2 separate letters from BW Legal - Britannia Parking

mixMZ

what a irony, just received email from them with their WS....

Its going to to be a long night ...

mixMZ

I know I failed completely with time frame but need some urgent help ...

here is a link to WS they sent:

drive.google.com/open?id=1QNjEk0g8KG5bjWr1MjxJb9ABrxwTkUw6

Castle

What is the exact name of the claimant?

Socrates_1

I'll be in the minority here but this looks like a slam-dunk BWL win.

Two episodes of parking without paying and then naming someone who a) may not have been the driver and then b) is conveniently outside the country.

Judges have a brain.

Coupon-mad

Of course a newbie who bears all the hallmarks of posting (every post you make) as if you work for a scammer parking firm, is in the minority here!

I really hope newbies realise that the above poster has less posts than them and know to click on his username and read the other posts made here this month since he joined!

Moving on...we will take a look:

https://drive.google.com/file/d/1QNjEk0g8KG5bjWr1MjxJb9ABrxwTkUw6/view

Bear with us (the regular posters here who don't have any PPC agenda).

mixMZ

Socrates_1 wrote: »

I'll be in the minority here but this looks like a slam-dunk BWL win.

Two episodes of parking without paying and then naming someone who a) may not have been the driver and then b) is conveniently outside the country.

Judges have a brain.

Socrates_1 With all respect ,If you have read submitted Defence and posted link with claimant WS you would not write such a nonsense.



Coupon-mad
Thank you, I feel really guilty as I almost missed my deadline and now all the stress kicks in. English is not my first language and is far from being "good enough" for such cases but will do my best to put my WS all together by Tomorrow afternoon. Any Help will be very appreciated.
Thank you

The Incompetency that is shown in their WS is just unbelievable.

As the main bullet point will be that the NTK was non pofa compliant, and I was wondering ,can I attach as an example just to show to Judge how the POFA compliant NTK from Britania should looks like? (there are easy to find and would clearly show the difference and proof the point that the one I received was not POFA compliant and this is the reason why Britania changed their templates as they clearly knew that)

Coupon-mad

#26 says wrongly that in 2016 Britannia issued notices 'pursuant to the POFA'.

Untrue, they issued very much 'non-POFA' ones that only a driver can be liable for, as the only applicable law wasn't used. The Claimant is trying to mislead the court and the Defendant regarding 'keeper liability' which can only pass if the POFA has been fully complied with, and Britannia know this and are fully aware that their statement about liability is an untruth in this case, not least because they are known to have changed their NTK wording later in 2017 to become POFA-compliant (too late for these claims).

The vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988 a keeper who is sent a Schedule 4 notice has no legal obligation to name the driver. If POFA 2012 Schedule 4 is not complied with then keeper liability does not generally pass.''

Here is the POFA, and the Claimant's postal Notice to Keeper (NTK) is clearly not compliant and makes no attempt to tell the keeper (as per para 8 - especially 8(2)f) that liability can be passed to them:

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

This claim also fails the POFA in another respect (as well as the NTK wording) as there is no 'adequate notice' of the vital parking terms, and no 'relevant obligation' or 'relevant contract' can exist, due to the abject failure of the small print to be seen about displaying a ticket to claim the advertised free 30 minutes parking. If ever there was hidden small print, contrary to consumer contract law and unfair terms legislation, this is it!

At #30 they admit that the PCN said 'the driver is liable' and the facts show this charge remained only the potential liability of a driver, as Britannia failed to take the statutory steps to transfer liability and warn the keeper about their potential liability which was available to Britannia, had they bothered to use the 2012 law. They didn't.

#32 says the windscreen PCN 'offered the Defendant the chance to appeal'. This is highly misleading. The PCN did nothing of then sort. It was a Notice to Driver only, and offered the driver a chance to appeal, and the Claimant knows from the defence - had they bothered to read it properly - that the driver was not the Defendant. Further, a driver is under NO obligation whatsoever to appeal to an invoice from this industry, so there was no 'acquiescence' to the charge at all.

#34 states that a POFA-compliant NTK was served in early 2017 - check it for POFA 8(2)f wording...they are lying and this is surely a very serious abuse of process.

#38 misleads the court again. It says wrongly that a NTK told the keeper recipient (the Defendant) that they were 'required' to appeal, and/or 'required' to pay the sum of £70 within 28 days. Again, this is untrue - the law places no such obligation upon the recipient of a NTK whether POFA-worded or not. The driver remains the liable party at this stage and a NTK can only ever 'invite' a keeper to pay or name the driver. And a non-POFA NTK is incapable of transferring the liability to the keeper at any point in time, including at court stage.

