BW Legal "Letter Of Claim" Received

Coupon-mad

So a rogue person got PDT machines installed against the will of the landowner?

Wow, I was picturing this as a 'permit' car park, so I was confused, sorry!

GeoStar1

The landowner has provided me with a picture of the parking signage that was in place when I incurred the PCN. The sign states the parking charge is £100 (reduced to £60 if paid within 14 days). Should I make a further statement in my defence about the PPC charging me £160 (increased to 173.68 on the POC) instead of £100?

I have been sent a copy of the Car Park Management contract from the landowner. It states the contract runs for 36 months but does not have a start/end date -is it still valid on this basis alone?

The contract states that "the client can request for a PCN to be cancelled within the first 28 days of the issued date, this must be done in writing, via post or email." - despite me asking the PPC for the landowner details at the appeal stage they refused to tell me and said "it was none of my business" is it worth stating this in my defence as I was given no opportunity to get it cancelled through the landowner? If so, how should it be phrased please?

Southampton CIty Council have told the landowner, that due to non-compliance with the Town and Country Planning Act 1990 enforcement and the issue of parking charge notices on the site were illegal because no planning consent was obtained. Does my defence above cover this in enough detail as it describes no "advertising consent" -is that the same thing? If not, are there any examples you know of that better describe this non-compliance?

Many thanks in advance for any replies. I'd like to nail the defence this weekend and continue the flight back!

Coupon-mad

Should I make a further statement in my defence about the PPC charging me £160 (increased to 173.68 on the POC) instead of £100?

It's not about the figure in the POC, it's the total figure on the bottom right of the claim form you should be exposing as an abuse of process.

It's like Groundhog Day here today, this is said so many times every day/week:

https://forums.moneysavingexpert.com/discussion/comment/75639888#Comment_75639888

GeoStar1

Thanks Coupon-mad, I have updated defence to include the following:

13. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim from £100 to £248.68, in a clear attempt at double recovery including purported Solicitor's Costs of £50, which have not actually been incurred by the Claimant. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.

13.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Countrywide Parking Management Limited have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

13.2 According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already renumerated clerical staff working for BW Legal in issuing robo-claims.

13.3 It was held in the Supreme Court in Parkingeye v Beavis [2015] UKSC 67 (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters.

13.4 It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

GeoStar1

Do I need to add more detail in my defence about what I know regarding the contract being signed by someone who the landowner has stated has no legal authority to sign the contract making it invalid? Or is it enough to say the below and I can add further details later in the WS?

10. 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 against visitors. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

KeithP

Perhaps you could/should strengthen para 10 to something like:

10. 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 against visitors. The Defendant [STRIKE]has the reasonable belief[/STRIKE] will produce evidence that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

GeoStar1

Thanks keith P much appreciated

GeoStar1

IN THE COUNTY COURT
CLAIM No: <>

BETWEEN:
Countrywide Parking Management Limited (Claimant)

-and-

<> (Defendant)

DEFENCE


Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at the private car park/land located at <address of car park> on <date>.

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

2. The allegation appears to be 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 registered keeper 'not purchasing the appropriate parking time'.


Data Protection concerns

3. The Defendant had no idea about any ANPR surveillance and received no letters after the initial 'PCN' a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

3.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.

4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at the car park/land.

4.1. It is one thing to install Pay and Display Ticket (PDT) machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the car park, who are being caught out regularly by this trap.

4.2. Silently collecting VRN data in order to inflate the 'parking charge' to £100 and write (months later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

4.3. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.

5. Unlike the free car park in Beavis, this car park/land is a site where the Claimant had machines to take payment of tariffs. Clearly there were Countrywide Parking Management Limited staff who could have been regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine was clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.


Premature claim - and sparse Particulars

6. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The Claimant 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.

7. The Defendant has sent a subject access request (SAR) to the Claimant by email on 27th November 2018, for response during January 2019. A response has not yet been received but should it arrive it will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.


Denial of contract and denial of any breach, or liability

8. Due to the sparseness of the POC 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 breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

9. 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.

9.1. The POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.

9.2. Upon receiving this unexpected Claim, the Defendant has researched the site in order to submit a defence. There are no longer any signs or PDT machines at the car park/land.

No standing or authority to form contracts and/or litigate

10. 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 against visitors. The Defendant has the reasonable belief and will produce evidence that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

No 'legitimate interest' or commercial justification - Beavis is distinguished

11. 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. 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.

No advertising consent for signage

12. The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this matter, the Claimant does not have advertisement consent in relation to its parking signage on the car park/land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy and pursuant to the doctrine, the Claimant should not be allowed to found a cause of action on unlawful signage. The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 and ParkingEye v Somerfield Stores [2012] EWCA Civ 1338.

Artificially inflated claim

13. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim from £100 to £248.68, in a clear attempt at double recovery including purported Solicitor's Costs of £50, which have not actually been incurred by the Claimant. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.

13.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Countrywide Parking Management Limited have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

13.2 According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already renumerated clerical staff working for BW Legal in issuing robo-claims.

13.3 It was held in the Supreme Court in Parkingeye v Beavis [2015] UKSC 67 (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters.

13.4 It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

14. The Defendant invites the Court to dismiss the claim in its entirety, and to award the Defendant's witness costs of attendance at a hearing, if so advised.

15. 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.

I believe the facts contained in this Defence are true.


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Signature

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GeoStar1

Just a polite bump for comments - thanks in advance for any help received.

Le_Kirk

That is a very long defence and, at times, seems to go off on a bit of a rant. Did you base it on one of the Bargepole concisely written defences to be found in the NEWBIE thread post # 2?