Letter of claim from bwlegal

Palec

Hi, I have not found any more arguments in my case, so that Defence 2 is my final version:
Draft defence 2

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 on the following grounds:
1. The Claim Form issued on the 14 Sep 2018 by BW Legal Services Ltd 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 and is not a statement of truth. It states that it has been issued by BW Legal Services Ltd as the Claimants 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.This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

b.The Schedule of Information is sparse of detailed information.
c.The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success.
3. Unjustified inflation to the claim value
The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 legal representative’s costs were incurred. The Defendant believes that BW Legal Services Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. 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. The Defendant denies that the Claimant is entitled to any interest whatsoever. Tthe Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.Legal costs are not recoverable via minor claims court.
4. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim as far as the Defendant is able to tell from the limited information provided by the Claimant.
BPA AOS Code of practice Version 3 valid at a time of allegation specifies in 13.4 that : You should allow the driver a reasonable period to leave
the private car park after the parking contract has ended,
before you take enforcement action.
There was no nothing about grace period on the signage and 10 minutes is within reasonable time limits for any car parks at a time of alleged offence and also nowadays.
I purchased another ticket for £1 10 minutes after first one and have proof of it.
I would like to mention also case Pace vs Lengyel as example of unreasonable charges.
I would like to ask judge to take into consideration following mitigating factors:
In 2009 I was diagnosed with depression and seen psychologist who mentioned is connected with anxiety and was recommended by DVLA to drive with caution, which I always do. That was the reason I extended my ticket for another hour after purchase of first ticket just 10 minutes later.
I feel bullied by letters I received in 2015 from DRP Debt recovery Plus Ltd and in my reply stated that I will pay only if court decides me to do so, because PPS refused my offer of £10 for the time between purchase of first and second ticket and wanted £100. Despite this and break after letter from 2015 I started to receive letters from DRP in 2017 wanting to settle for £136 and recently from BW legal.
I feel PPS should be sanctioned because of unethical behaviour towards me using debt collectors instead of proposed court actions...
DVLA Statement

The DVLA has issued a statement to the Trade Associations on the matter of Debt Assignment

You will be aware that DVLA has been considering whether to permit private parking companies passing on DVLA vehicle keeper data to third parties as part of the assignment of unpaid alleged private parking charges. The term used in this context to describe this activity is "debt assignment."

The KADOE contract does not provide for the onward disclosure of vehicle keeper data by parking companies for debt assignment, and any proposals to do so require the parking company to seek written authorisation from DVLA. However, following representations from the sector, DVLA agreed to consider its position further.

I can now advise that the Agency has concluded that it will not be changing its position on this matter. As was the case with previous requests from parking companies, DVLA will not allow vehicle keeper data originating from DVLA records to be provided to third parties as part of a debt assignment arrangement. The Agency will consider disclosure of data obtained from DVLA to third parties as part of a debt assignment arrangement as a breach of contract which could result in suspension.

British Parking Association Statement

The British Parking Association has stated they will fully support the DVLA in this matter, and that this is a serious breach which could result in the award of 10 sanction points.

12 sanction points results in an immediate ban.

The International Parking Community

The IPC have not made any public statement on this matter. However, their code of practice states
5.2 You must not pass any Personal Data to any third party company who is not a member of an Accredited Operator Scheme (or similar scheme of a different name) with an Accredited Trade Association or a firm entitled to carry on reserved legal activities
According to their sanction scheme, misuse of personal data can result in 6-12 sanction points, with a starting point of 10.
Factors indicating higher degree of harm
1. Personal Keeper’s Data compromised or
used or obtained inappropriately.

5. Summary
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Incorrectly filed Claim Form issued on 14 Sep 2018

(b) Has not taken into consideration grace periods as per CoP

The vague Particulars of Claim disclose no clear cause of action. 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 confirm that the contents of this defence are true to the best of my knowledge and recollection.
Signed xxx
Dated xxx

Coupon-mad

Bump to tell you another name to contact by pm:

NikiFm

And your defence need you to start again. It looks as though you haven't read any defences at all.

