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NCP BW Legal Pay and Display
Enzo19
Posts: 7 Forumite
Hi,
This forum has been invaluable to date. Thanks to everyone for all the brilliant information. I have studied the newbies thread and only wish I had come her sooner.
I post as registered keeper and having ignored (I know I know) initial parking charge notice’s and letter of claim. I now find myself with a letter from the County Court Business Centre the claim is for “a parking contravention in a private car park around 6 months ago. I’m being pursued by NCP and BW Legal and look forward to fighting this all the way. FYI The parking charge notice’s state “parked longer than time paid for”.
As background, the driver entered an unfamiliar car park via pressing a button and the barrier rising noting signs regarding that ANPR was in operation. The driver parked up, went about their business and returned. They then went to the pay machines, entered the cars reg and at this point the driver realised the car park was pay and display and not pay on exit as assumed.
The driver then purchased a ticket for the time they believed they had been parked (15 minutes short according the SAR information subsequently received). Even after paying there was no visible have you paid and displayed signs and then the driver left left.
As registered keeper I have requested twice an SAR and now have all information to hand including the PDT machine information and ANPR photos of the vehicles number plates entering and exiting. As defendant I have also completed the acknowledgment of service and need to file a defence by 3 April.
As the claim is so vague, I’m not sure what would be the most appropriate defence? Registered Keeper? Poor signage? Fee paid therefore grace and overstay? Therefore I have tried to cover all and am a bit concerned the defence is to lenghy.
Should I outline better the circumstances as I have deliberately been vague as I don’t believe BW Legal now what grounds they are pursuing on?
See below for the first draft defence, all comments greatly received :-
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
(Claimant)
-and-
(Defendant)
________________________________________
DEFENCE
_______________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Defendant is the registered keeper of the vehicle in question.
Particulars of Claim
3. The Claimant’s solicitors BW Legal are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to The Defendant’s significant detriment.
4.The Claimant has failed to provide any details of the claim prior to issuing a claim at court. As such, the Claimant has failed to comply with the Practice Direction – Pre-Action Conduct and Protocols, para 6 (a) & (c).
The Letter before Action fails to provide the following information:
i A clear summary of facts on which the claim is based.
ii A list of the relevant documents on which the claimant intends to rely.
iii How the “Principal Debt and Initial Legal Costs” of £160.00 pounds has been calculated.
5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought i.e. whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. This has denied the Defendant a fair chance to defend this claim in an informed way and therefore several defences are included.
6. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing the appropriate parking time'. Furthermore, use of ANPR only indicate alleged time of entry and exit and not a true reflection of how long the car has been parked. No evidence has been provided that a valid ticket was not purchased.
7. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 consisting of a completely unsubstantiated and inflated three-figure sum. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case.
8. As an unrepresented litigant-in-person the Defendant respectfully requests permission to amend and/or supplement this interim defence as may be required following a full disclosure of the Claimant's case.
No legally binding contract
9. 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 xx on xxx. It is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice (PCN)'.
10. In any event, it is denied that the signage used by this claimant at the time of the alleged contravention, could have created a fair or transparent contract. The signage were inconsistent, confusing, and hence incapable of binding the driver, thus distinguishing this case from ParkingEye v Beavis.
11. The terms on the Claimant's signage did not make it clear what the terms were for the car park and the terms 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
Unconscionable and unreasonable inflation of costs
10. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent with a 'parking charge' that bears no resemblance to the £4 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.
11. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50 plus 'initial legal costs' of £60, which the Defendant submits have not actually been incurred by the Claimant and constitute an attempt to achieve double recovery.
11.1. The added 'legal' costs are in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules. The Claimant's solicitors, BW Legal, recently admitted in court that their company handles millions of what are effectively cut and paste robo-claims, at any one time. The Defendant reasonably concludes that no supervising solicitor is likely to have provided legal advice for a fee or in any way supervised this claim.
12. In ParkingEye v Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a sum set in advance which was already significantly over and above the very minimal costs of operating an automated ticketing regime. Damages could not be added; it was held that a claim from a parking firm agent could not have been pleaded as damages, and would have failed because ParkingEye suffered no loss.
