Letter of claim from bwlegal

Coupon-mad

LOL, it was silly o'clock and the fingers were not engaging with the brain..!

phoenixfreespirit

Hi Coupon~mad
I am madly indexing all the printing now as it took all day at the library.

I have just seen your template for costs in the NEWBIES thread, can I just present this on the day or should it go in with evidence?

I am so sorry for making such a pigs ear and rush of all this by misreading the date and causing your silly o clock posting ~ I do hope you get some decent R&R too. I am looking forward to some sleep when this over and again can't thank you enough for your help and kindness.

Coupon-mad

You might get away with a costs schedule on the day, but you SHOULD file and serve it in advance (with your own costs on it, not the template version).

The good news is, the costs schedule can be filed & served just 2 days before the hearing.

Did you print a copy for yourself, so you have a full file of everything to take?

Well done on your efforts, I can imagine that was a faff and a strain, printing all that at a library!

phoenixfreespirit

Thanks again Coupon~mad
I will calculate & file the costs later then to save any further delay.
I wish I could pay or repay you for all your help!
I have to go back tomorrow to finish as I had to have an emergency dental appointment in the middle of it all!
I think I have everything too, I'll double check mine at the w/e and make sure I have it all together in plenty of time!
Library staff were brilliant and had a tip for any Welsh speakers on the forum that asking for all correspondence and documentation in Welsh seems to cancel any charges :rotfl:

Thanks a million
I'll post WS etc when slightly less stressed and pushed for time !

phoenixfreespirit

Hi Coupon mad
Before I email my costs can I just double check a reasonable amount for
Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, preparation and drafting of documents ?

In your template you factored 3 hours @ £19 litigant in person rate ~ is there a reasonable maximum?
I have checked CPR27 and it doesn't seem to give an exact amount.
I know I can't claim anywhere near the real amount of time involved in dealing with it all, as it has taken weeks rather than hours and that's not taking into account all your invaluable help, without which I could never have managed!
I wish I could also factor in the stress and distress their behaviour has caused!
Thanks once again for all your help ~ I really can't tell you how much I appreciate everything you have done. :A

phoenixfreespirit

Hi Coupon Mad
Here is the WS I filed..Thank you so much I could not have done it without you!
I have received BWL's court info with a letter still asking to settle which hopefully is a good sign.

Before I email my costs (hopefully tomorrow) can I just double check a reasonable amount for
Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, preparation and drafting of documents ?

In your template you factored 3 hours @ £19 litigant in person rate ~ is there a reasonable maximum?
I have checked CPR27 and it doesn't seem to give an exact amount.
I know I can't claim anywhere near the real amount of time involved in dealing with it all, as it has taken weeks rather than hours and that's not taking into account all your invaluable help, without which I could never have managed!
I wish I could also factor in the stress and distress their behaviour has caused!
Thanks once again for all your help ~ I really can't tell you how much I appreciate everything you have done.

IN THE COUNTY COURT - Claim No. .........

Between

Premier Parking Solutions (Claimant)

-and-

................... (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, ................ am the defendant in this case and will say as follows. ~:

1. The facts in this statement come from my personal knowledge. I have however no immediate first hand knowledge of the alleged incident. Where they are not within my own knowledge they are true to the best of my information, belief and recollection given the amount of time since the incident and extremely stressful circumstances. Attached to this document is a bundle of paginated evidence marked ..1 to which I will refer.

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.


Liability

3. It is a fact that I was not the driver and was not present in the car, on this occasion. I am being pursued as the registered keeper, but this is only possible where a parking firm have fully complied with Schedule 4 of the Protection of Freedoms Act 2012 (the POFA) and it is my case that the Claimant has failed the requirements for:

i) adequate notice of the £100 charge, with the sum being in the largest font on the signage
ii) establishing a 'relevant obligation' or 'relevant contract' existed, which cannot be the case where the entrance sign positively invites and offers disabled access for the library
iii) issuing a fully compliant Notice to Keeper, in accordance with either paragraph 8 or paragraph 9, in terms of mandatory wording and deadline for service.

A copy of the POFA Schedule 4 is adduced as evidence.


