BW Legal - Parking claim defence

woosaa

Hi,

I have had a letter from BW Legal in response to my requests for evidence and correspondence re: a parking charge notice. However, I did not have the opportunity to respond, and have now received a claim form.

I cannot prove I was not the driver, but they cannot either as the images provided do not show anyone driving the vehicle as it was at night. The vehicle was driven into the car park for 11 minutes, as the driver was lost.

Having searched the MSE forums and Google, I have cobbled together a defence for the court claim. I have already acknowledged the claim to give me 28 days (from today).

I'd appreciate any comments and help on the below that anyone might have before I submit!

Thanks!


"Liability

• The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at xxxxxxx on xxxxxxx.
• The Claimant, in pursuing the registered keeper of the vehicle, has stated in correspondence that they intend to rely on the case of Combined Parking Solutions Ltd v AJH Films Ltd [2015] EWCA 1453. This case relates to the relationship between and employer and employee in relation to a parking offence. The Defendant is not an employer and relies upon the cases Excel Parking Services v Smith heard in Stockport (unreported, claim reference numbers C0DP9C4E and C1DP0C8E) where on appeal DDJ Cowell found that such a claim can only apply in an employer and employee circumstance and so not applicable in any other scenario.
• It is further stated by the Defendant that a parking law barrister and adjudicator for the Parking and Traffic Appeals Service (now called London Tribunals) and Parking on Private Land Appeals Service, Henry Gleenslade, confirmed in his annual report in 2015 that there is no lawful presumption that a registered keeper is the driver, and no operator should be heard saying there is, or that a keeper has any obligation to name the driver.
• The Defendant puts the Claimant to strict proof that the registered keeper was the driver of the vehicle.

Grace Periods and Parking Contract

• The Claimant alleges that the driver entered the car park at xxxxxxx and exited the car park at xxxxxxx which is a total of 11 minutes.
• The Claimant purports to be a member of the British Parking Association (BPA) and complies with its Code of Practice however, the Defendant argues that this has not been followed and the Claimant is acting outside of this Code of Conduct.
• Section 13 of the BPA Code of Practice states:

”If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”

The Defendant believes that the driver entered the car park to determine whether they wished to be bound by the terms and conditions of parking. It is clear from the time spent in the car park that the driver did not accept the terms and conditions and did not wish to enter into a parking contract with the Claimant and thus proceeded to leave the car park. 11 minutes is a reasonable time to allow as a grace period under the BPA Code of Practice.

• The Defendant shall also rely on the case of Excel v Mr Cutts [2011] (unreported, claim reference 1SE2795, Deputy District Judge Lateef agrees with the principle argument:

“…it is, in my view, not enough for him to merely physically enter the site. Instead the Defendant has to see the offer so he can choose whether or not to accept it, and thereby enter a contractual relationship.”

• The Defendant also submits that binding a motorist to a contractual agreement without a grace period would constitute a breach of Schedule 2(i), The Unfair Terms in Consumer Contracts Regulations 1999:

“(i) irrevocably binding the consumer to terms in which he has no real opportunity of becoming acquainted before the conclusion of the contract;”

• The Defendant also believes that given the time of day, visibility of any signs would have been impaired thus requiring longer to determine whether the driver wished to enter into a parking contract with the Claimant.
• Through use of Google Street View, it is also clear that signage entering the car park do not contain all the terms and conditions of a parking contract thus requiring the driver of the vehicle to enter into the car park in search of these terms and conditions.
• Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'

Conduct

• The Defendant submits that the bright, alarmist letters were seen as a scam or spam, and recognised at the time that they were not form an authority such as a local council or the police. The Claimant referenced nothing in relation to holding the Defendant liable under statute.
• It is submitted that the Defendant did not appeal the parking charge notice and was under no obligation to do as the keeper of the vehicle. The Defendant correctly assumed at the time (and to date) that the issue was of no relevance to them.
• Upon receipt of a letter of claim did the Defendant decide to respond requesting details that had not been provided to date.
• The Defendant was not given adequate time or the opportunity to respond to the details provided by the Claimant in response to the letter from the Defendant.
• The Defendant believes such a claim is a waste of the courts time and resources and could have been resolved outside of the court claim process."

