Britannia + BW Legal court papers

IloveBritannia

So it's happening...


After months of being chased by Britannia and it's different guises and me replying in a robust fashion, BW Legal have now taken over and the court papers have been issued.


The background:
- the driver allegedly overstayed 15mins on a free 3h retail park car park, the 'proof' being two time stamped photos, one of showing the front, the other the back of the car, location impossible to identify
- the car park in question had had no restrictions for over 20years until a couple of months prior to the alleged contravention, according to the retail park staff hundreds of people have been caught unawares whilst doing their Christmas shopping, the new parking restriction signage not designed to attract attention therefore easily missed by everyone used to the previous no-restrictions-parking
-penalty notice received within 14 days addressed to the registered keeper, nothing to pick on
-appeal rejected by Britannia, no appeal to POPLA
-several letters from debt recovery firms rebuffed or ignored
-last August a letter from BW Legal (is Britannia sharing my data with them legally??), robustly rebuffed
-a couple of days ago a claim form from CC Business Centre arrived claiming amount of £160 + court fee £25 + legal costs £50


There are numerous points I'm considering in defence, including no proof of location, no mention of Britannia on the signage, possibility of unnoticed double entry, appallingly poor signage.


I wasn't driving the car at the time, got my strong suspicions but will keep them to myself, I'm obviously the registered keeper being sued.


Any useful advice will be received with gratitude, I have already read many useful posts on this forum but each case seems different so feeling very apprehensive to say the least...

Coupon-mad

a letter from BW Legal (is Britannia sharing my data with them legally?).

Yes, a parking firm can share data with debt collectors and solicitors.

I would not try to suggest a double visit if you don't think it was. Ask the driver and any passengers if their phone has Google location, and if they have data from that visit that shows the ''overstay'' was actually a few minutes less than 15 mins. Always worth asking all visitors to check if they have some data to ruin the ANPR drivel.

Secondly, email the retail park owner to complain about this harassment and ask them to confirm what the Store has said, that hundreds of people were caught out over Christmas/New Year sales time, and ask what the retail park are going to do about all the victims now being sued and clearly never wanting to return.

The point of the above is twofold:

- firstly to lodge yet another complaint with the people with took on Britannia, which is not going to be the Store if it's a multi shop retail park, it'll be the managing/property agents whose details you can find by Googling the name of the place and looking for any newspaper articles and/or retail unit advertising bumf. It's possible the managing agent might get the PCN cancelled even now, but

- even if it's not cancelled as a result of the complaint, asking the agents to confirm that they are aware that hundreds of shoppers were caught out by the new restrictions, helps your defence, at Witness Statement/evidence stage, as it shows the signage was woeful.

As a base, use the (EDIT - A FORUM TEMPLATE DEFENCE IS NOW ADDED TO THE TOP OF THE FORUM - 2020) and add a point about the BPA Code of Practice requirement for new restrictions to have extra signs to alert drivers in the first few weeks, those who are familiar with it being an unrestricted car park and obviously busier and delayed at Christmas/New Year shopping time.

I would also include 'no keeper liability' and deny being the driver (if true), on the basis that Britannia have failed the POFA requirements for 'adequate notice' of the unexpected parking charge and no 'relevant contract' known or accepted, unlike in the Beavis case where the Defendant confirmed he knew about the terms.

Questions:

1. what date is on the claim form?

2. what does the Particulars of claim section say (every word, every date & detail, except for the VRN)?

IloveBritannia

Wow, what a fast brilliant straight-to-the-point reply!


1. Issue date 19 October 2018
2.Particulars of Claim:
The Claimant's Claim is for the sum of £100.00 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) issued on 16/11/2017 at **:**:** at (is the exact location necessary at this stage?).


The PCN relates to (car make) under registration (car 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 having been made, the Defendant have 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 16/11/2017 to 18/10/2018 being an amount of £6.74.
The Claimant also claims £60.00 contractual costs pursuant to PCN Terms and Conditions.


That's it, but they also include £50.00 legal representative's costs in the box to the right...

KeithP

IloveBritannia wrote: »

Issue date 19 October 2018.

With a Claim Issue Date of 19th October, you have until Wednesday 7th 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 Wednesday 21st November 2018 to file your Defence.

Nearly four weeks. 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.

Coupon-mad

You can always search the forum for keywords - everything is covered.

IloveBritannia

Having now read hundreds of threads I'm still struggling to find the best argument for my defence.
Initially I thought the burden of proof is on Britannia, but I get less confident the more I read. Can they really just rely on two pictures which no recognisable background features to bring a successful claim? There is just no way of telling that the pics were taken at the Slough Retail Park...

I'm sorry to appear a pain but searching BW Legal Bagri brought up a lot of not-quite-relevant pages, would you be able to direct me to the specific thread?

I've had no success with the owners of the retail park as they didn't bother to reply to my email. There was actually a different owner when the contravention allegedly took place.

At this moment in time the only argument of which I'm certain is the poor signage at the site, I'm not sure if me not driving at the time is actually something that could help me here?

