bwlegal BPL Letter of Claim/ restrict processing

Coupon-mad

This is covered in the NEWBIES post #4 with an amusing linky about the signatures!

karlaiskrazy

Its completely crazy.

on signatures BW Legal have never had anyone sign (except at Claim to court, where it required) always signed B W Legal, is this something I can raise?

:cool:

karlaiskrazy

Ok so I think this is now tied up? and its back to packing but feeling a little more confident thanks to Coupon mad.

will do all evidence and folder in order tonight ready to hand deliver. Is it worth ringing the court tomorrow 15 days pre hearing as haven't heard from BW Legal as yet.

Much Thanks again.

I am the defendant in this claim. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

2. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

3. The facts of the case are as set out in my Defence, dated 24 February 2019, filed and served in response to the original N1 Claim Form, and verified by a Statement of Truth. They do not bear further repetition here, but this document will lead the evidence to support my case.

3. Due to a relocation of house with work and currently in the middle of a house move and day of hearing 07/08/2019 I will be 2.5 hours away, I ask for the hearing to be vacated and the case re-allocated to asking for the hearing to be vacated and the case re-allocated to Chelmsford County court for the first available hearing there, avoiding dates 07/08/19- 27/08/19.


NO KEEPER LIABILITY

4. I was the Registered Keeper of the vehicle at the time of the event in question, however, I was not the driver

5. The claimant has produced no evidence of who was driving.

6. The particulars of the claim supplied by the Claimant state that they are claiming “monies due from the Defendant in respect of a Charge Notice for a contravention on 20/3//2017” failed to make a valid payment. Court Practice Directions state that a statement of facts should be made on which the Claimant relies.

7. At the time of the event there was no law that would allow a claimant to transfer liability for an alleged private parking contravention from the driver to the registered keeper (RK). As such only the driver can be held liable in this matter, if any contravention has even occurred. This claim has nothing whatsoever to do with the RK.

The PCN failed to meet POFA The Protection of Freedoms Act Para 9(2)f does not permit the Claimant to recover from RK any costs if not for-warned. Exhibit XX.

8. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act.

9. With no route in law to transfer liability for any alleged contravention, by a driver - to the RK, this claim is null and void. There is no case to answer. The claimant must prove who was driving then take the matter up separately with that person

NO “REASONABLE PRESUMPTION”

10. The claimant cannot “presume” that the defendant and RK was the driver at the time of the alleged contravention. For the following reasons:

11. There is no law that allows them to do this

12. The defendant asserts under ‘statement of truth’ that he was not the driver. This will be repeated in court should this claim proceed to a hearing.

13. A member of the Defendant’s family paid for parking shortly after parking, the Claimant failed to show that this ticket registered in their records in a SAR request sent to the Defendant. Until recently 17 June 2019 when BW Legal sent PDT record for the day in question, (exhibit 4). It is requested that this be considered as evidence that the Defendant was not the driver at this time.

14. Any alleged breach of contract was de minimis. Parking was paid for for the duration of the stay by the defendant’s relative who did pay for the ticket once the vehicle was parked after a personal discussion with regards to a family funeral the next day. Exhibit xx

15. Barrister and parking law expert Henry Greenslade was the ‘Parking on Private Land Appeals’ (“POPLA”) Lead Adjudicator from 2012 – 2015. This is an independent appeals service offered by the British Parking Association (“BPA”) and Excel was under that Trade Body at the time of the alleged contravention. I adduce as evidence (exhibit 1) Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies.
16. The claimant will rely on the case of Elliott v Loake [1982] to argue that they can presume the RK was the driver.

