Be legal court claim defence help

Lailajaz

Hi I have received a court claim letter from Bw legal. I have read the newbies thread over and over and replied my acknowledgment on mcol with the view to defend against their claim.
At the time of receiving the pcn through the post I had changed my name and therefore didn't read any mail in my old name as assumed to be spam. Read this letter by chance. So I don't have much info on exactly what the pcn was for as there is no info in the court claim letter only standard wording of£243 owed in respect of a pcn at X location at x time.
I do believe that the driver entered a ncp p&d car park but didn't get out of the car. Was there for between 15 and 20 minutes before exiting the carpark without payment but was cought on a camera and then pcn sent through the post at a later date.
My head is in turmoil at what exactly I should be writing as a defence. I have copied and pasted some stuff from other threads regarding legality of who owns the site/signage etc am I even on the right path?
Any help much appreciated thanks

KeithP

It's not clear... do you have a Claim Form from the County Court Business Centre?

If so, what is the Date of Issue on the Claim Form?

Can you please post the exact contents of the Particulars of Claim box on the Claim Form?

Lailajaz

Hi yes I do have a claim form from the county court business centre.

The particulars of claim are
The claimants claim is for the sum of £243.28being monies due from the defendant to the claimant in respect of a parking charge notice for a parking contravention which occurred on xxx in the private car park/land located at xxxxx in relation to vehicle xxx registration mark xxx. The defendant was allowed 28 days from the pcn date to pay the pcn but 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 thrncounty court act 1984 at a date of 8% per annum (a daily rate of 0.04 from xx to xx being an amount £8.28. The claimants claim includes £60 COSTS AS SET out in the terms and conditions.

Lailajaz

Sorry claim form date is 18th Oct

KeithP

Lailajaz wrote: »

...claim form date is 18th Oct

With a Claim Issue Date of 18th October, you have until Tuesday 6th 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 Tuesday 20th 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 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.

Lailajaz

Thank you yes imdont want to leave it til the last minute as i have a habit of procratinating. This is the version I have come up with from other posts forms defence. Does it seem ok? I, like a lot on here have never done anything like this before so it's a bit mind boggling.
Defence

1.I am XXXXX previously known as xxxx defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of vehicle registration mark XXXX XXX which is the subject of these proceedings. The vehicle was insured with two named drivers permitted to use it.

1.1The Defendant denies liability for the entirety of the claim for the following reasons.


2. In breach of Practice Direction 16 7.5 and CPR 16.1 1(a) the Particulars of Claims lack any specific information and do not give any details about what contravention allegedly occurred only that it related to a Parking Charge Notice (PCN), what PCN the claim relates to, how the charge arose, how the charge has been constructed or what contract was allegedly entered into. This makes it very difficult for the defendant to accurately defend the claim.


3. The Defendant believes that the claim has been artificially inflated and that the claimant has added unrecoverable sums to the original charge, including £xx for Legal Representatives costs which is not permitted for the small claims track under CPR 27.14. In any case the Defendant disputes the the Claimant has incurred £xx Legal Representatives Costs pursuing an alleged £xx debt.


4. The charge is clearly an unenforceable penalty with no basis in costs incurred by the alleged contravention. If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

4.1 Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

4.2 At the Court of Appeal stage in!Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.


5. As detailed in the Particulars of Claim, the Claimant is claiming £xx costs as set out in the Terms and Conditions with no reference to which Terms and Conditions the costs are associated with or how the Defendant entered into a contract with which these Terms and Conditions were a part.!


6. As is required by Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) the Claimant has not provided proof of the Claimants contractual authority to operate in the car park in question It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to BW Legal!and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the lessee company and extended to permitted drivers who were expressly allowed on site. No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;

6.1If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowners behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.


7. The lack of adequate signage makes it impossible to enter into a contract as the first sign is placed outside of the drivers viewpoint upon entering the car park, with no way of reading, rejecting and exiting the car park without first fully entering it. The additional small signs placed throughout the car park are extremely high up with text that is so small it is unreadable at ground level. No figure for additional charges was agreed nor could it have formed part of the alleged contract because no such costs were detailed on the signs. On this basis, there can be no contract and the Claimant can have no claim.!


8. The Claim Form issued by BW Legal on the xxth July has not been correctly filed as it was not signed by a legal entity. It does not have a valid signature. Practice Direction 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. Its literally just computer printed BW Legal Services Limited (Claimants Legal Representative). Theres no signature.


9. The Claimant is believed to be a serial litigant, with over 1,000 similar claims identified by HM Courts Service, which is clearly against the public interest. It is the Defendants belief that this claim is yet another of the Claimants template claims and will proceed with no specific evidence or facts with which to substantiate it which demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.


10. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).


The Defendant denies any liability whatsoever to the Claimant in any matter and the court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

STATEMENT OF TRUTH

The defendant believes the facts stated in this defence are true.

Lailajaz

Anyone able to help?

KeithP

A little more patience is needed.

Some of the knowledgeable people on here don't post at weekends.
Anyway, expecting feedback in under three hours is pushing it.

Just something to think about:
There is nothing in there about who was or who wasn't driving.
Is the driver known to the Claimant?
Does the Claimant need to transfer liability to the keeper?

Lailajaz

Sorry your right I should be more patient this is my first time with anything like this and I think panic has set in.


I thought it was best from reading on here not to admit being the driver or who the driver Was?

The other insured driver is known to me but do I have to mention who that is?

I am the registered keeper of the vehicle.

I thought it was their responsibility to prove who was the driver and that if it could have been someone else that I am able to just state that their is a possibility it was someone else? Is that not the case?
Thanks

Fruitcake

"I do believe that the driver entered a ncp p&d car park but didn't get out of the car."

The driver parked, didn't pay, and didn't even get out of the car to look at signs. What a daft thing to do.

No you shouldn't name the driver unless you really don't like them, but I can't imagine why you would let someone you didn't like drive your car.

If the keeper was not the driver, then that should be stated as fact, but should not otherwise be mentioned.

A judge may side with you if you can show that that there is more than one named person on the insurance. Don't forget to mention that other people (may) have permission to drive the vehicle on their own insurance.
You don't have to name any of these people, but the insurance document may be useful when you need to submit evidence at a later date.

Nobody can force you to name the driver.

Lailajaz

Yes perhaps stupid. I believe the driver was waiting and didn't notice the car park as one with cameras. Clearly the signs can't be very good.

Do I need to ask bw legal for more specifics of what the pcn is for so that I can compose a better defence? As the current particulars stated are not very informative to argue well.

Where would u suggest I add the fact I am not the driver? And would the wording be just that simple?

I have also come across other people arguing for evidence that no ticket was purchased as the photos only show that of a car entering and leaving a car park not evidence that a ticket wasn't issued. Is that a road I could also use?

Thanks in advance