County Court Claim Form Recieved - Excel - BW Legal

Le_Kirk

SavvySavey wrote: »

Got my DQ. I know how to complete it. I'm just wondering how I send it. Can I email it or do I have to post it? And if I have to post it should I use tracked postage?

And, as well as the copy to the courts, do I send it to the Claimant themselves or BW Legal?

There is help in the NEWBIE section post # 2, scroll down to find a link to a post written by Bargepole but just in case you cannot find it, use THIS link. As stated by Bargepole above, post is fine with a free certificate (which you keep) but you can also e-mail it to the same e-mail address to which you sent your defence.

SavvySavey

Hi again,


So the deadline to file my DQ was last week and I filed it in plenty of time.


Nothing has been added on MCOL (I don't know if it's meant to), but more importantly, I haven't recieved a DQ from the claimant. Is this normal?

nosferatu1001

1) The court may have delays you dongt know about. If in doubt, call them as they will have the DEFINITVE answer, we can only guess
2) Ask the claimant where their copy is, and for a copy of their cert of posting.

SavvySavey

Thanks for your help.



So the court say they have not received my DQ so I'm just sending one by email. I will attach my proof of postage for my original one as well although they said it would not be sufficient proof.



They also said they received the claimants DQ today (1 week late). Does that take any toll on the claimants case?

Le_Kirk

SavvySavey wrote: »

So the court say they have not received my DQ so I'm just sending one by email. I will attach my proof of postage for my original one as well although they said it would not be sufficient proof.

Providing you sent it to the correct address and the proof of posting is valid, it is deemed to be delivered two working days later. The CCBC cannot argue against that. However, that doesn't help you if they say they haven't received it, so sending by e-mail was the correct thing to do.

SavvySavey

So I've now got a date for the court hearing.


If I'm correct and read everything, these are my next steps.


1. Submit all documents and evidence to the court and other party including witness statements


2. After I've seen the claimants pack, submit or take with me my skeleton argument.


I've prepared a list of documents/evidence I think I need to submit and a Witness Statement below. Any thoughts would be appreciated. My one question about the witness statement is about writing as a defendant but not a driver.



Is it best to wait until after the deadline for the claimant to pay the court fee to submit these (just in case they decide not to)?


Witness Statement


In the County Court at XXXXX
Claim No. XXXXXXXX
Between
XXXXX (Claimant)
and
XXXXX (Defendant)

---

Witness Statement

---

1. I am [NAME], of [Address], [Postcode], the Defendant in this matter. I will say as follows:

2. On [DATE], I visited [CAR PARK] and parked my vehicle with registration [REG NO] in the car park.

3. After exiting the vehicle, I looked around for signs of any free period as my intention was not to stay long. Signs were sparse and hard to read but were visible.

4. Failing to find any mention of a grace period, I searched for the machines to pay, of which they and the signs pointing to them were hidden inside shrubbery or behind vehicles, and made my way to what appeared to be the nearest one at the time.

5. As it was at lunch time, there was a queue for the machine so I waited my turn and when I got to the machine it asked me for my registration, which I did not know.

6. I returned to my vehicle to check my registration, acknowledging the parking attendant on the way in the belief that they would recognise I was in the process of paying, before returning to the machine and waiting in line again.

7. After purchasing my 'pay and display ticket' I returned to my car to find a red and black envelope on my windscreen. I was about to search for the attendant I had seen earlier but then I read the words "This is not a parking charge notice" on the card inside the envelope so I made the assumption that it was not, in layman's terms, a "parking fine".

8. Later on I realised there were instructions on the back of the card to "appeal". I followed the instructions to the best of my ability submitting a copy of my pay and display ticket, believing that any decent company would drop any sort of accusation of not paying if I could show that I did in fact pay.

9. The claimant rejected my appeal using what appears to be a template letter which did not elaborate on any reason why. On this basis I decided to phone the claimant to clarify. They told me the signs clearly state that you must display a ticket in your window within 10 minutes of parking. I can confirm they do not. The claimant was unwilling to listen to any reasoning or discuss the matter further. It only took me longer than the hypothetical 10 minute window to by the ticket because of the claimants poor signage to where and how to pay.

10. It was only then that I decided to research the claimant to uncover how they have abused the courts, and threats of using the courts, as a cheap form of 'debt' collection and acquiring default CCJ's, possibly from people who didn't believe they owed the money, like me, on the knowledge that many people would not have the determination to fight through the many threats.

11. The threats I received were crippling. At the time, I was saving and then searching for a house to buy as well as building my career as a recent graduate. The threats gave the impression that if I did not pay immediately then a CCJ was inevitable and that it would destroy my ability to borrow money and destroy my career prospects. There were many times I felt like giving in despite strongly believing I did not owe the money. Many of the threats didn't seem to even know exactly what the supposed debt was for. I distinctly remember one phone call from the claimant's representatives where I asked for more details beyond a "parking charge" of which they were unable to give me.

12. Based on the threats I have received, and the unwillingness of the claimants to even take into consideration that I did in fact fulfil all the requirements stated on any signs, it is my belief that they are not pursuing this claim because they believe they have a right to this money, but because their business model is reliant on issuing and getting paid for as many as these fines as possible.