17. Elliott v Loake [1982] has no relevance whatsoever in small claims or any civil matters. It is a criminal case which turned on forensic evidence and an eye witness statement. The defendant was prosecuted for, amongst other things, offences under S172 of the Road traffic Act. There is nothing about that criminal case that is comparable or relevant to this small claims matter

18. This matter has been tested by HHJ Smith in the Manchester Court, on appeal, in Excel v Anthony Smith C0DP9C4E as well as in the County Courts far too many times, transcript of judgement enclosed (exhibit 2) This was on appeal and not at County.
(Excel v Lamoureux at Skipton being another case already decided that was on all fours with this case). Exhibit 3

19. It is submitted that this Claimant is wasting the court's time again and the Defendant is being put to unjustified cost in terms of time and money, causing severe distress and curtailing normal enjoyment of free/family time, over the many months this has threatened the Defendant's peace of mind. The matter of keeper liability is already dealt with in the POFA 2012 Schedule 4, and was within their gift, had the Claimant bothered to use it. Exhibit 3.

18. This claim can only be viewed as an abuse of process by the Claimant, whose conduct throughout has crossed the threshold of CPR 27.14(2)(g) and when it comes to the matter of costs the Defendant will seek these on the indemnity basis, based on the hours of time wasted at 2/3rds of a solicitor’s rate (CPR 46.5) as well as the full costs of attending a hearing.

19. Liability can not be transferred to the Registered Keeper and the Claimant can only pursue the driver. As the driver has not been identified there are no lawful grounds to pursue the Defendant as the Registered Keeper.


20. The PCN sent by the Claimant stated that the contravention as 'Failed to make valid payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because the PDT machine shows the tariff had already been paid.

21. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.

22. The Protection of Freedoms Act Para 4(5) does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver. Exhibit XX

23. As the Defendant was not the driver of the vehicle, it cannot be accepted that any contract was entered into with the Claimant. The Consumer Rights Act 2015 states 5.—
(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

24. The defendant was not the main driver of the vehicle in question, and, in fact, very rarely drove this vehicle.

25. I adduce as evidence exhibit 5 – a certificate of motor insurance from the company who insured the vehicle at the material time, proving that the defendant was not the main driver.

26. Several other people including friends and family members had use of the vehicle, around the time in question, though the ‘Driving Other Cars’ (DOC) extension on their own fully comprehensive car insurance policies.

27. If the defendant’s assertion that he was not the driver was to be tested against the ‘balance of probabilities’ then it would be highly unlikely that he was the driver due to the number of other people that could have been driving and the fact he was not the main driver of the vehicle


CLAIMANT UNREASONABLE BEHAVIOUR/ LACK OF CREDIBILITY

28. As the RK, in November 2017 I received a letter from the claimant’s solicitor - BW Legal, threatening to pursue me for a £100 parking charge and an additional £60 for legal costs which they claimed are detailed in the car park terms and conditions.

29. In this matter the claimant is mendacious. No such “legal costs” were detailed on any of their signs at the location in question at the material time. The claimant is put to strict proof otherwise. Exhibit 6/7 (7 has been enlarged to read the poor small print of signage)

30. The signage at entrance/exit is not legible from where the car was parked on the day of the contravention. Exhibit 8.

31. This is an attempt by the claimant to fraudulently claim costs that, under CPR 27.14 they are not entitled to.

32. Note Debt letters sent (5 over a 2 and a half months) from 2 different debt agencies sharing the same Company registration No. 6774150. Inflating the original PCN from £100-£160 then reducing to £136 then £100. Exhibit X/X/X/X/X.
(a) I also add (exhibit X) which I believe Britannia used to send the original demanding letters which as stated where FREE OF CHARGE to Britannia, which proves there dishonest behaviours.

33. As a serial litigant with professional legal representation the claimant knows they cannot claim these costs. Therefore, by attempting to do so they are deliberately misleading the defendant and the court.

34. The claimant failed to adequately respond to my request made on 8th December 2018 where I requested any documentation and relevant information regarding PDT records from that day. Exhibit 9.

35. My request was not answered appropriately - I received a number of black and white photos of my car, a photocopy of the original PCN and copies of letters supposedly sent to me 2 years ago along with Britannia Parking’s Data protection. I did not receive all of the information I requested. Exhibit 10/11/12/13/14.

36. In this matter the defendant tried to reasonably engage with the claimant so that he could better understand the claim and how to defend it. In failing to provide an adequate response the claimant is in breach of pre-action protocols and the overriding objecting as per CPR 1.

