Court Claim Britannia BW legal again

Castle

Le_Kirk wrote: »

True but that is not personal data.

"Sales invoices", (in this case PCN's), will need to be kept as well as receipts.

Norfolkinchance

Hi everyone, here is my initial defence draft, any critique or amendments are welcomed. Still have no SAR info from Brit Park to go on!

Many thanks in advance

In The County Court
Claim No: XXXXXXX
Between
XXXXX (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The particulars of the claim, state the legal basis is brought against the Defendant for failing to settle their outstanding liability. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct when parking at xxxxxxxx on xxx

2.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £85 'Parking Charge Notice ('PCN')'.

3. The Particulars of Claim are vague at best and make no reference that the registered keeper was in fact the driver of the vehicle; XXXXXXXXXXXXX. Any assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

4. The Defendant is the registered keeper of the vehicle. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording and/or deadlines set by the POFA. Any non-compliance voids any right to ‘keeper liability’.

5. Further and in the alternative, 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.

5.1. The facts of the matter are that there were no visible signs stating the claimants terms upon entering the car park area.
This is in contravention of The British Parking Association (BPA) Approved Operator Scheme (AoS) section 18.3 under which the claimant is an active member.

5.2. The claimant has one sign positioned to the left of an adjoining car park at its entrance but not at the entrance to the car park in question. This sign is positioned so that any passing pedestrians or vehicles parked on the road would completely obscure it from view. Further to this the signage in the car park is poorly lit and positioned in such a way that it could be covered by foliage. It is denied that the claimant's sign sets out the terms in a sufficiently clear or visible manner which would be capable of binding any reasonable person reading them. It is, therefore, denied that the Claimant's sign is capable of creating a legally binding contract.
This sign is in contravention of the BPA AoS Appendix B. The signage has been changed recently in the car parks but still has no signs at the direct entrance to the site.

5.3. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5.4. The claimant has failed to respond to SAR requests regarding this claim so the Defendant has no NTK or original PCN to base a defence on. The claimant has had several requests but has failed to provide any data regarding this case.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

6.1 The signage states that "Britannia Parking manage and control this car park". Britannia Parking are therefore acting as an agent of the landowner. As an agent, the Claimant has no legal right to bring such a claim in their name. Any claim should be in the name of the landowner.
Neither the claim form, nor the signage state who the owner of the land is.

7. The Defendant has the reasonable belief that the Claimant has artificially inflated the claim value by claiming to have paid vague costs (contractual costs) totaling £XX in addition to an alleged £85 debt.
Previous letters to the defendant from BW Legal have stated that the £XX claimed is for “our client's initial legal costs".
Legal services cannot be claimed in the small claims court as per CPR 27.14

7.1. The claim includes a sum of £XX, described as "Legal representative's costs". This work is done as part of the Claimant's Legal Representatives everyday routine and no "expert services" are involved. The Claimant is put to strict proof, by way of timesheets or otherwise, to show how this cost has been incurred.

7.2. This claim inflates the total to an eye-watering £2xx.xx, in a clear attempt at double recovery. 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. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.

7.3 The Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid. The defendant also asks why they waited over a year to bring this to court and why they believe their own negligence and delay should earn a Claimant 8% interest, to the imbalance of a consumer's rights and interests

8. It was held in the Supreme Court in Parkingeye v Beavis [2015] UKSC 67 (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 Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, caused by parking firms artificially inflating their robo-claims.

9. 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 costs allegedly incurred by already renumerated clerical staff working for BW Legal in issuing robo-claims.

10. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

11. 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

12. In summary, it is the Defendant's 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.

I believe that the facts stated in this Defence are true.

Name
Signature
Date

Coupon-mad

make no reference that the registered keeper was in fact the driver of the vehicle;

Do you mean to suggest that the keeper ''was in fact'' the driver? That's how it sounds.

Norfolkinchance

Hi Coupon-Mad

Many thanks for the reply.

What I’m trying to get across in that statement is that BP/BWL has not indicated anywhere in the poor POC or LBC that the keeper was the driver at the time.

Would this be better?

3. The Particulars of Claim are vague at best and make no reference to the registered keeper being the driver of the vehicle; XXXXXXXXXXXXX on XXX. Any assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

Also, is it worth putting in at this point that it was impossible for me to have been the driver as I was in hospital after surgery or do we keep that until WS.


Many thanks for your help and time

Coupon-mad

What I’m trying to get across in that statement is that BP/BWL has not indicated anywhere in the poor POC or LBC that the keeper was the driver at the time.

Yes I know you were, but including the words 'was in fact the driver' leads the reader to conclude exactly that. This isn't much better, IMHO:

make no reference to the registered keeper being the driver of the vehicle;

You simply need to use the version of words bargepole wrote in his examples in the NEWBIES thread. That's where the bit about 'menu of choices' comes from and it doesn't need rewording.

