BW legal - Letter of Claim

beamerguy

A very flawed letter saying ...

There is no attempted double recovery here, in addition to the PCN, the claimant is entitled to reasonable recovery charges under the code of conduct.

Assume they mean "code of practice" ..... everyone knows it's CoP
NOT CoC
The code of practice is not applicable to the motorist or the judge as it only applies to the PPC and does not form a contract as it is unregulated and not the law.

Therefore, not only is this an attempt of double recovery, it is against POFA2012, the supreme court ruling and The Consumer Rights Act 2015

We would then discontinue the claim without adverse credit entry or CCJ

This alone should be reported to the SRA
https://www.sra.org.uk/consumers/problems.page

What makes them think that a "adverse credit rating" would result when clearly their letter shows they do not want to continue ?
THAT IS SCAREMONGERING

Thus far, BWLegal has failed to explain their authority to add the £60 ..... the CoP is meaningless to the motorist

BWLegal would be well advised to discontinue or they will be faced with their own legal charges and your costs

Umkomaas

Le_Kirk wrote: »

Of course but we all need some fun. Unless you WANT to pay £160 for nothing, then yes, ignore it.

Some light relief is essential at times to ease the Groundhog Day tedium for regulars.

Mountains

Hello
I have a court hearing at the end of July and I have been working on pulling my witness statement together. I'm not sure how much details it needs to go into but the one provided on the sticky appears to be 1 page long. However, there appears to be a supplementary witness statement that looks like the defense. Is this how it should be pulled together? I thought it was going to be much more detailed!

Coupon-mad

The WS is your story of facts that you know, plus your evidence to rebut their claim.

The supplementary WS has been a temporary fix this year, for people whose defences were short and didn't have all the stuff about abuse of process that the current one does. Was your defence a long one with details about the abuse of process and the Southampton judgment, if so you don't need to repeat that but you do need to append the relevant Soton transcript (Britannia v Crosby) and refer to the Beavis case paras 98, 193 and 198, and the CRA 2015 (schedule 2).

To see examples of what people have been doing, look at other defence/claim threads at WS stage..  

Mountains

Coupon-mad said:

The WS is your story of facts that you know, plus your evidence to rebut their claim.

The supplementary WS has been a temporary fix this year, for people whose defences were short and didn't have all the stuff about abuse of process that the current one does. Was your defence a long one with details about the abuse of process and the SOuthampton judgment, if so you don't need to repeat that but you do need to append the relevant Soton transcript (Britannia v Crosby) and refer to the Beavis case paras 98, 193 and 198, and the CRA 2015 (schedule 2).

To see examples of what people ahve been doing, look at other defence/claim threads at WS stage..  

Many thanks for the clarification. Yes, my defense was the long one. I'll have a look around and continue my WS and post it up here for a double check when it's ready

Mountains

Here Is my witness statement I welcome your comments. I haven't explicitly stated any of the reference numbers for the pieces of evidence as I will wait for the final version before finalising which pieces of evidence I need-  in case some need to be taken out or add others. I hope it all makes sense to follow. 

____________________________________________________________________

In the County Court at XXXXX  Claim No. XXXXXX between National Car Parks Limited (Claimant) and Mountains (Defendant)

Witness Statement

1.      I am Mountains, of [Address], [Postcode], the Defendant in this matter against whom this claim is made. I represent myself as a litigant-in-person, with no formal legal training. I have carried out a good deal of research in preparation for this case, however I trust the Court will excuse me if my presentation is less than professional. Everything in the following statement is true to the best of my knowledge and belief. I will say as follows:

2.       I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3.       In my statement I shall refer to exhibits within the evidence bundle supplied with this statement, referring to page and reference numbers where appropriate of each piece of evidence.

4.       I assert that at the time of the alleged parking offence, I was the registered keeper of the vehicle in question in this case.

5.       Sequence of Events

5.1   My car (Reg number XXXXXX) was being used to pick up a passenger in the local area on a Saturday evening where it was busy in the town centre. The car was taken into the car park located at XXXXXXXXX on XX/XX/XXXX which is managed by National Car Parks Limited. The car remained in the area for a few minutes until the passenger had arrived after which point the car exited the car park.

5.2   During this period the driver had got out of the car to read the terms and conditions displayed in the car park. However the passenger had got to the car before the terms could be fully read and the driver got back into the car to exit the car park with the passenger

6.       Later Events

6.1   Although the vehicle left the car park within a few minutes of arriving, I was nevertheless issued with a parking charge notice (PCN) for the vehicle, the reason given on the PCN was that the vehicle was breeching the terms and conditions of use and “Parked without payment” for an alleged period of 12 minutes with an amount of £100 due as seen in Ref01.

