Claim Form Received

DadofTwo81

Hello All,
I hope you are able to help me. Thanks in advance if you are.
I have received a claim form from BW Legal acting on behalf of Britannia Parking, I have filled out the acknowledgement of service.

The basics of the case:
'fluttered ticket'. probably.

I bought a ticket for 1 hour for £1. I went about, did my business within the hour, came back drove off, noticed at home that I had a PCN on my window. This was a private car park outside a retail park.
I noticed then the parking ticket on the passenger seat.

This is a company car, and the lease company has a history of paying fines at first sight, our lease contract says we have to pay them and my employment contract says I have to pay my employer.

So straight off, decided to write to employer, lease company and parking company that I was the driver at the time and to lease company not to pay the fine.

I wrote to the parking company providing evidence that I had a ticket, requesting that this be sufficient and we could let the matter drop.

They declined to and wrote back that I could appeal via POPLA.

I wrote back outlining via a form letter why I wouldn't be paying and offered, without prejudice save as respect to cost to settle for £5 which was a days parking at that car park.

You will be familiar I think with the process from here.
Escalating letters from a couple of different but interrelated companies trying to persuade me to pay them increasing sums of money.

I wrote to them once more to tell them they must contact me only in writing, that if this came to court I would be perusing them for my costs, that I would not be paying in the absence of a judgement from a court, and they should either take the settlement, take me to court, or give up and stop wasting money writing letters.

Some time and many letters later....

I now have a roboclaim (based on the scanty details in the particulars) from BW Legal.
I filled out the acknowledgement, so I have 28 days to get a defence in, which is where I need a bit of help.

Particular of claim are 'Sum of £85 being moneys due from the dependent in respect of a Parking Charge Notice (PCN) issued at blah blah blah.
Also Claims interest, claims £60 contractual costs.

So in total:
Claim £155, court fee £25, Legal representative £50 circa £230

Given that I bought a ticket and said I was the driver I wont be pursuing those avenues in my defence.

My thoughts were (in summary)

1. Vexatious claim. Sum at stake = £1. Trivial sum for court case.
2. Robo-claim, not in public interest
3. Penalty Clause. Generally only entitled to lost earnings for breach of contract otherwise a penalty clause. No lost earnings, as I had paid what was needed. No longer Dunedin's 4 tests (pity) due to Beavis but restated as it is a penalty if “out of all proportion to any legitimate interest'. Argument hinges on whether charging £85 for fluttered ticket is a legitimate interest. Some of the wording the Beavis judgment would say that in that case the interest was legitimate because the car park was free (this car park was not).

I would really appreciate help in correctly sourcing the above arguments .

Additional thoughts:
1. I notice that the contractual terms of this car park have changed since then (and I can prove this). What advantage running a defense which asks them to detail contract in force and hope they bring the current contract not the one at the time?

2. Do I mention the offer to settle? Or can the judge not take this into account as I made it without prejudice (save as respect to costs)?

3. They have claimed legal representative costs. If this goes down the small claims track, can they claim these, I thought not? Would I have to dispute these in my defence (existence of, and value of, given no solicitor is likely to have had any real part in this), or is it taken as read that they can't claim these?

4. I can wax lyrical about size of signage, but the signs have changed since then (see point 1.) and I don't have any photos of them. I tried this in my first letter, and they just said they accorded to guidelines. I don't see much mileage in this angle, other than we both assert the signs were or weren't acceptable and neither has anything concrete. Nominally they have to prove the signs were fine, but I'm not sure it's a case winning argument with a real judge.

What is the course of events from here?
I am assuming if they have paid the non-recoverable court fee of £25, they are planing on taking this all the way?
If they are, where do I get to recover my costs and what costs are reclaimable?
Do I wear a full suit and tie for the court appearance?

KeithP

What is the Issue Date on your Claim Form?

DadofTwo81

Not sure as I don't have it with me but less than a week ago even accounting for postage!

KeithP

From this point on court cases work to a strict timetable.

Please post on this thread the precise Issue Date on your Claim Form as soon as it is available.

DadofTwo81

Hi Keith,
Issue date is the 10th of Jan. My AOS was sent and received on the 14th, so if I am correct I have 28 calendar days from the 10th, which is the 7th of Feb?

nosferatu1001

No, you have 33 days from date of issue
28 from date of service

KeithP

DadofTwo81 wrote: »

Issue date is the 10th of Jan. My AOS was sent and received on the 14th, so if I am correct I have 28 calendar days from the 10th, which is the 7th of Feb?

As nosferatu1001 says, you have a little longer than you thought.

With a Claim Issue Date of 10th January, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 12th February 2019 to file your Defence.

That's nearly four weeks 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.

DadofTwo81

Thanks for all your help!


