2xCounty Court PCN for parking contraventions

ForeverLearning

Hi all,
As the registered keeper of the vehicle, I received 2 county court claims from BW Legal on behalf of TPS for PCN, dated 29/11/2018 and 11/12/2018 - both for PCN on 23/04/2018 and 25/05/2018 respectively, both for just over £200 each.

I have submitted an AoS for both claims through the MCOL portal.

Both claims state the following similar Particulars of Claim:
The claimant's Claim is for the sum of £200 (I rounded down the value) being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) for a parking contravention which occurred on xxxxx at xx:xx:xx in the car park at xxxxx in relation to a xxxxx registration mark xxxxx.
The Defendant was allowed 28 days from the PCN issue Date to Pay, but failed to do so.
Despite demand having been made, the Defendant has failed to settle their outstanding liability.
The Claim also includes Statutory Interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum) a daily rate of 4.40 from xxxx to xxxx being an amount of £4.40.
The Claimant also claims £54.00 contractual costs as set out in the Terms and Conditions.

Regarding these 2 PCN - One the driver completely forgot to pay for the day and the other it was paid for most of the parking but forgotten to pay an extension of the parking. The driver usually parks at this pay and display 24h car park when they can't get free parking where they work. There was never any tickets or anything affixed to the car's windscreen and I was only notified by a letter from TPS (Total Parking Solutions), but can't locate the initial letter, so not sure when this took place.

Stupidly I've let this drag on and now I'm at the stage of submitting my Defences, which I can't see winning at court - I have read all of the relevant posts and I am aware of what to do but stuck on what I could add to my Defence, but I will do my best to try!
At the time my father was extremely ill and later in palliative care and my mind was elsewhere so I ended up postponing the responses.

Below is my Defence and I would appreciate if anyone could provide some feedback, please.
DEFENCE
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration [x], of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant, was parked on the material date in an unmarked space at xxxxxxx, not causing any obstruction.
2.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority. It is reasonable to conclude, from the date of the premature [Notice to Keeper ('NTK')] that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.
2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

3. The Particulars of Claim state that the Defendant was either 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.

4. 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.

5. 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. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

6. 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

(Not sure if the below paragraph is applicable?)
7. 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.
8. 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 CN, in this case, £100. The claim includes an additional £54 which appear to be an attempt at double recovery.

9. 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 xxxx
Signature xxxx
Date xxxx

The_Deep

The Claimant also claims £54.00 contractual costs as set out in the Terms and Conditions.

£250 is far more than the Law allows for this sort of claim. The down market solicitors whom the PPCs engage know this, but, because they are solicitors, know that a lot of people will pay up.

It is in fact double charging and non claimable debt collectors' add ons. Imo, this is fraud, or, at the very least, improper conduct.

Were this to get to court and they won, the judge would be unlikely to award the claimant more than £175 - £200.

I urge you to report this grubby law firm to their regulatory body, the SRA.

https://www.sra.org.uk/solicitors/handbook/code/content.page

as I am sure they do not condone this conduct. Also, please complain to your MP.

It is the will of Parliament that these scammers be put out of business. Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers. Read this one which I wrote earlier

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

KeithP

For the Claim with an Issue Date of 29th November, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 2nd January 2019 to file your Defence.

Obviously that is very close.


For the Claim with an Issue Date of 11th December, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 14th January 2019 to file your Defence.

That's two weeks away. Loads of time to produce a good Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defences 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 keep 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.

I would suggest filing each Defence separately even if they are both ready to go by Wednesday. That's two separate emails.

ForeverLearning

I will complain about BW Legal to the SRA asap.

I am also aware of the deadlines for submission and I've read pretty much every single post in this forum on similar situations, so I'm ok on what to do in terms of the process.

I really appreciate your replies, but I was hoping to get a reply and/or feedback on the Defence that I wrote above in post #1?

Thanks again!!

KeithP

Unfortunately, people prepared to comment on Defences are thin on the ground - particularly so over a holiday period.

ForeverLearning

That's what I though I'll hold on until tomorrow lunch time and hope for a miracle!

Thanks KeithP

ForeverLearning

Just wondering if anyone had a chance to review my Defence please? I'll be submitting it tomorrow around lunch time, but before the 4pm deadline.
The more I read it and compare it to so many other posts, the more I question myself. I'm definitely going ahead with it, but all this stress is making my tinnitus going through the rough and I can barely think properly as it's so loud

Jetslick

Not got experience for advice myself, but considering your desperation for a review of a defence by tomorrow, I'd recommend to try your luck also at posting your defence on another website's forum, i.e. pepipoo, leaglebeagles, etc. Just because some of the more experienced members may still be away for the busy festive period. Any advice you can get there will help, else it may be a waiting game here.

That said, I'm in a similar boat with 2 PCN's from BW Legal myself (for Britannia Parking) and have complained to the ICO about them twice. It might still be useful for you to do a Subject Access Request to see the data TPS or BW Legal have on you. Either way, good luck.

ForeverLearning

Thank you Jetslick Didn't even crossed my mind trying other sites!

Good luck with your defence - I'll update on mine when the time comes.

ForeverLearning

Just one last check to see if anyone can have a look at my Defence..... please? I need to submit it by 4pm today


In essence - driver forgot to pay for the day on a P&D car park. Driver usually pays via online app - not sure what happen on this day! Photografic evidence supplied by Total Parking Solutions of car entry and exit times - images captured by ANPR - no tickets left on car's windshield.

TPS sent PCN letter, reminder and final reminder, followed by BW legal letters and finnaly county court claim.


I don't feel that my Particulars of Claim are strong enough.

---

CLAIM REF. xxxxxxx
Issue Date 29 NOV 2018

Between

Total Parking Solutions Limited (Claimant)
vs
xxxxxxx


DEFENCE

1. The Defendant denies entering into any contract with the Claimant. In the alternative, if any such contract was entered into it is denied that the driver breached its terms.

2. The claim is denied in its entirety except where explicitly admitted here. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.

3. The facts are that the vehicle, registration xxxxxxx, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant, was parked on the material date in an unmarked space at xxxxxxx, not causing any obstruction.

3.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority. It is reasonable to conclude, from the date of the premature [Notice to Keeper ('NTK')] that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.
2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

3. The Particulars of Claim state that the Defendant was either 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.

4. 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.


5. 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. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

6. 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. 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.
8. 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 CN, in this case £70. The claim includes an additional £xxx which appears to be an attempt at double recovery.

9. 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.


Defendant's Name
xxxxxxx

Signature
xxxxxxx

Date
01/01/2019

ForeverLearning

I would like to add, if the driver usually parks at this car park and always pays, would the above in my Defence be invalid?