NCP/BW Legal Court Summons

RedMoon

Have sent a Defence based on some helpful advice on this forum.
Would Keith or anyone else know what are the statics of BW Legal pursuing a defended claim? Given that I have hit them with several pints in particularly referring to 17 minutes ga between entering and leaving, and no evidence of parking the vehicle, are they likely to pursue this claim? You input would be invaluable. I understand the Claimant has 28 days to inform the court if they want to pursue this matter, the I would expect an allocation questionnaire? If I don't hear in 28 days - should I assume the case is stayed and abandoned by BW Legal?
Thank you

RedMoon

Any jurisdiction contents must be followed with a full application to court proving the contented jurisdiction within 14 days with a fee of £100. If The jurisdiction is contested but no application is received the court will disregard the contents, this is the advice I received in the court AND on this forum. It's not as easy to contest jurisdiction as you may think.

RedMoon

Hello

After months of civil procedure, it seems that BW Legal have paid the court fee and are proceeding with the hearing. In the meantime they e-mailed me and offered to settle for mere £160. Hearing date set for 26 April, I received their witness statement (been scanned for me and sent my e-mail), I need to send mine to them and to the court. I am planning to copy my defence, which I would love to ask for a review of before I send it on. What evidence would you suggest, I was planning to attach the charge with photos of the car entering in and out sent by NPC, my telephone account showing that I am a registered user and regularly pay for paring by phone, copy of my appeal. Anything else you might suggest?
Big issue for me is that I am now in Panama, so won't be able to attend the hearing, I understand I need to notify the court a week before, does anyone know how to notify the court? Is there a form? Do I need to notify the claimant? Will this be prejudicial to me that I don't attend? I could apply for a stay of proceedings, but it costs £100, so probably not worth it.
Any advice would be greatly appreciated.
Thanks

Redx

do not send your defence , you have already done that

the judge is expecting YOU to send YOUR WS plus any evidence (photos , docs etc) that backs up your version of events and knowledge , and rubbishes their claim and their WS and evidence etc

You write a letter to the judge sand email the claimant as well, stating you wont be attending and want it heard on papers, so write a letter

not worth a stay, but a lot of people who have it heard on papers lose , so prepare for the worst and hope for the best

KeithP

Bluntly... It might be worth accepting their offer of £160 if you aren't going to bother with a Witness Statement.

You've had over six months to prepare a Witness Statement.

RedMoon

I have prepared a Witness Statement, which I enclose below. I based it on other similar cases published on this site.
I would be most grateful for advice/comments on the following matters
1/ What other exhibits/evidence I should enclose? In particular should I enclose the judgement from the case law I refer to? I have prepared 2 google maps photos of the entrance of the car park, showing congestion inside the car park and outside, anything else needed? Maybe my pay by phone account?
2/ Given the limited period I have and as I am abroad, I plan to e--mail the witness statement to ss.cchorsham@hmcts.gsi.gov.uk - the Horsham court and copy it to BW Legal. I will then post the bundled documents to the court by courier. I hope that the e-mail delivery will suffice to satisfy the deadline of 14 days before hearing.
3/ Is there anything else I forgot to mention in the WS, is there anything I should not write?
4/ What is the procedure of notifying the court that I cannot attend the hearing? Do you think it will be highly prejudicial to me, if I explain that I am currently traveling by sea and will be travelling across the Pacific when the hearing takes place. When the allocation questionnaire was sent it asked for available dates in the next 6 months, this was 7 month ago.
Many thanks for all your help.


In the County Court atHorsham, The Law Court, Hurst Road, Horsham, RH12 2EU

Claim No.

Between

NATIONAL CAR PARKS LImITED (Claimant)

and

MRS XXXXXX (Defendant)


WITNESS STATEMENT


I, xxxxxx, of xxxxxxxxx, will say as follows:

I am the Defendant in this matter. Attached to this statement is a paginated bundle of exhibits marked BG1 to which I will refer.

1. The Claimant asserts that I entered into a contract with it, that I breached that contract and must pay a contractual charge, with further undefined and punitive charges. The claims alleges that I was in the relevant car park for a total of 17 minutes and 35 seconds and that I was not permitted a reasonable grace period time to acquire a parking space in a small and very busy city centre car park or to familiarise myself with new ANPR systems and terms and conditions. It is these 17 minutes from entering to exit of the the car park area with which the Claim is concerned.

1. I confirm that the essence of my defence to this claim is that:
a. I did not breach the terms and conditions of parking, as no parking action has taken place due to congestion and an incident in the car park driveway, which prevented me from entering into a contract with the Claimant;
b. The Claimant's signage did not make it clear whether the parking period
included time spent after entering the site via its ANPR cameras looking for a space and locating and reading the terms and conditions and deciding to accept them, and time spent when leaving the site via the same cameras exiting the space, driving round the car park's one way system and then driving out onto a public highway. It is trite law that any uncertainty in a contract should be resolved against the person who offered it under the contra preferentem rule;
c. Even if a breach the terms occured, the Claimant is obliged by the compulsory Code of Practice of its own Accredited Trade Association to apply separate grace periods of at least 10 minutes at the start and end of each period of parking to allow for potential delays in finding a space, exiting the car park and to allow time for drivers to find and read the terms and conditions offered, and the 17 minute stay is well within these grace periods.

