Britannia/BW Legal Claim Form

jackpot_spaniel

My court date is 15 November. First draft of Witness Statement below - I would be grateful for any comments, including how to include all the associated documentation, thanks!

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IN THE <Town> COUNTY COURT

CLAIM NO. X

BETWEEN

BRITANNIA PARKING GROUP LIMITED (Claimant)

-and-

X (Defendant)

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WITNESS STATEMENT
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1 I, NAME of ADDRESS am the Defendant in this Claim. The facts in this statement come from my personal knowledge.

2 The Defence is repeated.

3 District Judges have struck out similar claims as an abuse of process. Two recent examples of this include claim number F0DP163T, District Judge Grand; and claim number F0DP201T, District Judge Taylor. I invite the Court to strike out this Claim as an abuse of process, given that the Claimant and their legal representative knowingly inflated it with substantial additional charges of £60 and £50. These charges are not permitted under Civil Procedure Rule (CPR) 27.14, or Section 4(5) of Schedule 4 of the Protection of Freedoms Act (POFA) 2012 (Appendix 1) under which I am being pursued as the Keeper of the vehicle. I have reported the Claimant’s legal representative to the Solicitors Regulation Authority (SRA) (Appendix 2) for engaging in this practice, which is a clear breach of the SRA’s Principles (Appendix 3). Furthermore, these charges are contradictory to paragraphs 19.5 and 19.6 of the British Parking Association (BPA) Code of Practice (CoP), of which Version 6 was in force at the time of the alleged contravention (Appendix 8).

4 Given that the Claimant is pursuing me as the Keeper of the vehicle under Schedule 4 of the POFA, then there is no requirement for me to identify the Driver of the vehicle at the time of the alleged contravention.

5 I requested photographs of the signage that was in place at the car park at the time of the alleged contravention in my Subject Access Request (SAR) to the Claimant on X January 2019 (Appendix 4). The Claimant responded that “A copy of the signage will be provided as evidence at court” (Appendix 4). Therefore, it is clear that the Claimant wished for the Claim to proceed to the Court without me seeing the original parking terms and conditions, which is contrary to the process described in the Pre-Action Protocol for Debt Claims (Appendix 5). Despite my SAR, the Claimant’s legal representative later noted in a response to my Defence that “Our Client has not received any correspondence from yourself” (Appendix 6). I have still not received any photographs of the signage that was in place at the time of the alleged contravention. As such, I believe that the Claim fails to comply with the Pre-Action Protocol for Debt Claims, CPR 16.4 and Civil Practice Direction (CPD) 16, Paragraph 7.3. I invite the Court to strike out the Claim accordingly.

6 I have included pictures of the signage that was in place at the car park on X January 2019 (Appendix 7). The Driver has noted that the signs in place at the time of the alleged contravention (X August 2017) were different to the signs in place on X January 2019 (Appendix 7). The Driver notes that the main differences are that the signs in place at the time of the alleged contravention were less numerous; in a different, more subdued style; contained far less detail regarding terms and conditions; and did not include any clear mention of an Automatic Number Plate Recognition (ANPR) system. I believe that these details place the Claimant’s signage that was in place at the time of the alleged contravention in breach of the British Parking Association (BPA) Code of Practice (CoP), of which Version 6 was in force at the time of the alleged contravention (Appendix 8). As a BPA member and approved operator, the Claimant must comply with the mandatory BPA CoP. As the Claimant is pursuing me under Schedule 4 of the POFA, the car park signage must comply with Sections 2(2) and 2(3) of Schedule 4 of the POFA (Appendix 1). I put the Claimant to strict proof of the signage that was in place at the time of the alleged contravention, and its compliance with the BPA CoP and Schedule 4 of the POFA.

7 The BPA CoP Section 18.2 requires the Claimant to have a standard form of entrance sign at the entrance to the car park, which must follow some minimum general principles. The pictures taken on X January 2019 (Appendix 7) show that the Claimant’s new entrance signage is positioned such that it cannot be read by drivers as they enter the car park. It is assumed that the entrance signage in place at the time of the alleged contravention would have been similar at the very best, and I put the Claimant to strict proof. If the entrance signage in place at the time of the alleged contravention was similar to that shown in Appendix 7, then I believe the Claimant is in breach of the BPA CoP, and it is denied that the Claimant's signage is capable of creating a legally binding contract.

