Letter of Claim from BW Legal

tor140

Had it in my mind that I needed to get the defence in before Monday, just realised it's monday week, so have a little time left to finesse.
Printing it out it spreads over 4 pages, is it a bit too wordy or does that not really matter? Not sure there's anything I'd want to cut out though, just seems a bit longer than others.

Coupon-mad

Remove this wordy quote, it's not needed and #12 says all you need about that:

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

Look for other repetition as well. There's a lot about costs, saying the same thing.

Do not state who was driving.

Plenty of courts (e.g. Manchester, Skipton) are well aware of he POFA and PPC scams and would never be likely to press a keeper Defendant about who was driving, because you do not have to nae that person and could simply say refer to Henry Greenslade's words 'Understanding Keeper Liability' and tell the Judge you are protecting the driver by not naming them, and defending as keeper, as is your right.

If you were unlucky enough to have a Judge who really pressed you on it then never lie, but until that happens, you defend as keeper and can mention the POFA non-compliance as a reason why you are not liable in law.

tor140

Thank you coupon-mad, very much appreciated.

tor140

Thanks to everyone who has helped and commented, i've pasted the below as record of what will be sent as defence. Guess I need to make a start preparing the WS and evidence now!


IN THE COUNTY COURT
CLAIM No:
BETWEEN:
(Claimant)
-and-
(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 xxxxxx 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 xxxxxx, of which the Defendant is the registered keeper, was parked on the material date in a marked visitor bay at xxxx. 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 (i) there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and (ii) 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’ visitor bay. From the defendant’s research there was found to be a sign at the rear of the parking bay, which as the claimant’s own evidence shows is obscured by a reverse parked vehicle and would 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 xxxxxxx 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 in line with Section B.1.1 of the IPC Code of Practice.
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 appears to be an attempt to hide this additional charge from the court as a ‘Contractual Cost’ that has been referred to 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 xxxxxx, which is a sum in excess and specifically prohibited from being claimed in small claims court and an attempt at double recovery.
14. 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 sum and that those sums formed part of the permit/parking contract formed with the Defendent in the first instance.
15. 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 or lawful users permitting the above mentioned vehicle to be parked at the time by the occupier and leaseholder of xxxxxxx, 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.
16. 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.
17. 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
Signed
Date

tor140

Quick question that i can't seem to find. I've had BW send a copy of their DQ, haven't had one from the court yet so will print and send off as per guide. Says I should send a copy to BW also, but don't want them to have my mobile no. and email address, should i redact that info on the copy to BW or as it's already this far that it doesn't really matter?

KeithP

You don't need to put a mobile number on either copy.
After all, not everyone has a mobile telephone.

I would certainly steer clear of sending a copy DQ to the Claimant that is different to that sent to the court.
You are asking for trouble doing that.

Perhaps you should be using an entirely separate email address for this exercise.
Create an anonymous gmail address specifically for this case.

tor140

But do you have to provide a telephone no. to the court? Only use a mobile really and definitely wouldn't want the land line no. getting into the hands of BW.

So I have to send a copy of the DQ directly to the claimant solicitor but you're saying it has to be an exact copy, I can't black out the mobile no. from the copy sent to BW?

KeithP

I've already answered that question.

Coupon-mad

KeithP already told you, the answer is, very obviously, no.

tor140

KeithP, my sincere apologies, I was just after some clarity as I'm not sure I've interpreted your answers as you had intended.

'You don't need to put a mobile number on either copy.
After all, not everyone has a mobile telephone.' - So looking at your answer, I do need to supply 'a' phone no., just not a mobile or can I infer that not all people would have a land line either so can leave both 'Telephone' and 'Mobile' boxes on the DQ blank?
As I say, I certainly wouldn't want BW legal disturbing my land line no. so would rather they had the mobile if anything.

Only reason I asked for clarity is the DQ states that the information is 'essential' in the notes, so wasn't comfortable missing anything out that would go against me.