BW Legal - Court Claim Help!

Sydney9

Any comment on the feedback guys?

Coupon-mad

Parking Charge Ltd

BPA member rarely heard of - I doubt their NTK had the POFA wording right.

That defence is far too long and even though you say you were an occupant of the car you have not explained why no £1(?) tariff was paid.

Buried in point #28 you mention:

in a car park, that was always free since it opened until 2017

So is the Judge to assume you all thought the car park was still free and the signs failed to be clear and prominent enough to inform people familiar with the location, that a new regime applied? You haven't said this in so many words, as far as I could see, except mention of it in #20 which is when the Judge has lost the will to live in trying to see what your defence is!

See this example of where bargepole has rewritten a long defence into a concise one:

https://forums.moneysavingexpert.com/discussion/comment/75120367#Comment_75120367

Try to do the same - albeit for your case with unclear signs and no driver identified I say you do need to keep reference to 'no keeper liability' and also the Beavis case quotes (in your section headed No 'legitimate interest' or commercial justification - Beavis is distinguished).

Sydney9

Thank you Coupon - Mad. I also felt the same about the defence. I have made another draft. Please see if this is now more concise and straight to the point.


IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

Parking Charge Ltd (Claimant)

-and-

Xxxxxx (Defendant)


DEFENCE


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

2. On the material date, the Defendant was a user of the Redbridge Leisure Centre and has evidence to prove this.

3. 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.

4. The vehicle was parked at the Leisure centre for less than 3 hours on a Sunday, for which the tariff was merely £1. The tariff was not paid because there were no clear indications given to the Defendant to believe that payment must be made.

5. Had the Defendant been made aware, the trivial amount of £1 would have been paid.

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

7. 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 driver not being a user of the Redbridge Leisure Centre Car Park.

8. The Particulars of Claim 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.

9. 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.

10. 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.

11. 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 leisure centre.

12. The driver has not been identified, the signs/terms are not prominent 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.

13. Accordingly, the Claimant has no cause of action in this matter, or in the alternative, the Claimant's failure to convey the full terms and conditions of parking on its signage, render any contractual liability void for uncertainty.

14. The Court is invited to dismiss this claim in its entirety, and should the matter proceed to trial, to award the Defendant his costs pursuant to CPR 27.14.

Statement of Truth

I believe that the facts stated in this Defence are true.

Signature
Print Name
Date

Coupon-mad

#10 makes no sense to me and is just repetition. Replace it with the no standing/no landowner authority point that you are STILL missing.

Alter this one as shown, I reckon, and you'd lost the bit saying the car park had always been free before - was that true?:

4. The vehicle was parked at the Leisure centre for less than 3 hours on a Sunday, [STRIKE]for which the tariff was merely £1.[/STRIKE] and to the Defendant's local knowledge, this is a site that had always been a free car park. The tariff was not paid because there were no clear indications given to the Defendant to believe that payment must be made.

You seem to have overlooked my final paragraph in my last reply.

Sydney9

Thank you Coupon-Mad for your prompt reply.

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

2. The defendant holds no keeper liability as the Claimant has not made any effort to identify the driver of the vehicle.

Is this okay to add?

3. On the material date, the Defendant was a user of the Redbridge Leisure Centre and has evidence to prove this.

4. 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.

5. The vehicle was parked at the Leisure centre for less than 3 hours on a Sunday and to the Defendant's local knowledge, this is a site that had always been a free car park. The tariff was not paid because there were no clear indications given to the Defendant to believe that payment must be made.

6. Had the Defendant been made aware, the trivial amount of £1 would have been paid.

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

8. 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 driver not being a user of the Redbridge Leisure Centre Car Park.

9. The Particulars of Claim 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.

10. 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.

I have deleted the initial number 10 part.

12. 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 leisure centre.

13. The driver has not been identified, the signs/terms are not prominent 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.

14. Accordingly, the Claimant has no cause of action in this matter, or in the alternative, the Claimant's failure to convey the full terms and conditions of parking on its signage, render any contractual liability void for uncertainty.

15. The Court is invited to dismiss this claim in its entirety, and should the matter proceed to trial, to award the Defendant his costs pursuant to CPR 27.14.


Did you want me to include the paragraph [No 'legitimate interest' or commercial justification - Beavis is distinguished]. I am sorry. I am bit confused about this one.

Statement of Truth

I believe that the facts stated in this Defence are true.

Signature
Print Name
Date

Coupon-mad

Did you want me to include the paragraph [No 'legitimate interest' or commercial justification - Beavis is distinguished]. I am sorry. I am bit confused about this one.

Yes, and no landowner authority/no standing (see bargepole's example concise defence) which you are still missing!

Sydney9

Thank you Coupon-mad for all your help. It is much appreciated. I have highlighted the paragraph I haved now added for your attention.


IN THE COUNTY COURT

CLAIM No: Removed

BETWEEN:

Parking Charge Ltd (Claimant)

-and-

Xxxxxx (Defendant)


DEFENCE


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

2. The defendant holds no keeper liability as no Notice to Driver was ever issued and then passed to the Keeper, and no Notice to Keeper was received via post subsequent to the event.

3. On the material date, the Defendant was a user of the Redbridge Leisure Centre and has evidence to prove this.

4. 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.

5. The vehicle was parked at the Leisure centre for less than 3 hours on a Sunday and to the Defendant's local knowledge, this is a site that had always been a free car park. The tariff was not paid because there were no clear indications given to the Defendant to believe that payment must be made.

6. Had the Defendant been made aware, the trivial amount of £1 would have been paid.

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

8. 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 driver not being a user of the Redbridge Leisure Centre Car Park.

9. The Particulars of Claim 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.

10. 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.

11. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

12. 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 Now'' arrow or other prominent signpost or any 'Have you paid and displayed?' reminders as users enter the leisure centre.

13. 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.

14. The driver has not been identified, the signs/terms are not prominent 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.

15. 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.''


16. 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 issu parking charge notices, and to pursue payment by means of litigation.

17. 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. This claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

18. 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.


Statement of Truth

I believe that the facts stated in this Defence are true.

Signature
Print Name
Date

Coupon-mad

Yes I would sign & date and get that emailed to the CCBC; it says what it needs to say.

Sydney9

Thank you so much Coupon-mad for all your help. I will do that straight away.

Sydney9

Hi Guys

A few days, I recieved the Questionnaire Pack from the courts with the deadline being 17th January.

Today I recieved a letter from BW Legal saying its a response to my corresspondence (I am assuming my defence). I have taken pictures of the letter, please check. In addition to the letter, they sent me some pictures of the signs at the centre along with a picture of my car entering the centre and leaving the centre.

Should I respond to this letter? What would your advice be guys?

https://www.dropbox.com/sh/uxhzj7uvvac8lno/AAAKHQA8PzCTjMkqfrYsxvCha?dl=0