Letter of Claim from BW Legal

tor140

I have until the 11/2/19 but keen to get my Defence submitted this week just to be safe, so any last minute advise before it goes off?

nosferatu1001 - I'm still a bit unsure how I will write the WS as the defence was intended that I'm 'unsure' of the driver, so a little uneasy with saying the driver had absolute right to park. Would it be better to word the defence that the driver IS known and did have a right to park, but still without naming who the driver is. Would the Judge be likely to then request I disclose the driver?

nosferatu1001

Of course the judge can ask you it, if theyre minded to.

If you know who the drirver is, then you cannot say you are not sure.

tor140

nosferatu1001 - So obviously honesty is key, having read several times previously to always refer to the driver in the third person on this forum, I'm still obviously being a bit vague/misleading. If the driver is known would I still defend with points 2 and 3 etc saying the PCC has failed to identify the driver and just remove the unclear bit or the fact that the driver had received a PCN enough to void this altogether?. Is this relevant at all if it was a case where the defendant was the driver?
Being an IPC company the advise is to wait for NTK to be issued

nosferatu1001

It is not dishonest to refer to the driver as "the driver". You are not misleading the court, you are stating a fact - the person on the day WAS the driver. You dont have to disclosee thier PII Unless a court orders you to do so
It is not a lie
It is not vague - it is precisely as definite as you are required to be.

THe keeper, owner and driver are three different entities, and unless YOU as KEEPER tell them who the driver is, they cannot know - even if the defendant is ALSO the driver, for example.

tor140

Thanks nosferatu1001 , was starting to panic i'd have to re-write the defence a few days before it was due!

'Final Draft' defence below, which I will email tomorrow, giving a couple of days to 'reach' the court just in case. I know I can't expect anyone to re-read the whole lot, but i've updated points 2/3 and 11/12. Just wanted a bit of a sanity check before it goes off :eek:

IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
NORWICH TRAFFIC CONTROL (Claimant)
-and-
xxxxxxxxxxxx (Defendant)
________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state only that the PCN relates to ‘car make’ under registration XXXXXX and the claimant has failed to identify the driver. The Claimant is put to strict proof in identifying the driver.

3. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked visitor bay at [location]. There is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.

4. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

5. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

6. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

7. Due to the sparseness of the particulars, 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.

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. They merely state that vehicles must be parked with authorisation in a designated bay.

9. 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.

10. It is clear from the evidence that the vehicle in question was parked correctly in a marked ‘VP’ bay. From the defendant’s research there was found to be a sign at the rear of the parking bay, which from the claimant’s own evidence shows to be obscured by a reverse parked vehicle and could easily have been missed by the driver. Notwithstanding, this sign is misleading with no clear indication that the visitor parking is under the control of a parking permit system.

11. As an alternative, the allegation appears to be based on a parking charge notice ('PCN') that was prematurely issued, breaching the IPC Code of Practice 'grace period' with no evidence provided as to any period allowed, whatsoever for the driver to have parked, read the signage, visited the occupant of (location) and returned to the vehicle to attach a visitor permit. The Supreme Court Judges in the case of Beavis vs ParkingEye (2015) UKSC 67, held that a Code of Practice is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.

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 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 or explanation is given, and which appears to be an attempt at double recovery.

14. There also appears to be an attempt to hide this additional £60 charge from the court as a ‘Contractual Cost’ that has been referred as varying additional charges throughout the Claimants and their Solicitors correspondences, most recently hidden as a £110 ‘Solicitor Costs’ fee on BW Legal letter dated xx/xx/xx, which is a sum in excess and specifically prohibited from being claimed in small claims court.

15. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs and they are put to strict proof that they have actually incurred and can lawfully add an extra sums and that those sums formed part of the permit/parking contract formed with the resident in the first instance.

16. Section B.1.1 of the IPC Code of Practice outlines to operators:
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the “Creditor” within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
a. The Claimant is put to strict proof they have such authority to operate on site and to take action in their own name. The same is a requirement of any contract based on conduct.
b. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
c. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge

17. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a residential car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis
Only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) UKSC 67 case confirmed, such a matter would be limited to the landowner themselves.

18. It is denied that the Defendant or lawful users of the vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of visitors vehicle within any visitor parking space. The Defendant avers that with Primacy of Contract, there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation to ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court.

19. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

20. 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

nosferatu1001

2) ...strict proof of what?
Maybe...the identity of the driver!

11) Mandatory how? Mention their code of coduct. STate it was held in the Supreme COurt case of PE v Beavis (give it in full) that compliance with the operators code of conduct was required as one of the tests to lift the penalty rule. WIthout compliance, the amount remains a penalty that cannot be claimed.

tor140

Updated point 2 and added CoP reference in 11 (the PPC i'm dealing with is an IPC member). Did you mean I should literally add something along the lines of below and should it come after point 15 or add within point 11?

- As held in the Supreme Court, the case of Beavis vs ParkingEye [2015] UKSC 67 confirmed that compliance with the operators code of conduct was required as one of the tests to lift the penalty rule. WIthout compliance, the amount remains a penalty that cannot be claimed.

Or do i need to be re-visiting the transcripts to understand this point?

nosferatu1001

Youre writing a defence
A defence is a legal reason why you are not liable
So you need to say WHY compliance with the Code of Practice is important.

Are you aware of the point I am talking about? If not, you really should go back to source, rather than relying on someones interpretation
Look for "effectively binding"

tor140

Hadn't come across this point previously, but have now added the below into 11.

The Supreme Court Judges in the case of Beavis vs ParkingEye (2015) UKSC 67, held that a Code of Practice is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.

Coupon-mad

That's good.