PCN taken to court (BW Legal) - Advice needed

bartolas

Hi,

please find below an initial draft of my defense. Can I please have your feedback...

++++++++++++

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

COUNTRYWIDE PARKING MANAGEMENT LIMITED (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

Preliminary

1. The Claim Form issued on the 16 July 2018 by BW Legal Service 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 and is not a statement of truth. It states that it has been issued by BW Legal Service Limited 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. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defense. The Defendant reserves the right to seek from the Court permission to serve an Amended Defense should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2.1. 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. HMCS have identified thousands of similar poorly pleaded claims.

2.2. The Defendant believes the term for such conduct is "robo-claims" which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

3. The particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background

1. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark xxxxx which is the subject of these proceedings.

2. It is admitted that on xx/xx/xxxx the Defendant's vehicle was parked at xxxxxxx.

3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

3.1. 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 Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

3.2.1. there was a ;relevant obligation; either by way of a breach of contract, trespass or other tort; and

3.2.2. 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.

3.2. 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 offense has been committed. Those provisions do not apply to this matter.

The Defendant denies liability for the entirety of the claim for the following reasons:

1. The Claimant's increasingly demanding letters failed to evidence any contravention of clear/prominent signage.

2. The claimant has not provided enough details in the particulars of claim to file a full defence

In particular; the full details of the contract which it is alleged was broken have not been provided.

2.1. The Claimant has disclosed no specific cause of action to give rise to any debt.

2.2. The Claimant has stated that a parking charge was incurred.

2.3. The Claimant has given no indication of the nature of the alleged charge in the
Particulars of Claim. The Claimant has therefore disclosed no cause of action.
2.4. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states "Parking Contravention" which does not give any indication of on what basis the claim is brought.

2.5. The claimant's signage is inadequate and is not visible if an higher car (e.g. van or SUV) is parked in front of it.

3. COUNTRYWIDE PARKING MANAGEMENT LIMITED are not the lawful occupier of the land.

COUNTRYWIDE PARKING MANAGEMENT LIMITED have provided no evidence that they have the authority to issue charges on this land in their own name and that they have rights to bring action regarding this claim.

3.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

3.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question

3.3. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.

4. The signage was inadequate to form a contract with the driver.

4.1. The signage on this site is inadequate to form a contract. It is in small font and it is not visible from all the parking spaces.

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

The Defendant denies that the driver 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.

6. The Claimant has at no time provided an explanation how the sum has been
calculated

6.1. The Claimant has at no time provided an explanation how the sum has been
calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160 and then to £172.92. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

6.2. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

7. The Claimant has added on unrecoverable fees

7.1. 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 sign. 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.

7.2. The Defendant also disputes that the Claimant has incurred £50 legal representatives' costs.

7.3. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.

7.4. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.

7.5. The Claimant described the charge of £50.00 "legal representative costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

7.6. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

8. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious in nature.

9. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

I believe the facts contained in this Defence are true.

+++++++

Thanks in advance

Umkomaas

Have a look at a defence (please note the correct spelling of DEFENCE!) drafted by legally qualified and prominent regular on parking forums bargepole and compare with your draft.

https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24

System

Regarding #2

Did you get a Letter before Claim and what did it say? Did you reply to it? Were you sent enough information that allows a reasonable person to decide what the matter is about?

You appear to be fully aware of the issue so why is #2 there?

With regards to #3

Did you get a Letter before Claim and what did it say? Did you reply to it? Were you sent enough information that allows a reasonable person to decide what the matter is about?

With regards to your second #3

If you were not driving, can you say where you were at the time and do you have evidence of the same?

With regards to your third #3 has any attempt been made to contact whoever land this is to get them to cancel. And have you actually asked for a copy of Countrywide's contract rather than saying they don't have one. The idea is to narrow the issues not bandy (more) unfounded allegations around.

For every area where there is dispute/doubt what actions have to taken to confirm/seek information. What has been provided. What has been refused.

