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Bw legal defence letter proof read for a newbie?
Teaandbiscuitsplease
Posts: 5 Forumite
Hi guys,
Been reading all posts and found your knowledge invaluable, Thank you so much. I took the decision to ignore a parking fine given to me on the grounds of 'invalid payment made' a few years ago and not long ago was given a letter before court so using your help have tried to do my own defence. I'd be so grateful if you could have a read and give feedback, im a complete beginner at this and probably not the brightest spark in regards to all the legalities 🙈
In my case this was a few years ago and I've literally just been 'filing' these letters in the bin until then. Im pretty sure I made the payment using the app but can't be sure may have been machine. May have also overstayed my parking but as you can see they didn't say that as the reason. I know I know, I'm silly. Anyway here's my letter, I thought at this stage I have nothing to loose.
1. The Defendant was the registered keeper of the vehicle in question at the time. The Claim relates to an alleged debt arising from the driver's ‘failure to make a valid payment’, when parking at......... car park, on // ///// 2017, this breaching the terms and conditions. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge'.
2. Based upon the deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant on --/--/----.
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
3. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
4. The allegation appears to be that - ‘failed to make a valid payment’. This is not true. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel. As far as the defendant was concerned this payment was successful and no fault or transaction failure was displayed. It was only when the PCN arrived in the post did the claimant have any kind of reason to think that there had been any kind of supposed error in parking payment on the day in question
5. The Defendant has proof of a transaction being taken from their bank account by Britannia parking at this location to the sum of £1.90, therefore a payment was succesfully taken. Any idea of why the claimant believes the payment was ‘invalid’ has not been given therefore the defendant has no reason to believe they are in any way to pay out further money to the claimant. The defendant urges the court to seek out the Parkopedia website and click onto the Lambhay Plymouth car park reviews, whereby there are multiple accounts of similar failures by Britannia Parking. Multiple accounts of their failures when paying customers have indeed purchased valid tickets, even paying over the required charge and been given PCN’s a few weeks later. All users said they will avoid and tell family and friends to avoid, therefore potentially driving away business to the local area. It is assumed that there must have been a system failure via the payment method used, which is out of the defendants hands. The defendant followed the exact instructions given as shown on the signage at the payment machines. Therefore as no error code was seen and response was that of payment being received, the defendant believed adequate payment and steps were taken.
6. The signage on this site was inadequate to form a contract with the motorist, and the defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged ‘contract’ had the terms and conditions of the contracts been properly displayed.
7. Britannia Parking are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge.
8. The amount demanded is excessive and the ‘ParkingEye v Beavis’ case exposes this charge as unconscionable with no overriding ‘legitimate interest’ - Especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
9. This claim inflates the total to £230.00, in a clear attempt at double recovery with no reasonable explanation. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition.
10.1. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that 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 Britannia robo-claims at all. According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on preparing a claim in a legal capacity.
10.2. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Claimant knows this, as do their solicitors. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumer’s rights and remedies, arising from BW Legal clients artificially inflating their robo-claims, which are filed in tens of thousands, per year.
10.3. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding Legal representative costs of £50, which I submit have not actually been incurred by the Claimant.
10.4. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Britannia Parking Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
11. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery.
12. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.
13. Examples of previous case Parking Eye v Heggie
3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). Deputy District Judge Obhi ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss.
Report
In this case Mt Heggie entered the wrong registration number for his vehicle. Parking Eye were able to trace this and confirm that he had paid. However, because they had started court proceedings they refused to drop the claim.
Parking Eye argued that their charge of £100 was a genuine pre-estimate of loss because of the whole running costs of the car park needed to be considered.
Judge Obhi ruled that there was actually zero loss incurred.
Judge Obhi dismissed the claim.
I confirm that the facts in this defence are true to the best of my knowledge and belief.
Thanks guys
Been reading all posts and found your knowledge invaluable, Thank you so much. I took the decision to ignore a parking fine given to me on the grounds of 'invalid payment made' a few years ago and not long ago was given a letter before court so using your help have tried to do my own defence. I'd be so grateful if you could have a read and give feedback, im a complete beginner at this and probably not the brightest spark in regards to all the legalities 🙈
In my case this was a few years ago and I've literally just been 'filing' these letters in the bin until then. Im pretty sure I made the payment using the app but can't be sure may have been machine. May have also overstayed my parking but as you can see they didn't say that as the reason. I know I know, I'm silly. Anyway here's my letter, I thought at this stage I have nothing to loose.