Umkomaas

Just on a point of presentation - have you chosen that font and size, or have you simply copied and pasted the text from a Word document?

If the latter, please read this:

https://forums.moneysavingexpert.com/discussion/5706338/please-dont-copy-and-paste-from-word-outlook

It can result in the forum staff blocking any further posts from you.

KeithP

woosaa wrote: »

...have now received a claim form.

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

[Deleted User]

Give the court a bit more to go on as to what your case actually is.

1. The Particulars of Claim are poorly specified. The defendant reserves the right to add to or amend the defence should the claimant seek to advance arguments in the course of proceedings or trial that do not form part of the statement of case.

2. Insofar as the Defendant understands the Claimant’s case from the Particulars, the Claimant’s case is one limited to contract law and based upon the terms set out on signage (reproduced below).

3. The Particulars of Claim are not numbered. The Defence accordingly refers to the contents of paragraphs 1 and 2 of together.

4. It is neither admitted nor denied that the Defendant was the driver of vehicle. The Claimant is put to strict proof.

5. It is admitted that on [date] the Defendant was (and is) the owner and registered keeper of [colour] [make/model] vehicle, registration [TBC].

6. It is denied that on [date] the vehicle was parked on land near to or abutting [address], but it is admitted that the vehicle was waiting at the location for a period of 11 minutes, whilst the driver had pulled off the highway to check directions. It is neither admitted nor denied that the Defendant was the driver of the vehicle at the material time.

7. The defendant is not aware that any signage prohibited waiting and, it is averred, the driver did not park and did not contract to park with the claimant. Rather, the driver briefly stopped on the land and then executed a U-turn.

Etc etc.

Pleading conduct adds nothing - it just shows you're angry. By all means raise it later to try and prevent them seeking costs, but it isn't a defence.

Citing unreported cases that aren't binding doesn't get anyone very far. Again have copies in court if needed, but those aren't your best arguments. The best argument is that the car was never parked in the true sense of the word at all, given that the driver presumably never left the vehicle, which he would have had to do in order to even read the sign.

woosaa

KeithP wrote: »

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

Issue date is 15 Feb 2019 and yes, from the County Court Business Centre in Northampton

Coupon-mad

Which parking firm?

Being 15th Feb, this isn't another UKPPO Newcastle Airport one is it - if so there is a thread for you to join and pm the thread starter to join a Whatsapp group.

If not, who was the PPC and what sort of car park?

woosaa

Coupon-mad wrote: »

Which parking firm?

Being 15th Feb, this isn't another UKPPO Newcastle Airport one is it - if so there is a thread for you to join and pm the thread starter to join a Whatsapp group.

If not, who was the PPC and what sort of car park?

Nope, not the same one i'm afraid.


This was Britannia Parking... just a standard car park, I believe

KeithP

woosaa wrote: »

Issue date is 15 Feb 2019 and yes, from the County Court Business Centre in Northampton

With a Claim Issue Date of 15th February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 20th March 2019 to file your Defence.

That's just over two weeks away. Loads of time to produce a good Defence, but please do not 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.

woosaa

Ok, I have updated for the comments above (thanks!) - how does this sound now?

Thanks for letting me know unreported cases don't really help. Are there any reported cases that I can use instead?

Many thanks

DEFENCE

1. The Particulars of Claim are poorly specified. The Defendant reserves the right to add to or amend the Defence should the Claimant seek to advance arguments in the course of proceedings or trial that do not form part of the Statement of Case.
2. Insofar as the Defendant understands the Claimant’s case from the Particulars, the Claimant’s case is one limited to contract law and based upon the terms set out on signage that the Claimant has failed to provide the Defendant upon request.
3. The Particulars of Claim are not numbered. The Defence accordingly refers to the contents of paragraph 1 and 2 together.

