BW Legal court claim defence

ELR

Hi all,

I have received a court claim from BW Legal/Britannia Parking, and sent off my AoS, but I am now in the middle of preparing my defence. I have written one based on the defences template in the newbies thread, and some parts of other threads that I felt applied to my case too. The summary of my situation is as follows:
-A windscreen ticket was issued for each of the two tickets, however no NTK was ever received
-I have submitted a SAR to Britannia and BW Legal, as well as an email to the DVLA to see who has accessed my data
-The SAR to BW Legal was returned (all they had was our email correspondences, and two addresses - the one at the time of the alleged contravention and the one I have moved to since). BW Legal failed to respond to the part of the email where I stated that their client failed to comply with PoFA by not sending a NTK.
-The SAR to Britannia is still awaiting a reply. I have had to write my defence without knowing what evidence they intend to us, and whether they are going to try and claim they sent a NTK.
-The request to the DVLA is still pending also, but I have had to write my defence without knowing when Britannia accessed my details
-The issue date on the claim form is 26th Feb 2019, am I right in thinking I have until the 26th of March (28 days later) to send off my defence?

I'll post my defence in a new comment to keep things separate and neat

ELR

IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BRITANNIA PARKING LTD (Claimant)

-and-

XXXX XXXX (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant (Miss XXXX XXXX, DOB XX.XX.XXXX, residing at XXXXXXXXX) is the registered keeper of the vehicle in question (XXXX XXX). The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXXXXXXX on 03.05.2016.

2. The Defendant denies that The Claimant is entitled to relief in the sum claimed, or at all.

3. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim. In particular, the Claimant has not made clear whether their claim is via trespass, common law breach of contract or via the Protection of Freedoms Act 2012.

4. The signage in the car park is of a ‘forbidding’ nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship.

5. The Consumer Rights Act 2015 (s69) applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.

6. Signs are located at a distance, unlit, and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. Upon further inspection of the cark park, signage stating terms and conditions were not visible, obvious or readable from any location when inside a vehicle.

7. The terms on The Claimant's signage are displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xfthigh. That anyone attempting to read the tiny font would be unable to do so easily.

8. 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 signage is capable of creating a legally binding contract.

9. The Defendant requests evidence of where the car was parked and from photos taken how the signage appeared on the material date, at that time, from the angle of the driver's perspective. The Defendant requires how the signage appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. The Defendant submits that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

10. This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as it can be ascertained, based upon the vague particulars of claim, it seems reasonable to assume the driver of the vehicle did not see the signage as signage displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. The defendant believes this distinguishes this case from Parking Eye vs Beavis [2015] none of this applies in this material case

11 The Claimant has failed to comply with the Protection of Freedoms Act 2012, Schedule 4, at Section 4 in the following ways:
11.1. No Notice to Keeper was delivered.
11.2. The maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case the amount unknown as the Notice to Keeper was never served/delivered. The claim includes an additional £60, for estimated legal costs, which appears to be an attempt at double recovery. This is because The Claimant later adds more legal costs to the claim.

12. In addition to the original parking charge, for which liability is denied, The Claimant has artificially inflated the value of the Claim by adding purported additional costs. The added costs are an artificially invented figure, which represents an attempt to circumvent the small claims costs rules.

13. The Defendant has no knowledge of the Claimant's legal right to control parking on the site and pursue claims relating to its use. The Claimant is put to proof to prove that it has such rights

14. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

15. The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead their case else the Claim should stand struck out.

16. In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend their defence and would ask that the Claimants bear the costs of the amendment.

The Defendant believe the facts contained in this Defence are true.

Name
Signature
Date

KeithP

ELR wrote: »

-The issue date on the claim form is 26th Feb 2019, am I right in thinking I have until the 26th of March (28 days later) to send off my defence?

No, that isn't correct.

I'm going to assume that the Claim Form came from the County Court Business Centre in Northampton. Please confirm.

With a Claim Issue Date of 26th February, you had until Monday 18th March to do the Acknowledgement of Service. Did you do the AoS in that timescale? Again please confirm.

