Letter from BW Legal

That_debbie

Thank you for your advice. here is my draft defence. please can you let me know if I need to remove or add anything. I have taken some from Bargepole's concise defence and some from what you advised altho I appreciate it might need some tweaking. Thanks again

IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx

BETWEEN:

NCP (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 Claimant is in breach of the EA2010

3. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, had a disabled passenger with severe learning difficulties, a Blue Badge holder, whom should be awarded an extended grace period to return to the car under the EHRC Code of Practice for Service Providers, EA2010 act

3.1 Here are the facts for the avoidance of doubt:
Service Providers - including parking firms - have legal duties under statute, to ensure that:

- disabled people can access services/premises
- 'reasonable adjustments' are made to policies that would otherwise cause disadvantage
- no detriment is caused to the disabled person and their carers
- the disabled person/their carers are not harassed as a result of anything connected to the disability.

3.2 It is not enough - not a valid justification or lawful excuse - for the Claimant to say that they 'did not know' about the disabled passenger. Even if they did not know, the Claimant is still guilty of an offence, called 'indirect discrimination' which is where an inflexible policy (e.g. an arbitrary time limit) causes unlawful detriment to the disabled population 'at large'. When guilty of that offence, the Service Provider cannot be heard to say 'we didn't know' about an individual's protected characteristics.

3.3 It is not enough - not a valid justification or lawful excuse - for the Claimant to say that you allow a blanket period of grace. Whilst a blanket grace period may be enough for the able bodied population at large to access the car park to leave without penalty, this is not the case when a passenger requires more time to go about his daily life with the assistance of their carer.

4. Harassment and distress.
The Claimant's Litigation department's continued contact and demands for money have represented a significant nuisance that is continuing to affect my peace of mind and that of my family, distracting me from my work and my daily life. The Claimant's Litigation department is misleading me about the law and make continuous phone calls pretending they want me to telephone them so that they can help "resolve the matter"

5. The Particulars of Claim state that the Claimant's claim is for the sum of £241.96 being monies due from the Defendant to the Claimant in respect of a PCN for a parking contravention which occurred on XXXXXX in relation to a vehicle registration mark XXXXX. These assertions indicate that the Claimant has failed to identify a Cause of Action. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.
Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

6. 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.


7. The Claimant is put to strict proof that it has sufficient prorpietary 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.

8. 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.
In addition to the 'parking charge', the Claimant's legal representatives, BWLegal, have artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery.
The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. 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

Le_Kirk

Just a small point in your point 3. you state: -

whom should be awarded an...

This should be: -

who should be awarded an.....

That_debbie

Thank you. Apart from that is everything else alright?

KeithP

You have more than a week before your Defence is due.
I would leave it a few more days as several regulars don't post at weekends.

Coupon-mad

Change suggested here, as ''you'' doesn't make sense in a defence:

3.3 It is not enough - not a valid justification or lawful excuse - for the Claimant to say that [STRIKE]you[/STRIKE] they allow a blanket period of grace. Whilst a blanket grace period may be enough for the able bodied population at large to access the car park to leave without penalty, this is not the case when a passenger requires more time to go about his daily life with the assistance of their carer.

And here because you've slipped into the first person, and there should be no ''I'':

4. Harassment and distress.
The Claimant's Litigation department's continued contact and demands for money have represented a significant nuisance that is continuing to affect [STRIKE]my[/STRIKE] the Defendant's peace of mind and that of [STRIKE]my[/STRIKE] 3.3 It is not enough - not a valid justification or lawful excuse - for the Claimant to say that you allow a blanket period of grace. Whilst a blanket grace period may be enough for the able bodied population at large to access the car park to leave without penalty, this is not the case when a passenger requires more time to go about his daily life with the assistance of their carer.

4. Harassment and distress.
The Claimant's Litigation department's continued contact and demands for money have represented a significant nuisance that is continuing to affect [STRIKE]my[/STRIKE] the Defendant's peace of mind and that of [STRIKE]my[/STRIKE] the Defendant's family, [STRIKE]distracting me from my work and my[/STRIKE] causing anxiety and distraction in the Defendant's work and daily life. The Claimant's Litigation department is misleading [STRIKE]me[/STRIKE] the Defendant about the law and continue to pester with [STRIKE]make[/STRIKE] continuous phone calls pretending they want the Defendant [STRIKE]me[/STRIKE] to telephone them so that they can help "resolve the account" as if this is a proven debt.

I also think you need to add a point or two (at the end) to say that this case can be fully distinguished from the Beavis case, and asking for a preliminary hearing about the fundamental issue of indirect discrimination, like this one someone used in 2018:

10. The parking charge terms and the sum itself was not prominent and no contract was agreed. As such the facts and circumstances of this case can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67, and fails to avoid falling foul of the penalty rule, due to a lack of any possibility to argue a 'legitimate interest' excuse.

11. Given the facts and the statutory protection of the Equality Act 2010, this Claimant's claim must fail. If the Court does not use its case management powers to strike the Claim out, the Defendant respectfully suggests the Judge orders a short preliminary hearing to examine the indirect discrimination issue, to save burdening the court with a full hearing, for a claim that has no merit.

That_debbie

Thank you. I'll do that ��

That_debbie

I've filed my Defence following all the advice.
Thank you all very much to everyone who has helped me. I'll let you know what happens next :-) :-)