#40 Again the Claimant misleads the court, with the word 'required' again and two allegations that the keeper has 'failed', when there simply is no such relevant obligation upon a keeper at all.

#60 A member of the BPA who changed their PCN wording later in 2017 does not need chapter & verse about the POFA to be provided by a litigant in person, to enable them to understand the issue here.

#61 the Claimant admits that if they were to hold the keeper liable they were 'required' (true this time) to supply a NTD and NTK under the POFA. The Claimant did not, due to the omission of any of the requirements of para 8 of the POFA, notably but not restricted to, a complete omission of the mandatory (and prescribed under statute) keeper liability warning at 8(2)f. it is not just a matter of sending any old document purporting to be a 'NTK' within the stated 28 day period, regardless of wording! Thus, keeper liability was never established.

#65 Again the witness misleads the court with untruths about 'the cost of recovery debt (sic). £60 was never incurred and was not a feature of the applicable BPA CoP in 2016/17. Version #6 applied then:

https://www.britishparking.co.uk/write/Documents/AOS_Code_of_Practice_October_2015_update_V6..pdf

There is nothing to allow added debt recovery costs, and certainly not those that were never actually incurred, given that debt collection agents run their dubious service for Parking Companies on a 'no recovery, no fee' basis:

https://www.debtrecoveryplus.co.uk/pcn-collection/

''We offer a ‘no collection, no fee service’, therefore our growth has been achieved by making successful collections, not by charging upfront fees''.

Even if the BPA CoP allowed added damages, and even if they were on the signs in large lettering as part of the alleged contract (denied), and even if such sums were actually paid to a debt collector (the C is put to strict proof of £60 payment for each PCN) the £60 in alleged 'damages' is still unrecoverable, pursuant to the POFA which sets a ceiling for recovery of the sum on any NTK, the CPRs that require damages to be 'proportionate' and even more compellingly the binding decision in ParkingEye Ltd v Beavis [201] UKSC 67, which held that only £85 was recoverable and that a case could not be pleaded in damages by a parking firm not in possession, and that the £85 already included the minimal costs of a template letter parking enforcement regime. This is double recovery at its worst by this industry and BW Legal who provided this WS, know it.

£50 and £25 are not representative of the court fees paid and nor are they the 'fixed cost' allowable under the CPRs for legal fees, given that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with a remunerated admin team (and only a handful of solicitors). No solicitor is likely to have supervised or provided specific legal advice/action to support this one case among the current batch of millions of cut & paste robo-claims.

Clearly it has been prepared by a back office team of paralegals and clerical staff using the usual templates. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

#67. More misleading the court. Britannia are known for their ANPR systems in most car parks and have been for several years since the POFA. It is untrue to state that 'without displaying the ticket, it was hard or even impossible for the Claimant to establish 30 free minutes of parking.' It was within their gift to either operate the car park with ANPR to count the minutes with no human intervention, or in the alternative for the operative on foot whose job was to 'manage' the car park, to observe and enter into his/her notebook ''times first seen'' and to take photographs to establish this simple matter, without detriment to drivers claiming their free parking time in good faith.

#68 Issuing two claims for matters that turn on exact same facts is certainly an abuse of process and no Claimant should have to face two duplicate hearings with all the disadvantage that will cause, in terms of loss of salary/leave and time taken across two days to have the same facts heard, with double costs at stake, and the chance of one case being found against him and one for, making a mockery of the court system and wasting the Court staff and Judge's time, too.

The claims need to both be heard as one at a single hearing and the Judge is asked to issue an order to consolidate these claims even if that means vacating the planned hearing, or ordering that the existing witness statements act for both claims. The different dates of the PCNs are immaterial and the Defendant has clearly stated that they were not the driver on each occasion, thus the same 'keeper liability' issues arise in both, as well as the facts being on all fours.

It is not 'illogical or ill-founded' to argue that these matters should be heard at one consolidated hearing.

What is illogical is the Claimant's witness believing that a court should have to hear the same facts and arguments more than once, rather like if a builder was to sue for monies owing for work done, and filed individual claims for each brick.

#69. Agreed, there is no crime or 'breach' of any law, by being the registered keeper of a car, and ignoring demands for money that bear all the hallmarks of a scam, relating to parking events where no tariff actually went unpaid, where there is no 'legitimate interest' excuse to disengage the penalty rule (distinguishing this case from Beavis entirely) and where the keeper was not the driver and the Claimant has failed the legal requirements for keeper liability.

#71 and #72 repeat the untruths about £60 debt collection costs as dealt with already.

