bwlegal BPL Letter of Claim/ restrict processing

Coupon-mad

Email to the solicitor, yes, but you are certainly not emailing to the court. No chance of them reading and printing all that, plus your evidence and covering letter and putting it all in order and handing it to a Judge this week - no way. A court will not spend that printing money.

Clearly this WS & evidence bundle is something to put in a file or ring binder with the covering letter signed and on the top, and hand it in person asking for the Judge to consider the trial venue urgently and vacate the hearing.

Re the WS, no, it's not ready yet.

Firstly, you can't adduce these as there is no transcript, so they are pointless:

14. I refer to Excel v Mr C C8DP37F1 at Stockport 31/10/2016. In this case the judge recognised that Elliot vs Loake was completely irrelevant. In dismissing the claim the judge stated amongst his reasons for doing so that - Excel did not adduce evidence of the driver, and - Elliott v Loake is not persuasive, and can be distinguished.

15. I refer to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper was not the driver, so he elected to offer no evidence, and put the claimant to strict proof. This of course was an impossibility for the claimant. As Mr B was not the driver, there would be no way they could offer any proof. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper.

You seem to have missed Excel v Smith (appeal) which is persuasive on the lower courts, which deals with the wring assumption about keeper liability and 'agency' so much better and with the weight of a Senior Circuit Judge.

As ever, search the forum for Excel v Smith agency witness statement, and copy!

Also, you have not mentioned adducing Lamilad's transcript even though you used his case (Lamoureux). It needs his transcript to be attached.

You have not said why and in what specific way, the Britannia NTK was non-POFA and have not adduced the POFA Schedule 4 as evidence (citing the lack of 8(2)f or 9(2)f) unless I missed it?

And you have ALL your eggs in the POFA basket, which is never what we recommend.

You have said absolutely nothing at all about the event, the signage, the lack of contract, nothing to save you if the Judge is not with you on keeper liability. You need more as safety nets, and signage is ALWAYS to be challenged even if you've never seen the place!

karlaiskrazy

Thanks again,

Ok think I've found Lamoureaux? do I add the judgement?

Yep got Schedule 4 didn't attach, literally do not know what I am doing. elk.

Yep got signage and photos so will add.

Coupon-mad

I hope Lamilad doesn't mind me saying, Smith is more important than Lamoureux.

karlaiskrazy

lol. thanks.

Ive found smith transcript but am struggling with the wS. Any tips?

Coupon-mad

You are going to have to show us the new draft, to look at. I gave you my tips!

karlaiskrazy

Apologies as I am still so confused.

Feel the WS is now to long and repetitive. grrr. :mad: my eyes are bleeding lol.


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.

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.

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. 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 Assosciation (“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.

14. The claimant will rely on the case of Elliott v Loake [1982] to argue that they can presume the RK was the driver.

15. 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

16. 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.
(Excel v Lamoureux at Skipton being another case already decided that was on all fours with this case).



17. 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. 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) along with an “Without Predjudice Save the costs” offer. It is requested that this be considered as evidence that the Defendant was not the driver at this time.


21. 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 not pay for the ticket once the vehicle was parked after a personal discussion with regards to a family funeral the next day.

22. 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.


23. 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.

24. 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.


25. 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.

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

27. 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.

28. 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.

29. 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

30. 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.

31. In this matter the claimant is lying. 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)

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

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

34. 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.

35. 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.

36. 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.

37. 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

38. 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.


39. The Defendant wishes the Court to take note of the serious distress and alarm caused to the Defendant and their family, as a direct result of the unwarranted and harassment by letter after letter from Britannia Parking, despite the fact there can be no 'keeper liability' out with the POFA 2012, and the Claimant is already aware from the defence that the Defendant keeper was not the driver.

40. For all of the reasons stated above, the Court is invited to dismiss this Claim, and to allow my wasted costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that to pursue me as registered keeper when the Claimant has no right in law to do so, and to submit vague, incoherent particulars, is wholly unreasonable and vexatious.


41. The Court is invited to dismiss the Claim

Coupon-mad

Excel v Lamoureux should still be exhibit 3, it's just Excel v Smith is persuasive (an appeal, so a higher decision). Use them both but make sure the Judge knows that Smith was on appeal, not just a county court decision of first instance.

You are not allowed to mention this, as that's what the words mean, that the offer can only be mentioned when it comes to the matter of costs at the hearing at the end:

along with an “Without Predjudice Save the costs” offer.

You haven't said why the PCN failed to meet the POFA. The Judge will expect you to walk him/her through it and may not agree unless you can show the omissions in wording (hint, look at para 9(2)f of Schedule 4 of the POFA...not in the PCN?!).

Put that as #7 instead of this, because this is not true, there WAS such a law, they just chose not to use it:

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.

And add this info near the top of the WS, as well as in a covering letter:

(currently in the middle of a house move) and would have moved address on day of court and will be 2.5 hours away. Should we let parties know of change of address when submitting statement and evidence?

Do not use the word 'lying'.

Change it to the Claimant is mendacious (same thing, but I think less accusatory to read). The costs are indeed made up out of thin air and you need to understand the authority for this is the following list, as the Judge may not realise:

- The Civil Procedure Rules, where costs MUST be justified, true and proportionate
- the POFA, where you quoted it at #24
- the BPA Code of Practice which caps charges at £100
- ParkingEye v Beavis, where they held the £85 charge covered the letters
- the signs, which in 2017 probably didn't specify £60 as a stated addition?

And your points #20 - 23 need moving waaay up near the start, as those are the vital witness statement facts that the Judge is looking to read first. Are you saying the car left before expiry of the paid-for time so that even though the driver was not very quick to pay the tariff, it was indeed paid for and covered the FULL time parked?

Oh, and add as an exhibit, this page from Debt Recovery Plus who Britannia probably got to send some threatening letters, which shows those letters were FREE OF CHARGE to Britannia, which proves they are lying (just don't use that word! Let the Judge realise when you show this):

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

''PCN Collection

We offer a ‘no collection, no fee service’,...''

And this recent Britannia judgment showing the costs are deemed by some Judges to be such an abuse that cases are struck out:

http://s000.tinyupload.com/?file_id=82477356814329133754

(needs downloading of course). Very important to show this, as it's Britannia!

and add this wording, referring to that judgment exhibit as a new #39 & #40:

39. Many informed Court Court Judges have disallowed all added parking firm 'costs' 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, struck 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 June 2019, District Judge Taylor echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County 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' robo-claim model) where the abuse is inherent in the business model.

40. The Order was identical in striking out all such claims without a hearing. - The judgment 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 alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, 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...''

karlaiskrazy

Coupon mad you are amazing thank you, hopefully get my head around it all.

Timings
ANPR entry was 10:39.48
PDT machine 10.55 ( over stay by 3.08)
ANPR exit was 11:58.08 (over stay 18.20)

RK has x 2 different debt collectors letters (about 6 letters in total) is this worth mentioning.

:j

Or leave for skeleton?

Coupon-mad

If it's DRP and Zenith or PCS, they are one and the same (look at the footer on the letter).

karlaiskrazy

Wow yes same address.

3 from DRP and 2 from Zenith.