Liability

4. The Defendant believes the Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at xxxxx – xxxxx on xxxxx.
5. It is admitted that on xxxxxx the Defendant was the owner and registered keeper of a xxxxxx, registration xxxxxxxx.
6. The Claimant, in pursuing the registered keeper of the vehicle, has stated in correspondence that they intend to rely on the case of Combined Parking Solutions Ltd v AJH Films Ltd [2015] EWCA 1453. This case relates to the relationship between an employer and employee of a company owned fleet vehicle which is not relevant nor applicable to the circumstances of the Claimant’s Particulars of Claim.
7. It is neither admitted nor denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

Parking Contract

8. It is admitted that the Defendant’s vehicle entered the car park at xxxxxx and exited the car park at xxxxx which is a total of 11 minutes.
9. It is denied that on the xxxxxxxxx, the vehicle was parked within the car park but, it is admitted that that the vehicle was waiting at the location for a period of 11 minutes while the driver had pulled off the main road to check directions. It is neither admitted nor denied that the defendant was the driver of the vehicle at the material time.
10. The Defendant is not aware of any signage that prohibited waiting and it is averred, the driver did not park and did not contract to park with the Claimant. Rather, the driver briefly stopped on the land and executed a U-turn.

Grace Periods

11. The Claimant purports to be a member of the British Parking Association (BPA) and complies with its Code of Practice however, the Defendant argues that this has not been followed and the Claimant is acting outside of this Code of Conduct.
12. Section 13 of the BPA Code of Practice states:
”If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
13. If the Defendant was the driver of the vehicle at the material time which, is neither admitted nor denied. The Defendant denies entering into a contract with the Claimant as the duration of the stay in the car park was not long enough to give the Defendant the opportunity to review and accept any terms and conditions available.
14. In addition, the Defendant submits that binding a motorist to a contractual agreement without a grace period would constitute a breach of Schedule 2(i), The Unfair Terms in Consumer Contracts Regulations 1999:
“(i) irrevocably binding the consumer to terms in which he has no real opportunity of becoming acquainted before the conclusion of the contract;”
15. The Defendant also submits that given the time of day, visibility of any signs would have been impaired thus requiring longer to determine whether the driver wished to enter into a parking contract with the Claimant.
16. Through use of Google Street View, it is also clear that signage entering the car park (Annex A) do not contain all the terms and conditions of a parking contract thus requiring the driver of the vehicle to enter into the car park in search of these terms and conditions.
17. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'

I believe the facts contained in this Defence statement are true.

Coupon-mad

Remove #14 entirely, or change the UTCCRs to the Consumer Rights Act, that superseded those regs in 2015.

Is this true? Have they talked about CPS v AJH Films or did you copy this?

6. The Claimant, in pursuing the registered keeper of the vehicle, has stated in correspondence that they intend to rely on the case of Combined Parking Solutions Ltd v AJH Films Ltd [2015] EWCA 1453. This case relates to the relationship between an employer and employee of a company owned fleet vehicle which is not relevant nor applicable to the circumstances of the Claimant’s Particulars of Claim.

You haven't said anything about the added 'damages'/debt collector & 'legal' costs & more, that they can't recover. See below, I like to spell out the abuse of process:

https://forums.moneysavingexpert.com/discussion/comment/75520074#Comment_75520074

HTH

woosaa

Coupon-mad wrote: »

Remove #14 entirely, or change the UTCCRs to the Consumer Rights Act, that superseded those regs in 2015.

Many thanks, I've changed this to reflect the CRA 2015.

Coupon-mad wrote: »

Is this true? Have they talked about CPS v AJH Films or did you copy this?

Yes. They didn't use this in their Particulars of Claim but in correspondence to me when I asked for all the details of the claim against me. I didn't copy this but, summarised what I had been reading about the case and from other parking related sites have said. I hope it makes sense.

Coupon-mad wrote: »

You haven't said anything about the added 'damages'/debt collector & 'legal' costs & more, that they can't recover. See below, I like to spell out the abuse of process:

This is great however, would this only apply if they are relying on POFA? They've already told me in that same correspondence that they don't intend to rely on s4 of POFA?

Thanks again for all your help