Don't want to appear defeatist but having spent hours on recommended reading I'm actually none the wiser, so would be really grateful for some more detailed pointers.

KeithP

So what has happened in the two and a half weeks since your last post?

You now have less than ten days to file a Defence.

Have you looked at the Defences linked from post #2 of the NEWBIES FAQ sticky thread?
Particularly the concise Defences by Bargepole?

Defences get posted on this board many times every single day.
Can you not find one that you can adjust to fit your circumstances?

Did Britannia send you a NtK that was POFA compliant? Have you even checked that? There is a link to POFA Schedule 4 in the NEWBIES FAq sticky thread.
If the NTK does not conform to POFA requirements, then there is no way that a keeper can be held liable. That's why you not being the driver can help you.

No-one is going to write your Defence for you. Show us your draft when you are ready.

IloveBritannia

Here is my draft, constructive comments much appreciated...

________________________________________
DEFENCE
________________________________________

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

2. The Defendant is the Register Keeper of the vehicle which registration is the subject of the PCN however it is denied that he was the driver at the time of the alleged contravention.

3. The Defendant puts the Claimant to full proof of the location of the alleged contravention. The Claim relies on two pictures of the car showing no identifiable landmarks which could have been taken anywhere.

4. The Particulars of the Claim fail to specify on what legal basis has the claim been brought against the Defendant, the assumption being that it was under ‘keeper liability’

5. There can be no assumed ‘keeper liability' as Britannia Parking have failed the POFA requirements for 'adequate notice' of the unexpected parking charge and no 'relevant contract' known or accepted, unlike in the Parking Eye v Beavis case where the Defendant confirmed he knew about the terms.

6. Due to the sparseness of the Particulars of Claim 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.

7. The Claimant's entrance signage is positioned in such way that it cannot be read by drivers without their needing to look away from the road ahead. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. In addition the Claimant is in breach of paragraph 18.11 of British Parking Association Code of Practice which states that ‘where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes’.
9. The car park in question had had no stay restrictions whatsoever for the previous 20 years, yet not only was the signage made not prominent enough, there no grace period offered either.

10. The Claimant is also in breach of paragraph 20.14 of British Parking Association Code of Practice which specifies that ‘when serving a Notice to Keeper, you must also include information telling the keeper the ’reasonable cause’ you had for asking the DVLA for

Coupon-mad

I'm sorry to appear a pain but searching BW Legal Bagri brought up a lot of not-quite-relevant pages, would you be able to direct me to the specific thread?

EDIT IN 2020- DON'T BOTHER WITH THIS SEARCH.

IloveBritannia

Darn it, please ignore the previous post, here is the entire draft:



________________________________________
DEFENCE
________________________________________

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

2. The Defendant is the Registered Keeper of the vehicle which registration is the subject of the PCN however it is denied that he was the driver at the time of the alleged contravention.

3. The Defendant puts the Claimant to full proof of the location of the alleged contravention. The Claim relies on two pictures of the car showing no identifiable landmarks which could have been taken anywhere.

4. The Particulars of the Claim fail to specify on what legal basis has the claim been brought against the Defendant, the assumption being that it was under ‘keeper liability’

5. There can be no assumed ‘keeper liability' as Britannia Parking Ltd have failed the POFA requirements for 'adequate notice' of the unexpected parking charge and no 'relevant contract' known or accepted, unlike in the Parking Eye v Beavis case where the Defendant confirmed he knew about the terms.

6. Due to the sparseness of the Particulars of Claim 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.

7. The Claimant's entrance signage is positioned in such way that it cannot be read by drivers without their needing to look away from the road ahead. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. In addition the Claimant is in breach of paragraph 18.11 of British Parking Association Code of Practice which states that ‘where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes’.

9. The car park in question had had no stay restrictions whatsoever for the previous 20 years, yet not only was the signage made not prominent enough, there was no grace period offered either.

10. The Claimant is also in breach of paragraph 20.14 of British Parking Association Code of Practice which specifies that ‘when serving a Notice to Keeper, you must also include information telling the keeper the ’reasonable cause’ you had for asking the DVLA for their details’. No such information was included in the NTK received by the Defendant.

11. The Claimant is also in breach of paragraph 22.8 of BPA CoP which states that ‘You must acknowledge or reply to the appeal within 14 days of receiving it’. The Claimant received the Defendant’s appeal against the PCN on 17/12/2017 only to respond on 11/01/2018 which was 25 days later.

12. 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.

13. The alleged overstay was 17 minutes. This would have been entirely within the grace periods appertained in the paragraph 13 of BDA CoP which implies allowing the driver a reasonable 'grace period' in which to decide if they are going to stay or go and also a grace period at the end of the parking period which should be a minimum of 10 minutes.

14. 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 is given and which appears to be an attempt at double recovery and also £50 legal representative costs neither of which are not permitted under CPR 27.14

15. 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

IloveBritannia

Hi everyone,

Any comments on the above are more than welcome! (Perhaps apart from 'why did you wait till the last minute with preparing your defence when we told you not to!' There was a valid reason for that...)