Letter of claim from bwlegal

phoenixfreespirit

Thank you Umkomaas ~ I can only imagine from just having to try and cope with mine! I really appreciate your time and help. I have added what I have managed to cobble together so far, I didn't post it before as I didn't think it was in a fit state to be read by other people yet!

Coupon-mad

the flats are sold as leasehold and they thought that parking must be included in the price? There is nothing separately listed for the land behind the flats?

If that car park is not within the flats area, and is just some 'land next door' why not tell the Council that PPS are running a car park business on that land, without paying business rates and without getting Advertising Consent for their signs.

phoenixfreespirit

Thanks coupon~mad ~ here is a photo my dad's carer took of the site it looks as though it is part of the flats though I guess they could just have put their nasty little signs up without permission? It is in Devon and I live in Wales and can only visit every 6 weeks so I haven't been able to check the actual site.

https://www.dropbox.com/s/uzsjszpb3hrap9z/WhatsApp%20Image%202018-08-12%20at%2018.32.07.jpeg?dl=0

Coupon-mad

Good photo, there is no entrance sign in view - nothing at the entrance that looks like a compliant entrance sign with a P on it, telling visitors that the site is managed and restrictions apply.

phoenixfreespirit

Thanks coupon ~ mad
Thank you for all the extra links I will do my best to check them out asap;
sorry to have only just replied but Dad has been in and out of hospital again and I haven't managed to get round to this, hopefully I will have time to look at the site on my next visit before I have to finalize this.

I think the 'private parking' on the road goes with the original parking space numbering for the flats which I don't think has anything to do with 'ParkingPirateScammers/Scum', the only sign I know of is the one you can just see on the building in the photo. Is it really possible that they could just have put the sign up and offered someone in the flats money to ring their local van? There is a PPS van in one of the photos that bwlowlife sent, and it must be the driver of the van who did the ticket and photos.

Also I am unsure about legal terms/ information regarding my mothers statutory disabilty rights and how to use the Blamires examples you have helpfully given already in the correct legal format for court.

Should I put the explanation of my mother's disability/circumstances and the fact that my car was only available for use at that time in 'mitigating circumstances' which I presume would come after any legal points?

I really appreciate all your help and wonder if it is possible for you to give me some guidance on this point?

Coupon-mad

Is it really possible that they could just have put the sign up and offered someone in the flats money to ring their local van?

Yes, it might be an individual chancing their arm, but more likely the Managing Agent (but you never know!).

Did the occupants of the car have to leave the private car park and out of an entrance and round into another entrance for the library? Just want to know if it was clearly separate with a barrier between the 2 premises and the driver had to go round on the pavement between?

phoenixfreespirit

Thanks so much Coupon~mad!
The disabled entrance to the library is directly situated at the rear of the car park and the only way to access it is through the car park ~ you can see the ramp at the rear of the photo in post 54 ~ here are a couple of photos of the 4 spaces for the library (3 staff 1 disabled) which I understand were all occupied on the day.

My mother could not manage steps at the time so had to use this entrance.

https://www.dropbox.com/s/ezmfk8tuwxp05ez/WhatsApp%20Image%202018-08-12%20at%2018.32.04.jpeg?dl=0
https://www.dropbox.com/s/88efvh5ghaqr52j/WhatsApp%20Image%202018-08-12%20at%2018.32.05.jpeg?dl=0

Do these help?

If it is just a Managing Agent and no non domestic rates are being paid, does that mean there is no contract and it is illegal?

Sorry to address multiple issues in 1 post but I only have certain times to access and brainstorm this with everything else going on atm.

I am confused that bwlowlife keep mixing up driver and keeper points in their replies and don't know how to address this. You mentioned in post 32 to do so now? Nosferatu1001 also addressed this in post 8 re their 1st reply

1 Our client’s cause of action is that you breached the terms and conditions of the contract which you entered into by parking in the car park, by failing to display a valid Pay & Display Ticket(PDT)or Permit.
2 Our client is pursuing you as the Registered Keeper of the vehicle.
3 Our client does not intend to reply on Schedule 4 of the Protections of Freedom Act 2012.

My understanding now is that they can only pursue me as a keeper under POFA, so this makes no sense?

Also I have not seen the original pcn and they have not sent me a copy?

Do I need to send an SAR? I have managed a first skim read of the SAR thread and tried your bmpa/zendesk link but it says the help centre is now closed

Thanks you so much for your reply I can't tell you how much I appreciate your help and know how!

phoenixfreespirit

Dear coupon~mad and all you clever people who know how to deal with these :mad: :lipsrseal :shocked: :mad: people.
just a quick update as I received a generic response to the brilliant letter you drafted and I sent after they rudely ignored the fact that I was corresponding with them and issued a claim before receiving my response.
https://www.dropbox.com/s/7iiwbovz8l54zuj/IMG_20181006_142757.jpg?dl=0
At least it is acknowledged.
I am doing my best to research, sift all your brilliant help and add more relevant points to my defense today without my head exploding! :eek: :think: :think: :think: :think: :think: :coffee: :coffee: :coffee: :coffee:
Thank you!

Coupon-mad

OK so show us the draft defence now.