EDIT 2020 - STOP READING THIS OLD THREAD, IF YOU ARE!
THERE IS NOW A TEMPLATE DEFENCE AT THE TOP OF THE FORUM

Palec

If nothing else, I will definitely improve my English, just joking...The truth is that storytelling is better for me as for expressing my case somehow, but I do understand it needs to be done professionally, agree it is not so difficult if I would write it in my native languague, would be not struggling, just need to spend some time on it every day, as have difficulty to focus on it for some reason, but am not giving up, thank you for your comments...

Coupon-mad

You will get your chance to 'tell the story' exactly like that, in your later Witness Statement.

Defence stage is different, and is in the third person - read some & copy the style even if it's alien to you.

Palec

Sure thank you, am getting there, just am not sure if to mention that Beavis case in my defence, who lost, but it was different scenario, which appears in a lot of defences that their defence is not connected to that case as he lost in Supreme court, but it was different, I think overstay was longer than 10 minutes like in my case, but not sure if to mention it or not and in which way, but maybe after I release next defence rewritten version, you could comment with yes or no and how to formulate it, maybe? I do not want to be too annoying...:-)

Coupon-mad

Keep showing us draft defences and we will help - we always help people like you who are making an effort.

Palec

Draft Defence 3 ( I feel point 11 Summary should be shorter, so please feel to scrap whatever is not needed there...Thank you).


IN THE COUNTY COURT
CLAIM No: Removed

BETWEEN:
Premier Parking Solutions ltd (Claimant)

-and-

Palec (Defendant)

DEFENCE

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 on the following grounds:

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 Concord House, Exeter 05/01/2014.

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

2. The allegation appears to be based on images by person observing vehicle not allowing 10 minutes grace period when extending ticket or leaving car park.


Data Protection concerns

3.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid. Claimant refused to accept £10 offered by defendant at a time and asked for £100.

4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection.

4.1. Silently collecting VRN data in order to inflate the 'parking charge' from £1 to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

4.2 Concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.







Denial of contract and denial of any breach, or liability

5. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them, especially with no grace periods mentioned there.


No standing or authority to form contracts and/or litigate
6.1. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. Defendant could not contact landowner, as owners changed shortly after PCN was issued.



No 'legitimate interest' or commercial justification - Beavis is distinguished



Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''



Unconscionable, punitive 'parking charge' - again, Beavis is distinguished


7. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

7.1 ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''
7.2 The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

7.3. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £1 and no more, which defendant has done when extended ticket by purchasing £1 after 10 minutes from when first one expired. Defendant offered also claimant £10 for this’’lateness’’ regardless reasons for it…

7.4 No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.



8. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

9. 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, which have not actually been incurred by the Claimant.

9.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Premier Parking solutions ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

10. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

10.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £100 can be claimed instead of £1 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.

11. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.
The Claim Form issued on the 14 Sep 2018 by BW Legal Services Ltd 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 and is not a statement of truth. It states that it has been issued by BW Legal Services Ltd as the Claimants 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.
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.This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

b.The Schedule of Information is sparse of detailed information.
c.The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success.
Unjustified inflation to the claim value
The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 legal representative’s costs were incurred. The Defendant believes that BW Legal Services Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. 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. The Defendant denies that the Claimant is entitled to any interest whatsoever. Tthe Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.Legal costs are not recoverable via minor claims court.
Defendant would like to mention also case Pace vs Lengyel as example of unreasonable charges.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Incorrectly filed Claim Form issued on 14 Sep 2018

(b) Has not taken into consideration grace periods as per CoP

The vague Particulars of Claim disclose no clear cause of action. 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 and confirm that the facts contained in this Defence are true to the best of my knowledge and recollection.


Name

Signature

Date

Coupon-mad

I am looking at your case in detail although I am out tomorrow taking one of my student kids back to University ('Mum's taxi'). So might not get this finalised until Monday in my lunch hour!

I'm bookmarking the fact this 2013 CoP applied at the time (early January 2014):

https://www.britishparking.co.uk/write/Documents/AOS/609_AOS_CoP_June_2013_update.pdf

Grace Periods:
13.4 You should allow the driver a reasonable period to leave
the private car park after the parking contract has ended,
before you take enforcement action.

It's reasonable to conclude that a grace period not less than 15 minutes was in the contemplation of the BPA for this Code of Practice, given that later in the CoP in the section about NI (where clamping was not illegal) the BPA state:

''Vehicles whose drivers have paid legitimately for parking but have overstayed the ‘paid-for’ time, and are not committing any other breach of the regulations, may not be immobilised unless they have stayed beyond a reasonable ‘grace period’. The grace period should be at least 15 minutes beyond the time their permitted parking period expired.''

