BW Legal PCN

BubbleandSqueak75

Dear Learned People,

I was hoping to benefit from your wisdom regarding a court quandary I am facing! I have been reading through the threads in these forums, and have reached the point of needing advice.

I have recently been served a court claim by BW Legal regarding a PCN issued by Norwich Traffic Control Ltd on XX/XX/XXXX. It's possible I received an LBC prior to this, but I have been aggressively ignoring all correspondence from BW Legal. It's worth noting at this point that both the Claimant and Defendant have been misidentified (i.e.my name and the Claimant's have both been misspelled).

As regards the Particulars of Claim:

"The Claimant's Claim is for the sum of £100.00 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) issued on XX/XX/XXXX (Issue Date) at XX:XX:XX at XXX XXXXXX XXXX- XXXXXXXXX XXXXXXX XXXXXXX. The PCN relates to Volvo under registration XXXXXXX. The terms of the PCN allowed the Defendant 28 days from the Issue Date to pay the PCN, but the Defendant 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 0.02 from XX/XX/XXXX to XX/XX/XXXX being an amount of £XX.XX. The Claimant also claims £XX.XX contractual costs pursuant to PCN Terms and Conditions."

I should probably confess to sending through the below email to Norwich Traffic Control Ltd (XX/XX/XXXX):

"The following message is made entirely without prejudice

Dear Sir/Madam,

I am writing to you regarding an invoice you submitted recently (number 308470). I will not be paying this invoice for the following reasons:

No one was inconvenienced by my parking there: my car was parked for less than 10 minutes purely for the purposes of unloading luggage after an extended trip.
A £100 fee for a parking duration of less than 10 minutes is grossly excessive.
Enjoy the rest of your day.
Sincerely,

XXXXXX"

I have responded to the claim with the Acknowledgement of Service and am about to complain to the local MP. As for my defence (I'm still composing the formal draft), I was going to begin by highlighting the inappropriateness of mis-identified Claimant and Defendant (it creates headaches with regards to awarded costs, I'm led to believe), before structuring something based on what was suggested by bargepole (I can't post the link, my apologies, post #24 in a separate thread). I'm hoping to avoid any further pitfalls if possible, so would dearly appreciate some insight as to how to best proceed. Thanks in advance!
Regards,

BubbleandSqueak75

Redx

yes examine recent defences, including those by member BARGEPOLE

post the proposed defence draft below


and seems to me that when you appealed you gace away the driver, so POFA2012 wont count (shame)


grace periods may well be one aspect, as may unloading/loading, plus various legal arguments

KeithP

"aggressively ignoring" - that's an interesting phrase.


What is the Date of Issue on your Claim Form?

BubbleandSqueak75

Hello KeithP,

The Date of Issue was 25th September 2018 (I was away until recently). And Redx thanks for the suggestions (grace periods and loading/unloading) I shall duly look into them with regards to my draft.

Regards,

KeithP

BubbleandSqueak75 wrote: »

The Date of Issue was 25th September 2018.

With a Claim Issue Date of 25th September, and having done the AoS in a timely manner, you have until 4pm on Monday 29th October 2018 to file your Defence.

That's almost three weeks away. Plenty of time to hone any Defence to perfection but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out exactly what to do with it.

BubbleandSqueak75

Hello All,

This is my proposed defence (see below). I was intending to submit as part of it my own correct identification, as well as an extract of the company correctly identified as well. Both Claimant and Defendant were incorrectly identified on the Claim form. I'm worried it might be a little bit long, but the example I based it on made reference to various bits of case law which sounded like they might be useful. Thanks again for the help!
Regards,

IN THE COUNTY COURT

Claim No: XXXXXXXX

Between:

Norwich Traffic Control Ltd (Claimant)

and

XXXXXX XXXXXXX (Defendant)

DEFENCE
1 Preamble
1.1 It is worth noting initially that both the Defendant and the Claimant have been inappropriately identified on the Claim Form. Exhibit A (Defendant) and Exhibit B (Claimant) provide correct identification. It is understood that this discrepancy would prevent the Court from appropriately allocating costs, should it wish to do so. It is suggested, therefore, that this Claim be dismissed on this basis.