#73 is an outright untruth and wilful misleading of the Court, by the Claimant knowingly quoting from the CURRENT - 2018-19 BPA CoP, to try to persuade the Judge that the Claimant can add sums to the parking charge. The applicable CoP for a 2016 PCN was the 2015 - 2018 version 6, that has no such wording.

The Claimant's conduct is vexatious and wholly unreasonable and there is no reasonable explanation for a long-term BPA AOS member wilfully allowing their witness to quote from the wrong Code of Practice.

There can be no relief from sanctions for the untruths in this Witness Statement and the Defendant will seek costs on the indemnity basis at trial.


Re the evidence/images provided by the Claimant:

- The aerial view is undated and unsigned and adds nothing to the case.

- the photo of a sign with 'P3' at the bottom of the page is also undated, but even if the Claimant can prove it was in situ on the material dates(s) in 2016, their own evidence proves that any terms about having to display a ticket to claim the clearly advertised: 'UP TO 30 MINS FREE' (note large font and capital letters) is illegible and in the tiniest font! This clearly falls foul of the penalty rule, the POFA requirement for 'adequate notice' of the parking terms, the BPA CoP v6 (2015-17) on mandatory signage and the Consumer Rights Act 2015 regarding clarity & transparency of any term that might operate to a consumer's disadvantage (hidden terms/misleading omissions).

The only reminder signs pictured say ''Have you Paid and Displayed?'' (note nothing is there in large lettering about displaying even when there is no obligation to ''pay'). This was the Claimant's opportunity to give a reminder about the hidden caveat, but they did not, and thus this unfair consumer term falls foul of what the Supreme Court in Beavis described as ''a hidden pitfall or trap'' which would have struck out ParkingEye's charge as an unrecoverable penalty.

Only the white sign with P7 at the bottom in the evidence, shows '30 mins free with ticket' but there is no context as to where that sign might be on site, (and this is a very large retail site as the aerial view shows - indeed the Westquay retail park website says there are 4000 spaces) and again, the image is undated so like the BPA CoP the Claimant quoted from, may not even be contemporaneous with 2016 PCNs.

Even if that sign is shown to be from the material date(s) it seems to be placed on the right hand side, with an exit lane in between, easily obscured by any van/people carrier traffic leaving, and not in the line of sight of a driver who has just turned right off the main road and is concentrating on the way ahead and pedestrians, and then looking for a space before a driver can even begin to look for terms relating to parking.

That message about having to display a ticket is not repeated around the car park, there are no white signs shown inside the site beside any bays at all, and the images of the car taken in 2016 show no signs at all in view in the background.

Coupon-mad

As the main bullet point will be that the NTK was non pofa compliant, and I was wondering ,can I attach as an example just to show to Judge how the POFA compliant NTK from Britania should looks like? (there are easy to find and would clearly show the difference and proof the point that the one I received was not POFA compliant and this is the reason why Britania changed their templates as they clearly knew that)

Yes. Make their rep really have to wriggle to explain their lies (because it's littered with them).

And you can use ALL the wording I posted above.

And include the POFA, and the right BPA CoP v6 (unlike the one they've quoted from) and Henry Greenslade's words from the POPLA Annual Report 2015 about UNDERSTANDING KEEPER LIABILITY.

Google it and add it in evidence along with the POFA itself with 8(2)f highlighted.

Take proof of your earnings with you on the day of the hearing, and CLAIM YOUR COSTS and ask for your time at £19 per hour Litigant in Person rate for all the hours you spent on this! Plus your printing costs, as you are having to jump through hoops to prove them liars about the POFA!

At the end of the hearing, tell the Judge that their conduct in litigation meets the bar of unreasonable conduct which means you can claim punitive costs.

OH! I FORGOT TO SAY!

IF THERE IS STILL A SECOND CLAIM IN PLAY, ALSO HAND IN A LETTER FOR THE JUDGE, ASKING HIM/HER TO ORDER THAT THE TWO CLAIMS BE CONSOLIDATED INTO ONE HEARING AND THAT THE WS ALREADY RELIED UPON FROM BOTH PARTIES, APPLIED TO BOTH CLAIMS.

ALSO EMAIL A COPY OF EVERYTHING TO BW LEGAL, INCLUDING THAT LETTER TO THE JUDGE.

And file/serve your costs at least 2 days before the hearing (and I mean LARGE COSTS, as above).

Coupon-mad

Oh dear, Socrates_1.

What a dire Witness Statement of untruths from the Claimant, don't you agree?

mixMZ

Coupon-mad,

I do not have the words to express how thankful I am for what you have just done!

What a commitment and extraordinary kindness and selflessness.

Thank you sincerely and deeply from the bottom of my heart!