EDIT 2020 - IF YOU ARE STILL READING OLD THREADS, STOP!

WE HAVE A TEMPLATE DEFENCE AT THE TOP OF THE FORUM NOW.

phoenixfreespirit

Ok so here is my defence so far.....
Defence
In the County Court
Case no ........
Claimant Premier Parking Solutions
Defendant ........
1. It is admitted that the Defendant was the authorised registered keeper of vehicle registration mark xxx which is the subject of these proceedings.
2. The Defendant denies liability for the entirety of the claim for the following reasons.
3. The claim was issued prematurely, during pre-action exchange of information and with disregard for the GDPR by ignoring a letter that was clearly a Subject Access Request, given the clear request for information and data.
4. The claimant’s template letters are the cause of some confusion as they all address the defendant as the driver, whilst stating that the defendant is being pursued as the keeper; yet they refuse to reply on Schedule 4 of the Protections of Freedom Act 2012. Therefore ~:
4.1. The identity of the driver of the vehicle on the date in question has not been ascertained. The Claimant is put to strict proof.
4.2. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"), which they have refused to reply on.
4.3. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
4.4. There was a relevant obligation either by way of a breach of contract, trespass or other tort; and
4.5. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
4.6. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

5 Material details have been omitted from the particulars such that I don't understand what, if any terms have been breached. No indication is given as to the Claimants contractual authority to operate in situ, as required by the Claimants Trade Association's Code of Practice B1.1 the material details of this contract are not addressed in the particulars and the claimant has refused to give proof that any such contracts exist when I asked for evidence..
6 As is required by Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) the Claimant has not provided proof of the Claimants contractual authority to operate in the car park in question It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Premier Parking Solutions. No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
6.1. Premier Parking Solutions are not the lawful occupier of the land. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no rights to bring a legal action on behalf of any third party who may be entitled to pursue a claim.
6.2. The Claimant is not the landowner and has provided no proof to be an agent acting on behalf of the landowner as they have refused to demonstrate their legal standing to form a contract.
6.3. The Claimant has suffered no loss whatsoever as a result of a vehicle parking at the location in question.
6.4. There is no provision at the location to buy either a pay and display ticket or permit.
6.5. The location in question is the only thoroughfare for the disabled point of access for the Public Library which was necessary for a disabled passenger to access on the day in question.
7 The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her defence, inadequate.
7.2. At the time of the material events the signage was deficient in number, distribution and wording to reasonably convey a contractual obligation;
7.3. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organization to which the Claimant was a signatory; and
7.4. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
7.5. There are no signs at the entrance at all.
7.6. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
7.7. As this incident took place in 2014 it is in breach of Terms in Consumer Contracts Regulations 1999.
7.8. Absent the elements of a contract, there can be no breach of contract
7.9. Section B.2.1, B.2.2 of the IPC Code of Practice gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
7.10. Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
7.11. Signs must conform to the requirements as set out in a schedule 1 to the Code
7.12. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contract and which met the specifications above.
7.13. Such a contract is not applicable to the keeper.
8. Section B.1.1 of the IPC Code of Practice outlines to operators:
8.1. If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
9. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
9.1. The Defendant believes that the claim has been artificially inflated and that the claimant has added unrecoverable sums to the original charge, including £60 for Legal Representatives costs which is not permitted for the small claims track under CPR 27.14. In any case the Defendant disputes the Claimant has incurred £60 Legal Representatives Costs pursuing an alleged £100 debt.
9.2. The defendant disputes that the claimant has incurred supposed additional costs of £110 and is put on strict proof to evidence the alleged total by means of hourly rate breakdown and receipted invoice for payment.
9.3. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
9.4. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
10. The Claim Form issued by BW Legal on the 17th September has not been correctly filed as it was not signed by a legal entity. It does not have a valid signature. 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. Its literally just computer printed BW Legal Services Limited (Claimants Legal Representative). There's no signature.
11.The Claimant is believed to be a serial litigant, with over 1,000 similar claims identified by HM Courts Service, which is clearly against the public interest. It is the Defendants belief that this claim is yet another of the Claimants template claims and will proceed with no specific evidence or facts with which to substantiate it which demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.
12. The Defendant cannot prepare a full and complete Defence in response to an inadequate, confusing and poorly drafted statement of case from the Claimant. The Defendant reserves the right to add to or amend the Defence should the Claimant (a) advance a different case via his witness evidence and/or (b) serve Amended Particulars of Claim. Any additional court fees or other litigation costs - of and occasioned by the amendment - should be borne by the Claimant.
13. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).
14. The Defendant denies any liability whatsoever to the Claimant in any matter and the court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.


STATEMENT OF TRUTH


I believe the facts stated in this Defence are true.

Any corrections, improvement suggestions are welcomed.
Points I need help with ~
1 How/where do I address my mother's disability rights (no blue badge). No time to get one as I had to buy the car in order to visit and she'd just come out of hospital. Do I need medical evidence?
2 Should I also note that I have never seen the original PCN and they have not provided a copy.
3 Should I add more to the fact that this took place in 2014?
Thank you again for any help ~ I can't express how much I appreciate it!