BW Legal and Britannia Parking

KeithP

kernowkid007 wrote: »

Well the dreaded day came yesterday, my wife received a County Court Claim form form BW Legal. I intend to submit her AoS later today via MCOL. I assume i'm right in thinking she will then have 28 days from date of issue, (12/02/19) to submitt her defence.

With a Claim Issue Date of 12th February, you have until Monday 4th March to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 18th March 2019 to file your Defence.

That's over a month away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Everywhere I have said 'you' or 'your' I do of course mean the Defendant.

kernowkid007

Thanks for the quick replies

"Is it an old PCN from 2016 when Britannia could not hold a keeper liable? If so then she defends as KEEPER, not saying who parked, and can add in the POFA wording, as seen in any defence you find when you search the forum for"

the date of the riginal PCN is April 2017.

Many thanks, I'll continue reading up on overstay defences

Coupon-mad

the date of the original PCN is April 2017.

And you can compare it to the POFA...I can't recall when they changed the wording.

kernowkid007

Hi all,
having now spent many hours reviewing posts and attempting to understand this minefield of parking charges. The following is my wife's proposed defence, any feedback would be greatly appreciated.
Thanks in advance

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN: 

BRITANNIA PARKING (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________
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 xxxx car park on xxxx. 

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

3. The Claimant has spent almost over 18 months harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters, causing the Defendant and their family significant distress, despite having no basis to charge £160. 

4. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60 contractual costs pursuant to PCN Terms and conditions which the Defendant submits have not actually been incurred by the Claimant. 

5. In the Particulars of claim there is also a second add-on for purported ‘legal representative costs’ of £50 on top of the vague £60, plus interest, artificially hiking the sum to £xxxxxx This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14) 

6. 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 cost. 

7. The Particulars of Claim state the Claimants claim is for the sum of £100 being monies due from the Defendant to the claimant in respect of Parking Charge Notice. The Claimant has failed to provide evidence of who is liable and whether they are relying on the POFA. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. 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. 

8. 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.

9. BPA CoP 18.11 states, “Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes”. This particular car park operated with no restrictions or enforcement until the end of the year 2016

10. Furthermore, 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. They merely state that vehicles must be parked within their allocated parking bay.

11. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily particularly at night in a badly lit area It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

12. 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.

13. 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

14. It was held in the Supreme Court in Beavis (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. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, caused by IPC/Gladstones' clients artificially inflating their robo-claims.

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. 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

Coupon-mad

BPA CoP

These acronyms mean nothing to a Judge - you need to put them in full the first time you use any acronym.

Remove all this (below) or alternatively, add it much lower down, near to 13 and 14 near the end, as you talk about the added costs too much, and not enough about her defence to the allege breach of contract:

3. The Claimant has spent almost over 18 months harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters, causing the Defendant and their family significant distress, despite having no basis to charge £160. 

4. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60 contractual costs pursuant to PCN Terms and conditions which the Defendant submits have not actually been incurred by the Claimant. 

5. In the Particulars of claim there is also a second add-on for purported ‘legal representative costs’ of £50 on top of the vague £60, plus interest, artificially hiking the sum to £xxxxxx This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14) 

6. 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 cost. 

I think you've omitted the main defence points you identified, but haven't stated:

1. Poor signage, particularly on entry to car park (small sign high up out of driver's line of sight) therefore no form of contract was entered by the driver?

2. Having recently revisited the car park, the signs in the car park now read 4 hours free parking. Photos supplied of signage (following my SAR) show the 3 hours as stated in claim (photos dated 2 months prior to alleged parking contravention)

3. Pre-action protocol was not adhered to as no evidence of claim was supplied with the LBCCC, not allowing me to determine whether or not the claim was legitimate.

4. The car park offers no facility to extend parking time by means of payment, therefore not a single penny was lost in revenue by the land owner nor Parking Company. (The car park serves several restaurants, so wanting to stay more than 3 hours is likely). Obvious why the free parking was extended to 4 hours at some point!

kernowkid007

Thank you for your prompt reply CM. I’ll fire up the laptop and make the necessary amendments

kernowkid007

Evening all,
I have revised my initial proposed defence and hope that it's almost there, any comments appreciated.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

BRITANNIA PARKING LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________


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 xxxx car park on xxxx. 

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

3. Pre-action protocol was not adhered to, as no evidence of claim was supplied with the LBCCC, not allowing the defendant to determine whether or not the claim was legitimate.

4. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. 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.

5. Due to the sparseness of particulars of claim, 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.

6. 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. They merely state that vehicles must be parked correctly within the parking bays, giving no definition of the term 'correctly parked'.

7. The terms and conditions on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. Particularly in relation to the entrance sign, which is inadequate in size and prominence, mounted high up, out of the drivers' line of sight. It is, therefore denied that the Claimant's signage is capable of creating a legally binding contract.

8. The car park in question operated with no restrictions or enforcement until the end of the year 2016. The claimant has failed to comply with British Parking Association, Code of Practice 18.11 which states, “Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes”.

9. Having recently revisited the car park, the signs in the car park display 4 hours free parking. Photos supplied of signage (following my SAR) show the 3 hours, (the photos are dated 2 months prior to alleged parking contravention).

10. The car park offers no facility to extend parking time by means of payment, therefore not a single penny was lost in revenue by the land owner nor Parking Company. (The car park serves several restaurants, so parking for more than 3 hours is more than likely). This would also explain why the free parking period has been extended to 4 hours!

11. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60 contractual costs pursuant to PCN Terms and conditions, which the Defendant submits have not actually been incurred by the Claimant.  Such costs are not permitted (CPR 27.14).

12. 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.

13. 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.

14. 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

Coupon-mad

That's better, except the word:

revisited

which communicates a RETURN VISIT by the driver!

kernowkid007

Thanks CM, I’ll re-word that now. Should I include any ref to similar cases or does that not really help at this stage?
Many thanks

Coupon-mad

No, defence is not a stage to talk about other cases, I am reliably informed.