If you did the AoS by Monday 18th March, then you have until 4pm on Monday 1st April 2019 to file your Defence.

That's under two weeks away. Loads of time to produce a Defence, and it's good to see you're 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.
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.

ELR

it did come from Northampton, and I did the AoS in time

Coupon-mad

In #1 you have this date:

on 03.05.2016.

and in #9 you mention 'the material date', yet you said there were 2 PCNs.
Have they issued a claim for both, and if they have, were they from the same day?

Only mention the signs being 'unlit' if the photo evidence that they have will have been taken at night (you can tell from the issue times of the PCNs).

You need to add the usual point seen in all other defences, about them not being the landowner and having no standing to sue.

What sort of car park was it, residential?

Why was the car there and was it only observed for a few minutes (see the PCNs)?

ELR

There were 2 PCNs, and so I was writing the same defence for both as they are both the same conditions but 6 days apart. Thanks for pointing out the 'unlit' part, I'll remove that now! The car park is a permit-only one for a car park belonging to a uni I am a student of, and who make it the terms of buying a permit quite difficult (you have to meet a lot of criteria). Unfortunately I can't see the PCNs as this happened nearly 3 years ago and as such I no longer have them. Annoyingly, I am still waiting on the reply to the SAR, which will give me an indication of all the finer details of the case.

Coupon-mad

There were 2 PCNs, and so I was writing the same defence for both as they are both the same conditions but 6 days apart.

Two claims? That's an abuse of process. If so, add a defence point fairly high up, stating this (thanks to bargepole for this wording):

The Court is invited to take note that the Claimant has issued two claims, numbers XXXXXXXX and XXXXXXXX, against the Defendant at or around the same date, and with substantially identical particulars. It is submitted that this constitutes an abuse of process, making the Defendant potentially liable for two instances of issue fees, solicitor costs, and hearing fees, and runs contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and to apply appropriate sanctions against the Claimant.

You will be unlikely to have that noticed by a Judge this early, but then repeat it in a covering letter/email at each stage after that (see bargepole's summary of what happens when). Do not miss a trick to ask for this AGAIN and AGAIN, if you have two claims, until finally your local Judge will likely issue an Order consolidating them.

Le_Kirk

3. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim. In particular, the Claimant has not made clear whether their claim is via trespass, common law breach of contract or via the Protection of Freedoms Act 2012.

Defences are written in the Third Person and here you slip into First Person. I think you mean "claim is FOR trespass" etc.

Not sure that (in point 9) you can ask for evidence! Others may agree it is OK to do this but surely you should have requested this of the claimant in response to a LBC if the evidence was not forthcoming in the POC or via a SAR. In your defence you can then state you have not received it.

ELR

Thats really helpful, thank you! Amending my defence now!

ELR

Hi again, I have received a reply from Britannia about my SAR. Am I reading it right - is it over? Or should I still submit my defence? The email is as follows:


Dear XXXX
Thank you for your email.

Please find enclosed your Subject Access Request.

Our records indicate you have 2 PCN’s on our system, however upon further review of these Parking Charge Notices in line with our current procedure, we have cancelled both Parking Charge Notices and no further action will be taken.

The signage in the car park advises you that “Where the Parking Charge remain unpaid beyond 28 days, additional charges in respect of further action may apply.”

The signage also advises that “Personal data may be shared with POPLA, BPA, Debt Recovery or solicitor’s”.

We do not sell on aged debt, this would be a breach of the BPA Code of Practise and therefore, there is no payment. Britannia Parking will always remain as the creditor for the outstanding debt.

Kind Regards,

XXXX
Data Protection Team

ELR

In the SAR they returned, they didn't send any letter expressly stated 'Notice to Keeper', only ones titled 'Parking Charge Notice' and 'Parking Charge Notice Final Reminder'. The dates between the contravention (03/05/16 and 09/05/16) and the 'date of this notice' (18.07.16 for both tickets) are outside the 56 day period. Is this why they have given up?