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HELP! BW Legal / Parking Awareness Court Claim

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Comments

  • No I mean print it and sign it PDF etc

    Are you able to help with the wording? I need to get this finished off

    Cheers
  • KeithP
    KeithP Posts: 41,296 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    robertow88 wrote: »
    No I mean print it and sign it PDF etc

    Are you able to help with the wording? I need to get this finished off
    Then you have several days yet.

    Sorry, I don't feel able to comment on the content of your Defence, but hopefully someone will be able to.
  • I just really didn’t want to leave it right to the last min - I’ve got loads on this end so I wanted to get it finalised and off to them.

    Thank you for your help
  • Coupon-mad
    Coupon-mad Posts: 153,120 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Rob, I assume you have been avidly reading and bookmarking other threads around, and spotted that this one is the exact same as yours and might even be about the same piece of land?

    https://forums.moneysavingexpert.com/discussion/comment/74965001#Comment_74965001

    I just suggested some added words there about denying any known obligation to be 'pre-authorised' and to distinguish the case from Beavis.

    Looks to me like you could help each other, and might even be in the same area and could if it helps, go to each other's court hearings as corroborative witnesses and share info, photos, etc.

    I would look at that defence now (as amended tonight!) and send a pm to that poster to help you both.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Oh wow thank you Coupon-Mad this is a massive help - I have been reading like crazy but I think getting lost in the mindfield of posts and getting everything muddled up.

    I will amend my defence now with a combination of what I had and what the post you suggested has and post it on here - if you wouldn't mind having a look at that would be amazing.

    Thank you again
  • Here is the defence I have written - Please could you take a look and give any amendments or advice where possible please.
    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    PARKING AWARENESS SERVICES (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

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

    2. The identity of the driver of the vehicle on the date in question has not been ascertained.
    a. The Claimant did not identify the driver
    b. The Defendant has no liability, as they are the Keeper of the vehicle of which had multiple named drivers on the relevant insurance at the material time (the Defendant was not in the car so was not a witness to the actual parking) and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.

    3. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract specifically a “not pre-authorised vehicle” when parking at xxxx on 0xx16.

    4. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')' even if the Claimant can show in evidence that the vehicle was ‘not pre-authorised’, any signage failed to clearly communicate any such obligation or contract.

    5. As 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').

    6. 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:

    a. No relevant obligation or relevant contract existed nor has been evidenced.

    b. No 'adequate notice' of the parking charge, given the inadequacy of this Claimant's signage.

    c. 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.

    d. In a letter entitled “Notification of keeper liability” and marked “issue date XXX” the Claimant has clearly stated the “Balance Due Date: XXX” which translates to a 28 day period after the alleged contravention date. This date is contradictory to para 8.5 of POFA which states ‘the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.’

    7. In addition to the original PCN penalty, for which liability is denied, 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.

    8. In the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £xxxxxx This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14)

    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 Particulars of Claim assume that the Defendant was the registered keeper and/or the driver of the vehicle(s) when the alleged contravention took place. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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.

    10. 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. 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.

    11. 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.

    12. 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.

    13. The Claimant is put to strict proof of any breach and of their decision-making deciding to issue a PCN and why, as well as the reasoning behind trying to collect an unconscionable £100 2 years later, rather than the few pounds tariff, if it is their case that this sum went unpaid, which is denied. The fact is, this PCN was issued in breach of the Claimant's Trade Body Code of Practice ('CoP') on 'Grace Periods'.

    14. At the material time, the Claimant operated strictly subject to the V5 October 2016 International Parking Community ('IPC') CoP, which said: “Grace Periods:
    15.1 Drivers should be allowed a 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. '' therefore The Claimant is put to strict proof this grace period was given.

    15. 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.

    16. Even if the Claimant was authorised to issue PCNs in their own right, it is denied that they could do so unfairly in a grace period and outwith the scope of the IPC CoP, and denied that the limited landowner contract inforce gave this Claimant the express legal standing to form contracts and litigate in their own name.

    17. 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

    18. 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.

    19. 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.

    Name
    Signature
    Date
  • Coupon-mad
    Coupon-mad Posts: 153,120 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    #17 is kind of repeating #7 and #8, so try amalgamating them.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Hi Coupon-Mad thank you for this I owe you.

    Here is the amended defence would you mind having a quick look over it for me as i would love to get this sent off today.
    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    PARKING AWARENESS SERVICES (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

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

    2. The identity of the driver of the vehicle on the date in question has not been ascertained.
    a. The Claimant did not identify the driver
    b. The Defendant has no liability, as they are the Keeper of the vehicle of which had multiple named drivers on the relevant insurance at the material time (the Defendant was not in the car so was not a witness to the actual parking) and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.

    3. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract specifically a “not pre-authorised vehicle” when parking at xxxx on 0xx16.

    4. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')' even if the Claimant can show in evidence that the vehicle was ‘not pre-authorised’, any signage failed to clearly communicate any such obligation or contract.

    5. As 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').

    6. 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:

    a. No relevant obligation or relevant contract existed nor has been evidenced.

    b. No 'adequate notice' of the parking charge, given the inadequacy of this Claimant's signage.

    c. 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.

    d. In a letter entitled “Notification of keeper liability” and marked “issue date XXX” the Claimant has clearly stated the “Balance Due Date: XXX” which translates to a 28 day period after the alleged contravention date. This date is contradictory to para 8.5 of POFA which states ‘the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.’

    7. In addition to the original PCN penalty, for which liability is denied, 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.

    8. In the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £xxxxxx This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14)

    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 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.

    10. The Particulars of Claim assume that the Defendant was the registered keeper and/or the driver of the vehicle(s) when the alleged contravention took place. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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.

    11. 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. 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.

    12. 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.

    13. 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.

    14. The Claimant is put to strict proof of any breach and of their decision-making deciding to issue a PCN and why, as well as the reasoning behind trying to collect an unconscionable £100 2 years later, rather than the few pounds tariff, if it is their case that this sum went unpaid, which is denied. The fact is, this PCN was issued in breach of the Claimant's Trade Body Code of Practice ('CoP') on 'Grace Periods'.

    15. At the material time, the Claimant operated strictly subject to the V5 October 2016 International Parking Community ('IPC') CoP, which said: “Grace Periods:
    15.1 Drivers should be allowed a 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. '' therefore The Claimant is put to strict proof this grace period was given.

    16. 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.

    17. Even if the Claimant was authorised to issue PCNs in their own right, it is denied that they could do so unfairly in a grace period and outwith the scope of the IPC CoP, and denied that the limited landowner contract inforce gave this Claimant the express legal standing to form contracts and litigate in their own name.

    18. 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.

    19. 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.

    Name
    Signature
    Date
  • The_Deep
    The_Deep Posts: 16,830 Forumite
    4) BWL are claiming £60 which they can't claim for - Artificial inflation?

    Indeed, complain to the SRA that they are attempting to obtain monies from you beyond those which the law allows.

    http://www.sra.org.uk/home/home.page

    Also complain to your MP.

    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court Hospital car parks and residential complex tickets have been especially mentioned.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.
    each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct
    You never know how far you can go until you go too far.
  • Coupon-mad
    Coupon-mad Posts: 153,120 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Defence looks good to go: signed/dated and emailed to the CCBC AQ email.

    :)
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
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