**Court Summons** NCP - BW Legal ANPR Overstay

Coupon-mad

The POC fail to state the terms, or the alleged breach, so they fail to set out a cause of action, and also fail to explain the added costs of £60, whether these were actually incurred, nor even what terms & conditions they are relying upon and how these were drawn to attention.

So you could try your tactic again but it's possibly risky, in case it doesn't get struck out.

Maybe your 'lite' version then a Part B that states:

In the event that the case is not struck out, or if the Claimant is not ordered to full & serve full and better particulars, the Defendant will base their defence on the following main points and asks the court to allow the defence to be amended, should this robo-claim Claimant later ambush the Defendant with information that should have been in the POC:

(then set out bargepole's concise defence from the NEWBIES thread).

Bordtea

Coupon-mad wrote: »

The POC fail to state the terms, or the alleged breach, so they fail to set out a cause of action, and also fail to explain the added costs of £60, whether these were actually incurred, nor even what terms & conditions they are relying upon and how these were drawn to attention.

So you could try your tactic again but it's possibly risky, in case it doesn't get struck out.

Maybe your 'lite' version then a Part B that states:

In the event that the case is not struck out, or if the Claimant is not ordered to full & serve full and better particulars, the Defendant will base their defence on the following main points and asks the court to allow the defence to be amended, should this robo-claim Claimant later ambush the Defendant with information that should have been in the POC:

(then set out bargepole's concise defence from the NEWBIES thread).

So, last time, the judge gave the claimant an opportunity to resubmit particulars by a deadline which Gladstones failed to do. The only flaw I see with adding a 'part B' is if you are claiming that the particulars are so deficient that you can't put together a reasonable defence, to then have a defence in a Part B kind of undermines it? What do you think?


1. This is the initial defence of the Defendant, XXXXX

2. It was not cost effective to employ a solicitor in this case so I have had to arrange this defence myself. This is the first time I have been through this process so please excuse me if I fail to use the correct legal terms.

3. The Claimant has not complied with the pre-court protocols. They are a speculative serial litigant, issuing a large number of identical claims whether there is a cause of action or not.

4. The Claimant’s Statement of Particulars
I. Do not disclose reasonable grounds to bring a claim
II. Are an abuse of process
III. Fail to comply with the Civil Procedure Rules Part 16.4



5. The Defendant requests that the Claimant files a coherent statement of facts which, if true, disclose a legally recognisable claim in line with the Civil Procedure Rules. The Defendant requests the court’s permission to plead my defence once more detailed particulars are submitted to the court.

6. As an alternative, the defendant requests the court uses its power to strike out this claim as it is vexatious and ill-founded. Please see CPR 3.4(2)(b) and CPR PD 3A, para 1.5 for reference. There is recent precedent for this course of action as found in AS Parking v Daniel Mason at the Plymouth County Court in December 2016. The Judge struck out the claim as Gladstone's Solicitors had not submitted proper Particulars of Claim.

7. The Defendant struggles to plead further in light of the deficient particulars and the Defendant is entitled to know the case they have to meet.

8. No admissions are made with regards to the claim. The Claimant is required to prove the same.

9. If the court is not minded to strike out such deficient Particulars, the Defendant therefore will address any inaccuracies or misleading information in my Witness Statement, and Skeleton Argument if so ordered by the court.

STATEMENT OF TRUTH I believe the facts stated within this witness statement are true.

Coupon-mad

Hmmm, IMHO that is well written, and covers the chance to address any inaccuracies later, so you could just do that again!

Kelb070809

Hi Bordtea

I am just about to defend a claim with similar circumstances to yours ! did you submit your lite defence in the end and was the case struck out ?

Bordtea

My apologies for the radio silence. There have been a few updates since my last post.

1. The defendant submitted the 'lite' defence as per the above and received notice that the court instructed BW Legal to resubmit POCs to both the Court & Defendant by 4pm on a particular date.

2. BW Legal failed to comply with this order - the defendant did not receive the POCs until the day after the deadline. The defendant also phoned the Court the morning after the deadline and they confirmed that no amended POCs were received at that time. The court suggested the defendant write an email to the court summarising the conversation.

3. We assumed that the case would therefore be struck out and thought nothing more of it, until a few weeks later a new court order popped through the door asking the defendant to resubmit their Defence.

4. We then noticed that the franking date on the envelope that BW Legal had sent through their amended POCs was the date of the 4pm deadline and was sent by Royal Mail 1st Class which meant that we couldn't possibly have received the letter by 4pm. After a phone call with the court this was submitted by email to the Court.

