BW Legal Letter of Claim

jtotheb

Thanks Coupon-mad - very useful.

The circumstances for the driver were just that they didn't extend the parking via the app when they knew that they should have done. I can get the app timings if you like (to show when the parking was paid for) but the driver did overstay by about 30 minutes from the time that the parking expired on the app. Simple as that.

jtotheb

OK. I've drafted the following which unfortunately seems just as long! I've been searching for ages to find a concise defence written by bargepole but there are so many posts on this forum it's proving quite difficult. The defendant is the registered keeper who was not the driver. Is there additional wording in there that's needed to be added on this point?



In the County Court Business Centre
Claim Number:

Between:

___________ vs__________

The defendant, who is the registered keeper of vehicle in question, denies that the Claimant is entitled to relief in the sum claimed, or at all.

The Defendant denies liability for the entirety of the claim for each of the following reasons:

1. The Claim Form issued on the _________, 2018 by ___________ was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature. The claim states that it has been issued by ________ as the Claimant's Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

2. The British Parking Association Code of Practice regarding grace periods was not followed. All of the signs at this car park are difficult to read and in a dark and poorly lit environment. Upon entering the car park, the signs are on the opposite side of a one-way winding entrance ramp down to the car park and it is therefore impossible to stop and reverse should the terms and conditions be disagreed with.

a) ANPR evidence shows only entry and exit of the car park. There are signs stating ANPR is used but nowhere on any of the signs does it state that the timing they base their fees on is from entry to exit. It does not state a time limit on purchasing a ticket or exiting the premise. It does not tell you to purchase a ticket for the exact time from entrance to exit.

c) The terms and conditions which are displayed at the car park state "Pay & Display” – you must purchase a parking ticket from the ticket machines at the Car Park either with cash or a credit/debit card, before leaving your vehicle and ensure that the parking ticket is clearly displayed in the windscreen of your vehicle.

d) The British Parking Association(BPA) Code of Practice states the following regarding grace periods:
“13.2 and 30.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
“13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

f) Kelvin Reynolds of the BPA says there is a difference between grace periods and observation periods in parking and that good practice allows for this: “The BPA’s 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 … 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.”

3 .The BPA Code of Practice regarding predatory tactics was not followed by the Claimant.
a) “Clause 9.5 You must not use predatory tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanctionable instance of non compliance and may go to the Professional Conduct Panel.” The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after permitted time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site. The driver is led to believe that they are following the times given on ticket that they obtain from the ticket machine.

b) In the case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage. The judge also stated that in any case £100 was not likely to be a true estimate of loss. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

c) The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

4. This Claimant uses ANPR camera systems to process data but fails to comply with the Office of the Information Commissioner's 'Data Protection Code of Practice for ANPR and Surveillance Cameras and Personal Information' (the ICO Code) thus breaching the KADOE rules and the BPA Code of Practice.
a) The constant ANPR data stream, collects irrelevant and distorted ‘time of arrival’ data on every vehicle, every day, basing the charges on the point of driving in, despite tariff payments being made at a time that is also within the _________’s data records. In terms of timing data ______ has both the time of arrival and the time of payment at the machine in their data, the latter being the point when a contract is made (the authority for the fact is Thornton V Shoe Lane Parking [1971] 2WLR585 at the Court of Appeal, where it was held that in a pay and display car park, the contract is made when the coins enter the machine.)
b) The ANPR photos show a moving vehicle in and out. A moving vehicle is not parked and the court notes that it can take time to locate and park in a parking space and also exit the parking space and car park.
c) ________ has the defendants individual ‘contract formed’ time as recorded by the PDT machine and can have no reasonable justification under the DPA to instead use the ANPR entry time. ________ merges two data systems and chooses to use time that the driver has no idea about and which acts most disadvantageously against the interests of consumers, rather than the tangible point of contract at the point of sale/ the machine. This practice fails to meet the tests of ‘fairness and transparency’ in the Consumer Rights Act 2015 and breaches the CPUTRs 2008 as an unfair commercial practice and a ‘Misleading Action’.
d) The two types of data processing(the ANPR and the PDT machine) should under their duty as a data controller, be considered as separate data streams and it is their duty to ensure that irrelevant or excessive data is not obtained and held.
e) Unlike in a free car park, as was the case in the completely different and fact-specific Beavis case, ANPRs use is not a proportionate response to collect data about genuine, paying motorists in a pay and display car park since it provides for, collects and processes charges based on irrelevant and inaccurate timings before a driver has even had a chance to read any terms and conditions, let alone find a space, park and use a machine.
f) Arrival times will always differ significantly from the time prominently printed on the PDT ticket/on the PDT screen, which is the time any average circumspect driver will rely upon. ______s use of ‘arrival time’ data is excessive, irrelevant and a serious breach of the DPA.

5. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it in order to meet their legal obligations as a data processor. Members of the IPC are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.

a)The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:
i) Lack of an initial Surveillance Camera privacy impact assessment, lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle.
ii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR or to continue using it in it’s current location, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement or manning the car park with a warden in order to consider the needs of genuine patrons at busy times in queues.)
iii) Failure to prominently inform a driver in visible & legible lettering on clear signage, of the purpose of the ANPR system and how the data stream captured would be used.
iv) Lack of the ‘Privacy Notice’ required to deliver mandatory information about an individual’s right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject’s rights are, to obtain all images and data held via a Subject Access Request from the Claimant.