2. The events during the day and time inquisition happened as follows:
I am a regular user of two adjoining car parks in Crawley in the Boulevard area, I am registered to use the telephone parking service and always pay for parking either by phone or mobile application, rather than using the PDT Machine. I would draw the Court’s attention to the fact that I have never received a parking ticket before from this location.

3. All the signs at the said car park were new, following the recent installation of new ANPR system, of which I had not been aware, nor there were specific signs advertising the use of ANPR system visible at the entrance to the car park (see evidence on page 1 of the exhibit BG1). The car park in the city centre of Crawley is always busy with shoppers particularly at the weekend and once a vehicle enters the car park area there is a usually a queue for a parking space to free up.

4. On 28th January 2018 I was in Crawley to buy groceries for my son’s 12th birthday party later that day, I have entered the car park access lane awaiting a space inside the carpark to free up, not even having an opportunity to leave the vehicle to read the new signs. I remember waiting for a few other cars to manoeuvre in and out of spaces. I recall that this took several minutes as I was listening to my favourite Radio 4 Show The Archers for at quite some time.

5. Whilst waiting several minutes for a free parking space in the lane inside the carpark, another vehicle had hit the side of my car bumper whilst backing out of a parking space. I was forced to get out of the my car to assess the minor damage caused to both vehicles involved and discuss the situation with the driver of the other vehicle.

6. In the end the damage was superficial and after exchange of some stern words with the other driver, stressed and aggravated, I left the car park as soon as the access lane cleared without actually ever parking the vehicle. I went instead to shop at nearby Tesco with free and plentiful available parking.

7. At page 1 of Exhibit BG1 is a Google Earth aerial photograph of the carpark, with visible heavy parking traffic in the access lane within the car park and cars queuing just outside it and at the entrance to the car park and similarly at the exit end. This is a one-way system, often congested inside and outside the car park, which needs to be followed round its one-way system to the exit road. The Claimant's ANPR machine is, I believe, almost next to the junction to the exit road.

7. The incident inside the car park coupled with the congestion, both the one inside the carpark and the one on the one-way road outside, were beyond my control and I could not have anticipated them. The Claimant, a company which manages the car park, should be aware of these congestion issues and ought to make reasonable allowances for the foreseeable delays users may experience in finding a vacant space in the car park and exiting the said car park onto the one-way system.

9. The Claimant has not provided any evidence of the car being parked and without attendance, merely a close up picture of the registration plate assumed taken at the time of entering and leaving the car park. I put the Claimant to strict proof that the car was parked and left attended to prove that a parking operation has taken place.

10. ANPR evidence shows only entry and exit of the car park, which may or may not be correct, the vehicle entered the car park area for 17 minutes and 35 seconds. Although, I have not specifically noted these, it is possible though not obvious, that at the time there were signs stating ANPR is used but these do not state that the charge is calculated from the exact entry point to exit point, nor does it impose a time limit on purchasing a ticket or exiting the premisses. It does not require you to purchase a ticket for the exact time the vehicle entered the land, nor there is any visible signage advising that entry to the carpark is chargeable, only that parking action is a chargeable event.

11. The Claimant’s timing system does not take into account that drivers must spend time waiting to find a parking place, time to sort through change or to make a phone call, time to read the required information, time to queue and purchase a ticket, time to get out of the car, time to load the car, time to get back into the car and time to exit the car park, notwithstanding even the aforementioned collision incident I was involved in. I had no reason to pay for parking using the usual telephone pay method before the vehicle was actually parked in a space.

12. The terms and conditions which are displayed at the car park state "Pay & Display” – you must purchase a parking ticket from the ticket machines at the Car Park either with cash or a credit/debit card, before leaving your vehicle and ensure that the parking ticket is clearly displayed in the windscreen of your vehicle. As the vehicle was not parked in an allocated parking space and it was not left, it follows that the parking action has actually taken place.

13. In addition to considering the contractual element of the claim, I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"), of which the Claimant is an accredited member. A copy of paragraph 13 and 30 of the CoP, which relates to grace periods, is on page 2 and 4 of Exhibit BG1. In order to be an accredited member of the BPA, compliance with the CoP is compulsory, and a copy of paragraphs 4.1 and 6 of the CoP is at pages 4 & 5 of TH1. The significance of being a member of the BPA and subscribing to its CoP is that the Claimant is only entitled to ask the DVLA for the details of a car’s registered keeper if it is a member (so without membership a private parking company would not be able to function without the ability to trace drivers/registered keepers).

