BW Legal Court Claims - Help with defense

NikiFm_2

Coupon-mad thank you very much for your help. I submitted the AOS via MCOL and have to submit my defence by Tuesday. I've waited a few days and managed to catch up with everyones threads and draft my defence based on the help from everyone else's threads. (Crazy to see how many similar cases BW have sent out the last month.)

Is it possible for someone to read through the below defence to make sure I'm not tripping myself up or saying something that doesn't quite make sense.

I will be attaching photos of the non working pay stations with my defence.

"IN THE COUNTY COURT


CLAIM No:
BETWEEN


Private Parking Solutions Ltd (Claimant)

-and-

(Defendant)




DEFENCE

I am xxxxxxxx, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.
2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle xxxx xxx when it was parked in xxxx.

3. The PCN stated the contravention as “No ticket displayed.” This cannot be a contravention when a driver uses the Pay by Phone option, as I did.

4. It is denied that:

(a). A contract was formed, and it is further denied that any contravention of ''no ticket displayed'' occurred or can have occurred when using the Pay by Phone option, the failure of which was not communicated to me nor was it within my control. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's app, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.

(b). There was any agreement to pay a parking charge.

(c). That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

(d). That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

(e). The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

(f). The RingGo app, being indisputably an offer of a 'distance contract', complied with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says:

''Confirmation of distance contracts: 16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''

5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim;
6. The Defendant made all reasonable efforts available to them to make payment for parking by using an approved payment channel.

(a). Due to the pay station being out of order for card transactions the only possible payment the defendant could make was via telephone using a cashless system provided by RingGo.

(b). This is a distance contract which requires certain information to be supplied in advance.

(c). The service makes no provision for the printing of a ticket to display.

(d). The Defendant followed the RingGo instructions exactly as shown on the signage at the payment machine.

(e). The payment channel did not indicate any failure to make payment and responded as if payment had been made. As such the Defendant believed the necessary payment had been made.

(f). The failure of the payment service to accept payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.

In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.




7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.


8. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
(a). The amount demanded is excessive and unreasonable, especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

9. The signage on this site was inadequate to form a contract with the motorist.

(a). The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.

(b). In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

(c). Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.


10. The POFA does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. That sum cannot have exceeded the BPA CoP ceiling of £100 and the Claimant cannot recover additional charges.
(a). The Claimant has inexplicably added 'costs or damages' bolted onto the alleged PCN, despite using a solicitor to file the claim, who must be well aware that the CPR 27.14 does not permit such 'admin' charges to be recovered in the Small Claims Court.
(b). The Claimant is put to strict proof to show how any alleged costs/damages have been incurred and that it formed a prominent, legible part of any terms on signage, and that it was, in fact, expended. To add vague damages plus alleged 'legal costs' on top is a wholly disingenuous attempt at double recovery, and the Defendant is alarmed by this gross abuse of process.
(c) According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.



11. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

12. The Defendant believes the terms for such conduct are ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

13. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

14. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.


I believe the facts stated in this Defence Statement are true.


Signed: xxxxxx"

There are some Horrible gaps Between sentences, this is due to Copying the tabs from a word document.

NikiFm_2

Also, is it acceptable to send this defence for both the claims? The claims are only a week apart and the reasons I have stated apply to both claims from BW legal? Obviously I'll submit it twice with both claim numbers but they'll be identical.

System

Also, is it acceptable to send this defence for both the claims?

Yes.

And when it comes to the Directions Questionnaire then ask the Court to combine the two into one hearing to reduce the burden on the court.

KeithP

I will be attaching photos of the non working pay stations with my defence.

Nothing gets sent with a Defence.

Save your photos for the Witness Statement and Evidence stage.


What is the Date of Issue printed on your Claim Forms?

NikiFm_2

Thank you Keith, I'll keep them back for the next stage then.

The date of the PCN was the 7th and 17th of December 2015.

The court claim issue date was the 14th of September 2018 for both.

bargepole

Your Defence has far too much waffle and irrelevant ranting.

You don't cite case law in a Defence, save that for the WS / Skeleton.

Forget about the Consumer Rights Act, or the CCR 2013, you won't win on those points.

Also, the Defence should all be in the third person, your is a mixture of first and third.

Finally, it's no good trying to argue that the signage was inadequate, when you knew you had to pay.

I've rewritten it below, as a far more concise and relevant version:

IN THE COUNTY COURT

CLAIM No:

BETWEEN

Private Parking Solutions Ltd (Claimant)

-and-

(Defendant)


________
DEFENCE
________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. On the material date, the Defendant made all reasonable efforts available to them to make payment for parking by using an approved payment channel. Due to the pay station being out of order for card transactions the only possible payment the defendant could make was via telephone using a cashless system provided by RingGo.

3. This service makes no provision for the printing of a ticket to display. The Defendant followed the RingGo instructions exactly as shown on the signage at the payment machine. The payment channel did not indicate any failure to make payment and responded as if payment had been made. As such the Defendant believed the necessary payment had been made. The failure of the payment service to accept payment is not the Defendant's responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.

4. Accordingly, the Defendant denies that any contractual terms were breached, whether express, implied, or by conduct.

5. Schedule 4 of the Protection of Freedoms Act 2012, at 4(5), does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. That sum cannot have exceeded the BPA CoP ceiling of £100 and the Claimant cannot recover additional charges. The Claimant has inexplicably added 'costs or damages' bolted onto the alleged PCN, despite using a solicitor to file the claim, who must be well aware that the CPR 27.14 does not permit such 'admin' charges to be recovered on the Small Claims Track.

6. The Defendant invites the Court to dismiss the claim in its entirety, and to award the Defendant's witness costs of attendance at a hearing, if so advised.

Statement of Truth

I believe the facts stated in this Defence Statement are true.

Signature
Name
Date

KeithP

NikiFm wrote: »

The court claim issue date was the 14th of September 2018 for both.

With a Claim Issue Date of 14th September, and having done the AoS in a timely manner, you have until 4pm on Wednesday 17th October 2018 to file your Defence.

Still nearly a week left, but best not to leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out exactly what to do with it.

NikiFm_2

Thank you Keith, I really appreciate the feedback. I was worried it was too much waffle but I was also aware I needed to touch on as many points that would work in my favour. Just out of curiosity I noticed point 2 & 4 of the revised defence are basically the same paragraph. Is this on purpose or should fact 4 relate to another reason? Thank you so much for your help.

bargepole

NikiFm wrote: »

Thank you Keith, I really appreciate the feedback. I was worried it was too much waffle but I was also aware I needed to touch on as many points that would work in my favour. Just out of curiosity I noticed point 2 & 4 of the revised defence are basically the same paragraph. Is this on purpose or should fact 4 relate to another reason? Thank you so much for your help.

Sorry about that, something went wrong when copying from Wordpad.

Now corrected.

NikiFm_2

Thank you for all your help Bargepole, I've sent off the defence to the email address provided by Keith. Is this the only way I need to send the defence? I've noticed that when you sign into MCOL you can submit each defence via their system. Should I also be uploading the letters through MCOL or do I leave it now and just wait a for a response?