6. This Claimant has therefore failed to meet its legal obligations and has breached the DPA, as well as the IPC Code of Practice. S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues – “...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

7. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50 plus 'initial legal costs' of £60, which the Defendant submits have not actually been incurred by the Claimant and constitute an attempt to achieve double recovery.

a) The added 'legal' costs are in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules. The Claimant's solicitors, BW Legal, recently admitted in court that their company handles millions of what are effectively cut and paste robo-claims, at any one time. The Defendant reasonably concludes that no supervising solicitor is likely to have provided legal advice for a fee or in any way supervised this claim.

8. In ParkingEye v Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a sum set in advance which was already significantly over and above the very minimal costs of operating an automated ticketing regime. Damages could not be added; it was held that a claim from a parking firm agent could not have been pleaded as damages, and would have failed because ParkingEye suffered no loss.

a) It was also held by the Judges in Beavis, at Court of Appeal stage, that a case regarding an ordinary transactional contractual fee (such as in a pay and display car park with a quantifiable tariff) was 'entirely different' from the complex situation in that case.

b) In all other 'parking charge' cases which turn on different signs and different facts, the penalty rule was held by the Supreme Court Judges to remain engaged, and that such charges cannot be enforced merely as punishment. The £85 charge in Beavis was saved from being struck out as an unenforceable penalty due to a specific legitimate interest in a quick turnover of spaces in a free car park where no tariff owing could be quantified.

(c) In this case, the Claimant is put to strict proof of its legitimate interest in charging an unconscionable penalty for the time taken driving around the car park before/after the parking event, which is not conduct that falls within a reasonable person's concept of 'parking on private land' at all.

(d) Further, given that the Claimant is merely an agent / contractor company not in possession of the land and with no locus, they are put to strict proof of the terms of their contract with the landowner, and that it authorises this Claimant to sue in their own name, and that the landowner contract does not conflict with the Claimant's own interpretation on signage and/or in any PCN issued for 'driving in/out time'.

(e) It is reasonable to expect that the 'parking enforcement' regime that was in the contemplation of the landowner at the time, was one which intended for penalties only for actual parking contraventions, such as exceeding a parking period by staying in a bay well beyond paid-for time and a period of grace, or not purchasing a PDT at all, leaving the tariff unpaid. It is averred that such details are key to the claim and may well allow more time than the 10 minutes in the BPA CoP and/or may state clearly that the expectation within the contract is not to time 'total stay' at all.


9. In the Hansard Report Bill, debated in the House of Commons at 12:43pm on February 2, 2018 a number of the tactics used by ________ in this response were raised in the report. I quote the following directly from the report. “Poor signage, unreasonable terms, exorbitant fines, aggressive demands for payment and an opaque appeals process.
“My Honorable Friend is absolutely right. In some cases it appears that confusion is designed to ensure that a parking ticket is issued against the unsuspecting motorist.”
“Self-Regulation has obviously failed dramatically. The British Parking Association is as much use as a multi-story car park in the middle of the Gobi dessert. The parking cowboys hide behind the BPA membership to give a veneer of Legitimacy.”
“As we have heard, there is currently no standardized, central and independent regulation of private parking operators. Today there are two different trade associations, each with its own code of practice.”
These quotes demonstrate parliaments clear intentions to enact legislation to prevent these practices and remedy the short comings of the current system of self regulation.

10. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.


I believe that the facts stated in this defence are true.

Umkomaas

I've been searching for ages to find a concise defence written by bargepole

Search no more.

https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24

there are so many posts on this forum it's proving quite difficult.

Try responding to almost every one of them laced with over-realistic expectations of simple miracle solutions for posters to get out of paying parking charges. :cool:

jtotheb

Thank you so much. However, I think some of the sections on that one don't apply in my case (specifically point 2).

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company XXXX at XXXX Business Park, and had a valid permit to be parked in that bay.

The Particulars of Claim on my claim form say
The Claimant's Claim is for the sum of £xxx being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) for a parking contravention which occurred on xxx in the private car park/land located at xx, in relation to a vehicle, xxx.
The Defendant was allowed 28 days from the PCN Date to pay the PCN, 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 £0.04 from xx to xx being an amount of £xx. The Claimant's claim includes £60.00 costs as set out in the Terms and Conditions.

jtotheb

I've used the bargepole one and done some amendments as follows:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

xxxxx (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 Claim Form was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature. The claim states that it has been issued by BW Legal Services Ltd as the Claimant's Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

3. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, 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.

4. 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. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

5. ANPR evidence shows only entry and exit of the car park. There are signs stating ANPR is used but nowhere on any of the signs does it state that the timing they base their fees on is from entry to exit. It does not state a time limit on purchasing a ticket or exiting the premise. It does not tell you to purchase a ticket for the exact time from entrance to exit.

6. 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 need to stand directly in front of a dangerous access ramp with poor visibility. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. 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