12.1. It was also held by the Judges in Beavis, at Court of Appeal stage, that a case regarding an ordinary transactional contractual fee (such as in a pay and display car park with a quantifiable tariff) was 'entirely different' from the complex situation in that case.
12.2. In all other 'parking charge' cases which turn on different signs and different facts, the penalty rule was held by the Supreme Court Judges to remain engaged, and that such charges cannot be enforced merely as punishment. The £85 charge in Beavis was saved from being struck out as an unenforceable penalty due to a specific legitimate interest in a quick turnover of spaces in a free car park where no tariff owing could be quantified.
13.3. None of this applies in this case.
Data Protection concerns
14. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.
15. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking event.
16. It is one thing to install PDT machines, but quite another to run an ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting visitors to the Centre, who are being caught out regularly by this trap.
17. Silently collecting VRN data in order to inflate the 'parking charge' from a few pounds 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.
18. Unlike the free car park in Beavis, this Centre is a site where the Claimant has machines to take payment of tariffs. Clearly there will be NCP staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.
No locus standi
19. 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.
20. It is believed that this is a claim that will proceed without any facts or evidence supplied by the Claimant until the last possible minute, to the significant detriment of the unrepresented Defendant.
21. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
22. 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.
Statement of Truth:
I believe the facts contained in this Defence are true
This forum has been invaluable to date. Thanks to everyone for all the brilliant information. I have studied the newbies thread and only wish I had come her sooner.
I post as registered keeper and having ignored (I know I know) initial parking charge notice’s and letter of claim. I now find myself with a letter from the County Court Business Centre the claim is for “a parking contravention in a private car park around 6 months ago. I’m being pursued by NCP and BW Legal and look forward to fighting this all the way. FYI The parking charge notice’s state “parked longer than time paid for”.
As background, the driver entered an unfamiliar car park via pressing a button and the barrier rising noting signs regarding that ANPR was in operation. The driver parked up, went about their business and returned. They then went to the pay machines, entered the cars reg and at this point the driver realised the car park was pay and display and not pay on exit as assumed.
The driver then purchased a ticket for the time they believed they had been parked (15 minutes short according the SAR information subsequently received). Even after paying there was no visible have you paid and displayed signs and then the driver left left.
As registered keeper I have requested twice an SAR and now have all information to hand including the PDT machine information and ANPR photos of the vehicles number plates entering and exiting. As defendant I have also completed the acknowledgment of service and need to file a defence by 3 April.
As the claim is so vague, I’m not sure what would be the most appropriate defence? Registered Keeper? Poor signage? Fee paid therefore grace and overstay? Therefore I have tried to cover all and am a bit concerned the defence is to lenghy.
Should I outline better the circumstances as I have deliberately been vague as I don’t believe BW Legal now what grounds they are pursuing on?
See below for the first draft defence, all comments greatly received :-
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
(Claimant)
-and-
(Defendant)
________________________________________
DEFENCE
_______________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Defendant is the registered keeper of the vehicle in question.
Particulars of Claim
3. The Claimant’s solicitors BW Legal are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to The Defendant’s significant detriment.
4.The Claimant has failed to provide any details of the claim prior to issuing a claim at court. As such, the Claimant has failed to comply with the Practice Direction – Pre-Action Conduct and Protocols, para 6 (a) & (c).
The Letter before Action fails to provide the following information:
i A clear summary of facts on which the claim is based.
ii A list of the relevant documents on which the claimant intends to rely.
iii How the “Principal Debt and Initial Legal Costs” of £160.00 pounds has been calculated.
5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought i.e. whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. This has denied the Defendant a fair chance to defend this claim in an informed way and therefore several defences are included.
6. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing the appropriate parking time'. Furthermore, use of ANPR only indicate alleged time of entry and exit and not a true reflection of how long the car has been parked. No evidence has been provided that a valid ticket was not purchased.
7. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 consisting of a completely unsubstantiated and inflated three-figure sum. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case.
8. As an unrepresented litigant-in-person the Defendant respectfully requests permission to amend and/or supplement this interim defence as may be required following a full disclosure of the Claimant's case.
No legally binding contract
9. 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 xx on xxx. It is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice (PCN)'.
10. In any event, it is denied that the signage used by this claimant at the time of the alleged contravention, could have created a fair or transparent contract. The signage were inconsistent, confusing, and hence incapable of binding the driver, thus distinguishing this case from ParkingEye v Beavis.
