelvin Reynolds, Director of Policy and Public Affairs, who, despite encouraging a ''war on the non-compliant motorist'' was honoured by the BPA for his outstanding contribution to parking with a Lifetime Achievement Award.

7.2 Mr Reynolds' article had this to say about grace periods, which shows that the Defendant was not (in the BPA Trade Body's view) 'a non-compliant motorist': “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place. Kelvin continues:''In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules.''

8. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

9. Further and in the alternative, it is denied that the claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. Any reasonably circumspect driver would be entitled to rely upon the BPA’s interpretation and not expect to be penalised for the time taken to read the terms and conditions and make a decision on choosing to enter into an agreement.

10. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

11. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant.

11.1 These have been variously described as a 'BW Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the

11.2 Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £26X.xx. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

11.3 Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''


11.4 Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.

11.5 According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

12. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

How about:

for a period alleged to have lasted for some 12 minutes, which involved minimal stopping well within a reasonable period of grace.

Never say it WAS 12 minutes...you don't know that! You are believing their unproven timings!

Why have this quote when your case is not about the time taken to buy a ticket?

Kelvin continues:''In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules.''

Why does it talk about PPS (twice) when your OP says this is about NCP?

You need to go through it with a fine tooth comb & not copy stuff verbatim, make sure it all makes sense for your case and the PPC Claimant's name is right.

And your last points about the added £60 and £50 fake costs, should be the up to date version that includes the Caernarfon case.

KeithP

Mountains wrote: »

I have now been served court papers.

I have done the AOS online...

What is the Issue Date on your Claim Form?

Le_Kirk

While you are looking for the updated comments by Coupon-mad on beamerguy's abuse of process thread, take a minute to consider that ALL your points about the spurious £100 addition should be together. You start in 6.1 by talking about POFA and £100 maximum and then have several paragraphs about grace periods. Keep it all together so it flows.

Mountains

KeithP wrote: »

What is the Issue Date on your Claim Form?

its 9th Oct 2019

Coupon-mad wrote: »

How about:Never say it WAS 12 minutes...you don't know that! You are believing their unproven timings!

Why have this quote when your case is not about the time taken to buy a ticket?

Why does it talk about PPS (twice) when your OP says this is about NCP?

You need to go through it with a fine tooth comb & not copy stuff verbatim, make sure it all makes sense for your case and the PPC Claimant's name is right.

And your last points about the added £60 and £50 fake costs, should be the up to date version that includes the Caernarfon case.

Many thanks for the feedback. i will have a look for the updated case and include the particulars into the defense

Le_Kirk wrote: »

While you are looking for the updated comments by Coupon-mad on beamerguy's abuse of process thread, take a minute to consider that ALL your points about the spurious £100 addition should be together. You start in 6.1 by talking about POFA and £100 maximum and then have several paragraphs about grace periods. Keep it all together so it flows.

Yes very true. I have to admit I was exhausted by the end of the day and will look at this again so that it makes sense

KeithP

Mountains wrote: »

its 9th Oct 2019

With a Claim Issue Date of 9th October, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 11th November 2019 to file your Defence.

That's nearly four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


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

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Mountains

Hello

I've had a look at this again fokllwing the feedback. Please let me know what you think. I wasnt sure if it was worth adding about the intiial letter i sent to BW follwing the letter of claim (post 9) which failed to provide any details but point 9 effectivly covers that anyway
_____________________________________________________________________________
IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

NCP (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt from a driver's alleged breach of contract, entering XXXXXX on XX/XX/XXX for a period alleged to have lasted for some 12 minutes, which involved minimal stopping well within a reasonable period of grace

3. At the material time, the Claimant operated strictly subject to the October 2015 British Parking Association ('BPA') CoP, which stated:
“Grace Period:
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

3.1 Further, and in support of the submission that it is reasonable to conclude that the grace period should certainly be more than a mere twelve minutes, the Defendant has found a BPA article published in 2013 so NCP would be expected to have regard to it, being a BPA member at the time. The article is by Kelvin Reynolds, Director of Policy and Public Affairs, who, despite encouraging a ''war on the non-compliant motorist'' was honoured by the BPA for his outstanding contribution to parking with a Lifetime Achievement Award.

3.2 Mr Reynolds' article had this to say about grace periods, which shows that the Defendant was not (in the BPA Trade Body's view) 'a non-compliant motorist': Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

Kelvin continues: “…If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”

4. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

5. Further and in the alternative, it is denied that the claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. Any reasonably circumspect driver would be entitled to rely upon the BPA’s interpretation and not expect to be penalised for the time taken to read the terms and conditions and make a decision on choosing to enter into an agreement.


6. Despite being afforded a method within which to appeal, the appeal was subsequently ignored despite acknowledgement of receipt and no notice of the judgement was provided. As a result, an appeal could not have been made to POPLA

7. The Claimant has spent over 2 years harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters and causing the Defendant and their family significant distress, despite having no basis to charge £100

8. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

9. The Particulars of Claim state that the Defendant ;was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. The Claimants are known to be serial issuers of generic claims similar to this one. I believe the term for such behaviour is roboclaims and as such is against the public interest.

9.1 On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’

10. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant.

10.1 These have been variously described as a 'BW Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended).
10.2 Suddenly in the particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £26X.xx. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

10.3 Judges have disallowed all added parking firm 'costs' in County courts up and down the country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

10.4 In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

10.5 Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste NCP robo-claims at all, on the balance of probabilities.

10.6 According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

11. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.

11.1 The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery as stated in paragraph 10.

12. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

13. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

14. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Le_Kirk

You might want to split you assertion about grace periods into two so that the court/judge can see the claimant has ignored BOTH grace periods to which you are entitled.