Letter of Claim - BW Legal/NCP

Manc88

Hi all,

I've just spent a good couple of hours browsing the forums for other BWLegal cases and draft defences. Just so I know I'm starting in the right places, is this the concise defence template from bargepole?:
https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24
and are these the paragraphs on abuse of process: (Post#134)
https://forums.moneysavingexpert.com/discussion/5877446/letter-of-claim-from-bwlegal&highlight=prinndogs&page=7#topofpage

In terms of specific points and evidence pertaining to this case, (this is not my defence, just a summary of what I think may be relevant to put in it) details are as follows - I would appreciate if you could advise what may/not be relevant to the defence:

1. Original claim from BWLegal (on behalf of NCP) was received in the LBC in August 2018 for £160 - £100 for the PCN. for breaching Ts&Cs of the contract for parking without payment, and £60 for 'legal fees'.

2. Original PCN was sent to an old address (I have details from the SAR info I received from NCP), meaning the first I knew of the issue was the letter from BWLegal in August, by which time the cost had inflated to £160.

3. From the SAR, there are pictures of the car for which I was and am registered keeper entering the carpark at 15:39 and leaving at 16:12, for which I have no evidence of a fee being paid, but for which the charge should have been £1.

4. It is assumed the driver was using the carpark as a safe(off-road) and convenient pickup point for their girlfriend, who worked in town, as they regularly did, and had no intention of parking or staying in the in the carpark longer than any allowed 'grace' period to do this. I can only assume on this day that the driver's gf was running late, which is why the car was in the carpark for over 30 minutes.

5. After my initial response to BWLegal, they confirmed the following additional info:
- Their client is pursuing me as the registered keeper of the vehicle
- Their client does not intend to rely on schedule 4 of the Protections of Freedom Act 2012
- The details of the claim are that for parking without making payment for the parking
- The PCN which I was issued is for breach of contract, followed by: "the only right which you have to enter the land in question are on the Terms and Conditions which apply. It is unnecessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with our Client. Acceptance does not have to be communicated,t he act of parking your vehicle is acceptance."
- This is not a claim for trespass
- They refused to provide copy of the landowner agreement

6. I received copies of the carpark signage and layout (will try and upload when I get access to a scanner - probably Monday)

7. In the Claim Form, costs have now risen to £259.68: Original £160 as detailed above, +£24.68 'interest' at 8%, +£25 Court fee, +£50 Legal representative's costs

Given all of the above, I am thinking the key points of the defence will be around the fact that I never received the original PCN, the general points on signage/Ts &Cs detailed in bargepole's template, and the abuse of process raised in CouponMad's post?

In terms of the other legal cases mentioned in CouponMad's template (post #134 of second link), is there any benefit to referencing them in my own defence, or will this just appear as unnecessary waffle?

Thanks in advance

Coupon-mad

Manc88 wrote: »

Hi all,

I've just spent a good couple of hours browsing the forums for other BWLegal cases and draft defences. Just so I know I'm starting in the right places, is this the concise defence template from bargepole?:
https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24

Yes.

and are these the paragraphs on abuse of process: (Post#134)
https://forums.moneysavingexpert.com/discussion/5877446/letter-of-claim-from-bwlegal&highlight=prinndogs&page=7#topofpage

No.

You need my words posted on beamerguy's recent ABUSE OF PROCESS thread.

It is assumed the driver was using the carpark as a safe(off-road) and convenient pickup point for their girlfriend, who worked in town, as they regularly did, and had no intention of parking or staying in the in the carpark longer than any allowed 'grace' period to do this. I can only assume on this day that the driver's gf was running late, which is why the car was in the carpark for over 30 minutes.

Ouch, not good. Permit me to point out that picking someone up is BETTER on street; that's what single and double yellows are actually for (exempt activity IS allowed on yellow lines as long as there are no kerb blips) and if no single or double yellows exist then parking bays are usually safe enough to stop for a few minutes as they can only be enforced by Council CEOs on foot.

Never, ever, ever seek out private land (it has no special meaning - any car park that's not Council, is private land. AVOID)!

Given all of the above, I am thinking the key points of the defence will be around the fact that I never received the original PCN, the general points on signage/Ts &Cs detailed in bargepole's template, and the abuse of process

Yes, but you may struggle with the case purely due to parking there and not paying, which will be hard to argue against. No idea why people choose private car parks and also wrongly think by sitting in the car, they don't have to pay.

Still worth defending as BW Legal cases are weakly evidenced, and at least you can get your head around why they can't add the fake £60 once you've found my correct wording in beamerguy's Abuse of Process thread.

Manc88

Thanks Coupon-Mad, Think I've found it (?):
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal&highlight=abuse+of+process&page=3#topofpage

Ref: "Yes, but you may struggle with the case purely due to parking there and not paying, which will be hard to argue against."

