BW Legal strikes again!

Troybert

Also, just to note I have successfully completed AoS on MCOL website :thumbsup:

KeithP

Troybert wrote: »

the date of issue was 17/10/2018.

With a Claim Issue Date of 17th October, and having done the AoS in a timely manner, you have until until 4pm on Monday 19th November 2018 to file your Defence.

Still over two weeks away, 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.

Troybert

Thank you Keith for the concise and informative answer!

I will definitely do this. I will need to work out what the defence is..I'm guessing it will be dependent on what the result of the SAR is?


Also, if anyone can confirm if my draft SAR above is sufficient, because I am waiting for you knowledgeable ladies & gents to approve before I send. Many thanks again!

Umkomaas

Also, if anyone can confirm if my draft SAR above is sufficient, because I am waiting for you knowledgeable ladies & gents to approve before I send.

If you've incorporated what was advised earlier, you can send it. It's not a precise science, just give them as many corners as possible into which they can paint themselves.

I will need to work out what the defence is..I'm guessing it will be dependent on what the result of the SAR is?

Default judgment against you looms!

You need to get your defence in by 19 November. The PPC has 1 month in which to respond to your SAR. Do the math!

Bonus if you get it in time - but unlikely - it's your Witness Statement that might benefit from the SAR response.

Troybert

Thanks Unkomaas,

I see what you're saying :rotfl:

Fair enough, I will send off the SAR now then and then leave that on the back burner while I determine a defence.

I will have a think and put something together for you kind people to have a gander at.

Much appreciated to all so far, be back soon, have a great evening :beer:

Troybert

Hi all, hope you've been well

Here is a rough draft that I would appreciate your guidance on. I have compiled this from looking at other defences, so let me know if any parts aren't relevant or I'm missing anything that is.


Background;

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from a driver's alleged breach of contract on 30/03/18.

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

2. The allegation appears to be 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 breaching any contract.

3. Defendant received a 'PCN' a vague document which gave no indication of what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied.

3.1. The Claimant is put to strict proof of any breach, as well as the reasoning behind trying to collect additional monies instead of the few pounds tariff, if it is their case that this sum went unpaid.

Data Protection Concerns;

4. Silently collecting VRN data in order to inflate the 'parking charge' from a few pounds to hundreds of pounds and write to the home address of registered keepers - whether they were driving or not - is excessive and intrusive to registered keepers.

4.1. Unlike the free car park in Beavis, this alleged breach occurred on a site where the Claimant has machines to take payment of tariffs. Clearly there will be staff onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.

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 the equally lacking Particulars of Claim (POC) and the 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.

5.1. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

5.2. 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.

5.3. The Defendant has sent a subject access request (SAR) to the Claimant, for response during December 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.

Denial of contract and denial of any breach, or liability

6. 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.

7. 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.

7.1. The Defendant avers that the signage at the site in question is inadequate and confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with ParkingEye, and the font is too small to be reasonably expected to be read from a moving vehicle.

7.2. It is not remembered whether an occupant of the car did see a PDT machine and pay a tariff/input the VRN whilst the Defendant obtained the entry tickets, and the Defendant is none the wiser due to the lack of information from the Claimant. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.

No standing or authority to form contracts and/or litigate.

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 against patrons of the car park.

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

9. 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 PDT machines and signs/terms are not prominent, the VRN data is harvested excessively, and the PCN bears a 'parking charge' sum hundreds of pounds greater than the initial 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67.

9.1. 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

10. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of a few pounds. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A per hour 'parking charge', becomes an extortionate £260 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

10.1. 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 the initial parking fee of a few pounds and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

10.2. 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.''

10.3. 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 [...] 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.''

10.4. 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''.

11. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be less than £10.

11.1. 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.

11.2. 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 just a few pounds and the Claimant is trying to claim damages of £243, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

11.3. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

16. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

12. Whilst £60 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, NCP have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

12.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £243 can be claimed instead of <£10 in this case, but either way, the additional sum of £60 appears to be a disingenuous attempt at double recovery.

13. In summary, it is the Defendant's position that the claim discloses no cause of action and is without merit.

I believe the facts contained in this Defence are true.


Name

Signature

Date

Again, thanks for your time :beer:

Troybert

If anyone has a chance to comment on this before I submit, it would be much appreciated

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers. It has even been suggested that some of these companies have links with organised crime.

Watch the video of the Second Reading and committee stage in the House of Commons recently. MPs have a very low opinion of this industry.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

https://hansard.parliament.uk/commons/2018-07-19/debates/2b90805c-bff8-4707-8bdc-b0bfae5a7ad5/Parking(CodeOfPractice)Bill(FirstSitting)

and complain in the most robust terms to your MP. With a fair wind they will be out of business by in the not too distant future..

Troybert

Thanks for that Deep, I will be writing to them once this is concluded. I am sending this today, so any last comments on this is appreciated.


many thanks all

Troybert

Hi All,


I am at the DQ stage - I have received the DQ from the solicitors, but I have not received my copy to fill out? I was waiting for it to arrive, now I am worried that I may have missed the deadline because I do not know what date it would have been served.

Anyone know who to contact to check whether the DQ has been sent to me, or alternatively how to get another copy sent? (Unsure as to whether the deadline will be extended because of this)

Many thanks