6.2   I appealed the PCN on XX/XX/XXXX, as can be seen on Ref02 and the subsequent confirmation seen in Ref03 and received no response from the claimant.

6.3   I received a further notice generated on XX/XX/XXXX as per exhibit Ref03 which stated as that I had not complied with either supplying the details of the driver, pay the outstanding amount or make a representation against the PCN the latter of which was made as stated above.

6.4   Upon contacting National Car Parks Limited, I had stated that their notice mentioned in paragraph 6.3 was incorrect as I had appealed the PCN and provided them with the evidence of this action as seen in Ref01 and Ref02. They claim in a letter dated XX/XX/XXXX (Ref04) to have responded with a rejection letter despite me receiving no letter or communication about this. They had provided a copy of the rejection letter (Ref05) that they claim to have sent which provided a POPLA code for the alternative appeals route. However by the time I had found out about this letter I was unable to appeal to POPLA as the code had already expired leaving me no way to appeal this PCN. In addition to this their rejection letter did not address any of the challenges set out in my original appeal Ref01.

6.5   Following this, a number of letters were received from debt collection agencies included TRACE and Gladstones (Ref06 and Ref07 respectively) before being passing the alleged debt to BW Legal.

7.       No allowance for grace periods

7.1   After driving in past the ANPR cameras at the entrance, it would take a regular person at least a few minutes to find a space and park in it, especially on a Saturday evening where the car park in the town centre would have been quite busy. I imagine a driver would have to wait for a few other cars to manoeuvre in and out of spaces before parking themselves. I estimate that this part can take 7-8 minutes based on the traffic within the car park would have been that evening

7.2   As can been seen from RefXX the full terms and condition are seen near point of entering with other signs referencing the full terms and conditions signage placed around the perimeter of the  around the area within the car park as seen in RefXX. In order to read the full terms and conditions it would require an individual to find a space to park their car and then walk to the signage to read the terms and conditions and then make the decision to agree and pay or not agree then subsequently leave. Based on the size of the font on the signage it would not be possible to read these from a vehicle before entering the car park. RefXX shows what the driver would see at the point of driving into the car park.   The terms and conditions signage was placed on the opposite side of a two way road leading up to the car park making it impossible to stop get out and read the terms before entering the car park as this action would upset other motorists and cause significant traffic. In addition to this, the signs within the car park would be illegible if trying to read them from within a vehicle due to the font size and height of the sign as seen in RefXX even if a car managed to park near one of these signs which were located around the perimeter of the car park. IN any instance the driver would have to get out of the vehicle after entering the car park to read the signage then locate the terms and conditions and read the signage. As seen in the photo the terms and conditions are extensive requiring a significant time to read. After factoring the time to stop the car would take an individual more than 12 minute to make a decision on whether or not to park there.

7.3   In addition to this if a driver was to refuse the terms and conditions a further 7-8 minutes will be required to return to the car, leave the area which may require some manoeuvring and allow time for the car to leave the car park all of which can easily take more than a total of 12 minutes on a busy Saturday evening in the town centre.

7.4   The BPA states in its code of Practice as seen on page 9 paragraph 13 in RefXX that it must allow a driver a sufficient grace period to allow someone  who enters the 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.  The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking, and time to exit the car park once they have finished parking or where they do not agree to park there, then to return to the car and leave the car park. Given the location of the full terms and conditions, the font size on all of the signage it would take longer than 12 minutes to park, locate and read to the terms and conditions and finally pay the fee or leave the car park as the driver did.

7.5   As the time taken to pick up the passenger was much shorter than it took to locate and fully read the terms and condition as stated in paragraph XX it was felt that a ticket was not needed as the passenger arrived at the car in what would be considered the grace period and left the car park 

8.       Abuse of process

8.1   A letter of claim was received on XX/XX/XXX from BW legal RefXX stating the fine was £160. The Claimant claims that my vehicle was in the relevant car park without purchasing a valid pay & display ticket and asserts that I entered into a contract with them that I had breached must pay the charge. There was no explanation to the rationale of the additional £60 charge. In addition to this the letter of claim made reference to me being the driver amongst other points which required clarification for which a letter was sent as seen in RefXX.