8 The BPA CoP Version 6 (Appendix 8) Section 13 requires the Claimant to allow two ‘grace periods’ – one reasonable period at the beginning of the parking period, and a minimum of 10 minutes at the end of the parking period. The intent of the beginning grace period is to allow a driver reasonable time to enter a car park, wait for any pedestrian or vehicle traffic to clear, find a suitable parking space, safely park and exit the vehicle, locate car park signage, read the car park signage, and decide whether or not to remain in the car park. I believe that at least X minutes would be required for this list of events to reasonably occur at the car park in question. The intent of the end grace period is to allow a driver to safely exit the car park, with adequate time to account for any pedestrian or vehicle traffic, and this is why the BPA CoP requires a minimum of 10 minutes. If the period of free parking was indeed 20 minutes, then the alleged Y minute overstay COLOR="Red"]X minutes + 10 minutes[/COLOR easily falls within the required grace periods, and the Claim is in breach of the BPA CoP.

9 Section 9 of Schedule 4 of the POFA (Appendix 1) details the explicit requirements of a Notice to Keeper, including the timeline that must be given. Section 9(2)(f) requires the Parking Charge Notice (PCN) to: “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given…” However, the Claimant’s PCN (Appendix 9) notes that: “You are warned that if, after 28 days, the Parking Charge has not been paid in full…” Therefore, the Claimant’s PCN is not compliant with Section 9(2)(f) of the POFA, and misleads the consumer about the statutory timeline. Indeed, the Claimant notes within their PCN that their right to pursue the Keeper is “subject to our complying with the applicable conditions under Schedule 4 of” the POFA.

10 Appendix 10 contains all the other documentation I have received relating to the claim.

11 In summary, it is my 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.

12 I will be taking leave from work in order to attend the hearing, and will be seeking recovery of my allowable expenses and the maximum permitted amount for loss of leave.

13 I believe the facts contained in this Witness Statement are true.

KeithP

I would move para 3 towards the bottom of the WS.

Para 5 - needs reworking. Of course the Claimant din't supply copies of the signs in response to your SAR. The signs do no contain any personal data, therefore their response to that request in a SAR was ok.
You should however have asked for a copy of the signs (the contract) as part of your pre-action process to narrow the issues.

Consider filing and serving your Costs Schedule at the same time as your Witness Statement and evidence.

jackpot_spaniel

Thanks Keith

I wanted Para 3 to stick out, as I think it's currently the most relevant to getting this whole thing thrown out. However, I can understand the WS is supposed to follow the timeline, so will move it.

I can understand that a SAR relates to personal data. However, if the email that included my SAR also explicitly requested pictures of the signage, then surely that counts as me requesting the signage from them?

KeithP

BW Legal are dealing with this claim on behalf of Brit.

Brit's only obligation is to respond to a SAR.

Everything else is the responsibility of BW Legal.

Brit are not going to be helpful. Why would they be?

jackpot_spaniel

Updated - I still think if I emailed Britannia asking for the signage that was in place, they should have responded with the signage. Otherwise they're not following the Pre-Action Protocol for Debt Claims...

Is there any guidance on preparing a Cost Schedule to submit/serve with my WS? I searched the forum but couldn't find anything specific...

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IN THE <Town Name> COUNTY COURT

CLAIM NO. X

BETWEEN

BRITANNIA PARKING GROUP LIMITED (Claimant)

-and-

X (Defendant)

---
WITNESS STATEMENT
---

1 I, NAME of ADDRESS am the Defendant in this Claim. The facts in this statement come from my personal knowledge.

2 The Defence is repeated.

3 Given that the Claimant is pursuing me as the Keeper of the vehicle under Schedule 4 of the Protection of Freedoms Act (POFA) 2012 (Appendix 1), there is no requirement for me to identify the Driver of the vehicle at the time of the alleged contravention.

4 Section 9 of Schedule 4 of the POFA (Appendix 1) details the explicit requirements of a Notice to Keeper, including the timeline that must be given. Section 9(2)(f) requires the Parking Charge Notice (PCN) to: “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given…” However, the Claimant’s PCN (Appendix 2) notes that: “You are warned that if, after 28 days, the Parking Charge has not been paid in full…” Therefore, the Claimant’s PCN is not compliant with Section 9(2)(f) of the POFA, and misleads the consumer about the statutory timeline. Indeed, the Claimant notes within their PCN (Appendix 2) that their right to pursue the Keeper is “subject to our complying with the applicable conditions under Schedule 4 of” the POFA.

5 I requested photographs of the signage that was in place at the car park at the time of the alleged contravention in my email to the Claimant on X January 2019 (Appendix 3). The Claimant responded that “A copy of the signage will be provided as evidence at court” (Appendix 3). Therefore, it is clear that the Claimant wished for the Claim to proceed to the Court without me viewing all of the original parking terms and conditions in detail, which is contrary to the process described in the Pre-Action Protocol for Debt Claims (Appendix 4). Despite my email, the Claimant’s legal representative later noted in a response to my Defence that “Our Client has not received any correspondence from yourself” (Appendix 5). I have still not received any photographs of the signage that was in place at the time of the alleged contravention. As such, the Claim fails to comply with the Pre-Action Protocol for Debt Claims, Civil Procedure Rule (CPR) 16.4 and Civil Practice Direction (CPD) 16, Paragraph 7.3. I invite the Court to strike out the Claim accordingly.

