Letter of claim from bwlegal

Palec

I am not classed as disabled, because depression affect 1 in 4 people during lifetime. I just was feeling very poorly back in 2009, so that admitted that I need to do something about it and when one weekend went to hospital for check, had high blood pressure and they suggested to stay overnight because I was talking about work only all the time, connected with worries and stress cos was self-employed and had deal for weekend and following week, cos working long hours in a job mentally exhausting dealing with daily clients ( drug addicts) etc, so that from one day I stayed 3 weeks...
I was in touch with some team after I came out of hospotal, then psychologist, so that depression is longterm condition with relapses, not disability. Thank you

Palec

Good news, I found that slip from PPS address Newton abbot, with telephone and fax and web https://www.pps.uk.com on it saying we do not accept the £10, £100 is outstanding and if not paid the charge we be passed to court ( undated, unsigned, with grammar mistake we be instead of will be )

Coupon-mad

Palec wrote: »

Good news, I found that slip from PPS address Newton abbot, with telephone and fax and web https://www.pps.uk.com on it saying we do not accept the £10, £100 is outstanding and if not paid the charge we be passed to court ( undated, unsigned, with grammar mistake we be instead of will be )

That's good, you can use that evidence later at Witness Statement stage.

OK so I would have your defence as per the usual ones.

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

Palec

Thank you very much, I will go through it again

Palec

Hi, It look good now, is truth. Should mention in my witness statement that I was not feeling good, fir to drive, so that I extended the ticket for another hour?

Palec

I believe now this is final version and I should follow the process:
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 the Directions Questionnaire and come back here.

I will write in Times New Roman, size 11, I suppose I can leave ''citation'' in different style...

Palec

IN THE COUNTY COURT
CLAIM No: to be added!
BETWEEN:
Premier Parking Solutions ltd (Claimant)

-and-

Palec (Defendant)

DEFENCE


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')'.

1.2. The Claimant has spent almost 5 years harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters and causing the Defendant and their family significant distress, despite having no basis to charge £100 and despite knowing that the parking tariff was fully paid, indeed overpaid, for the time on site.

2. The allegation appears to be based on a parking charge notice ('PCN') that was prematurely issued just eight minutes after expiry of paid-for time, breaching the mandatory 'grace period' whilst the Defendant was already at the machine extending the parking time.

3. The Claimant is put to strict proof of any breach and of their decision-making in deciding to issue a PCN and why, as well as the reasoning behind trying to collect an unconscionable £100 five years later, rather than the few pounds tariff, if it is their case that this sum went unpaid, which is denied. The fact is, this PCN was issued in breach of the Claimant's Trade Body Code of Practice ('CoP') on 'Grace Periods'.

4. At the material time, the Claimant operated strictly subject to the June 2013 British Parking Association ('BPA') CoP, which said: 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.''

4.1. It is reasonable to conclude that a grace period not less than 15 minutes was in the contemplation of the BPA, given that later in the CoP in the section about NI (where clamping was still legal) 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.''

4.1.1. Whilst that section is about clamping grace periods, this Claimant is an ex-clamper firm who would be used to the relevant period of grace imposed by the BPA and SIA up until 2012, and there can be no reason to think that 'at least 15 minutes' would not also be the norm to apply as a reasonable period of grace before issuing a PCN.

4.2. Further, and in support of the submission that it is reasonable to conclude that the grace period should certainly be more than a mere eight minutes, the Defendant has found a BPA article published in 2013 - just months before this 2014 parking event - so PPS would be expected to have regard to it, being a BPA member at the time. 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.

4.2.1. Mr Reynolds' article had this to say about grace periods, which shows that the Defendant was 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.''


5. Due to the sparseness of the Particulars, 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 breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

5.1. The Defendant was at the machine extending the parking time and the two machine tickets were timed with just 10 minutes between them, so the interim minutes whilst using the machine again cannot be considered to be a breach. Moreover, the Defendant was so upset to see the PCN when approaching the car to place the new PDT on the dashboard, the Defendant left well before expiry of the second hour's ticket and overall, the Defendant in fact overpaid for the full time parked.

5.2. Further, the Defendant appealed the unfair PCN, but the Claimant refused to accept the £10 cheque sent (designed to cover any administrative costs and to resolve the dispute in good faith) and instead demanded a punitive £100.

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 period' mentioned. Any reasonably circumspect driver would be entitled to rely upon the BPA's interpretation and not expect to be penalised for the time taken to buy a second ticket.

7. In any case, the Claimant is put to strict proof that it had sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation in its own name on the material date. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs and collect monies from the machines, and no doubt, to issue PCNs - but 'on behalf of' the landowner, which would give them no authority or standing.

7.1. Even if the Claimant was authorised to issue PCNs in their own right, it is denied that they could do so unfairly in a grace period and outwith the scope of the BPA CoP, and denied that the limited landowner contract in 2013/14 gave this Claimant the express legal standing to form contracts and litigate in their own name.


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

8. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67. However, with no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail.

8.1. 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, where there was no breach, no right to issue a PCN within 8 minutes and nothing to deter.

8.1.1 Differences in facts include but are not limited to: The signs/terms were not prominent (grace periods being a 'misleading omission' on the signage, contrary to the CPUTRs); the PCN breached the BPA CoP; the Claimant refused to accept a £10 cheque; the Defendant did not ignore the PCN; this was not a free car park which complicated the decision in Beavis, and the PCN bore no resemblance to the advertised tariff. As such, this case is fully distinguished in all respects from Beavis, where the decision turned on a legitimate interest in charging more as a deterrent, and clear notices proclaiming brief terms and an agreed contractual sum that did not impact on the rights and interests of drivers.

8.2. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the facts of this case. To quote from the Supreme Court:

i) Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

ii) Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

iii) 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

9. If the 'parking charge' (the first interpretation meaning the car park tariff payable for 8 minutes) was unpaid, then the sum 'owed' is a quantifiable figure. Despite extending parking in a timely manner, the Defendant found the car had already had a predatory PCN applied demanding an extortionate £100 (also described also as the 'parking charge' but clearly being an unrecoverable penalty). This is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge inBeavis from the penalty rule.

10. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be a percentage of the £1 per hour tariff. It can only be viewed in terms of a simple damages clause, where the sum allegedly 'owed' in debt is known.

10.1. This charge represents exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

(i) 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.''

(ii). And at #32: ''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.''

10.2. 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''.

10.3. 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. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was a minuscule sum in pence (if unpaid, which it was not) and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

11. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant.

11.1. These have been variously described as a 'BW Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £269.26. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

11.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.

11.2.1. 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.

12. 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.

I believe the facts contained in this Defence are true.


Name

Signature

Date

Palec

I just logged into MCOL, AOL active, went through the page and tried to fit it in the allowable 122 lines, it would fit up to point 7, so that will send it to email address as mentioned above. Will be in touch, thank you for your help.

KeithP

Why on earth were you even trying to file your Defence via MCOL?

OK, you can ignore me, I get that, but post #2 of the NEWBIES thread tells you quite clearly:

...trying to fit it [the Defence] in the online box destroys the formatting, and makes it hard for the Judge to read.

Coupon-mad

So you've emailed a SIGNED and DATED copy to the CCBCAQ email, yes?