8.2   The response received appeared to be an automatically generated letter as seen in RefXX. While it did state they were intending to pursue me as keeper under Schedule 4 of POFA 2012. They continued to refer to me personally breaching the terms and conditions of the contract hence implying that I was the driver. In addition to this they referred to National Car Parks Limited to being members of the IPC (referred to as Independent Parking Committee not International Parking Community; the former of which does not exist) when in fact they were indeed members of the BPA. Upon further research I had found that BW Legal were issuing robo-claims for 'parking charges' in their thousands, with no due diligence, no scrutiny of details nor even checking for a true cause of action.

8.3   I sent further letter asking for evidence (RefXX) to support their claim of me being the driver at the time. In addition to this I asked them why is I was liable for the extra £60 in “legal costs”. The Claimant knew or should have known, that to demand a global sum of £160 is unrecoverable due to the POFA paragraph 4 subparagraph 5 (RefXX), the ParkingEye v Beavis case paras 98, 193 and 198 (RefXX)and the Consumer Rights Act 2015 ('CRA') Schedule 2, paragraphs 6, 10, 14 and 18. However no response was received from this letter

8.4   In addition to the above, in Claim number F0DP201T ( RefXX) on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton  struck out the claims as an abuse of process as stated in paragraph 2 with the reasons given being  “that the claimant claims a substantial charge additional to the parking charge, which it is alleged the defendants failed to pay; and that the additional charge is not recoverable under the Protection of Freedoms Act 2012 Schedule 4 nor with reference to the judgment in Parking Eye v Beavis ; and that it is an abuse of process for the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover”. In this respect this case is identical.

8.5   Despite the claimants failure to comply with CPR 16.4 they proceeded to undergo court proceedings with a total amount of £XXX.XX being claimed for. The revised amount included an additional £50 in legal costs which appeared to artificially hike the figure a second time and seek double recovery further reinforcing the points stated above in paragraph 8.3

9.       Unreasonable Behaviour:

9.1   I contend that The Claimant has behaved unreasonably in bringing this case against me to the court. Their actions and the actions of BW Legal have brought me considerable vexation and distress over a period of nearly 3 years. BW Legal have also made a number of unsolicited phone calls at unreasonable times using my personal details provided on the Directions Questionnaire which has now been reported to the Information Commissioners Office. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable amount of time researching case law on-line, processing and printing evidence and preparing both my defence and this witness statement. I will be asking for a consideration to cover the hours used in preparation for my defence, as detailed in my costs schedule seen in RefXX

9.2   I am an unrepresented consumer who has never attended the County Court before and was not even the driver so I have limited knowledge of the event. I object to the Claimant pursuing this case despite failure to comply with CPR 16.4

9.3   I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

9.4   I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Coupon-mad

Remove 8.5 as you can't object to legal costs of £50.  

Re the below point, dig these letters out and if they all ask for fluctuating sums, list them plus the various amounts demanded, and say how confusing yet intimidating the letters were:

6.5   Following this, a number of letters were received from debt collection agencies included TRACE and Gladstones (Ref06 and Ref07 respectively)...

Re grace periods, append the BPA Article by Kelvin Reynolds that makes it clear that TWO grace periods must be allowed.  One to observe and read signs and decide whether to stay, then a minimum of ten minutes to leave after that.

You should make more of how wordy the signs were, and append the One Parking Solution Ltd v Ms W transcript (search 'Lewes court warned civil restraint' to find it) by saying this, maybe as a replacement 8.5:

8.5.  Also appended as exhibit XX is Deputy District Judge Harvey’s judgment in One Parking Solution Ltd v Ms W, heard at Lewes County Court and handed down in April 2020.  The learned Judge found that overly wordy parking terms signs with crowded, small text (like in this case) would take a driver several minutes to read.  Ms W was on site for 12 minutes in that case and the Judge dismissed that claim and summed up the worst practices of parking firms using robo-claim solicitors and template demands and witness statements primarily aimed in terrorem of Defendants (very like my case).  DDJ Harvey agreed with DJ Grand from Southampton, citing the duty of the court to consider the test of fairness in the Consumer Rights Act 2015 and that adding a false but significant percentage sum in 'damages' was a poor attempt to go behind the Supreme Court ruling in the Beavis case, as well as breaching the CRA Schedule 2 (paras 6, 10 and 14) and the POFA 2012 Schedule 4, para 4(5).


Re this below, if it is true that you can DENY being the driver (truthfully) then why are you not proclaiming that near the start?  The whole document is cagey about who was driving and I was going to warn you not to do that, yet then you suddenly say at the end as an afterthought:

9.2   I am an unrepresented consumer who has never attended the County Court before and was not even the driver 

If that is true then say so clearly in your #4 and then look at the NTK and state if it is non-POFA in wording.  i.e. no keeper liability becuase you were not the driver...but no lying.  Either you were or you weren't.