If you don't do the work, you are leaving it for a judge to decide and he/she may decide against you.

bartolas

@Umkomaas I've seen that DEFENCE however that case was much easier to defend because the defendant had a lot of arguments in his favour.

@IamEmanresu

Regarding #2
Did you get a Letter before Claim and what did it say? Did you reply to it? Were you sent enough information that allows a reasonable person to decide what the matter is about?

Yes I have received a letter before the claim (LETTER OF CLAIM) and another one saying that the a county court claim as been issued (both from BW Legal). I also received a few letters before that from the claimant and other debt collector firms. All the letters have been ignored....

The letter of claim has the following info: "Contravention Description: No Permit Displayed"

With regards to #3
Did you get a Letter before Claim and what did it say? Did you reply to it? Were you sent enough information that allows a reasonable person to decide what the matter is about?

Please see previous response....

With regards to your second #3
If you were not driving, can you say where you were at the time and do you have evidence of the same?

I was not the driver but I was there.

With regards to your third #3 has any attempt been made to contact whoever land this is to get them to cancel. And have you actually asked for a copy of Countrywide's contract rather than saying they don't have one. The idea is to narrow the issues not bandy (more) unfounded allegations around.

Yes I have contacted the company that manages the building and tried to explain my situation but they have ignored my request. The parking is a small business park in front of a business building and the parking spaces are allocated to some of the companies (each parking space has a sign of "RESERVED" with the name of the company). At the time I was working in the building but my company didn't have any place allocated.

The signage is equals to this one: hxxp://tinypic.com/view.php?pic=qqv69h&s=9#.W3dSwi-ZNR4

and there is also another one saying "Private Parking. Authorised vehicles only"

According to the information above which points should I highlight in my defence? Is the draft to far from an acceptable defence?

System

At the time I was working in the building but my company didn't have any place allocated.

The signs fail the "sight" test but if you were there over a period of time, could you fail to see and read them? Google Denning's Red Hand Rule.

You've also missed the not so subtle hint to change the numbering of you paragraphs and to take out items you cannot prove, and never can prove.

bartolas

The signs fail the "sight" test but if you were there over a period of time, could you fail to see and read them? Google Denning's Red Hand Rule.

The Denning's Red Hand Rule states that the "clauses could only be valid if they were printed in red ink, with a red hand pointing to them", but i never see this shown in parking signs. Is it a valid point to say that the signs have failed the "sigh" test.

The signage could be obstructed if a van is parked in front of the signs. But its not easy to argue that the signs are not visible.

You've also missed the not so subtle hint to change the numbering of you paragraphs and to take out items you cannot prove, and never can prove.

I did not understood yours comment about the numbering of the paragraphs. Should the numbering be continuous during the entire defence?

According to my description in the previous post and the your experience on this matter. Which items do you think cannot be proved and which ones do you recommend to remove?

The defence will always be a lithe bit generic and vague because i don't any strong arguments to use here.

System

According to my description in the previous post and the your experience on this matter. Which items do you think cannot be proved and which ones do you recommend to remove?

The ones you remove are the ones you can prove or support with evidence. You'll know that as you have the facts but if you want an example 2.1 is mine as I did the research. I was able to produce evidence in support of it - can you?

As well as the "sight" test, you might also go through your points with the "so what" test and take out waffle.

Lehcar

I need help, support and advice on this issue as I too have received a court claim from BW legal acting on behalf of NCP but don't know how to start a new thread. Assistance would be greatly appreciated as I am worried sick.

Le_Kirk

Lehcar wrote: »

I need help, support and advice on this issue as I too have received a court claim from BW legal acting on behalf of NCP but don't know how to start a new thread. Assistance would be greatly appreciated as I am worried sick.

One click back, big Blue button marked NEW THREAD

beamerguy

Lehcar wrote: »

I need help, support and advice on this issue as I too have received a court claim from BW legal acting on behalf of NCP but don't know how to start a new thread. Assistance would be greatly appreciated as I am worried sick.

Go here
https://forums.moneysavingexpert.com/forumdisplay.php?s=&daysprune=&f=163

Look at the top for NEW THREAD

You were there before you clicked on this thread