Letter of Claim from BW Legal

beamerguy

It never ceases to amaze me that BWLegal spend so much time and effort when claiming such a meager £100 ???

THE BEAVIS CASE
They often quote this case in the Supreme court. Whilst the court agreed that £85 (now inflated to £100), no mention or judgement was made that the fake £60 could be added

BWL are saying that the "extra charge" is stated in the T&C's of the signage. It is doubtful that it shows £60
A motorist entering a car park cannot be expected to stop and read tiny T&C's and it's not reasonable to expect that.

In your case, BWL has stated the £60 is for debt collection. You no doubt were chased by debt collectors .... WAS IT DRP ??

They state that other costs could be added but without clearly displaying what those costs were ?
Similar to the PPI scandal

You are probably aware that in the Southampton court recently, a judge kicked out BWLegal for ABUSE OF PROCESS.
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal&highlight=abuse+of+process

We understand that BWLegal has objected to this and so shortly their will be a hearing to decide.

As the judge clearly stated ....
"The claim contains a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay, This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4"

We now wonder if another charge will disagree and attempt to change the law .... of course a county court judge cannot change the law

tor140

In your case, BWL has stated the £60 is for debt collection. You no doubt were chased by debt collectors .... WAS IT DRP ??

No, it was DCBL. Same 'no win no fee' type of company I suppose?

They state that other costs could be added but without clearly displaying what those costs were ?
Similar to the PPI scandal

Sign just said 'enforcement action may incur additional costs'

beamerguy

tor140 wrote: »

No, it was DCBL. Same 'no win no fee' type of company I suppose?

Sign just said 'enforcement action may incur additional costs'

I don't think DCBL offer "no win no fee"

No matter, no contract can be formed on the word "MAY"

Would you and the court accept any legal document if it did not explain upfront the charges involved. Would you use a credit card that does not tell you the APR%

tor140

2.4 There was a second sign that had been obscured by the parked vehicle at the rear of the bay stating, ‘Visitor bays marked VP’ and ‘Max Stay 24hrs’ (exhibit 5 page 9). On close inspection in print far too small to read from a passing vehicle there was mention of visitor permits.

Do you think I should delete the part about the sign behind the parked vehicle mentioning permits? The claimant has not sent any photos in their evidence bundle of this sign or the contents written on it! Might be just dropping myself in it if i provide the information myself!

tor140

Claimant has sited vehicle control sservices v alfred charles crutchley and Chaplair Limited v Kumari . Having researched I think I've got my head round a response.

tor140

I've done a 'final draft' below. Being as I did not get the allocated 14 days before hearing it's going in Monday 'late'. I've highlighted up the changes from before, please let me know if i've made any big errors or omissions.

IN THE COUNTY COURT

CLAIM No:

BETWEEN:

NORWICH TRAFFIC CONTROL LIMITED (Claimant)

-and-

(Defendant)
________________________________________
WITNESS STATEMENT OF x
_______________________________________
I am , of , defendant in this case and will say as follows:
Please note that due to the late arrival of the Allocation to Small Claims Track arriving 25/07/19 with a hearing date allocated for 7/08/19, I have been unable to file this Witness Statement within the courts allocated 14 days.
Attached to this statement is a paginated bundle of documents marked AB1 to which I will refer.
List of documents, numbers and description contained in paginated bundle AB1:
AB1 Page 1. Copy of Parking Charge Notice showing time issued 13:40
Page 2. Photograph of signage at the site
Page 3. Image of entrance to Victory Court.
Page 4. Site plan with observed signage locations.
Page 5. Image of small obscured sign. NTC photograph of the Defendant’s car
Page 6. Relevant section of IPC Code of Practise, relating to grace periods
Page 7. Relevant section of Jopson v Homeguard Services Ltd 9GF0A9E
Page 8, 9, 10. Letters showing varying amounts and descriptions of debt.
Page 11. Primacy of Contract – Tenancy Agreement
 