1. The Defendant was the registered keeper of the vehicle in question at the time. The Claim relates to an alleged debt arising from the driver's ‘failure to make a valid payment’, when parking at......... car park, on // ///// 2017, this breaching the terms and conditions. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge'.
2. Based upon the deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant on --/--/----.
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
3. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
4. The allegation appears to be that - ‘failed to make a valid payment’. This is not true. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel. As far as the defendant was concerned this payment was successful and no fault or transaction failure was displayed. It was only when the PCN arrived in the post did the claimant have any kind of reason to think that there had been any kind of supposed error in parking payment on the day in question
5. The Defendant has proof of a transaction being taken from their bank account by Britannia parking at this location to the sum of £1.90, therefore a payment was succesfully taken. Any idea of why the claimant believes the payment was ‘invalid’ has not been given therefore the defendant has no reason to believe they are in any way to pay out further money to the claimant. The defendant urges the court to seek out the Parkopedia website and click onto the Lambhay Plymouth car park reviews, whereby there are multiple accounts of similar failures by Britannia Parking. Multiple accounts of their failures when paying customers have indeed purchased valid tickets, even paying over the required charge and been given PCN’s a few weeks later. All users said they will avoid and tell family and friends to avoid, therefore potentially driving away business to the local area. It is assumed that there must have been a system failure via the payment method used, which is out of the defendants hands. The defendant followed the exact instructions given as shown on the signage at the payment machines. Therefore as no error code was seen and response was that of payment being received, the defendant believed adequate payment and steps were taken.
6. The signage on this site was inadequate to form a contract with the motorist, and the defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged ‘contract’ had the terms and conditions of the contracts been properly displayed.
7. Britannia Parking are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge.
8. The amount demanded is excessive and the ‘ParkingEye v Beavis’ case exposes this charge as unconscionable with no overriding ‘legitimate interest’ - Especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
9. This claim inflates the total to £230.00, in a clear attempt at double recovery with no reasonable explanation. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition.
10.1. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that 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 Britannia robo-claims at all. According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on preparing a claim in a legal capacity.
10.2. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Claimant knows this, as do their solicitors. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumer’s rights and remedies, arising from BW Legal clients artificially inflating their robo-claims, which are filed in tens of thousands, per year.
10.3. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding Legal representative costs of £50, which I submit have not actually been incurred by the Claimant.
10.4. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Britannia Parking Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
11. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery.
12. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.
13. Examples of previous case Parking Eye v Heggie
3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). Deputy District Judge Obhi ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss.
Report
In this case Mt Heggie entered the wrong registration number for his vehicle. Parking Eye were able to trace this and confirm that he had paid. However, because they had started court proceedings they refused to drop the claim.
Parking Eye argued that their charge of £100 was a genuine pre-estimate of loss because of the whole running costs of the car park needed to be considered.
Judge Obhi ruled that there was actually zero loss incurred.
Judge Obhi dismissed the claim.
I confirm that the facts in this defence are true to the best of my knowledge and belief.
Thanks guys
0
Comments
-
Hi and welcome.
Have you actually received a County Court Claim Form yet?
If not, maybe preparing a Defence is a little premature, although it is always good to keep an eye on the future.
It sounds like you have just received a Letter of Claim, or a Letter Before Claim, then post #2 of the NEWBIES FAQ sticky thread offers good guidance on how to respond to it.0 -
Hiya yes definitely court claim received as now have to communicative via the moneyclaim site,thank you0
-
What is the Issue Date on your Claim Form?0
-
It's the 28/1. But I followed the steps and acknowledged it so should have the 28 days allowance. Thank you0
-
With a Claim Issue Date of 28th January, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 4th March 2019 to file your Defence.
That's two weeks away. Loads of time to produce a very good 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.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- 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.
0 - Sign it and date it.
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Thank you very much:) greatly appreciated0
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Your point #5, with the facts, is good but the rest of the template is old/too long.
Just us bargepole's template defence, include what you say in #5 above, and make sure it has the point about no landowner authority, and your job at this point will be done.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you!
0
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