BW Legal "Letter Of Claim" Received

GeoStar1

Hi Le_Kirk, thanks for the feedback. The defence was largely based on this example on the Newbies Thread (post #2):

"A 2018 defence where ParkingEye use ANPR alongside a Pay & Display machine, then try to morph the £4 tariff into £100 damages (which is nothing like how the Beavis case was pleaded):

https://forums.moneysavingexpert.com/discussion/comment/74850073#Comment_74850073"

I have added additional information to paras 10,12 and 13 which are the main points of the case. I would be keen to cut this down further and make it more concise but I also believe these are all valid points and I am worried cutting down content my reduce the strength of the points.

Any advice on how I can achieve this would be much appreciated

Many thanks.

Le_Kirk

GeoStar1 wrote: »

The defence was largely based on this example on the Newbies Thread (post #2):

"A 2018 .........):

I have added additional information to paras 10,12 and 13 which are the main points of the case. I would be keen to cut this down further and make it more concise but I also believe these are all valid points and I am worried cutting down content my reduce the strength of the points.

In which case, as it covers all the usual points plus those specific to your case, I would go with it.

Coupon-mad

GeoStar1 wrote: »

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.


<>

Signature

<>

Looks OK, except CountrywidePM do not have in-house solicitors, but that's by the by.

Is this bit true, you didn't just copy it did you?

The Defendant has sent a subject access request (SAR) to the Claimant by email on 27th November 2018, for response during January 2019.

GeoStar1

Hi Coupon-mad, thanks for the feedback.

I note the error in para 13.1, many thanks for spotting this. I will remove this paragraph. Countrywide have been using Trace Recovery and BW Legal to pursue the claim.

Para 7 regarding the SAR is correct. I have followed this up with a repeat request via email to the PPC (copying in the original request). I have also complained to the ICO about the failure of the PPC to respond to the SAR within 30 days.

GeoStar1

Here is my updated defence. Shall I send this early? It would be nice to get this done or should I wait until near the deadline 22nd April? thanks.

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 <l> on <>.

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 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 remunerated clerical staff working for BW Legal in issuing robo-claims.

13.2 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.

13.3 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.

Coupon-mad

I'd remove 12, but otherwise all is OK.

GeoStar1

Thanks for the feedback Coupon.

I am wondering if para 12 is still valid though due to me having email evidence of a discussion between the Local Authority and the Landowner that threatens legal enforcement unless the landowner stops using the site as a car park and that due to current policies a retrospective planning approval is unlikely. In the end the PPC left due to contract issues discussed in my defence but it seems that non-compliance with planning did play a part in this decision too.

Coupon - does this change your mind about including this in my defence? Many thanks for your help.

Coupon-mad

Yes - leave it in, and use that at evidence stage with everything else.

GeoStar1

Quick update - I have exchanged the Directions Questionnaire with the court and the PPC's solicitor (BW Legal) using the guidance from the Newbies thread. Upon reading the copy from BW Legal I have noticed that they have entered "0" for the number of witnesses attending court. Should I assume from this that nobody will be attending from BW legal? I thought you should at least enter "1" for the claimant attending? They have also indicated "No" regarding submitting a court fee with the questionnaire.


Regarding my SAR request to Countrywide, an ICO complaint has forced them to acknowledge my original SAR email request in November and they have emailed me for more details but since my reply I haven't heard back from them now in two weeks - how long should I leave it before I go back to the ICO?

Coupon-mad

BW Legal have put zero on these forms for a while and it's true because they are likely to be represented by a legal rep, with no witness from the company. But you can point that out to the Judge and say that the claimant hasn't bothered to attend and nor has the person on the 'witness statement'.

It's high time all Judges were as clued up as those anti-PPC Judges at, say, Skipton, Southampton, IOW and Manchester.

Re the SAR, why not email the PPC a prodding reminder that they've now taken some seven months to supply data that surely must be to hand, given the live claim?