Parking awareness PCN issued BW legal claim form HELP!

Dwilkes2

Ok sorry about this I will attempt to upload it again. I am still no further forward with the best way to defend this claim on my mother’s behalf. I will attempt to draw up a defence over the next few days & will show you guys on here as any help will be much appreciated.

nosferatu1001

You are not defending this on your mothers behalf
You may write it, but SHE is teh one defending.
You MUST NOT get this confused.

Dwilkes2

Post update! Although I know very last minute, I have completed writing the defence for my mother using multiple points from other defences along with some more relevant to my mother’s case. I’m hoping this will suffice as I know it needs filing like NOW! 😬

IN THE COUNTY COURT

CLAIM NUMBER: XXXXXXXXX

BETWEEN:

BW Legal (claimant)

-and-

XXXXX XXXXXXXX


STATEMENT OF DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. The Defendant is the registered keeper of the vehicle in question VRN: XXXXXXX

2. The Claim Form issued on 27/10/2018 by BW Legal Services Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “BW Legal Services Limited”. 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 Services Limited, as the Claimants Legal Representative. Practice Direct 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.

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.

4. 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.

5. The Defendant has sent a Subject Access Request on the 4th October 2018 to the Parking Awareness Services Data Protection Officer asking for any personal data held on the Defendants vehicle and received a response on the 8th October 2018 and it was noticed by the defendant that the claimant has failed to comply with the Protection of Freedoms Act 2012.

6. The Protection of Freedoms Act 2012, schedule 4, at section 4(5) states that the maximum sum that may be recovered from the Keeper is the charge stated on the Notice to Keeper, in this case £100. In the addition to the original PCN penalty, the claimants have artificially inflated the value of the claim by adding purported added ‘costs’ of £60 contractual costs pursuant to PCN terms and conditions which the defendant submits have not actually been incurred by the claimant.

7. 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.

8. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. 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.


9. The terms on the Claimant's sign was also displayed in a font which was too small to be read from a passing vehicle. The sign does not state how a parking permit can be acquired nor is there a parking meter within a generous distance. The area in which the defendant’s car was parked, was not marked with the bays the sign refers to. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

10. The Claimant is put to strict proof that it has sufficient proprietary 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.

11. The defendant denies 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.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

Name
Signature
Date

Thanks again everybody!

KeithP

I know it needs filing like NOW!

You have until next Tuesday to file the Defence.
Re-read post #8 for how to do that.

2. The Claim Form issued on 27/10/2018...

Really??

That's not until Saturday.

Coupon-mad

BW Legal (claimant)

No they are not! Eeek, you must get fundamental stuff like the claimant right!

STATEMENT OF DEFENCE

No, just:

DEFENCE


I'd suggest this instead of the numbers shown, to bring in the facts known:

[STRIKE]2. The Claim Form issued on 27/10/2018 by BW Legal Services Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “BW Legal Services Limited”. 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 Services Limited, as the Claimants Legal Representative. Practice Direct 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.[/STRIKE]

2. It is denied that the vehicle was not 'pre-authorised' and even if it the Claimant can show in evidence that it was not, any signage failed to clearly communicate any such obligation or contract. The facts are that driver was visiting business premises and it was the driver's honest belief that they were able to park on the small, unmarked tarmac parking area at the side of that building. No signs communicated how to become 'pre-authorised' and no contract was agreed to pay any fee or penalty to park.

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. Due to the sparseness of the particulars, even given the above information specified in #2 which is known to the Defendant, it is unclear under what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass.

4. The Defendant was not the driver and avers that in 2016 there was more than one named driver on the relevant insurance, and exercises her absolute right not to name the driver even of known for certain (the Defendant was not in the car so was not a witness to the actual parking). Because the Claimant cannot evidence or suggest that the Defendant was the driver, they can only hold the registered keeper Defendant liable for the conduct of another driver, if the Claimant has fully complied with the Protection of Freedoms Act 2012, schedule 4 ('the POFA').

4.1. The Claimant has failed in several respects, therefore there can be no 'keeper liability' and there is no other lawful mechanism by which a registered keeper can be held liable for parking events in private land. Omissions and non-compliance issues include the following, in respect of which the Claimant is put to strict proof:

(i) no relevant obligation or relevant contract existed nor has been evidenced.

(ii) no 'adequate notice' of the parking charge, given the inadequacy of this Claimant's signage.

(iii) The Notice to Keeper (NTK) fails to communicate the mandatory information, including misstating the prescribed period whereby the keeper might have fallen liable. The NTK states that the Defendant would potentially be liable: 'after 28 days from the date this Notice to keeper was issued...' but this does not match the statute (which merely needs a parking operator to copy some minimal wording) and requires the period to be stated thus: 'from the day after this NTK was served'. The words 'issued' and 'served' have completely different and specific meanings in the POFA. Depending upon the date of posting and service, the difference in the date that a keeper might potentially become liable in law would be between two and seven days, and it is impossible for the Claimant's wording to be correct.

[STRIKE]5. The Defendant has sent a Subject Access Request on the 4th October 2018 to the Parking Awareness Services Data Protection Officer asking for any personal data held on the Defendants vehicle and received a response on the 8th October 2018 and it was noticed by the defendant that the claimant has failed to comply with the Protection of Freedoms Act 2012.[/STRIKE]

5. In all facts, this case can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67, which was a 'complex' and unique case where an £85 parking charge regime at a retail park, unusually disengaged the usual penalty rule which was held to still be sufficient to decide other factually different parking charge cases. In the extant case it is submitted that the charges are unconscionable given the facts, the driver is not identified, that there is/was no 'relevant contract/obligation' or clear signage, and that the PCN was punitive and incapable of being saved by any overriding legitimate interest.

And here, this is not PPS, it's PAS, you must get these details right:

7. 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 [STRIKE]PPS[/STRIKE] robo-claims at all, on the balance of probabilities.

robertow88

Hi DWilkes2

Coupon-Mad sent me over here from a reply on my post - It seems I am going through the same thing as you / your mother - You can see my full thread here https://forums.moneysavingexpert.com/discussion/comment/74965135#Comment_74965135

I have taken some bits from your defence to use in mine if you don't mind? - if you want to use anytihng from the defence I have written please feel free.

Dwilkes2

Wow! Thank you everyone for your prompt responses! I will amend accordingly & as advised.
No that is absolutely fine Robertow88, I will take a look at yours now.

Coupon-mad

I think you two should send private messages and support each other if this is the same location and especially if you both have the same local court.

You can provide Witness Statements in support of each others cases confirming the lack of signage. Up to you, but you could turn up to support each other's cases as corroborative witnesses, if you are in the same area.