Letter of claim from bwlegal

phoenixfreespirit

Defence
In the County Court
Case no .......
Claimant Premier Parking Solutions
Defendant .......
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at St. James House, Teignmouth 22/10/2014.
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 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 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 was no provision at the location to buy either a pay and display ticket or permit.
6.5. The Defendant has not seen the original PCN and the Claimant has failed to provide a copy despite having been asked to do so.
7. There are significant issues involving statutory disability rights here, that the ticketing employee certainly knew about on the day. Therefore (to quote the Equality Act 2010, the ''EA'') the Claimant 'knew or should have known' the following facts: the passenger in the vehicle that day was disabled, and that she had 'protected characteristics' as defined under the meaning set out in the EA
7.1. The passenger in the car (the Defendant’s recently diseased Mother) was visibly very disabled. Whoever issued the PCN must have watched her struggle to walk and carry two large bags of books, and that employee (or perhaps a self-ticketer in pursuit of a 'bounty' from PPS) must have then run straight out from hiding, to put a ticket on the car during the time it took to return the books and find new ones.
The passenger, who was also deaf, had only just come out of hospital after breaking her hip falling out of a car, was still undergoing occupational and physiotherapy and was very anxious walking outside and unable to walk unaided. The passenger was classed as disabled despite the defendant not having had time to apply for a blue badge as the vehicle had only just been purchased and the passenger had only just been released from hospital.
7.2. The library where this incident is alleged to have happened, only had a paltry - and woefully inadequate - single disabled parking space, which the Defendant understands was full, so the car would have been parked as near as possible due to the Defendant’s Mother's poor mobility and the 24 large print books that needed returning.
7.3. Due to the significant changes in mobility and consequent demands on the whole family because of the number of arrangements necessary to enable both the Defendant’s parent’s to be safely discharged home from hospital; the vehicle was only available to be used to transport the passenger at that time; there was no possibility of returning later.
7.4. The location is the only thoroughfare and point of access for the disabled entrance to the Public Library which was necessary for the disabled passenger to use on the day in question.
7.5. The Defendant believes the Claimant is in breach of article 30 0f the UK ratified United Nations Convention on the Rights of People with Disabilities (CRPD) of 2009. The Convention is the basis for creating inclusionary societies in which people with disabilities enjoy the same rights and freedoms as everyone else, article 30 states –
Participation in cultural life, recreation, leisure and sport
1. States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:
a) Enjoy access to cultural materials in accessible formats;
b) Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats;
c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.
7.6. The alleged charge arose because the defendant’s deaf and disabled mother needed to access the library. The Claimant has been advised of these facts and refused acknowledge their reprehensible conduct.
8 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.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her defence, inadequate.
8.2. At the time of the material events the signage was deficient in number, distribution and wording to reasonably convey a contractual obligation;
8.3. 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.
8.4. There are no signs at the entrance at all.
8.5. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
8.6. As this incident took place in 2014 it is in breach of Terms in Consumer Contracts Regulations 1999.
8.7. Absent the elements of a contract, there can be no breach of contract
8.8. 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:
8.9. 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.
8.10. Signs must conform to the requirements as set out in a schedule 1 to the Code
8.11. 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.
8.12. Such a contract is not applicable to the keeper.
9. Section B.1.1 of the IPC Code of Practice outlines to operators:
9.1. 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.
10. 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.
10.1. The make up and amount of Claimant’s additional charges change from letter to letter.
10.2. The Defendant believes that the claim has been artificially inflated and that the claimant has added unrecoverable sums to the original charge, including £50 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 £50 Legal Representatives Costs pursuing an alleged £100 debt.
10.3. The defendant disputes that the claimant has also incurred further supposed additional contractual costs of £60 pursuant to PCN Terms and Conditions.
10.4. The claimant is put on strict proof to evidence the alleged total by means of hourly rate breakdown and receipted invoice for payment.
10.5. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
11. 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.
12. 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.
13. 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.
14. 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).
14.1. At the time of this incident, both the Defendant’s parents had just been discharged from hospital with life changing health conditions - and were in and out of hospital - so whilst the Defendant was appalled to receive PPS' demand for an unfair 'parking charge' four years ago; he/she was too overwhelmed by having to take on responsibility for both parents' care and living arrangements to respond to this distressing 'predatory scam' incident at the time.