Whilst that section is about clamping grace periods there is no reason to think that 'at least 15 minutes' would not also be a reasonable period of grace before issuing a parking ticket, which is similar private 'penalty' enforcement but without a clamp.

Also it is reasonable to conclude that the grace period should certainly be more than a mere eight minutes, given this article:

https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

The article dates from 2013 - just months before this parking event - so PPS would be expected to have regard to it, being a BPA member at the time. And the article is by Kelvin Reynolds, Director of Policy and Public Affairs, who, despite encouraging a ''war on the non-compliant motorist'' was honoured by the BPA for his outstanding contribution to parking with a Lifetime Achievement Award.

Kelvin says this about Grace periods, which shows that the Defendant is not in the BPA Trade Body's view, 'a non-compliant motorist':

“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.” The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place. Kelvin continues:''In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules.''

and

16 Disabled motorists
16.1 The Equality Act 2010 says that providers of services to
the public must make ‘reasonable adjustments’ to remove
barriers which may discriminate against disabled people.

16.2 ‘Reasonable adjustments’ to prevent discrimination are
likely to include larger ‘disabled’ parking spaces near to the
entrance or amenities for disabled people whose mobility
is impaired. It also could include lowered payment
machines and other ways to pay if payment is required:
for example, paying by phone. You and your staff also
need to realise that some disabled people may take a
long time to get to the payment machine.

16.5 If your landowner provides a concession that allows
parking for disabled people, if a vehicle displays a valid Blue
Badge you must not issue it with parking charge notices.

I have some questions:

- were you displaying a Blue Badge or not?

- did you have one, or a long-term disabling medical condition affecting mobility?

- when you extended your parking time, were you at the machine doing that, when the warden was plonking a windscreen PCN on your car at the same time?

- did you see the person putting the ticket on, and rush to extend your time?

- or did they put the windscreen PCN on during your extended period of parking, having looked at both PDT and decided there was a gap?

- when you left at the end of the extended parking time, did you leave WITHIN the ticket expiry time, or after that second ticket expired?

- How many minutes at the very end of the second parking period were you late, if you were? Or were you early back?

- have you still got the £10 cheque, or the letter that returned it uncashed?

- remind us what was the claim 'date issued', is it 14th Sept as per your draft defence?

Palec

Thank you for your reply.
As for answers to your questions:
I am not holder of blue badge
I was diagnosed by depression in 2009, was in hospital for 3 weeks then on medication for 12 weeks, after that in touch with psychologist, so that because of stress mostly, which is the reason I have to stop after work to 'clear my mind from thoughts' before driving safely on most occasions...
No approaching to car park I have not seen anybody, juts car nearby, but to be honest car park was small, not huge distance from car, so that it took maybe few minutes to extend parking ticket, but we had PCN in screenwindow, so he has done it few minutes before our arrival...

Palec

I have not seen person putting ticket on window rushing to extend time, seen car nearby, so maybe thought came to my mind, hope he gave us no ticket as looked at my watch at a time realising it is few minutes after, as we go church on Sunday and mass finished around 12, so I know we need ticket for an hour or two depending if we do shopping, go for lunch or how I feel after we extend or not or buy 2/3 hours from start, it depends on various circumstances.

No they must have put PCN first, then we bought another ticket...It was good anyway we bought it as it shows difference between first and second, which is 10 minutes.
Second time we left within ticket expiry time, I suppose 30 minutes after, because instead of taking few minutes mental break I was stressed more because of parking ticket, so that need to take longer mental break for sure, but 100% within an hour we paid for.

I was early back at the end of the second ticket 100% as explained above.
I cannot find it anywhere £10 cheque, they returned only little piece of paper with PPS on it, saying not accepted, demanded £100, because it was at a time they would reduce fine to £60 if paid within 14 days, but I calculated we cause loss of few pence as for 10 minutes when one hour was £1 and offered £10 for issuing ticket etc ( admin cost), cannot find proof unfortunately, will have a last look again.

Yes issue date is 14 Sept 2018

Thank you for your help