BW Legal, Defence help please

Limara

I have been trawling through countless posts trying to put a defense together I keep seeing ref to numbers like THIS "!!!8220;Civil Enforcement Limited!!!8221" as the Claimant!!!8217;s HELP what are these I don't want to use something that's totally not relevant I can see this is Civil enforcement not Ncp but are these numbers specific to anything.

Quentin

No. Ignore those numbers. They are added by the forum software erroneously! You only see them when punctuation has been attempted

nosferatu1001

NO those numbers are a mistake in the forum software.
Ignore them.

Limara

Oh dear I spent ages trying to find out what they related to no wonder I couldn't find anything!

Could some one please advise if this defence is ok the spacing on here has gone haywire I do realise that's not right!

In the County Court Business Centre
Claim Number:

---

Between:

NATIONAL CAR PARKS LIMITED V ..............................................

I am xxx, the defendant in this matter and the registered keeper of vehicle xxx.


I deny I am liable for the entirety of the claim for each of the following reasons:

1. The Claim Form issued on the 17 July 2018 by National Car Parks Limited 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 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. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass,breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a) There was no compliant Letter before County Court Claim under the Practice Direction.

3. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant's sum of £243.44 (for which liability is denied) This is completely disproportionate to any loss suffered by the claimant.
Amount claimed £168.44 ( Principal Debt £100.00 + Initial Legal Costs £60) + £8.44 interest. Estimated Court Fees £25.00 and Legal representatives costs £50.00
The Claimant is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims court. They are unjustified and should be struck out as unrecoverable.

4 ANPR evidence shows only entry and exit of car park It does not take into account the defendant spent considerable time driving round the car park trying to find a parking space, with only a few days before Christmas it was very busy and limited spaces available. Due to poor parking by cars over the line of the spaces the ones that were available would have been impossible to use.
The defendant at no time parked or left the car, A family had returned to a vehicle and whilst the defendant waited for the people to pack all the shopping and children into the car and for the space to become available his wife tried to get a ticket from the machine which rejected the debit card. She then went to obtain change and when she returned to the machine it was not accepting the registration number. At this point the defendant gave up and left the car park without being in a parking space or leaving the car at any time.

a) The terms and conditions which are displayed at the car park and on their online site 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 as the vehicle was not parked and
was not left at any time no visible terms and conditions / contract was broken There can be no contract if the contract is hidden.

5. 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 pr-estimate of loss.The signage only required payment for times parked, and therefore there was no contravention of the terms and
conditions.

6. Given that the issue will turn on the wording of the signs and "hidden" terms, the defendant requests a preliminary hearing to examine the same to save burdening the court with a claim that has no merit.


Hopefully something is correct in here. my head is totally swimming from all this legal stuff I have been going through. The letter before claim he does actually seem to have a letter that's laid out the same and looks like other peoples I have seen but there is no "heading of letter before claim"!
Is it appropiate that I list the Fistral beach case in the defence I thought it may help as its over double the time of this case.

bargepole

It seems to have all the main points in there.

You have mixed the first and third person in different paragraphs. It should all be in the third person.

So

[STRIKE]I am xxx, the defendant in this matter and the registered keeper of vehicle xxx.

I deny I am liable for the entirety of the claim for each of the following reasons:[/STRIKE]

Should be:

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

Also, it is not the accepted convention to cite case law in a Defence. That can be referred to later in the Witness Statement, if it goes that far.

So

[STRIKE]5. 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 pr-estimate of loss.The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.[/STRIKE]

Should be:

The Claimant's ANPR systems only record the times of entry to, and exit from, the car park, and do not provide any evidence that the vehicle was ever actually parked (which is denied). Claims involving similar facts have routinely been dismissed by District Judges sitting in various County Courts.


And finally … in para. 3, there is a reference to "the Small Claims Court". There is no such thing, these cases are heard in the County Court, on the small claims track.