4. I assert that I was the registered keeper of the vehicle in question in this case. I was not the driver. I owned the vehicle for a short amount of time, which was needed specifically to visit my parents in Devon following the near death of my father and a fall by my mother whilst visiting him, which resulted in a lengthy hospitalization in both General and then cottage hospital. Both my parent’s health had severely deteriorated, my father had been diagnosed with dementia, my mother who was deaf and now unable to walk unaided was designated as his main carer but would not leave him with anyone who was not family. Please refer to Devon Council Health Assessment included in ..1 from the following year which gives some relevant proof of their ongoing health difficulties and the fact that my mother had an ‘Enabling Package’ in place specifically to be taken by a carer to the Library and Post Office.

5. Whilst I no longer have any documentation for the vehicle, I can attest that permission was given for third party use by carers during my visit, due to the extremely difficult situation, to be used to enable my mother to visit the local library when this incident took place. Given the amount of time that has passed and the circumstances I am unable to recollect the full names of carers at this time.
Following this incident this permission was subsequently revoked as I did not know the vehicle had received a PCN until I received a demand for money from Premier Parking Solutions. I did not reply as I did not think it was legitimate and was far too overwhelmed with responsibility for my parents’ health and welfare to do so.


6. Correspondence from BWlegal regarding who they are charging has been extremely confusing as it changed several times, the claim was served while I was still in communication with regards to clarifying this and other details including their refusal to provide proof of contract with the landowner until evidencing in their Witness Statement. I therefore had to determine who any contract might be with, given the Claimant’s refusal to provide, which I eventually managed to do.
Please see ....... email in ..1.
7. The landowner contract provided in evidence by the Claimant is dated 2008, well before the law changed under the POFA and a time when PPS was a clamping firm, and yet this incident was in 2014. I question the relevance of a very old contract - superseded by the law changes in 2012 - which stated it was valid for an initial term of 12 months.
Please see correspondence in ..1.

8. The Claimant submits that I was the keeper and driver when I have told them in correspondence I was not, they also refer to the defendant as the driver having parked and entered into a contract, which I refute.


9.1 I was able to describe to the Claimant in pre-action communications, the situation of my mother being assisted to return her books to the library and how should would have struggled. Hence the need for her and her carer who was driving, to use a bay close to the library due to her disabling medical conditions, which the Claimant is/was aware of but they made no reasonable adjustment at the time, nor in the pre-action phase.

9.2. I can see from Google Street View images and from the Claimant's limited photos that the site was shared use, part residential parking and part library parking, and that the only entrance sign offers disabled access to the library and does not elaborate on which bays can be used for which purpose.

10. As my father has dementia and thus no memory of this time, my mother has passed and I have no contact with her past carers, I cannot provide witness to the truth of the fact that I was at home looking after my father at the time of the incident, involved in sorting out all my parent’s needs and affairs having just had to take on Power of Attorney for them. I can only provide relevant excerpts from Devon County Council Assessments to which I have previously referred, which states that an enabling plan was in place and add that this would have been the first time it was used to due to my mother’s refusal to leave my father with anyone other than family, as she was devoted to my father and rarely left his side following his dementia diagnosis.

11. BWLegal, acting for the Claimant, seem to be under the misapprehension, or unlawful presumption, that I was ‘more likely than not the driver’ because I am aware that my mother has since died! Having some recollection of my mother’s health at the time so being therefore capable of imagining what happened, when combined with the sparse details which were relayed to me through the agency after the event, can in no way be construed as proof that I was the driver.

12. I adduce in evidence at ..1, expert parking law barrister and Lead Adjudicator, Henry Greenslade's words about 'Understanding Keeper Liability'' in his POPLA Annual Report 2015 where he states: ''However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.''



Inadequate signage.

13. I can see from the Claimant's photos that they have cropped the blue Devon County Council entrance sign out of their evidence, making it appear that the only information is the legend painted on the tarmac 'private parking'. This is clearly not true, and I have searched Google Street View for the truth and found that, as well as residents' parking, disabled access to the library is clearly offered, as a driver enters the site.
Please see photo evidence in ..1


14.1. There is no prominent sign at the entrance to the Library other than the County Council sign giving disabled access. I am also given to understand that the sign shown by the vehicle at the time of the incident, which is by no means clear or adequate, was replaced and enlarged shortly after this incident. It is certainly nowhere near the size or clarity of the sign used in Parking Eye v Beavis,despite the claimant’s attempts to enlarge photos and use evidence of ‘permit holder only’ ‘maps’ which would seem to be recent and not evidenced in 2014. Please see photos of disabled access sign, lack of entrance signage, new sign in 2015, and by way of comparison, the Beavis sign example, which the Supreme Court held was clear an prominent with the parking charge itself in the largest lettering/bold font.

