Urgent BW Legal Claim Form

manwithavan101

17th September is Issue Date - I have already been posting on another forum but got recommended to come here.

KeithP

originbreaks wrote: »

17th September is Issue Date.

With a Claim Issue Date of 17th September, and hopefully having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 22nd October 2018 to file your Defence.

Not long, as you know, but don't leave it to the 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.

manwithavan101

AOS was completed ok.

manwithavan101

I have edited the defence. Please can someone take a look. Thanks.

1.1 The Defendant is the registered keeper of the vehicle in question on the material date. The Claim relates to an alleged debt in damages arising from a driver's alleged ‘Breach’ of contract, when parking at XXXX on 26/11/2014. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
1.2 Any Breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

2.1 The vague POC discloses nothing that can lead to a claim in law and makes no attempt to identify who the Driver was. The parking event was far too long ago to expect a registered keeper to recall who was driving on the material date. The Claimant has failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paragraphs 7.3 to 7.5.
2.2 Furthermore, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies by whom, when and where the acts constituting the Breach were done and how the terms were breached.


3.0 The Protection of Freedoms Act 2012 Schedule 4 (the POFA) has not been being complied with. The registered keeper does not admit to being the driver of the vehicle in question on the date in question; as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements. Schedule 4, paragraphs 4 and 5 were not complied with in this case because no Notice to Keeper was received within the statutory period of 29 to 56 days from the parking event.

3.1 On the day of the alleged breach a residents parking permit was clearly displayed in the windscreen of the vehicle with VRN XXX.
3.2 The Claimant is therefore put to strict proof of any alleged Breach including their decision-making in processing the data and the human intervention in deciding to issue a PCN and to further explain the reasoning behind trying to collect an unconscionable £100 four years later.
3.3. Had any Breach apparently taken place (and this is denied), it can only have been that signage on and around the site was unclear and did not meet the British Parking Association (BPA) Code of Practice (CoP).
3.4 The fact is, this PCN was issued in breach of the Claimant's Trade Body Code of Practice ('CoP') on 'Signs'.

4. The facts of the matter are:
4.1 That the Defendant is a resident of XXXXXXX, and has continued to display a valid residents parking permit for 'on-street parking' under the XXXX council resident parking scheme since it began.
4.2 The ‘land’ which forms the basis of the current claim at the time consisted of a relatively small number of ‘private land’ parking spaces with a small number of ‘reserved spaces’ marked by additional car park signage.
4.3 ‘Reserved spaces’ were marked bays and reserved for residents with valid residents parking permits as stated by the signage.
4.4 During six months of disruption to XXXXX road, due to vital upgrades to a main sewer benefitting the entire Town, the principal landowner demonstrated a clear intention to allow residents enjoyment of the ‘land’ freely and without charge, between the hours of 6pm and 8am, communicated expressely and as implied by car park signage.
4.5 Residents exercised freely their enjoyment of the 'reserved spaces' on the ‘land’ by right between the hours of 6pm and 8am.
4.6 The use of the 'reserved bays' was clearly stated on car park signage to begin on XXXX.
4.7 The upgrade involved highly complicated drilling and other works underground a main dual carriagway; unsuprisingly the project overran. No notification or communication of any changes to the above agreement was made to residents and no changes were made to the signage to demonstrate that the agreement with the principal had changed. Residents therefore presumed to continue exercising their enjoyment of the ‘land’ by right.

5.1 Given a lack of clarity by the Claimant regarding how or where or when a resident with a valid parking permit could, or could not, be allowed to park in this car park, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

6.1 Since an agreement already existed between the principal landowner and the residents of XXX then it is unreasonable and incomprehensible that the Claimant has any ‘legitimate interest’ in bringing a claim.

7.1 The Claimant is put to strict proof that it has sufficient interest in the ‘land’ or that there are specific terms in its contract to bring an action on its own behalf in this case. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

8.1 Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

9.1 In addition, the Particulars of Claim state that "The Claimant also claims £60 contractual costs pursuant to the PCN Terms and Conditions".
9.2 Legal services cannot be claimed in the small claims court as per CPR 27.14.
9.3. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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 Claimant is put to strict proof of this by way of a full schedule of costs.

10 This case can be distinguished from ParkingEye v Beavis (2015) UKSC 67 (The Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage which formed a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. None of this applies in this case and is distinguished from the current claim since:
10.1 The Driver did not overstay the limits as set out on the signage.
10.2 There was a lack of clarity in the Claimants signage.
10.3 The Claimant had other forms of income from the hourly car park charges and there can therefore be no justification by way of ‘commercial interest’ (See Parking Eye v Cargius (2014) CS027.

11.1 The Claimant has spent almost 4 years harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters and causing the Defendant and their family significant distress, despite having no legal basis to charge £100 and despite knowing that car park signage continued to imply that a valid resident parking permit entitled the bearer to free enjoyment of the land at the time of the alleged Breach.
11.2 No dialogue was attempted by the Claimant or it’s representatives (BW Legal) following the registered keeper’s response to ‘The Letter Before Claim’. The response was made as requested and within the stated time frame.

12. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

manwithavan101

BW legal used the word 'site' in their letter of claim to mean the land. Do I need to use the word site too?

beamerguy

originbreaks wrote: »

BW legal used the word 'site' in their letter of claim to mean the land. Do I need to use the word site too?

Site ... car park ... whatever you like ?

manwithavan101

Please can someone confirm for me that if a notice was served to the driver and the parking company appear to using 2012 POFA route when serving the NTK that the registered keeper must recieve the notice within 56 days?



Also, if they did not comply with this then the PC is in breach of POFA and the keeper cannot be held liable?


Thanks

KeithP

originbreaks wrote: »

Please can someone confirm for me that if a notice was served to the driver and the parking company appear to using 2012 POFA route when serving the NTK that the registered keeper must recieve the notice within 56 days?



Also, if they did not comply with this then the PC is in breach of POFA and the keeper cannot be held liable?


Thanks

The answer to both those questions is - yes.

nosferatu1001

Yes, and explicitly and unambiguously stated in POFA schedule 4 para 8, which you can go and read for yourself. Its not a difficult bit of legislation to read.

manwithavan101

The answer to both those questions is - yes.

So this should definietley go in the defence? If so I'm guessing there are threads on here already for that!