11. The terms on the Claimant's signage did not make it clear what the terms were for the car park and the terms 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
Unconscionable and unreasonable inflation of costs
10. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent with a 'parking charge' that bears no resemblance to the £4 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.
11. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50 plus 'initial legal costs' of £60, which the Defendant submits have not actually been incurred by the Claimant and constitute an attempt to achieve double recovery.
11.1. The added 'legal' costs are in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules. The Claimant's solicitors, BW Legal, recently admitted in court that their company handles millions of what are effectively cut and paste robo-claims, at any one time. The Defendant reasonably concludes that no supervising solicitor is likely to have provided legal advice for a fee or in any way supervised this claim.
12. In ParkingEye v Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a sum set in advance which was already significantly over and above the very minimal costs of operating an automated ticketing regime. Damages could not be added; it was held that a claim from a parking firm agent could not have been pleaded as damages, and would have failed because ParkingEye suffered no loss.
12.1. It was also held by the Judges in Beavis, at Court of Appeal stage, that a case regarding an ordinary transactional contractual fee (such as in a pay and display car park with a quantifiable tariff) was 'entirely different' from the complex situation in that case.
12.2. In all other 'parking charge' cases which turn on different signs and different facts, the penalty rule was held by the Supreme Court Judges to remain engaged, and that such charges cannot be enforced merely as punishment. The £85 charge in Beavis was saved from being struck out as an unenforceable penalty due to a specific legitimate interest in a quick turnover of spaces in a free car park where no tariff owing could be quantified.
13.3. None of this applies in this case.
Data Protection concerns
14. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.
15. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking event.
16. It is one thing to install PDT machines, but quite another to run an ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting visitors to the Centre, who are being caught out regularly by this trap.
17. Silently collecting VRN data in order to inflate the 'parking charge' from a few pounds 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.
18. Unlike the free car park in Beavis, this Centre is a site where the Claimant has machines to take payment of tariffs. Clearly there will be NCP staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.
No locus standi
19. 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.
20. It is believed that this is a claim that will proceed without any facts or evidence supplied by the Claimant until the last possible minute, to the significant detriment of the unrepresented Defendant.
21. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
22. 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.
Statement of Truth:
I believe the facts contained in this Defence are true
0
Comments
-
The claim form has an issue date of 1 March.0
-
I think that, if they went all the way with this, they might struggle, although why you assumed that the car park was pay on exit baffles me.
The judge may well think that this is a very trifling matter and that the claim is a waste of court time as you paid in full and there was no loss
https://en.wikipedia.org/wiki/De_minimis
but he/she might not. I suggest that you get your MP involved as, imo, they are trying it on.
This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.
Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct
The problem become so widespread that MPs agreed to enact a Bill to regulate these scammers. It has cleared Parliament and hopefully, this will become law shortly.You never know how far you can go until you go too far.0 -
Thanks for your reply.
The driver had said that they had never before visited an NCP car park that was both pay and display and barrier controlled in a town centre and saw no have you paid signs!!0 -
You are right with your dates, but there might be something useful here...The claim form has an issue date of 1 March.
With a Claim Issue Date of 1st March, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 3rd April 2019 to file your Defence.
That's over two weeks away. Loads of time to produce a good Defence, and it is good to see that you are not leaving 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.
-
Wow this forum is so busy. Would really appreciate it if someone would have a read through of my defence and let me know if you think it's ok. Thank you0
-
You've covered all the usual points but is very long. Suggest you look at one or more of Bargepole's concisely written defences in NEWBIE section post # 2 and adapt to suit your situation.0
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Thanks for your comments I'm struggling a little to know what would be best to remove as the claim is so vague.
Do you think in the background I should Include that the driver did purchase a ticket retrospectively?
Thanks0 -
Bumping for further comments. Thanks in advance.0
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Well that should form part of your defence, which is normally to be found in Bargepole's concisely written defences.Thanks for your comments I'm struggling a little to know what would be best to remove as the claim is so vague.
If you did buy a ticket, then yes, on the basis that you made every edeavour to fulfil the terms and conditions of parking.Do you think in the background I should Include that the driver did purchase a ticket retrospectively?0
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