Court Claim from BWLegal

GooseLady

Hi everyone.

First of all, a massive thank you to everyone who posts in this forum. Without this forum I would have crumpled at the first hurdle and paid up as soon as court was threatened!

I have gone through what seems to be the normal process of a PCN from NCP and BWLegal, I have responded to the LBC etc with replies I have adapted from the forum.
However I have now received a claim form (issue date 16th October) so I am starting a thread as per the sticky.

The claim is for parking without payment of the charge.

The only defence I can think of is that the signage was not adequate.


The offence was at night time and I have taken pictures of the signs at the car park in similar conditions, see below (replace XXX with www):

View from the road:
XXX.dropbox.com/s/ohpx1v5gwhh4iwu/Road%20view%201.jpg?dl=0
XXX.dropbox.com/s/f6dcb50t5dwk44s/Road%20view%202.jpg?dl=0


Signage in the entrance as you look left:

XXX.dropbox.com/s/ernw56t55l1zm62/Sign%20on%20left.jpg?dl=0


Signage in the car park:

XXX.dropbox.com/s/anyaxbvgyjlqxcp/Car%20park%20signage%201.jpg?dl=0
XXX.dropbox.com/s/6wvzm5lut24fky3/Car%20park%20signage%202.jpg?dl=0


Is this enough to defend on? Or is it time to give up?


Thank you

KeithP

GooseLady wrote: »

I have now received a claim form (issue date 16th October)...

With a Claim Issue Date of 16th October, you have until Monday 5th November to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

Having done the AoS, you then have until 4pm on Monday 19th November 2018 to file your Defence.

A whole month. Loads of time to produce a perfect Defence, 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 suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

GooseLady

Thanks Keith

GooseLady

I've completed the AOS, and have drafted my defence - any comments would be much appreciated. I've tried to emphasise the point on signage. I also sent BW Legal a SAR, to which I have had no reply. I have now given them a 7 day prompt before I report them to the ICO - is this worth mentioning in the defence?

_________________________________________________________
IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

National Car Parks Limited (Claimant)

-and-

<NAME> (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration <REG>, of which the Defendant is the registered hirer, was parked on the material date in the car park at <LOCATION>.

3. The Particulars of Claim state do not specify if the claimant is pursuing the Defendant as the registered keeper or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action. 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.

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. 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.

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.

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 anyone attempting to read the tiny font would be unable to do so easily. Even if the writing on the sign was readable, the signage is in such a position that any driver must look away from where they are going in order to even see the sign itself. The lack of lighting further diminishes the ability of any person to read the signs especially during darkness in the hours the alleged breach is said to have occurred. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The British Parking Association ("BPA") Code of Practice sets the requirements for entrance sings. The following requirements are mandatory:
(a) The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
(b) Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement takes places at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retroreflective material similar to that used on public roads and described in the Traffic Signs Manual.

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 parking charge notices, and to pursue payment by means of litigation.

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

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

11. 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
_______________________________________________________________________

beamerguy

GooseLady wrote: »

2. The facts are that the vehicle, registration <REG>, of which the Defendant is the registered hirer, was parked on the material date in the car park at <LOCATION>.

If you are the hirer/lessee then you need to remove all mention of who the driver was from your first post, and should cite para 13/14 of the POFA in the defence.

GooseLady

Thanks beamerguy, I have a long term lease deal on my car and I did receive a 'Notice to Hirer' rather than keeper.

I'm confused with using the POFA as hirer, will my defence be any different from doing so as the keeper?

Does the rest of the POFA still hold true for hirers? For example 4 (5) which states that only the initial sum can be recovered?

The only thing I can say with some certainty is that 14 (2) (a) states that the hirer must be provided with "a copy of the documents mentioned in paragraph 13(2) and the notice to keeper" - I never got a copy of these.

As an aside, I sent BW the 7 day reminder for the SAR, they have replied as though its the first time I've asked for the information and they now have a month to reply :mad: I'll send them another letter tomorrow emphasizing my original sending date.

Redx

a hirer is a keeper, but as you say, it looks like the PPC failed to issue the docs with the NTH, failing POFA2012


a defence is either as a driver, or not , assuming not, then POFA2012 is a persuasive argument, as is when a PPC fails to follow it, the PPC will assume they are all one and the same, they will try to persuade a judge that on the balance of probabilities the hirer/keeper was also the driver

GooseLady

Thanks for the quick reply Redx, I'll add this to my defence then;

The Protection of Freedoms Act 2012, Schedule 4, at Section 14(2)(a) states that a condition for the creditor to pursue the hirer is that “the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper”. The documents mentioned in paragraph 13(2) and the notice to keeper have never been provided, thus the claimant has failed to comply with the POFA 2012.

GooseLady

Anyone one else have any comments?

nosferatu1001

Seems fine
The important thing is - are you happy? Can you explain any and every element? Can you articulate this in court?

GooseLady

I've done some digging using google maps; if you change the photo date you can actual see that the signs have changed a lot over the past few years, I have added the relevant arguments under point 8.
I'm planning to submit my defense tomorrow, would appreciate a final check through / any last suggestions.

DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXX, of which the Defendant is the registered hirer, was parked on the material date in the car park at XXX.

3. The Particulars of Claim state do not specify if the claimant is pursuing the Defendant as the registered keeper or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action. 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.

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. 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.

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.

6. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle. The lack of lighting further diminishes the ability of any person to read the signs especially during darkness in the hours the alleged breach is said to have occurred. The main signs for the car park are only visible from the main road and are impossible to see if turning left into the car park from XXX Road. The terms and conditions sign at the entrance is off to the left, out of any driver’s line of sight. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The British Parking Association ("BPA") Code of Practice sets the requirements for entrance sings. The following requirements are mandatory:
(a) The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
(b) Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement takes places at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retroreflective material similar to that used on public roads and described in the Traffic Signs Manual.
As explained in point 6 the signs in the car park fail both of these requisites.

8. The signage in the car park has recently been modified. In July 2016 there is a clear “This is a Pay and Display Car Park” sign at the entrance to the car park. Between July 2016 and September 2017 this was changed to simply read “Our cameras record your number plate on entry and exit”. The new sign does not state anything about the car park having a charge or being pay and display.

8.1 The signage in the car park has also been modified since the alleged offence. In September 2017 there was no sign in place stating the prices to park in the car park. However by May 2018 a sign was added to state the price per hour to park (however this still unlit, in small font and out of any driver’s line of sight).

9. 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.

10. 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.

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

12. As stated in Point 2 the defendant is the hirer of the vehicle. The Protection of Freedoms Act 2012, Schedule 4, at Section 14(2)(a) states that a condition for the creditor to pursue the hirer is that “the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper”. The documents mentioned in paragraph 13(2) and the notice to keeper have never been provided, thus the claimant has failed to comply with the POFA 2012.

13. 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.