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County Court Claim - Defence - BW Legal
Comments
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Should've said earlier... yes you can be a lay rep, but the Defendant must attend too.0
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Should've said earlier... yes you can be a lay rep, but the Defendant must attend too.
I've updated my defence if you wouldn't mind having a glance over it to make sure it is ready to submit please.
The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.
i. The signage of the area does not offer a contract with the motorist
ii. The signage in the area was not clear, there were no readable signs in the area at the time the ticket was left.
iii. New signs were placed during the day, tickets were then placed on vehicles.
iv. The Claimant has failed to identify a Cause of Action
i. The signage of the area does not offer a contract with the motorist
At the time of parking no visible signs were in the area stating that parking was prohibited, therefore no contract was entered with the Claimant.
ii. The signage in the area was not clear, there were no readable signs in the area at the time of parking.
After closer inspection it appears that all signs in the area had been removed. Leaving only a small unreadable part of the sign intact. It is the Claimant’s responsibility to maintain these signs to ensure all who enter the area are aware that it is private land.
iii. New signs were placed at the entrance during the day, tickets were then placed on vehicles.
As no visible signs were placed in the area no contract could have been agreed to by the Defendant. Only after the Defendant had returned to the vehicle would the Claimant’s signs have been read.
iv. The Claimant has failed to provide a Cause of Action
The Claimant has not provided the Defendant with a legitimate Cause of Action for this claim.
The court is invited to strike out the claim, due to no cause of action being presented to the Defendant.
I believe the facts contained in this Defence are true.
Name
Date
Signature0 -
triggahappyhaza wrote: »The Claimant's Claim is for the sum of £100 being monies due from the Defendant to the Claimant in the respect of Parking Charge Notice (PCN) Issued on 08/04/2017 at 14:46:55 at *LOCATION*.
The PCN related to *other half's vehicle and reg*
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 hacing 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 8% per annum a daily rate of £0.02 from 18/04/2017 to 24/09/2018 being an amount of £10.50
The claimant also claims £60 contractual costs pursuant to PCN terms and conditions.Is there anything obvious in the defence that I could add to, or if there is something which may assist in winning this claim at all? I'm not up for letting these companies win.
As you have had the above POC, I would suggest your defence needs to reply to that drivel and also add in things like no landowner authority, and distinguish the case from Beavis and to deny the added made up 'costs'.
It also needs proper numbering, so could be something like this:IN THE COUNTY COURTCLAIM NUMBER: XXXXXXXXX
BETWEEN:xxScammers R Us Parking Ltdxxx (claimant)
-and-
XXXXX XXXXXXXX
DEFENCE
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. It is admitted that the Defendant is the registered keeper of the vehicle and was the driver on the material date.
3. The Defendant asserts that they are not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons and asserts that a lack of clear terms is fundamental to a contract and is fatal to the Claimant's case:
i. The signage of the area does not offer a contract with the motorist. At the time of parking no visible signs were in the area stating that parking was either prohibited or allowed under contractual conditions, therefore no contract was entered with the Claimant.
ii. The signage in the area was not clear, there were no readable signs in the area at the time the ticket was left. After closer inspection it appears that all signs in the area had been removed. Leaving only a small unreadable part of the sign intact. It is the Claimant’s responsibility to maintain these signs to ensure all who enter the area are aware that it is private land.
iii. New signs were placed during the day, tickets were then placed on vehicles, contrary to the Claimant's Code of Practice and contrary to the consumer law doctrines of transparency of terms, open dealing and good faith. As no visible signs were placed in the area no contract could have been agreed to by the Defendant. Only after the Defendant had returned to the vehicle would the Claimant’s signs have been possible to read, and this was too late to form a parking contract which cannot be based on terms only communicated later.
4. The Claimant has failed to identify a Cause of Action. The particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing by way of any detail whatsoever which specifies how any terms were breached or what those terms even were. 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.
5. 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, that there is/was no 'relevant contract/obligation' or any clear terms on prominent signage, and that the PCN was punitive and incapable of being saved by any overriding legitimate interest.
6. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices without any signage being in place, and to pursue payment by means of litigation.
7. Even if there was landowner authority to issue retrospective PCNs from parking events that had occurred earlier that day when there were no signs up, this would not pass the requirements for clear consumer contracts with no misleading omissions, as set out in various consumer laws, including the Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Rights Act 2015. This ticketing also offends against the Claimant's own Trade Body rules about mandatory entrance and other signage and regarding operators being required to keep to strict rules of professional standards, avoiding such predatory and lawless ticketing.