6 I have included pictures of the signage that was in place at the car park on X January 2019 (Appendix 6). The Driver believes that the signs in place at the time of the alleged contravention (X August 2017) were different to the signs in place on X January 2019 (Appendix 6). The Driver believes that the main differences are that the signs in place at the time of the alleged contravention were less numerous; in a different, more subdued style; contained far less detail regarding terms and conditions; and did not include any clear mention of an Automatic Number Plate Recognition (ANPR) system. These details place the Claimant’s signage that was in place at the time of the alleged contravention in breach of the British Parking Association (BPA) Code of Practice (CoP), of which Version 6 was in force at the time of the alleged contravention (Appendix 7). As a BPA member and approved operator, the Claimant must comply with the mandatory BPA CoP. As the Claimant is pursuing me under Schedule 4 of the POFA, the car park signage must comply with Sections 2(2) and 2(3) of Schedule 4 of the POFA (Appendix 1). I put the Claimant to strict proof of the signage that was in place at the time of the alleged contravention, and its compliance with the BPA CoP and Schedule 4 of the POFA.

7 The BPA CoP Section 18.2 requires the Claimant to have a standard form of entrance sign at the entrance to the car park, which must follow some minimum general principles. The pictures taken on X January 2019 (Appendix 6) show that the Claimant’s new entrance signage is positioned such that it cannot be read by drivers as they enter the car park. If the entrance signage in place at the time of the alleged contravention was similar or less clear than that shown in Appendix 6, then the Claimant is in breach of the BPA CoP, and it is denied that the Claimant's signage is capable of creating a legally binding contract. The Claimant is put to strict proof of the signage that was in place.

8 The BPA CoP Version 6 (Appendix 7) Section 13 requires the Claimant to allow two ‘grace periods’ – one reasonable period at the beginning of the parking period, and a minimum of 10 minutes at the end of the parking period. The intent of the beginning grace period is to allow a driver reasonable time to enter a car park, wait for any pedestrian or vehicle traffic to clear, find a suitable parking space, safely park and exit the vehicle, locate car park signage, read the car park signage, and decide whether or not to remain in the car park. At least X minutes would be required for this list of events to reasonably occur at the car park in question. The intent of the end grace period is to allow a driver to safely exit the car park, with adequate time to account for any pedestrian or vehicle traffic, and this is why the BPA CoP requires a minimum of 10 minutes. If the period of free parking was indeed 20 minutes, then the alleged Y minute overstay easily falls within the required grace periods, and the Claim is in breach of the BPA CoP.

9 District Judges have struck out similar claims as an abuse of process. Recent examples of this include claim number F0DP201T, District Judge Taylor; claim number F0DP163T, District Judge Grand; and claim numbers F4DP5264 and F4DP5279, District Judge Giddins. I invite the Court to strike out this Claim as an abuse of process, given that the Claimant and their legal representative knowingly inflated it with substantial additional charges of £60 and £50. These charges are not permitted under CPR 27.14, or Section 4(5) of Schedule 4 of the POFA (Appendix 1) under which I am being pursued as the Keeper of the vehicle. I have reported the Claimant’s legal representative to the Solicitors Regulation Authority (SRA) (Appendix 8) for engaging in this practice, which is a clear breach of the SRA’s Principles (Appendix 9).

10 Appendix 10 contains all the other documentation I have received relating to the claim.

11 In summary, it is my 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.

12 I will be taking leave from work in order to attend the hearing, and will be seeking recovery of my allowable expenses and the maximum permitted amount for loss of leave.

13 I believe the facts contained in this Witness Statement are true.

Le_Kirk

All guidance for witness statement and cost schedules can be found in the NEWBIE sticky post # 2.

jackpot_spaniel

Should I include the debt collector letters in the evidence bundle, or just the BW Legal letters?

Le_Kirk

You include anything in the bundle that is EVIDENCE in support of your defence. You might want them as evidence of unreasonable behaviour on the part of the PPC.

jackpot_spaniel

I'm assuming the judge will have copies of my Defence and Witness Statement to hand, so these do not need to be included in the bundle?

Coupon-mad

But take a 2nd one just in case. We've seen Judges say they do not have it!

You also need to take PROOF that you emailed or posted a copy of the WS & evidence to the Claimant, and when.

We've seen them lie in court that the C has not received it, and Judges have allowed them an adjournment to get their ducks in a row, when the D could have killed that by whipping out proof of posting.