Limara

bargepole wrote: »

It seems to have all the main points in there.

And finally … in para. 3, there is a reference to "the Small Claims Court". There is no such thing, these cases are heard in the County Court, on the small claims track.

Thank you SO MUCH for all help and advice, is the content of paragraph 3 correct that they can not charge this sum I just need to change it small claims track? I have got that info from another defence I found some where and I never knew there was no such thing as a small claims court you hear that term so often!

Coupon-mad

Never say anyone 'went to get change' as that just is not allowed, not even in a Council car park or on street, there is NO allowance to leave to get change.

And break up the paragraphs by sub-numbering like this, which also isolates clearly the really important point that the Defendant left the car park as the machine was not working, and never took up a bay or accepted a contract:

4. ANPR evidence shows only entry and exit of car park. It does not take into account the defendant spent considerable time driving round the car park trying to find a parking space. With only a few days before Christmas it was very busy and limited spaces available. Due to poor parking by cars over the line of the spaces the ones that were available would have been impossible to use.

4.1. For this delay, the blame lies squarely with the Claimant for not controlling the flows into the car park, or adjusting the grace period and ensuring the machines were adequate to cope with the foreseeable increased crowds, queues and inevitable delays at the busy Christmas period.

4.2. The defendant at no time parked or left the car. A family had returned to a vehicle and whilst the defendant waited for the people to pack all the shopping and children into the car and for the space to become available his wife tried to get a ticket from the machine which rejected the debit card.

[STRIKE]She then went to obtain change and when she returned to[/STRIKE] 4.3. Some minutes were spent sorting out some exact coins for the machine, and every effort was made to pay the tariff in coins but the machine was not accepting the registration number. Again this issue is the fault of the Claimant and not a matter that can lead to profit for them in pursuing inflated penalties as a result of their own system failure.

4.4. At this point the defendant gave up and left the car park without being in a parking space or leaving the car at any time. No contract was accepted, nor capable of being accepted, due to the failure of this Claimant's machine, and no other machine was seen.

And re this:

3. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant's sum of £243.44 (for which liability is denied) This is completely disproportionate to any loss suffered by the claimant.
Amount claimed £168.44 ( Principal Debt £100.00 + Initial Legal Costs £60) + £8.44 interest. Estimated Court Fees £25.00 and Legal representatives costs £50.00
The Claimant is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track[STRIKE]court[/STRIKE]. They are unjustified and should be struck out as unrecoverable.

is the content of paragraph 3 correct that they can not charge this sum

Interest and court fees can be claimed, so the above is not quite right.

Instead go with this and move it to the end, the final points, and you will see I have removed and changed your #6 and taken the words you were working on, to the end, and amended the crux of the matter to the machine failure:

6. 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.

6.1. 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.

7. 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.

7.1. 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.

7.2. 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.

7.3. None of this applies in this case where no parking took place, and no contract was agreed.

8. 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.

8.1. In the alternative, given that the issue will turn on the fact that the Defendant made reasonable endeavours to comply but any alleged contract was frustrated due to a machine failure under the full control of the Claimant, the Defendant requests a preliminary hearing to examine the same, to save burdening the court with a claim that has no merit.

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

Limara

WOW coupon-mad, thank you so much for all that input I greatly appreciate your help

Coupon-mad

No probs.

You will need to re-number by moving the later points one number up, as you are removing #3.

Limara

Coupon-mad wrote: »

No probs.

You will need to re-number by moving the later points one number up, as you are removing #3.

Im sorting this out now, I notice you have the different colour text in the points should I present it this way on the finished defence?

Also, I may need to remove the part about other machines, there is other machines available on the opposite end of the park, there was no reason to go over to the other machine There was nothing on the machine they used to say it wasn't working as he often has random troubles with his card and no reason to think it would have worked in another machine.
My Son is going back to the park to photograph all the signs and just to make 100% sure there isn't anything on the sign or machine we have missed.
Thanks again for your help!