CONCLUSION

37. The amount claimed by the Claimant is unfair. It is unfair because the parking payment has already been paid but the Claimant is requiring the Defendant to fulfil an obligation to pay a disproportionately high sum in compensation.

38. Many informed Court judges have disallowed all added parking firm ‘cost’ in County Courts, such as these cases, struck out in recent months without a hearing, due solely to the pretence of adding ‘damages’ blatantly made up out of thin air.
(a) in Claim number F0DP163T ON 11TH July 2019, District Judge Grand sitting at the County Court at Southampton, stuck out a overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason. Exhibit xx.
(b) In Claim number F0dp201t on 10th July 2019, District Judge Taylor echoed an earlier General Judgement or Order of DJ Grand, who on 21st Febuary 2019 sitting at Newport (IOW) Count court, had struck out a parking firm claim.
These include a BPA member serial Claimant (Britannia, using BW Legal’s robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones ‘roco-claim model) where the abuse is inherent in the business model.

39. The Order was identical in striking out all such claims without a hearing. – The judgement for these three example cases stated:
“IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge, which it is recoverable under the protection of the Freedoms Act 2010, Schedule 4 nor with reference to the judgment in ParkingEye V Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum, which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998…”


40. The Court is invited to dismiss the Claim.
I believe that the facts stated in this Witness Statement are true.

karlaiskrazy

Questions?

should i keep the insurance certificate in there? do not want to implicate person as driver.

Which Beavis case is it? ( I found 3) is it the conversation of the hearing? the appeal or the 127page judgement.

also is BPA COP come under 35 payments, 34.6?

I think hats it for now and will probably be able to get this in well within time.

Thanks again to coupon mad, your time is appreciated.

Coupon-mad

karlaiskrazy wrote: »

Its completely crazy.

on signatures BW Legal have never had anyone sign (except at Claim to court, where it required) always signed B W Legal, is this something I can raise?

No, that's entirely normal from a solicitor firm, have you never noticed or never had a solicitor write to you about anything?

The BW Legal sigs weren't the amusing info I was mentioning.

Is it worth ringing the court tomorrow 15 days pre hearing as haven't heard from BW Legal as yet.

Nope, they are not late yet and in fact you want them to fail, as you could then challenge their late WS at the hearing. Ask for it to be disregarded and ask the Judge to note you managed to meet the deadline (make sure you do) and yet a legally-represented serial litigator can't be bothered or thinks the CPRs do not apply to them.

You do not put the Beavis case in as evidence as it is established case law from the Supreme court, but if you wanted to read it and find a quote or two, then read the Supreme Court final decision, published in Nov 2015.

Typos here:

(a) I also add (exhibit X) which I believe Britannia used to send the original demanding letters which as stated where FREE OF CHARGE to Britannia, which proves there dishonest behaviours.

''proves their dishonest conduct in dressing up a fake added £60 cost as if they had spent money on letters. They have not, and the Beavis case established that the parking charge itself covers the minimal costs of a typical private parking model and the entire letter chain.''

karlaiskrazy

Should I keep insurance cert in? No 25.

Thank you once again, I may even get it all handed in a day early.

Coupon-mad

Yes, I would, but partly redact the main driver's name to protect them from a new claim!

karlaiskrazy

Thank s again Coupon mad, you really are invaluable.

Going to hand deliver WS and evidence to court and ask for the hearing to be vacated. I am delivering on behalf of RK. It's a 30 min drive so think I will make the most of a nice day out lol.

Redx

This thread is a useful link for the stickies due to all the good information it contains, especially if you win the case, which we hope that you do

Good luck

karlaiskrazy

WS and evidence in drop box at the court. Spoke to a clark at the court and popped my Urgent court change in an envelope FAO Judges attention urgent. She was very helpful and said we may need to wait to see if BWLegal agree to change the court. Fingers crossed.

Now I have until tomorrow until 16.00 to email WS and evidence to BWLeagal, do I set a reminder on my phone for 15.45 lol