8. The Protection of Freedoms Act 2012, schedule 4, at section 4(5) states that the maximum sum that may be recovered is the charge stated on the Notice to Keeper, in this case £100. In the addition to the original PCN penalty, the claimants have artificially inflated the value of the claim by adding purported added ‘costs’ of £60 'pursuant to PCN terms and conditions'.
9. As was established in Beavis by the panel of Judges at the Supreme Court, losses/damages cannot be claimed by a parking firm not in possession of the private land and further sums cannot be bolted on top of an already inflated parking charge of which some 80% comprises profit and more than covers the very minimal costs of operating an automated parking charges model, so there cannot be further 'losses' in a typical parking robo-claim. The Defendant submits such sums have not actually been incurred by the Claimant and this is a disingenuous attempt at double recovery, and an abuse of the court process.
10. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs either. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste template claims at all, on the balance of probabilities.
11. The Claimant and their solicitors are serial offenders in this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. 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.
12. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
13. The Court is invited to dismiss the Claim using its case management powers, or in the alternative, to order the Claimant to produce further and better Particulars to address the difficulty they have with this claim: specifically, evidence photographs and the records and reasons for why, and exactly when, the signs were taken down and then replaced on that day and to explain why already parked cars were targeted once the signage terms were back in place, which appears to the Defendant to be tantamount to fraudulent trading.
14. The Defendant suggests that if the Court is not minded to strike the claim out, then a short preliminary hearing to address this fundamental issue - with the Defendant's costs being reserved or refunded - may be the most expedient way for the Court to address the complete lack of merit in this claim.
The Defendant believes the facts contained in this Defence are true.
Name
Date
SignaturePRIVATE '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 THREAD0 -
Coupon-mad wrote: »As you have had the above POC, I would suggest your defence needs to reply to that drivel and also add in things like no landowner authority, and distinguish the case from Beavis and to deny the added made up 'costs'.
It also needs proper numbering, so could be something like this:
Thank you so much for your input. It's very much appreciated.
I will be submitting the defence today and will keep you guys updated on the status of the claim. Fingers Crossed.0 -
So after 2 years, I've now received a directions questionnaire. So I guess this is what my weekend will now consist of.Coupon-mad said:triggahappyhaza wrote: »The Claimant's Claim is for the sum of £100 being monies due from the Defendant to the Claimant in the respect of Parking Charge Notice (PCN) Issued on 08/04/2017 at 14:46:55 at *LOCATION*.
The PCN related to *other half's vehicle and reg*
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 hacing 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 8% per annum a daily rate of £0.02 from 18/04/2017 to 24/09/2018 being an amount of £10.50
The claimant also claims £60 contractual costs pursuant to PCN terms and conditions.Is there anything obvious in the defence that I could add to, or if there is something which may assist in winning this claim at all? I'm not up for letting these companies win.
As you have had the above POC, I would suggest your defence needs to reply to that drivel and also add in things like no landowner authority, and distinguish the case from Beavis and to deny the added made up 'costs'.
It also needs proper numbering, so could be something like this:IN THE COUNTY COURTCLAIM NUMBER: XXXXXXXXX
BETWEEN:xxScammers R Us Parking Ltdxxx (claimant)
-and-
XXXXX XXXXXXXX
DEFENCE
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. It is admitted that the Defendant is the registered keeper of the vehicle and was the driver on the material date.
3. The Defendant asserts that they are not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons and asserts that a lack of clear terms is fundamental to a contract and is fatal to the Claimant's case:
i. The signage of the area does not offer a contract with the motorist. At the time of parking no visible signs were in the area stating that parking was either prohibited or allowed under contractual conditions, therefore no contract was entered with the Claimant.
ii. The signage in the area was not clear, there were no readable signs in the area at the time the ticket was left. After closer inspection it appears that all signs in the area had been removed. Leaving only a small unreadable part of the sign intact. It is the Claimant’s responsibility to maintain these signs to ensure all who enter the area are aware that it is private land.
iii. New signs were placed during the day, tickets were then placed on vehicles, contrary to the Claimant's Code of Practice and contrary to the consumer law doctrines of transparency of terms, open dealing and good faith. As no visible signs were placed in the area no contract could have been agreed to by the Defendant. Only after the Defendant had returned to the vehicle would the Claimant’s signs have been possible to read, and this was too late to form a parking contract which cannot be based on terms only communicated later.