14. In the now infamous parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated:
96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
111. “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.'' (emphasis added).

15. The British Parking Association(BPA) Code of Practice states the following regarding grace periods:
“13.2 and 30.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
“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. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
“18.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

16. Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking. The CoP makes clear that such grace periods are to be applied both at the start of any parking period and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking, and time to exit the carpark once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of the actual parking (paragraphs 13.2 and 13.4). It is worthy of note that the recommendation is a minimum of 10 minutes, not a maximum. The Claimant’s signs did not state the car park’s terms and conditions had changed and that a new system was in place. Thus resulting in more time required to orient the driver to the new system.

17. Furthermore, Kelvin Reynolds of the BPA says there is a difference between grace periods and observation periods in parking and that good practice allows for this: “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket … 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.” britishparking.co.uk News good-car-parking-practice-includes-grace-periods

18 .The BPA Code of Practice regarding predatory tactics was not followed by the Claimant.
Clause 9.5 states You must not use predatory tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanctionable instance of non compliance and my go to the Professional Conduct Panel.” The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after permitted time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site. The driver is led to believe that they are following the times given on ticket that they obtain from the ticket machine.

19. In the case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage. The judge also stated that in any case £100 was not likely to be a true estimate of loss. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

20. The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

21. I have repeatedly drawn these matters to the Claimant's attention, but it has refused to see reason, including applying an appropriate grace period of "a minimum of 10 minutes" before and after parking, which it is actually obliged to do by its compulsory CoP.

22. In addition to the original Parking Charge notice, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50 plus 'initial legal costs' of £60, which the Defendant submits have not actually been incurred by the Claimant and constitute an attempt to achieve double recovery.

23.The added 'legal' costs are in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules. The Claimant's solicitors, BW Legal, recently admitted in court that their company handles millions of what are effectively cut and paste robo-claims, at any one time. The Defendant reasonably concludes that no supervising solicitor is likely to have provided legal advice for a fee or in any way supervised this claim.

24. In ParkingEye v Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a sum set in advance which was already significantly over and above the very minimal costs of operating an automated ticketing regime. Damages could not be added; it was held that a claim from a parking firm agent could not have been pleaded as damages, and would have failed because ParkingEye suffered no loss.

25 It was also held by the Judges in Beavis, at Court of Appeal stage, that a case regarding an ordinary transactional contractual fee (such as in a pay and display car park with a quantifiable tariff) was 'entirely different' from the complex situation in that case.

26. In all other 'parking charge' cases which turn on different signs and different facts, the penalty rule was held by the Supreme Court Judges to remain engaged, and that such charges cannot be enforced merely as punishment. The £85 charge in Beavis was saved from being struck out as an unenforceable penalty due to a specific legitimate interest in a quick turnover of spaces in a free car park where no tariff owing could be quantified.

27 In this case, the Claimant is put to strict proof of its legitimate interest in charging an unconscionable penalty for the time taken driving around the car park before/after the parking event, which is not conduct that falls within a reasonable person’s concept of ‘parking on private land’ at all.


I deny the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow my costs as are permissible under Civil Procedure Rule 27.14.

I believe that the facts stated in this Witness Statement are true.


Signature of Defendant:


Name: XXXXXXX

RedMoon

I did mean Witness Statement, I have made a draft but been away since December. Court date came in February. Unfortunately, the correspondence has been slow flowing as I am on the other side of the world. The dates I provided that I am available for hearing were all before December.
I feel the witness statement is well put together, I think I can e-mail the defence today and this still counts, then send the papers by courier.
Any other pointers would be appreciated.

Coupon-mad

Big issue for me is that I am now in Panama, so won't be able to attend the hearing, I understand I need to notify the court a week before, does anyone know how to notify the court? Is there a form? Do I need to notify the claimant? Will this be prejudicial to me that I don't attend?

It will prejudice you, sorry.

The last three cases where people have opted out of appearing (and I know you have no choice) were lost - and lost BIG, in terms of the costs the losers were walloped for on top, because they were not there to argue against the added costs even though they are an abuse of process!

People paid over £300 in some cases and that should NEVER happen, as the PCN sum is all that can be recovered, plus court fees, in the odd case lost on the day.

Hope you're filing as evidence, the cases you have adduced, such as the Fistral Beach transcript? It's in the Parking Prankster's case law pages, easy to find and you nee it as evidence. Your paperwork needs to be very strong and clearly arranged for the Judge, if you are to have any chance at all as you are not attending the hearing.

And the BPA CoP, highlighting the section on grace periods and the bit about needing extra signs where a new restriction is introduced - and Kelvin Reynolds words?

BTW:

Cases where people do not attend the hearing are so risky and against forum advice, that we don't count them when people lose, as they seem to usually, so the 99% win rate is unaffected (and we don't count these cases even if you win).

I hope you get lucky.