Claim - BW Legal for TPS

xixixi

Hi all,

**BW Legal - Made typo in subject and cant seem to change it now, sorry! **

New here in a posting sense but have using the brilliant information from the great people who post here for years, which I thank all those who contribute for. I'm sure for every one person you specifically help, you'll probably help ten's of others indirectly.

On to the reason for the post, SWIM has received a claim submitted by BW Legal, claimant of Total Parking Solutions.

They have registered the intent to defend and requested the additional 14-days.

They have been through a lot of the info on the newbie post and are starting to get a defence written up but they saw on that post that a new thread should be created right away in the case of a CCJ and I am therefore doing so on their behalf.

Having read a lot on here about it all for them in the past, from the reading I done a few months back it seems a rare thing for TPS for get this far!

They received the ticket from a private carpark near their place of work, the car park is free to park for the first three hours and then is charged at a cost of £10 for 24hrs. The car park has numberplate recognition cameras used to register cars entering and leaving the car park. They had forgotten they had parked in the car park that morning, only remembering when leaving work at the end of the day. Something that they have done a handful of times. Having previously used the "ignore them and they will go away" method with other companies with success before, coupled with reading on here that TPS do not have a history of going to court, this is the method they chose to take, clearly the wrong choice on this occasion!

The claim appears to be for just one instance.

Amount claimed: 127.96
Court fee: £25
Legal rep cost: £50
Total: £202.96

They have a couple of initial questions they hope someone may be able to offer some input on:

They believe the case to be if it's less then £100 they can't issue a CCJ and so could it be argued that the amount owed is legally less than that as even TPS's final demand was only up to £90?

The claimant also continually uses an address which does not include a road name and has a postcode which looks to be for a different car park a few hundred meters away (the postcode does not cover the area that car park is in). Could this be used in defence?

They would also be interested to hear from anyone that has any knowledge on how the numberplate recognition systems work, do entrance cameras only register an entry log for a car or will it register as an exit if a car was to go in and out the same entrance?

If you would like any further information, just let me know and I shall get it from them for you.

In the meantime I shall start assisting them with writing a draft defence.

Thanks

Coupon-mad

SWIM has received a CCJ submitted by BW Legal,

It's not a CCJ.

Can you click ADVANCED edit and change the title, not just to change to BW Legal but to 'claim' (not 'CCJ').

xixixi

Apologies, have now amended the title.

Thanks for the response, SWIM will bare your advice in mind in future.

Guessing you say its not a CCJ but a claim as its only a CCJ if they lose the case and the judgement is made?

xixixi

The reason they ask whether all cameras snap for entry and exit is that the company they work for has a single permit parking space in a small separate car park that to get to, you have to drive down the one way entrance to the main car park to get to.

Entrance 1 > Main Car Park < Entrance 2 < Permit car park < One way entrance

There is only one exit, by Entrance 1.

They wondered whether they would be able to prove they did not enter the car park in entrance 1 and drive the wrong way down the one way system past the Entrance 2 camera to get to the permit space?

KeithP

What is the Date of Issue on your Claim Form?

And forget this 'SWIM' lark - it fools no-one.

xixixi

Date of issue is 03/10/18

KeithP

xixixi wrote: »

Date of issue is 03/10/18

With a Claim Issue Date of 3rd October, you have until Monday 22nd October 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 5th November 2018 to file your Defence.

Still over a week to go, 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.

xixixi

Thank you for the response and guidance.

As stated in the original post (albeit not using the correct term) they have already submitted the AoS.

The draft will be posted on here once it's been finished but keen to hear feedback to the questions in the original post as they seem they could potentially be of value in the defence

Coupon-mad

They believe the case to be if it's less then £100 they can't issue a [STRIKE]CCJ[/STRIKE] claim and so could it be argued that the amount owed is legally less than that as even TPS's final demand was only up to £90?

No, there is no minimum. The parking charge in the Beavis case was £85.

The claimant also continually uses an address which does not include a road name and has a postcode which looks to be for a different car park a few hundred meters away (the postcode does not cover the area that car park is in). Could this be used in defence?

Yes it can be mentioned.

They would also be interested to hear from anyone that has any knowledge on how the numberplate recognition systems work, do entrance cameras only register an entry log for a car or will it register as an exit if a car was to go in and out the same entrance?

Depends on the car park. Depends on the operator! Read this:

http://parking-prankster.blogspot.com/2014/02/how-parking-operators-use-anpr.html

HTH

xixixi

Draft defence below, any and all thoughts appreciated.


IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

Total Parking SolutionsLimited (Claimant)

-and-

xxx mf87 xxx(Defendant)



DEFENCE




Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at a car park for which they have failed to provide an address for, purely a town name (Rustington) on 19/03/18.

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £127.96 'Parking Charge Notice ('PCN')'.

2. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing the appropriate parking time’.


Data Protection concerns

3. The defendant was an occupant of the car. However, the Defendant had no idea about any ANPR surveillance and received no letters after the initial 'PCN' a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

3.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £127.96 instead of the small tariff, if it is their case that this sum went unpaid.

4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.


Premature claim - no Letter before Claim, and sparse Particulars

5. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and arrived weeks later) and the equally lacking and embarrassing Particulars of Claim (POC) and the complete lack of any Letter before Claim, this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.

6. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.


Denial of contract and denial of any breach, or liability

7. Due to the sparseness of the POC 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 breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

8. 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.

8.1. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with ParkingEye, is partially obscured by a much larger sign directing traffic and placed at an intersection with extremely confusing road markings. All of these combine to make this initial sign easily missed.


No standing or authority to form contracts and/or litigate

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 against patrons of the Visitor Centre.



No 'legitimate interest' or commercial justification - Beavis is distinguished

10. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the lack of PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late with a 'parking charge' that bears no resemblance to the £q0 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

10.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''



Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

11. If the 'parking charge' unpaid, then the sum 'owed' is a quantifiable figure. Despite extending parking in a timely manner, the Defendant found the car had already had a predatory PCN applied demanding an extortionate £127.96 (also described as the 'parking charge' but clearly being an unrecoverable penalty). This is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

12. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be a percentage of the £10 per 24 hour tariff. It can only be viewed in terms of a simple damages clause, where the sum allegedly 'owed' in debt is known.

12.1. This charge represents exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

(i) At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

(ii). And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

12.2. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

12.3. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was a minuscule sum in pence (if unpaid, which it was not) and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

13. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £37.96, which the Defendant submits have not actually been incurred by the Claimant.

13.1. These have been variously described as a 'BW Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £37.96, artificially hiking the sum to £202.96. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

13.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. 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 PPS robo-claims at all, on the balance of probabilities.

13.2.1. 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.

14. 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.

I believe the facts contained in this Defence are true.


Name

Signature

Date

Coupon-mad

That's good, very suitable for a PDT machine car park.

Might be hard to argue in front of a Judge but it is worth fighting and on the face of it the only sum due is a tenner, as per the tariff.