4. The Claimant has failed to identify a Cause of Action. The particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing by way of any detail whatsoever which specifies how any terms were breached or what those terms even were. 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.
5. 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, that there is/was no 'relevant contract/obligation' or any clear terms on prominent signage, and that the PCN was punitive and incapable of being saved by any overriding legitimate interest.
6. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices without any signage being in place, and to pursue payment by means of litigation.
7. Even if there was landowner authority to issue retrospective PCNs from parking events that had occurred earlier that day when there were no signs up, this would not pass the requirements for clear consumer contracts with no misleading omissions, as set out in various consumer laws, including the Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Rights Act 2015. This ticketing also offends against the Claimant's own Trade Body rules about mandatory entrance and other signage and regarding operators being required to keep to strict rules of professional standards, avoiding such predatory and lawless ticketing.
8. The Protection of Freedoms Act 2012, schedule 4, at section 4(5) states that the maximum sum that may be recovered is the charge stated on the Notice to Keeper, in this case £100. In the addition to the original PCN penalty, the claimants have artificially inflated the value of the claim by adding purported added ‘costs’ of £60 'pursuant to PCN terms and conditions'.
9. As was established in Beavis by the panel of Judges at the Supreme Court, losses/damages cannot be claimed by a parking firm not in possession of the private land and further sums cannot be bolted on top of an already inflated parking charge of which some 80% comprises profit and more than covers the very minimal costs of operating an automated parking charges model, so there cannot be further 'losses' in a typical parking robo-claim. The Defendant submits such sums have not actually been incurred by the Claimant and this is a disingenuous attempt at double recovery, and an abuse of the court process.
10. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs either. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste template claims at all, on the balance of probabilities.
11. The Claimant and their solicitors are serial offenders in this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. 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.
12. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
13. The Court is invited to dismiss the Claim using its case management powers, or in the alternative, to order the Claimant to produce further and better Particulars to address the difficulty they have with this claim: specifically, evidence photographs and the records and reasons for why, and exactly when, the signs were taken down and then replaced on that day and to explain why already parked cars were targeted once the signage terms were back in place, which appears to the Defendant to be tantamount to fraudulent trading.
14. The Defendant suggests that if the Court is not minded to strike the claim out, then a short preliminary hearing to address this fundamental issue - with the Defendant's costs being reserved or refunded - may be the most expedient way for the Court to address the complete lack of merit in this claim.
The Defendant believes the facts contained in this Defence are true.
Name
Date
Signature
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Completing a DQ is easy. Less than half an hour's work.
Guidance on how to answer every question on your Directions Questionnaire is given in Bargepole's 'what happens when' post linked from the second post of the NEWBIES thread.1 -
Thank you, I'm reading through that now. Though the missus wants to mediate to save hassle and money if she loses as we have no money to pay. Though I'm not sure that's the best course of action really, even though we've both lost / losing jobs due to covid.KeithP said:Completing a DQ is easy. Less than half an hour's work.
Guidance on how to answer every question on your Directions Questionnaire is given in Bargepole's 'what happens when' post linked from the second post of the NEWBIES thread.0 -
Do not mediate. The mediator will be on the side of the PPC and will do everything in his/her power to make you agree to pay. The PPC want you to pay £FULL, you want to pay £ZERO - end of mediation.1
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Mediation is never suitable for these parking cases.
Mediation can be useful if there is a dispute over exactly how much is owed.
For example, if you have had some work done at home and the tradesman presents a bill higher than that expected, maybe there is scope for finding the middle ground. E.g. was the extra work he did worth some of the extra money claimed?
In parking cases, the victim of course wants to pay nothing. Conversely, the parking company wants every penny they can get. There is no scope for mediation.
But you have already read that in the guidance notes.
Refusing mediation will not count against you.2 -
Is there a good chance of winning when it goes to court? I know they send a lot of letters and these court cases out.KeithP said:Mediation is never suitable for these parking cases.
Mediation can be useful if there is a dispute over exactly how much is owed.
For example, if you have had some work done at home and the tradesman presents a bill higher than that expected, maybe there is scope for finding the middle ground. E.g. was the extra work he did worth some of the extra money claimed?
In parking cases, the victim of course wants to pay nothing. Conversely, the parking company wants every penny they can get. There is no scope for mediation.
But you have already read that in the guidance notes.
Refusing mediation will not count against you.0
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