1505grandad

6.1  -  typo - "..........that the vehicle was (breeching) the terms and conditions.........."  (breaching)

Le_Kirk

I might rewrite point 5.1. & 5.2 because, as written, it seems to state that the driver had no intention of paying to park.  The sequence of events of events could be that the driver entered the car park with the intention to pay for parking and whilst reading the signs ..............
Maybe you could continue to state what happened, i.e. the passenger arrived early so the driver left the car park within the grace period OR that the driver did not like the terms and conditions of parking and decided to leave.  No need to lie but the way it is written looks a little dodgy!

Mountains

Le_Kirk said:

I might rewrite point 5.1. & 5.2 because, as written, it seems to state that the driver had no intention of paying to park.  The sequence of events of events could be that the driver entered the car park with the intention to pay for parking and whilst reading the signs ..............
Maybe you could continue to state what happened, i.e. the passenger arrived early so the driver left the car park within the grace period OR that the driver did not like the terms and conditions of parking and decided to leave.  No need to lie but the way it is written looks a little dodgy!

Thank Le_Kirk there was the intention to pay but the passenger arrived at the car before the terms could be fully read. I have amended the wording and made it into one point to reflect this to remove ambiguity. Many thanks

Coupon-mad said:

Remove 8.5 as you can't object to legal costs of £50.  

Re the below point, dig these letters out and if they all ask for fluctuating sums, list them plus the various amounts demanded, and say how confusing yet intimidating the letters were:

6.5   Following this, a number of letters were received from debt collection agencies included TRACE and Gladstones (Ref06 and Ref07 respectively) before being passing the alleged debt to BW Legal

Re grace periods, append the BPA Article by Kelvin Reynolds that makes it clear that TWO grace periods must be allowed.  One to observe and read signs and decide whether to stay, then a minimum of ten minutes to leave after that.

You should make more of how wordy the signs were, and append the One Parking Solutions v Ms W transcript (search 'Lewes court warned civil restraint' to find it) by saying this, maybe as a replacement 8.5:

8.5.  Also appended as exhibit XX is Deputy District Judge Harvey’s judgment in One Parking Solution Ltd v Ms W, heard at Lewes County Court and handed down in April 2020.  The learned Judge found that overly wordy parking terms signs with crowded, small text (like in this case) would take a driver several minutes to read.  Ms W was on site for 12 minutes in that case and the Judge dismissed that claim and summed up the worst practices of parking firms using robo-claim solicitors and template demands and witness statements primarily aimed in terrorem of Defendants (very like my case).  DDJ Harvey agreed with DJ Grand from Southampton, citing the duty of the court to consider the test of fairness in the Consumer Rights Act 2015 and that adding a false but significant percentage sum in 'damages' was a poor attempt to go behind the Supreme Court ruling in the Beavis case, as well as breaching the CRA Schedule 2 (paras 6, 10 and 14) and the POFA 2012 Schedule 4, para 4(5).


Re this below, if it is true that you can DENY being the driver (truthfully) then why are you not proclaiming that near the start?  The whole document is cagey about who was driving and I was going to warn you not to do that, yet then you suddenly say at the end as an afterthought:

9.2   I am an unrepresented consumer who has never attended the County Court before and was not even the driver 

If that is true then say so clearly in your #4 and then look at the NTK and state if it is non-POFA in wording.  i.e. no keeper liability becuase you were not the driver...but no lying.  Either you were or you weren't. 

Many thanks for the suggestions. I have added in some more detail although both cases were asking for £160. I have added in the information re Kelvin Reynolds and copied and pasted the News article on the BPA website for evidence. I have found the transcript for the case above which I have included and made reference to the new 8.5.

I was definitely not the driver and that into section 4. I had to visit the car park to get the pictures for the signage and could only see 1 sign for terms and conditions despite them saying there are multiple in of their other signs which I have added as below

7.3  A close up of the signage around the car park has been provided and it is worth noting that the sign was over 8 feet from the ground and was difficult to read even when standing directly below it. A zoomed-in copy has also been provided to provide visibility on the contents of the signage.  While it does state that more than one set of printed terms and conditions can be found in the car park, the only one that could be located was the one identified at the entrance as mentioned in para 7.2. This would leave a driver no choice but to go to the entrance to read the terms and conditions irrespective of where they parked thus taking adding more time to come to a decision as to whether or not to accept the terms and conditions. 

Having looked at the NTK it appears to meet meets POFA para 9 

On a side note will I get asked about the driver at the court hearing?