1. Sequence of Events
1.1 On 13/01/2018 the driver visited x, by private motor vehicle. The driver was there at the invitation of a leaseholder tenant of X, to view an item for sale.
1.2 Having parked at 13:38, the driver visited the property and briefly viewed the item with the tenant. The driver then returned immediately to the car.
1.3 Upon returning to the car at 13:45, a Parking Charge Notice had been attached to the windscreen at 13:40, with no mention as to when the vehicle was first seen. (AB1 page 1).
1.4 The driver took a photograph of the signage (AB1 page 2) and left the site having seen no mention of the requirement to display a permit. It is also noted that this sign is displaying the BPA accreditation to which the Claimant is not affiliated.
2. Ambiguous and misleading signage
2.1 There are no signs on entry of x to inform you that you are entering a restricted parking area. (AB1 page 3).
2.2 It is noted from the Claimant’s Witness Statement that the plan indicating the placing of signage is incorrect, which can be verified by the claimant’s own photos. The correct placement has been indicated on a site plan found in AB1 page 4.
2.3 The area is used for resident’s visitor parking and has clearly indicated spaces with a ‘VP’ to the front of the bay. There was one sign visible when reverse parked, which stated merely ‘vehicles must be parked with authorisation in a designated bay’ giving the driver the right to park, having been invited by the resident to visit x. (AB1 page 2).
2.4 There was a second sign that had been obscured by the parked vehicle at the rear of the bay stating, ‘Visitor bays marked VP’ and ‘Max Stay 24hrs’. This was not seen by the driver at time of parking and is placed as such that it can be easily missed and obscured as can be seen by the Claimants own evidence photo. (AB1 page 5).
3. Code of Practice
3.1 The International Parking Community, of which the Claimant is a member, has a code of practice (AB1 page 6) which states “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision whether or not to remain on the site. Drivers should be allowed a sufficient amount of time to leave a site after a pre-paid or permitted period of parking has expired.” The time between the driver’s arrival and the Parking Charge Notice being issued (AB1 page 1) was 2 minutes, and the driver left the site shortly afterwards at 13:45. Although a grace period is not specified in the Code of Practise, 7 minutes does not seem excessive. In any event, the 2 minutes given prior to issuing the PCN would not have been enough time to be able to park, read the signage, visit the property to obtain a visitor permit and return to the vehicle to affix.
4. Loading and Unloading
4.1 In Jopson v Homeguard Services Ltd 9GF0A9E (AB1 page 7) his Honour Judge Harris QC found that “The purported prohibition was upon “parking”, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time. The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree. I think in the end this was agreed. A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant collecting an item for sale. Any other approach would leave life in the block of flats close to unworkable.”
4.1 The Claimant at Para [24] cites Vehicle Control Services Limited v Alfred Charles Crutchley [2017], which can be dismissed as it was a case based on “stopping on a roadway where stopping is prohibited”. There is no relevance to this case, where the driver had authority to enter and park in a visitor space at the invite of the Leasehold Tenant residing at Victory Court.
5. Additional Sum / Double Recovery
5.1 The claim includes an additional £60, for which no calculation or explanation is given, and appears to be an attempt at double recovery. There also appears to be an attempt to hide this additional £60 charge from the court as a ‘Contractual Cost’ that has been referred to as varying additional charges throughout the Claimants and their Solicitors correspondences (AB1 pages 8, 9, 10), most recently hidden as a £110 ‘Solicitor Costs’ fee on BW Legal letter dated 07/01/19 (AB1 page 10), which is a sum in excess and specifically prohibited from being claimed in small claims court.
5.2. 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 Defendant in the first instance. The only reference to additional costs were found on the sign (AB1 page 2) ‘enforcement action may incur additional costs'. In any event, no contract can be formed on the word "may" and I would not accept any legal document if it did not explain upfront the charges involved.
5.3 The Claimant at Para [51] cites Chaplair Limited V Kumari (2015) EWCA 798 which can immediately be dismissed, in that this was a completely different case involving a signed lease and an amount which had been paid.
5.4. Notwithstanding, the Claimant cannot evidence £60 'damages/debt collection letters' expenditure, they are attempting to claim monies that a parking firm are not entitled to recover at all. The authority for this is ParkingEye Ltd v Beavis [2015] UKSC 67, where only £85 was recoverable. The Supreme Court stated that the penalty 'parking charge' in these cases is almost entirely profit, so (regardless of whether a Trade Body has been persuaded by its paying members to add a point about 'debt collection costs' into their CoP) the basic costs contained within that business model cannot exist as a separate head of cost.
6. Primacy of Contract
6.1 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 was given to the driver to be parked at the time by the occupier and leaseholder of 9 Victory Court, whose tenancy agreement (AB1 page 11) 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.
6.2 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) (AB1 page 7).
7. Protection of Freedoms Act 2017 (“POFA”)
7.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. 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")
7.2. The claimant has stated that they do not intend to rely on Schedule 4 of the Protection of Freedoms Act 2012 so are unable to pursue the defendant as keeper of the vehicle in this case. (AB1 Page 12)
In light of this, the Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing.
I believe that the facts stated in this witness statement are true.
Signed

Dated

tor140

HI everyone, just printing everything off to post tomorrow, did anyone have any comments? Have cobbled together what I can but am quite concerned that this won't be won in court.

KeithP

Is that your real name I can see in CAPITAL LETTERS in post #77?

tor140

Edited,but guessing it's too late now anyway!

tor140

All posted off now, lets hope they accept the late arrival!