5. Fast forward a couple of weeks, having forgotten about the case in the meantime, we have heard nothing from the court and in naivety assumed that, as we were disputing the process, the new deadline/court order was invalid. A frantic phone call to the court confirmed that unless stated otherwise, the previous order and associated deadline stood. A silly error really but there we go.

6. Due to very very short timescales before the deadline, I did not have the chance to post the proposed Defence on here for review before submission for comment The below is therefore the Defence that has been submitted . I appreciate that it probably isn't ideal but hopefully will suffice. I would appreciate advise going forward regarding the Witness Statement etc and will update this thread as things progress!

1. This is the initial defence of the Defendant,

---

2. It was not cost effective to employ a solicitor in this case so I have had to arrange this defence myself. This is the first time I have been through this process so please excuse me if I fail to use the correct legal terms.

3. The Defendant is the registered keeper of the vehicle in question.

4. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

5. The Claimant has not complied with the pre-court protocols. They are a speculative serial litigant, issuing a large number of identical claims whether there is a cause of action or not.

6. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable.

7. The revised POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5

Denial of contract and denial of any breach, or liability

8. 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.

9. The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

10. 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. The terms signage is also so lengthy that any person would not be reasonably expected to read it all. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

Unconscionable, Punitive Penalty
11. The charge is an unenforceable penalty with no basis in costs incurred by the alleged contravention.

12. If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in ParkingEye vs Beavis [2015].

13. Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.


14. The Claimant alleges that the Defendant’s vehicle ‘over stayed’ in the Car Park by a period of 32 minutes having purchased a ticket covering a time period of one hour. If the ‘over stay’ period was unpaid, then the sum 'owed' is a quantifiable figure. According to the tariff schedules at the particular car park, the maximum possible quantifiable loss incurred would amount to £1.

15. At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

Inflated Costs

16. 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. The Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant and which appears to be an attempt at double recovery.

17. These have been variously described as a 'BW Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £242.24. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

18. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste robo-claims at all, on the balance of probabilities.


19. Further, 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.


ANPR Data Use
20. The Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. In support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage and sparse initial POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

21. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of unsuspecting visitors to the car park, who are likely being caught out regularly by this trap.

22. Silently collecting VRN data in order to inflate the parking charge to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

23. Under the GDPR, the Claimant is put to strict proof regarding the reason for such excessive and intrusive data collection.

The Defendant believes that the facts stated in this defence are true.

Coupon-mad

I would appreciate advise going forward regarding the Witness Statement etc and will update this thread as things progress!

Of course, keep it updated and we will reply.

Bordtea

So we've had success... claim struck out when I protested about BW Legal having not served the documents on me by the deadline specified by the court previously. Not quite how I expected to win, but a result! Make sure you check your envelope franking dates people...

Coupon-mad

Bordtea wrote: »

1. The defendant submitted the 'lite' defence as per the above and received notice that the court instructed BW Legal to resubmit POCs to both the Court & Defendant by 4pm on a particular date.

2. BW Legal failed to comply with this order - the defendant did not receive the POCs until the day after the deadline. The defendant also phoned the Court the morning after the deadline and they confirmed that no amended POCs were received at that time. The court suggested the defendant write an email to the court summarising the conversation.

3. We assumed that the case would therefore be struck out and thought nothing more of it, until a few weeks later a new court order popped through the door asking the defendant to resubmit their Defence.

4. We then noticed that the franking date on the envelope that BW Legal had sent through their amended POCs was the date of the 4pm deadline and was sent by Royal Mail 1st Class which meant that we couldn't possibly have received the letter by 4pm. After a phone call with the court this was submitted by email to the Court.

UPDATE
So we've had success... claim struck out when I protested about BW Legal having not served the documents on me by the deadline specified by the court previously. Not quite how I expected to win, but a result! Make sure you check your envelope franking dates people...

Yay, well done. :T

Another one bites the dust!

samhill

Hi Bordtea

I am just about to defend a claim with similar circumstances to yours ! did you submit your defence at the beginning or did you just write defence at the beginning and wrote I could not submit a defence without knowing more information. or submitted your full long defence copied above as well?

sorry am new to all this.

Coupon-mad

You need to defend properly by acknowledgement of service of the claim (AOS) on MCOL (but not putting even a full stop in the defence box!), and emailing a SAR to the parking firm to get the data and photos this month.

The forum already explain how to do this. The NEWBIES FAQS thread tells you in its second post, and that's also where the example defences are, and a guide to doing the AOS on MCOL.

If you can't find the NEWBIES thread, like all 'stickies' it's at the top of the forum.

If you still can't find it, see my signature below which tells you where to click.

If you can't see my signature, then get on a PC or laptop (phones do not work here).