Alternatively,

2 Background
2.1 It is admitted that the defendant, XXXXXX XXXXXXX, is the registered keeper of the vehicle.
2.2 The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2.3 The alleged parking charge relates to the vehicle, registration XXXXXXX, of which the Defendant is the registered keeper, being parked on the material date in a marked bay allocated to Company XXXX at XXX XXXXXX XXXX – XXXXXXXXX XXXXXXX XXXXXXX for a duration of less than 10 minutes for the express purpose of unloading personal effects into the Defendants residence within the XXXXXX XXXX apartment complex.
2.4 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; in fact it is denied that the car was actually parked/left for any period of time that can warrant any 'contractual parking charge'.
2.5 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.
2.6 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.
2.7 It is apparent that the parking bay in question was being surveilled, given the speed with which a ticketing agent appeared in order to assert a Parking Charge Notice (PCN). This type of conduct is clearly predatory.
2.8 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 PCNs, and to pursue payment by means of litigation.

3 Loading/Unloading Periods
3.1 The facts of this case are similar to those in the Appeal case of Jopson v Homeguard Services (B9GF0A9E, Oxford County Court, 2016), where a car had stopped temporarily near the entrance in order to unload some furniture. HHJ Harris QC held, in his Judgment at [18], that ''a right of access permitted short incidental stops for the purpose of access to her flat''. Specifically, it was stated that brief stops for delivering or unloading items, dropping off passengers, etc. were not 'parking'; a definition which was fully explored by this Senior Circuit Judge, who observed that life at a block of flats would be ''unworkable'' if every resident or visitor ran a risk of immediate ticketing, when the vehicle was not in fact parked, and before any contract could possibly have been agreed.
3.2 The Judgment in Jopson also makes it clear that the factual circumstances are quite different from those which applied in ParkingEye Ltd v Beavis [2015] UKSC 67, and that case is distinguished.

4 Grace Periods
4.1 The IPC Code states: 'Drivers should be allowed sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site'.
4.2 A period constituting less than 10 minutes cannot be reasonably considered a 'grace period'; in which time the driver may find a sufficiently legible sign, so as to ascertain the terms of use of the parking bays. This is in breach of the International Parking Community (IPC) code of practice, to which the claimant is an Accredited operator, and by which they must therefore abide. Whilst this Code of Practice is not statutory, compliance with the Code is mandatory in order for parking operators to obtain vehicle keeper details from the DVLA.
4.3 Full compliance with the equivalent BPA Code of Practice was held to be 'effectively a regulatory framework' and given significant weight by the Supreme Court in Parkingeye Ltd v Beavis [2015] UKSC 67 (the Beavis case), where the decision turned on very prominent signs, a commercial justification that (unusually) disengaged the penalty rule in that case alone, and the fact that Mr Beavis was given ample opportunity and time, to learn of the terms by which he would later be bound.

5 Fairness
5.1 Trade Body Codes of Practice are 'effectively binding' according to the Supreme Court in the Beavis case.
5.2 Further, the Consumer Protection from Unfair Trading Regulations identifies at section 5 'Misleading Actions': (3) A commercial practice satisfies the conditions of this paragraph if - (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if; (i) the trader indicates in a commercial practice that he is bound by that code of conduct, and (ii) the commitment is firm and capable of being verified and is not aspirational.
5.3 The Court's attention is drawn to the ''Red Hand Rule'', as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3, where Denning MR stated: ''The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient''.
5.4 Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''
5.5 In the Beavis case, the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer''.
5.6 Courts must now consider the fairness of a term, where it is not 'prominent and transparent'. Unfair terms here include the penalty fine itself, charges hidden in small print, lack of any fair grace period for the driver to seek out, read, and decide whether to accept any advertised parking contract, misleading and predatory conduct, added costs not specified prominently in the alleged contract, disproportionate default charges, or non-observance of a Code of Practice. Such conduct and terms breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (CRA) which was enacted after the Beavis case final hearing, and remains untested in the context of unfair parking penalty charges.
5.7 The Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair' which include clear references to conduct that is on all fours with that of this Claimant, and their solicitors.
5.8 The CRA requires that key terms of a contract, including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not).
5.9 The CRA, at para 71, sets out the duty of court to consider fairness of a consumer contract term: ''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.
5.10 It is worth noting that early correspondence – made entirely without prejudice – was entered into by the Defendant and with the Claimant, denying entirely the validity of their purported PCN. No response to this correspondence was received by the Defendant.
5.11 It is apparent to the Defendant that 'appeal' to Independent Parking Committee (IPC) members and/or the Independent Appeals Service (IAS) is futile, given that 80% appeals going in favour of the parking firm. Furthermore, as part of the Appeals process, the Defendant is required to (erroneously) concede the Claimant’s basis for issuing the PCN, which the Defendant contests in its entirety. Given this unacceptable level of bias, and the previous correspondence from the Defendant and ignored by the Claimant, the appeals process was not utilised by the Defendant.

6 Summary
6.1 In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.