I've read the threads and realise my defence will need revision from the above. The core though remains; this is significantly different from beavis and £80 for a £1 ticket that was bought is not a legitimate interest, so actually according to the ruling, the four tests are still relevant.


From your combined experience, how much is to be gained from the vexatious robo claim arguments? Also the outrageously vague particulars?

Coupon-mad

From your combined experience, how much is to be gained from the vexatious robo claim arguments? Also the outrageously vague particulars?

Some Judges would look at that as unreasonable conduct when it comes to the matter of costs, at the end of the hearing if you have won. So it's worth mentioning but not in depth in a defence.

DadofTwo81

Hi All,
I have prepared a draft defence. Would it be possible for someone to have a look over it and let me know what they think?
As you would imagine its drawn from successful defences from very similar cases but adapted to my own circumstances.
I have not properly spell checked it yet but I will do!



Preliminary Matters
1. The Claimant has not complied with pre-court protocol. The Claimant has not complied with its obligations set out in the Practice Direction – Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence. If this is aclaim for breech of contract the Claimant has not explained what it claims the terms of that contract were or how it was entered into. No copy of the alleged contract has been provided to the Defendant.

2. The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached and fail to fulfil CPR Part 16.4 because it fails to establish a cause of action which would enable the Defendant to prepare a specific defence and are not clear and concise as is required by CPR Part 16.4 1(a).

3. The Claimant and their solicitor are known to be a serial litigants and issuer of speculative, automated claims, using “template” particulars of claim, with no due diligence.

3.1 In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

3.2 On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the claim was struck out.

3.3 There are other similar examples which could be produced.

4. The Defendant wrote to the claimant, shortly after the incident including a copy of the ticket purchased on the day providing the claimant with clear evidence that the defendant had acted in good faith.

4.1 This was an opportunity for the claimant to act reasonably and cancel the charge.

5. The Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

5.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;

a) An explanation as to the exact nature of the claim
b) A copy of any contract e (e.g. copies of signage)
c) If charges over and above the initial charge are being claimed, the basis on which this is being claimed

5.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

5.4 The defendant wrote to the claimant on xx, xx and xx asking for:
a) If the charges were based on damages for breach of contract and if so to provide
justification of this sum
b) To provide a copy of the signs that the Claimants can evidence were on site and which
formed a contract with the driver on that occasion, as well as all photographs taken of the vehicle in question.
And did not receive a reply to the questions. The Defendant has therefore had to cover all possible defences, causing significant distress and denying a fair chance to defend the claim.

Background
6. It is admitted that the Defendant was the driver of the vehicle in question at the time of the alleged incident.

7. The Defendant paid and displayed a ticket when the car was locked and left parked.The ticket gave the Defendant a licence to park for the 1 hour, from 09:03 AM to 10.03 AM on 04/08/17.

8. The exact grounds on which the claimant believes that the contract entitles them to the original sum of £85 for breach of contract is unclear from the particulars given in the claim. The claimant is therefore put to strict proof that the contract would, if allowable in law, allow them to seek the sum claimed.

8.1 As the nature of the alleged breech of contract is unclear, the defendant can neither confirm nor deny that such a breech has occurred. The claimant is therefore put to strict proof that the contract was breached.

8.2 If the claimant is able to prove that the contract provides for such a sum and is able to proove that breach, the defendant claims that £85 represents a penalty charge.


Claimant is seeking a penalty and inflated costs
9. Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.

9.1 There is no possible commercial justification for the Claimant to found an action based on such a trivial error. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated that in that case there was a commercial justification as it was free car park and the Claimant needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a Pay and Display car park where revenue is earned from the purchase of tickets for an agreed period of time.

10. The claimaint seeks £155. This is an extravagant and unconscionable penalty, which is unforcable, particularly because the Defendant has shown that he did purchase a valid ticket, the claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

11. £60 of the £155 is presented at times as contractual charges and at others at legal fees (which amounts to double charging if the former, which the PoFA Schedule 4 specifically disallows) or fees that are not recoverable in Small Claims Court.

12. The Claimant has claimed an additional £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid and that due to the sparse particulars the £50 claimed for filing the claim has not been incurred either. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

12.1 The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”.. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

13. The Defendant denies that the Claimant is entitled to any interest whatsoever.

14. The Defendant invites the court to strike out the claim for the above grounds.

The_Deep

If they were to take this to court, they would, imo struggle.

Many judges regard these "fluttering ticket" cases as a trifle, and the Law does not concern itself with trifles.

https://en.wikipedia.org/wiki/De_minimis

Indeed one judge opined that the PPC were at faulty for issuing flimsy tickets with no glue on the back. It is one huge scam which Parliament is committed to closing down.

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.

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.