14.2. Receiving a Letter of Claim four years later, could not have come at a worse time as the Defendant’s Mother has very recently passed away. It is extremely distressing and heartbreaking to have to deal with this now, whilst still mourning her sudden, unexpected death under tragic circumstances.
14.3. This incident and the Claimant’s appalling attitude and contemptible behaviour has caused and continues to cause significant distress and anxiety to the whole family, and the Defendant in particular as the registered keeper of that car on the material date; who has suffered severe panic attacks, lost sleep and exhaustion at a time when also taking on responsibility for all the family affairs following the Defendant’s father’s Dementia diagnosis; and now finding it is not yet over and PPS are suing over their own discriminatory conduct in the hope of profiting from it.
14.4. Under CPR Rule 27.14(2)(g): ''costs can be awarded where a party behaves unreasonably''.
Further, under paragraph 16 of the Practice Direction – Pre-Action Conduct:
''a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest.''
14.5. The Defendant would like to draw attention to a landmark 2017 judgment at the Leeds County Court, 3SP00071 - Blamires v LGO. This was a claim for damages including a matter of a breach of the DPA and the Equality Act, for which an award of £2,500 was granted as compensation for distress. As is now relatively well known, in Vidal Hall & ors v Google [2015] EWCA Civ 311, it was held that to restrict compensation to actual loss was contrary to the provisions of the Charter of Fundamental Rights of the European Union and that; accordingly, there was a right under the DPA to claim compensation for 'pure' distress.
Blamires also included a four figure claim for discrimination, in terms of the sum sought in compensation for distress and harassment under the EA. The anxiety and distress was compounded by the disability discrimination aspects and failures of the service provider from the outset, and is on all fours with your client's case in this respect.

The award in Blamires was of 'Vidal Hall' compensation and the Judge awarded a further £2,500 aggravated damages because of the manner in which the Defendant conducted its case, including the fact that, notwithstanding knowing that its conduct/data was wrong and discriminatory, it took nearly two years for the Defendant to admit the mistake.
14.6. In this case, it has so far taken the Claimant four years, and counting.
15. 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.

phoenixfreespirit

Hi Coupon-mad
I have posted a revised defence now, please could you tell me if it is ok and what needs changing.
I know how busy you must be but I would really appreciate your input as I have no clue if it is ok.
Thank you !

nosferatu1001

C_M cannot do that right now. Temp ban.

This seems very long...

System

There is an earlier defence on here of 309 words which will do the job. Yours is 2,987 words.

Have you taken out - duplication of ideas, irrelevant points, perjury and untruths, items that you would never be able to prove etc

phoenixfreespirit

Hi nosferatu1001 and IamEmanresu ~ thank you so much for your replies ~ I am beginning to panic again!

C_M cannot do that right now. Temp ban.

I didn't know you could be banned on here Do you know how long for? Just because she knows the circumstances ~ my defence needs to be in by 22nd Oct but I also have to arrange printing/scanning as I don't have a working printer.

There is an earlier defence on here of 309 words which will do the job. Yours is 2,987 words.

Do you mean the one in post #48?

This seems very long...

I know it is long ~ I am just trying to cover all the points
The draft in post #48 misses out my mum's disability which was the reason the vehicle was there, bwlowlife addressing me as the driver while pursuing me as the keeper and issuing prematurely.

Have you taken out - duplication of ideas, irrelevant points, perjury and untruths, items that you would never be able to prove etc

I don't think I have duplicated? tho not fluent enough in legalise to be sure or know whether the legal points are correctly quoted tho they are taken from other defences I looked at.
There are no perjuries or untruths.
I can try to get my mum's medical/hospital records to prove her disability (tho not sure if that is possible as she passed very recently) and library records though as it was so long ago it may not be possible ~ if that is what you mean re proof.
CM said this was the main part of the defence
I'm not sure if I have the correct legal quotes for 2014 and the circumstances but I have done my best.
I wasn't sure if I should leave some of the more detailed information for the witness statement instead?
Thank you ~ I really appreciate your replies

KeithP

IamEmanresu means this one:

forums.moneysavingexpert.com/showthread.php?p=74903286#post74903286

Quentin

phoenixfreespirit wrote: »

I didn't know you could be banned on here Do you know how long for? Just because she knows the circumstances

You don't get "banned" but may get stopped from posting - usually permanently


Though Beamerguy reports this is a temporary issue:

beamerguy wrote: »

I don't think that C-m's ban is permanent …….

But your deadline looks too close to risk waiting!

phoenixfreespirit

Hi Keith P
Thank you for your reply
Unfortunately the defence in link you posted isn't applicable as it was not a pay and display car park.
It was residential parking with no proof of contract which was the only point of access to the disabled entrance to the library, which had to be used because the disabled parking space was taken in 2014.

phoenixfreespirit

Thank you Quentin
I am really worried now as she has been my main point of contact on here and has been so kind and helpful. I could not have managed so far and would have given up without her help.

Quentin

She is allowed a holiday!!


Assume she won't be back for a while and don't miss your deadline!!


Others are helping you now! See recent posts above