Norfolkinchance

Thanks Coupon-Mad

I will re-jig it back to Bargepoles version, I think I am over thinking it!!!!

You’re a star

Norfolkinchance

Hi again, sorry

I remember now why I was trying to change the wording, in the examples by Bargepole they say for example:

3. The Particulars of Claim state that the Defendant xxxxxxxx ;was the registered keeper and/or the driver of the vehicle(s) xxxxxxxx;.

My POC is so vague that it merely says “Monies due from the Defendant to the Claimant in respect of a PCN” and no mention of keeper and/or driver.

Am I still ok to use Bargepoles wording.

Sorry if this is a silly question.

Coupon-mad

Not a silly question at all, I am glad you are reading/responding to the POC.

Why not use your words:

The POC are so vague that it merely says “Monies due from the Defendant to the Claimant in respect of a PCN” and no mention of keeper and/or driver liability.

Norfolkinchance

Thank you again, will re-jig that section once I’ve got the little ones off to bed and I’ll post up my revised defence.

I will need to email it to court in the morning tomorrow before work.

I can’t begin to explain how amazing you and all the contributors are on this forum, you have helped reduce my stress levels!!

Norfolkinchance

Hi again, here goes the final draft of my defence. Only difference is the section 3 amendment.

If all’s ok I will email first thing in the morning and I will update you as soon as I hear from court etc. Many thanks again in advance.

In The County Court
Claim No: XXXXXXX
Between
XXXXX (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The particulars of the claim, state the legal basis is brought against the Defendant for failing to settle their outstanding liability. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct when parking at xxxxxxxx on xxx

2.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £85 'Parking Charge Notice ('PCN')'.

3. The Particulars of Claim are so vague that it merely says “Monies due from the Defendant to the Claimant in respect of a PCN” and no mention of keeper and/or driver liability. Any assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

4. The Defendant is the registered keeper of the vehicle. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording and/or deadlines set by the POFA. Any non-compliance voids any right to ‘keeper liability’.

5. Further and in the alternative, 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.

5.1. The facts of the matter are that there were no visible signs stating the claimants terms upon entering the car park area.
This is in contravention of The British Parking Association (BPA) Approved Operator Scheme (AoS) section 18.3 under which the claimant is an active member.

5.2. The claimant has one sign positioned to the left of an adjoining car park at its entrance but not at the entrance to the car park in question. This sign is positioned so that any passing pedestrians or vehicles parked on the road would completely obscure it from view. Further to this the signage in the car park is poorly lit and positioned in such a way that it could be covered by foliage. It is denied that the claimant's sign sets out the terms in a sufficiently clear or visible manner which would be capable of binding any reasonable person reading them. It is, therefore, denied that the Claimant's sign is capable of creating a legally binding contract.
This sign is in contravention of the BPA AoS Appendix B. The signage has been changed recently in the car parks but still has no signs at the direct entrance to the site.

5.3. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5.4. The claimant has failed to respond to SAR requests regarding this claim so the Defendant has no NTK or original PCN to base a defence on. The claimant has had several requests but has failed to provide any data regarding this case.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

6.1 The signage states that "Britannia Parking manage and control this car park". Britannia Parking are therefore acting as an agent of the landowner. As an agent, the Claimant has no legal right to bring such a claim in their name. Any claim should be in the name of the landowner.
Neither the claim form, nor the signage state who the owner of the land is.

7. The Defendant has the reasonable belief that the Claimant has artificially inflated the claim value by claiming to have paid vague costs (contractual costs) totaling £XX in addition to an alleged £85 debt.
Previous letters to the defendant from BW Legal have stated that the £XX claimed is for “our client's initial legal costs".
Legal services cannot be claimed in the small claims court as per CPR 27.14

7.1. The claim includes a sum of £XX, described as "Legal representative's costs". This work is done as part of the Claimant's Legal Representatives everyday routine and no "expert services" are involved. The Claimant is put to strict proof, by way of timesheets or otherwise, to show how this cost has been incurred.

7.2. This claim inflates the total to an eye-watering £2xx.xx, in a clear attempt at double recovery. 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. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.

7.3 The Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid. The defendant also asks why they waited over a year to bring this to court and why they believe their own negligence and delay should earn a Claimant 8% interest, to the imbalance of a consumer's rights and interests

8. It was held in the Supreme Court in Parkingeye v Beavis [2015] UKSC 67 (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 Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, caused by parking firms artificially inflating their robo-claims.

9. 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 costs allegedly incurred by already renumerated clerical staff working for BW Legal in issuing robo-claims.

10. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

11. 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

12. In summary, it is the Defendant's 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.

I believe that the facts stated in this Defence are true.

Name
Signature
Date