BW legal - Letter of Claim

KeithP

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

Possibly, but as you have said... I was definitely not the driver... you can truthfully answer whatever question they ask, can't you?

Mountains

Hello, many apologies I had made a typo in my last post and I was definitely the driver- the time of day I'm looking t these does not help the typos :-(  The section at the end was a copy and paste which I had included by accident.  I was being pursued as a keeper I left the wording as such to talk about me being the keeper which is maybe why it sounded cagey.

Sincere apologies for the confusion

Coupon-mad

OK, show us your latest changes that admit you were the driver, and making clearer that you drove in and went to seek out the terms but before you'd finished reading the wordy sign, the passenger was there and you left within minutes of arrival without having left your car unattended and without having accepted any parking contract.

Mountains

Hi ,please see below for my updated version.

_______________________________________________________________________________________

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 exhibit.

4.    I assert that at the time of the alleged parking offence, I was the registered keeper of the vehicle in question and the driver at the time of the 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 in the town centre. I took the vehicle into the car park located at XXXXXXXXX on XX/XX/XXXX which is managed by National Car Parks Limited. I had got out of the car to read the terms and conditions displayed in the car park with the intention to pay. However, the passenger had got to the car before  I could completely read the terms and conditions and then I got back into the car to exit the car park with the passenger within the grace period

6.    Later Events

6.1  Although the vehicle exited the car park approximately 10 minutes after 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 breaching the terms and conditions of use and “Parked without payment” for an alleged period of 11 minutes and 56 seconds with an amount of £100 due as seen in exhibit Ref01 or £60 if the charge was paid within 14 days of the notice.

6.2  I appealed the PCN on XX/XX/XXXX, as can be seen on exhibit Ref02 and received the subsequent confirmation as seen in exhibit 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 exhibit 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 (exhibit 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 (exhibit Ref01).

6.5  Following this, a number of intimidating letters were received from debt collection agencies included TRACE and Gladstones (Ref06 and Ref07 respectively) for an artificial sum of £160. In each case, there was no explanation of the additional £60 charge after which the alleged debt was passed to BW Legal.

7.    No allowance for grace periods

7.1  After driving in past the ANPR cameras at the entrance, it took me at least a few minutes to find a suitable space, manoeuvre and park due to the size of my car.

7.2  As can been seen in exhibit RefXX the full terms and condition are seen near the point of entering with other signs referencing the full terms and conditions placed around the perimeter of the area within the car park as seen in exhibit RefXX. To read the full terms and conditions, I had to find a space to park my car and then walk to the signage to read the terms and conditions. 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. Exhibit RefXX shows what a driver like myself saw 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 referencing the terms and conditions were illegible if trying to read them from within a vehicle due to the font size and height of the sign as seen in the first exhibit RefXX. In any instance, a driver (and myself in this case) 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 them. As seen in the photo exhibit refXX the terms and conditions were extensive and very wordy which would require a significant time to read which I was not able to do in the time before the passenger arrived at my car and therefore was not able to enter into a contract. After factoring the time to enter the car park and park a vehicle, it could easily take any individual up to or more than 10 minutes to read the terms and conditions in full.

7.3  A close up of the signage referencing the terms and conditions around the car park has been provided as seen in the first picture of exhibit refXX and it is worth noting that the sign appeared to be over 8 feet from the ground.  It was difficult for me to read even when standing directly below it despite being 5ft 11 inches in height. A zoomed-in copy has also been provided to provide visibility on the contents of the signage as seen in the second picture of exhibit refXX.  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 I could locate was the one identified at the entrance as mentioned in para 7.2. This left me no choice but to go to the entrance to read the terms and conditions irrespective of where I had parked thus reinforcing the length of time it would have taken as mentioned in para 7.2

7.4  In addition to this if I was able to fully read the terms and conditions and then refuse to park there a further 7-8 minutes would have been required to return to the car, leave the area where the car was located as this will have required some manoeuvring and allow time for the car to exit the car.

7.5  The BPA states in its code of Practice as seen on page 9 paragraph 13 in exhibit 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 before the 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.

7.6  In addition to the above a BPA article by Kelvin Reynolds (exhibit RefXX), makes it clear that TWO grace periods must be allowed.  One to observe and read signs and decide whether to stay, then another grace period to allow the car to leave after the period of parking or where the driver does decide not to park there.

7.7  Given the location of the full terms and conditions, the font size on all of the signage and the extensive wordiness, it would take longer than 12 minutes to park, locate and read to the terms and conditions in full and finally pay the fee or leave the car park. In my case was unable to even read the terms and conditions in full before the passenger arrived at the car and was therefore unable to enter into any parking contract.

8.    Abuse of process

8.1  A letter of claim was received on XX/XX/XXX from BW legal (exhibit 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 referred to many points which required further clarification for which a letter was sent from me as seen in exhibit RefXX.

8.2  The response received appeared to be an automatically generated letter as seen in exhibit RefXX. While it did state they were intending to pursue me as keeper under Schedule 4 of POFA 2012. They referred to National Car Parks Limited to being members of the IPC (referred to as Independent Parking Committee in the letter and 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 was 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 a further letter asking for further evidence (exhibit RefXX) and I asked them why 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 POFA 2012 Schedule 4, para 4(5) (see exhibit RefXX), the ParkingEye v Beavis case paras 98, 193 and 198 (exhibit RefXX)and the Consumer Rights Act 2015 ('CRA') Schedule 2, paragraphs 6, 10, 14 and 18 (exhibit RefXX). However, no response was received from this letter

8.4  In addition to the above, in Claim number F0DP201T (exhibit 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  Also seen in 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)

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 for nearly 3 years. BW Legal has also made several unsolicited phone calls with some of those taking place at unreasonable times using my details provided on the Directions Questionnaire. These actions have 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 exhibit RefXX

9.2  I am an unrepresented consumer who has never attended the County Court before. 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 according 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.

Signed

Date

Coupon-mad

Great, very good!  The only thing I didn't see was to challenge NCP to proof that their landowner contract allows them to issue PCNs to cars that drive in and out without entering into a contract (or, is this apparently an NCP owned car park)?

Oh, and change:

 alleged parking offence,

to

 alleged parking event

Mountains

Coupon-mad said:

Great, very good!  The only thing I didn't see was to challenge NCP to proof that their landowner contract allows them to issue PCNs to cars that driv in and out without entering into a contract (or, is this apparently an NCP owned car park)?

Oh, and change:

 alleged parking offence,

to

 alleged parking event

Many thanks for the comments. I've changed the offense to the event.
In their first response to my inquiries, I asked for the contract following the letter of claim. They state that the contract is between them and the landowner and I have no right to this. Is it worth adding something to 8.2 to reflect this?

Coupon-mad

Yes, I would add something as I suggested, then.

D_P_Dance

They state that the contract is between them and the landowner and I have no right to this.

They will have to produce it if they take you to court..  Have you complained to your MP?

nosferatu1001

Of course you have the right to see it, just not until they HAVE to disclose it at witness ststament stage, otherwise they are admitting they dont have the rights they claim. 

Coupon-mad

They won't show it yet.
So focus on what to do next, as per the NEWBIES thread.