BW Legal - Court Claim Help!

Sydney9

Hi all,

On April 15th (sunday) 2018, I parked my car at the Redbridge Leisure Center (privately owned) for three hours. I have used this leisure centre before twice and never paid. So on that day, I went as normal..stayed for 3 hours. The total fee for staying up to 3 hours on a sunday is £1. I then got a letter saying I need to pay £60 or it will £100. I ignored the letter. I started receiving letters and emails (not sure how they got my email add) from BW legal which I also ignored. Silly, I know!

Today, I received a claim form from County Court Business Centre. The outstanding balance to pay now is £242.80. I initially panicked but after reading the Newbies posts, I feel like I should defend the claim.

I know that I have to send an acknowledgement of service via moneyclaim website asap. I have started drafting my defence using the various examples provided in the Newbies Thread. I need your help to check it!

KeithP

What is the Date of Issue on your Claim Form?

Sydney9

Issue date: 29th Oct 2018

The_Deep

£242 is way too much, The most a judge is likely to award them if they won, which is not very likely, is c@ £200, the rest is fraud/greed.

Complain to the SRA that they are attempting to obtain from you more that the law allows.

http://www.sra.org.uk/home/home.page

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

Parking Eye, CPM, Smart, and another company have already been named and shamed in the house 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. Watch the video of the Second Reading in the House of Commons recently

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

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

KeithP

Sydney9 wrote: »

Issue date: 29th Oct 2018

With a Claim Issue Date of 29th October, you have until Monday 19th 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 Monday 3rd December 2018 to file your Defence.

Over a month away. 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 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.

KeithP

Disappointingly, both those images you have now shown the world contain your Claim Number.

Even more amazing, you have left the MCOL password visible!!

Thus anyone, and I mean anyone, with a different motive can decide to admit the claim.

I strongly suggest you delete your latest post and think very carefully about what you post in future.

Crazy!!

Sydney9

Sorry! Will be careful next time.

Coupon-mad

I have started drafting my defence using the various examples provided in the Newbies Thread. I need your help to check it!

Good, we can do that when you show us your first draft!

Sydney9

Hi guys. The defence is due tomorrow before 3 pm and I spent all my free time available this month to do my research and come up with a defence. I identified most with the Coupon-mad defence written for someone else. I apologise for the delay but I recently went back to full-time education and it has completely taken over my life. I would appreciate all your feedbacks.


IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

Parking Charge Ltd (Claimant)

-and-

Xxxxxx (Defendant)


DEFENCE



Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged outstanding liability arising from driver's alleged parking contravention, when parking at Redbridge Leisure Centre car park on 15/04/18.

2. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')' for the lawful conduct described below.

3. The allegation appears to be that the 'driver fails to make the appropriate tariff payment' 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' or of the driver not being a user of the Redbridge Leisure Centre Car Park.

Data Protection concerns

4. The Defendant was an occupant of the car and can prove that they were a user of Redbridge Leisure Centre on the alleged day. 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.

5. 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 £100 instead of the £1 pound tariff, if it is their case that this sum went unpaid.

6. 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 visitors, no trespass nor 'unauthorised' parking events.

7. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the Centre, who are being caught out regularly by this trap.

8. Silently collecting VRN data in order to inflate the 'parking charge' from £1 to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects

9. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.

10. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, 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.

Claim Form

11. The Claim Form issued on the 29th Oct 2018 by BW Legal Services Limited was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position within the company and state their position, yet the form only states that it has been issued by BW Legal Services Limited as the Claimant's Legal Representative. 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.

12. This Claimant has also not complied with pre-court protocol (as outlined in the new Pre-Action Protocol for Debt Claims, 1 October 2017). A parking charge can be for trespass, breach of contract or a contractual charge. These three scenarios would be treated differently within the law and require the defendant to prepare a different defence for each. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

13. 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 haste Particulars of Claim (POC), this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage.

14. 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.

15. 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.

16. The POC does not identify whether the Defendant was 'the registered keeper and/or the driver' of the vehicle thereby 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

17. 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.

18. 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.

19. The Defendant states that the signage at the site in question is woefully inadequate. The leisure centre contains two car parks. There is a small sign at the car park entrance which is placed on a fence, opposite to the driver side. Close to that, is an overshadowing sign on a wooden post directing traffic. Below that, there are further two signs, one informing customer’s that the centre does not accept any responsibility for any damages to any vehicle or its contents whilst on premises. Another is, a sign saying this is a private car park. All of these combines to make this initial sign easily missed, especially in the evening.

20. Upon receiving this unexpected Claim, the Defendant has researched the site in order to submit a defence. The Parking Charge Limited (PCL) signs within the parking area are equally as hidden and therefore misleading. Furthermore, there are no clear signs that were 'bound to be seen' between where the Defendant believes the car was parked and the entrance to the leisure centre. There is no ''Pay Here'' arrow or other prominent signpost or any 'Have you paid and displayed?' reminders as users enter the Visitor Centre

21. 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 users of the leisure centre.



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

22. 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.

23. The driver has not been identified, the signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent with a 'parking charge' that bears no resemblance to the £1 '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.

24. 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

25. 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 £1.

26. The Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £1 unexpectedly becomes an extortionate £100 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.

27. 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 £1 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

28. This regime in a car park, that was always free since it opened until 2017 is not commercially justified, is damaging the reputation of the Leisure Centre and driving away visitors in future and is surely the epitome of unfairness and unconscionableness. Thus, it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition.

29. 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 £1 and no more. 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.

30. 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 £1 and the Claimant is trying to claim damages of £242.80 no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

31. 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.

32. 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 initial legal costs of £60, which have not actually been incurred by the Claimant. A further £50 is also added as legal representative costs.

33. Whilst £60 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Parking Charge Ltd 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.

34. The Protection of Freedoms Act 2012 (the POFA) 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 (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

35. 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 £100 can be claimed instead of £1 in this case, but either way, the additional sum of £67.80 on top, appears to be a disingenuous attempt at double recovery.

36. 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

KeithP

A whole month has passed since you knew when your Defence was due and you post your first draft the day before it is due.

Good luck.

Sydney9

Like I said Keith, I recently back to full-time education this September and the workload has been overwhelming. I would appreciate any help you guys can give at this short notice