Is the fact the original PCN was sent to an old address likely to carry any weight? If not, am I not just as well paying the BW scamsters before it gets to court - yes they get their fictitious £60, but that's still less than the additional £75 court/legal fees!

Redx

yes the link is correct

NO, there is no mileage in any pcn going to an old address

they get this address by accessing the DVLA database and it is the RK legal job to keep that address updated , so complaining about it is like shooting oneself in the foot

it is the ONLY way they can get KEEPER details, so dont blame them if the KEEPER has failed to update their registered address and could be fined for not doing so

some legal fees have already been incurred , so they would want the full amount listed in their POC on the N1 claim form , from post #52

7. In the Claim Form, costs have now risen to £259.68: Original £160 as detailed above, +£24.68 'interest' at 8%, +£25 Court fee, +£50 Legal representative's costs

Manc88

Thanks for clarifying. So I'd have been better off just paying the original £160! >.<

Best I can hope for now then is c.£175-£200 to pay assuming the judge throws out the £60 BW added on in the first place? (unless pigs fly and they throw the whole thing out as per Southampton case)

Coupon-mad

So I'd have been better off just paying the original £160!

No. I didn't say your case was unwinnable. In fact I said:

Still worth defending as BW Legal cases are weakly evidenced,

I just wanted you to be aware that your base position of why you parked there wasn't an ideal position and drivers should never seek out private land, just use double yellows as they are intended to be used.

Best I can hope for now then is c.£175-£200 to pay assuming the judge throws out the £60 BW added on in the first place?

No. Best scenario is you pay nothing as the evidence is weak/signs not clear, etc.

You seem to have missed the fact that the £50 is ALSO an abuse of process!

Redx

this one was thrown out due to the same fake fees

https://forums.moneysavingexpert.com/discussion/6017640/bw-legal-court-hearing-nhs-staff

so why would yours not get the same treatment ?

if you dont ask, you dont get

your aim should be plan A to pay nothing at all, with plan B as paying around £175 if you lost in court , so about the same as the £160 they demanded with the fake £60 addon at LoC stage

Manc88

Hi all, after having mulled over all of the above over the weekend, I've drafted my initial defence. Please see below and add any comments/advice.

I've noticed that a lot of defences on here focus around the sparseness of the particulars of claim, so I've included a copy of those as they appear on the claim form at the bottom in case you can pick up on anything in/not int hem that I should add into my defence.

I've not yet included anything with regards to not receiving the original PCN, as I'm not sure whether it will add or detract form the defence - is this worth including? I should also mention that I did move house in between the date of the alleged contravention and the PCN being issued via post to an old address, but again, not sure whether to include this in the defence, witness statement or neither(?)

Defence First Draft:

CLAIM No: xxxxxxxxxx

BETWEEN:

National Carparks Ltd (NCP) (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

3. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence.

4. The sparseness of the particulars also make it 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, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. 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. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Claimant is put to strict proof that it has sufficient prorpietary 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.


Cost of the claim – disproportionate and disingenuous

8. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

a. only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

b. resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

9. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

10. The Claimant’s representatives, BW Legal, have artificially inflated the value of the Claim from £100 to £259.68. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.

a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.

b. 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 £259.68. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

c. 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, with the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, being £100.

d. The amount demanded is excessive and unconscionable and 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.

11. The Claimant representatives have included a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay. This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4 not with reference to the judgement in parking eye v Beavis. It is an abuse of process from the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

12. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. The Order was identical in striking out both claims without a hearing:

''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

16. 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.

17. The Defendant believes the terms 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. 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.

18. 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.

19. 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.

20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

I believe the facts contained in this Defence are true.

Name
Signature
Date


Particular of Claim as per Claim form:
‘The Claimant’s Claim is for the sum of
£184.68 being monies due from the
Defendant to the Claimant in respect of a
Parking Charge Noitice (PCN) for a parking
contravention which occurred on XXXX in
the private car park/land located at XXXX
in relation to a vehicle, XXX registration mark
XXX. The Defendant was allowed 28 days from
The PCN Date to pay the PCN, but failed to do so.

Despite demand having been made, the
Defendant has failed to settle their outstanding
Liability.

The Claim also includes Statutory Interest
pursuant to section 69 of the County Courts Act
1984 at a rate of 8% per annum (a daily rate of
£0.04 from XXXX to XXXX being an amount of £24.68.
The Claimant’s claim includes £60.00 costs as
Set out in the Terms and Conditions.’

Manc88

Hi all, can anyone advise if the above defence looks ok, or if it needs amending?

beamerguy

Manc88 wrote: »

Hi all, can anyone advise if the above defence looks ok, or if it needs amending?

Good, you have included coupon-mad's section about ABUSE OF PROCESS by BWLegal

They claim signs included the fake £60. Do you have pictures of the signs that show this ? Maybe in the small print not easily seen by a motorists