14.2. By comparison, the Claimant's 2014 sign, despite being pictured as close to the car bonnet, cannot be read and looks like a warning for people not to leave valuable in cars. It is also so low that a parked car immediately obscures any terms.


15. The shared parking area is not fenced in between the residents and library areas, or delineated to stop people parking inadvertently in the 'wrong' bay. Further, PPS had no entrance sign of their own to communicate that the site was managed. This was in breach of the 2014 BPA Code of Practice ('BPA CoP') which is adduced as evidence ( - 2) and attention is drawn to the rules about entrance signs in paragraph 18 and Appendix B.


16. In a letter dated 7th Sept BWLegal state that the vehicle was observed for 10 minutes 32 seconds before issuing the PCN with no proof whatsoever of this ‘fact’, however all photos of the vehicle in situ offered by the claimant as evidence are timed between 14.54 to 15.05. As far as I can ascertain there is no signage stipulating permitted length of stay it is however my understanding that a person with a long-term debilitating condition can be disabled without a Blue Badge and will be legally entitled to a 'reasonable adjustment'. BWLegal had been advised more than once that the passenger needing to visit the Library had long term mobility issues and because of the sheer effort involved in getting there coupled with limited availability of both time and transport, she would have been unable to access the Library by any other means.
Please see evidence of confusing and contradictory correspondence in ..1


17. The PCN was also in breach of paragraph 13 of the BPA CoP as regards 'grace periods', especially for disabled visitors who take longer to go about daily life. It seems to me, that the Claimant has suggested that the car was parked for just over ten minutes to try to get around the 'grace period' rule which prohibits predatory/immediate ticketing, yet they know that a passenger was disabled and more time should be allowed before enforcement.

17.1. Kelvin Reynolds of the BPA stated in an official article around the time of this event, that good practice allows for observation and/or grace periods before any enforcement takes place: ''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.''


17. This penalty has no commercial justification or legitimate interest, give the Claimant's own failure to clearly sign the different parts of the site and the fact the ticketer must have watched my mother struggle into the Library then pounced in the few minutes it took to return books. Using the Beavis case as the benchmark, the charge here is punitive, unconscionable, unjustified, predatory, in breach of the BPA Code at the time, and and extremely poorly signed. Thus, the charge is unrecoverable and the Beavis case is distinguished.


18. I respectfully request that the Court note that this case has caused extreme stress, heartache and distress given its content, circumstances and timing coupled with Whether or not my mother’s disability is in fact covered by a point of law or not, I would also respectfully request to go on record at being appalled that the Claimant has used court time in such a way by demanded money with menaces under the given circumstances and in such an inhumane manner; and at the deterrant, inordinate and disproportionate amount of time, effort, expense and expert help necessary to defend the questionable modus operandi of this company and it’s litigants. Please also note that I have contacted Kevin Foster MP for Torbay with regards to this case (please see exhibit in ..1) and will be forwarding the contents for him to use in the House of Commons in his joint effort to police the behaviour of such companies.


19. The Court is invited to dismiss the claim and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.


Signature of Defendant:


Name:
Date:

The hearing date is 11 Apr.....

Coupon-mad

I like that WS - you have really stepped up the pressure since you came here!

Your most important pieces of evidence are:

the fact that my mother had an ‘Enabling Package’ in place specifically to be taken by a carer to the Library and Post Office.

phoenixfreespirit

Thanks soo much Coupon mad ~ I truly could not have done any of this without your wonderful advice and amazing help ~ I REALLY can't thank you enough!!
I will do that as I have easily spent that much time reading, researching, trying to make sense of their correspondence and drafting letters, documents etc!
I have also included BWL's most misleading and confusing correspondence in my witness statement package so the judge can see for him/herself, including them being a member of the non existent IPC etc.
The hearing is the week of the anniversary of my mum's funeral and I will just be so glad to get it over with so I can remember her in peace without all this!
I will do some swotting up beforehand and wait and see if they actually do send anyone out to the wilds of Wales as we're not exactly easy to get to here!
Keeping everything crossed in the meantime!
Thanks once again for being such a complete Star!:staradmin :staradmin :staradmin :staradmin :staradmin

phoenixfreespirit

Court case tomorrow 10.30am....fingers crossed.....

KeithP

Good luck.

Have you seen this short video?...

www.youtube.com/watch?v=n93eoaxhzpU