Bw legal hounding please help

DoaM

Have you received a court claim yet? If not then there's no defence to start doing.

Parking_nightmare_321

Yes we have received one.

KeithP

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

Parking_nightmare_321

Yes country court in Northampton and the date is the 19th August. Thanks

KeithP

Parking_nightmare_321 wrote: »

Yes country court in Northampton and the date is the 19th August. Thanks

With a Claim Issue Date of 19th August, you have until Monday 9th September to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL]. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 23rd September 2019 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could 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 "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

Parking_nightmare_321

Thanks Keith. Please could you help with the legal defence side for them not providing adequate details of the alleged offence. We’ve just been told the driver overstayed and given entry and exit times. Despite asking they have never provided details of the alleged amount of time overstated. Thanks.

Redx

Nobody here will write your defence, that is your job , or employ a lawyer which is what Martin Lewis would tell you to do

Read the newbies thread post #2 , read all the example defences , if unsure then start with the concise defence by bargepole and expand on it , then post it below for advice and critique, to hone it

Read other completed court case threads by using the search box and a well known song by queen , AOBTD (hint)

nosferatu1001

If the SAR did not show any overstay amount, then they likely dont know. So you put them to strict prooof of the amount the driver allegedly overstayed.

Coupon-mad

Don't go doing the AOS within the first 5 days.

Parking_nightmare_321

Please find below my draft defense. I would be really grateful if you could take a look and advise. Thank you.

IN THE COUNTY COURT
CLAIM No: to be added!
BETWEEN:
********** (Claimant)

-and-

***** (Defendant)

DEFENCE


1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged parking charge debt for an overstay when parking at ************, ********* 14/02/2018.

2. The Claimant is put to strict proof of any breach and of their decision-making, deciding to issue a PCN and why, as well as the reasoning behind trying to collect an unconscionable £100 rather than the few pounds tariff, if it is their case that this sum went unpaid, which is denied.
.3. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, Requests have been made to the claimant on numerous occasions for details of the alleged offence; Despite this and a Subject Access Request being made to provide the defendant with clear information on the alleged offence, the defendant still to date has not been provided this. The only information provided to the defendant is that they overstayed in *** car park and their entry and exit time. It has not been disclosed what the alleged overstay time is.
3.1.On 01 October 2017 a new protocol became applicable to debt claims. The claimant was informed of this prior to their claim and informed that ‘as solicitors they must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As they (and their client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors are sending a consumer a vague and unevidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol’. Despite this the claimant failed to adhere to this guidance and began county court proceedings.
3.2. Due to the defendant not being provided with sufficient details of the alleged offence, it is impossible to provide a full defence and therefore totally unfair of the defendant to begin legal proceedings.
3.3 There is photographic proof that the car with the registration ****** entered and exited ***** car park on ****** and a ticket can clearly be seen on the dashboard evidencing that parking was paid for; causing more confusion to the alleged offence.
4. The defendant failed to receive the original PCN or subsequent letters, meaning the first letter to be received was five months after the incident on 16/07/2018 meaning that the defendant was unable to query the alleged incident sooner, appeal via POPLA or provide details of whom was driving as such a large amount of time had passed. The claimant is put to strict proof of these letters being sent.
5. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67. However, 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.
5.1. 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.
6. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be a percentage of the £1 per hour tariff. It can only be viewed in terms of a simple damages clause, where the sum allegedly 'owed' in debt is known.
6.1. This charge represents exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:
(i) At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''
(ii). And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''
6.2. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.
7. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant.
7.1. These have been variously described as a 'BW Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £269.26. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.
7.2. 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 PPS robo-claims at all, on the balance of probabilities.
7.2.1. 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 cost.
8. 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.

I believe the facts contained in this Defence are true.


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Signature

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