Email received from BW Legal

Quentin

Have you sent them a sar? (As advised previously)

Grebo

I have pics of the car and the signage (although I can't read the actual details on the signs as the pictures are too low resolution to be read)

Grebo

I don't have any evidence of the original ticket

Grebo

This is the contents of the email I received with the pictures. Sorry about the lack of formatting

Good morning,

Thank you for your email, the contents of which have been noted.

Please see below our responses to the points which you have raised.

1. The cause of action is breach of contract.
2. Our Client is pursuing you as the registered keeper of the vehicle.
3. Our Client is reliant on Schedule 4 of Protection of Freedoms Act 2012.
4. The Parking Charge Notice (PCN) has been issued as no valid ticket or permit was displayed in your vehicle. The PCN was issued on 1 July 2015 at Station Approach Car Park.
5. Our Client is under no obligation to provide the contract with the landowner as this is a legally privileged document which you have no right to view.
6. 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, the act of parking your vehicle is acceptance. Accordingly, there is no written and signed contract.
7. We are unable to provide a site plan showing where signage is located, however, the attached signage shows signage which can be seen from where your vehicle was parked.
8. As established members of the British Parking Association, Our Client adheres to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks (‘Code of Practice’). This Code of Practice gives recommendations in regards to the signage within the Car Park. The signs within the car park comply with the recommendations in the Code of Practice and are therefore deemed reasonable.
9. The balance due consists of the following;

Transaction Date
Description
Debit
Credit
Balance
01/07/2015
INV - Parking Charge Notice Cost
£100.00

£100.00
22/06/2018
Receipt of Instruction Fee
£60.00

£160.00
12/09/2018
CPC Claim Issue Fee
£25.00

£185.00
12/09/2018
Fixed Costs on Claim
£50.00

£235.00
12/09/2018
Interest
£23.40

£258.40
04/10/2018
Fixed Costs on Judgment in default of acknowledgement
£22.00

£280.40


£280.40
£0.00
£280.40

Please find attached copies of photographic evidence as requested.

We trust that this clarifies this matter.

KeithP

On 23rd October you were still struggling to do the AoS.

Have you managed to do that?

Grebo

Yes The AoS was sent and it was received on 24/10/18

Grebo

Do I have any defence at all in this case?

Grebo

Or should I go straight for an admission?

I have been looking at lots of cases and defenses and they all seem to be based on an overstay or other situation where there is an obvious defense. This car was parked without a ticket on view and I don't see how it can be defended.

Grebo

Here is an attempt at a defence. Am I completely off-beam here?

The Defendant denies liability in its entirety of the claim

1. The Defendant admits that he was the registered keeper of the vehicle at the relevant time, but denies that he was the driver. The defendant was engaged in employment at xxxxxxxxxxx on the date in question.

2. As far as the defendant is aware a ticket was purchased to cover the length of stay and placed on the dashboard of the vehicle and as such, I assert that all reasonable endeavours were made to comply with the terms and conditions. The only reason the ticket did not remain in place was the Claimant’s poor choice of stationery and the prevailing weather conditions at this windy car park, both issues outside of our control. If anything the contract was frustrated by the weather and every effort was made to comply with the requirements.

3. As the defendant was not present at the car park while the vehicle was present, the defendant was unable to read the contract represented on the signs displayed around the parking area. Therefore the defendant did not enter into a contract with the claimant.

4. The Defendant asserts that the Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements

5. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representatives costs". These cannot be recovered in the Small Claims Court.

5. The Defendant denies that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Premier Parking Solutions Limited.

6.. The Claimant has produced a figure of £xxxx. This is a completely unsubstantiated and inflated three-figure sum, incoherently adduced by the claimant's solicitors. The sum appears to be a number made up out of thin air, and an attempt at inflated cost recovery by the Claimant. Any time and resources allegedly spent by the Claimant are staff employed performing their normal duties for the express purpose of operating its business model and whose cost would have been incurred if the ticket had been displayed or not.

7.. The charge is a penalty and unfair consumer charge. The leading case law on this is ParkingEye v Beavis [2015] UKSC 67. Although Mr Beavis lost his case, the Defendant submits that in this particular situation the case law introduced by Beavis is more favourable to the motorist than the operator.

The court ruled that in this case the desire of the landowner was that the motorist had two hours free parking but then left to encourage turnover for other shoppers. The charge therefore needed to be large to ensure that it acted as a deterrent, and this was therefore commercially justified.
In this case the case concerns a ticket which the operator claims was not fully visible at the time. There is therefore no commercial justification for refusing to cancel a charge as it is perfectly possible via the appeals procedure to determine that a valid ticket was paid for.

Additionally, even if a ticket was not paid for, the Court of Appeal ruled in the Beavis case that a large charge was not justified in paid car parks. The CoA ruling (paras 46 and 47) can be taken as a judgment that in a rate per hour car park any charge must be related to the initial fee and the actual costs incurred, and the judgement of Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148 is referred to. As this was not overruled by the Supreme Court, the judgment stands and is binding on lower courts.

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. The Defendant denies that the Claimant is entitled to the relief claimed or any relief at all.

Le_Kirk

In Para 2, you say "I" and "our" whereas the defence should be written in the third person.