13. The fact that the claimants inflate their claims in the face of court action further increases the suggestion that they are reliant on individuals not defending themselves and abusing the courts in order to obtain default CCJs. In the recent claim F0DP201T, District Judge Taylor struck out the claim as it "is an abuse of process from the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover".

14. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

Signature
Date




Evidence to Submit



1. Copy of my pay and display ticket
2. Copy of Charge Notice that is not a charge notice.
3. Copy of my "Notice to Driver"
4. Photos of signage
5. Photos showing lack of signage to where to pay
6. Video panorama showing it is not easy to identify where to pay
7. Map showing the location of signs and pay and display machines
8. POFA
9? Do I need to include a copy of the Civil Procedure Rules and the Civil Practice Direction as my defence references this?

Redx

Add the abuse of process by judges Taylor and Grand to the WS , due to the added £60 etc

KeithP

SavvySavey wrote: »

Is it best to wait until after the deadline for the claimant to pay the court fee to submit these (just in case they decide not to)?

Wait as late as possible, obviously not missing your deadline, to avoid giving the Claimant the opportunity to rebut your WS in their's. Of course you'll be hoping to do exactly the opposite.

SavvySavey

Thank you both.


I've added a section about the abuse of process in my previous post and set a reminder in my calendar



Unbelieveably, I've still not received the claimants DQ despite chasing.

SavvySavey

Hi everyone again.


So 2 weeks today is my court date, and I've now got the claimants witness statement and evidence.


First thing that is noticeable is that it came from Excel's own Paralegals (specifically one who's been with the company since August 2019) and not from BW Legal. Probably useful if other people know this so that they aren't caught out by not sending stuff to the claimant (I sent to both just in case).


Now the witness statement is very long, but much of it seems templated. It contains all of their legal argument.


I don't really know where to start next. I've summarised what I think are the key/difficult points and how I might respond to them. Any thoughts and advice would be very much appreciated please?


I'll prepare my Skeleton Argument shortly, but need to get my head round this first.



(It references my defence so I've included that below for reference)


1. They pretty definitevely say and show that they do have sufficient interest in giving out PCNs



2. They specify that they are bringing this claim under contract



3. They get a bit messy in the sense that they say their patrol's role is to give out PCNs but later say what was attached to my windscreen was a warning that I may have breach Ts&Cs and they sent a PCN later


4. They claim of sufficient and adequate signage
(I think my evidence can show that it's not and/or some of it is facing the wrong way)



5. They reference Vine v Waltham Forest in essence saying signs and automatic acceptance is the "only method land owners have".
(can this be attacked at all? I mean there are a number of car parks nearby that use tokens and barriers)


6. They reference POFA and their ability to pursue the keeper. But later on say that they are pursing me as a driver and therefore do not rely on POFA.


They then actually address my defence


7. They disregard para 2 of the defence saying that the hybrid slip was not a PCN and the PCN was postal


8. They dispute para 3 and 4 saying the claim particulars are sufficient and only contain the breif statement of facts under various paragraphs of PD 7E MCOL, referencing a charachter limit. They also say that with all the letters they have sent me that I should have had sufficient detail of the claim and that they were bringing it under contract.
(Are the letters relevant to me knowing what the claim is about? The claim could have included more details beyong "there is an unpaid PCN" Also the letters are very generic and only add small amounts of detail. Also, as far as I can see, the letters don't actually specify breach of contract, just hint to it)



9. Again they dispute para 5 of my defence saying the signs are clear


10. They dispute para 6 of my defence saying the offer a 10 minute grace period and the signs say "Tickets must be purchased at time of parking"
a. I think I've addressed some of this in my witness statement
b. They don't address para 6.1, 6.2, and 6.3 which talks about a lack of instrunction on how to pay and specific obstructions to fulfilling the contract
c. Can I attack the uncertainty of the term "time of parking" saying that it must be interpretted against those seeking to rely on it. This would mean either: that the driver had to leave the car park premesis, which the driver did not, and they'd have to prove it; that the driver had to buy a ticket in a 'reasonable' time and that they would have to prove 10 minutes is a reasonable time, despite my evidence showing it isn't


11. para 7 - they have a copy of the contract showing sufficient interest. They also say I have nominated myself as the driver so POFA isn't relevant
I don't believe I nominated myself. There's no proof, should I put them to task over this?


12. For para 8 of my defence they say the sign, that is part of the contract, says additional fees will be recovered and they follow the IPCs guidelines of £60 as a reasonable amount.
I'm stuggling for a counter to this one, especially as they are not relying on POFA. My only real counter is they don't have a valid claim to claim costs for. The only thing I can think of is that PCNs will be given out in accordance with the law which would imply POFA, but this sounds weak to me.


That's about it. There are a couple of other things that I think might help.


1. The contract with the landowner says Excel keeps all recovered money from PCNs (suggested my accusation about them being reliant on it as a business model is correct)


2. The Titles of letters are misleading often having more than one title or slightly renamed titles, perhaps to make it difficult to understand their true intentions, sound more scary and harder for people to do their research and fight against them.


3. I had received a number of letters saying that BW Legal should be the point of contact and that they would be hanbdling the case. The fact that Excel are themselves is likely to try and cause the defendant to make mistakes.


4. A data access request was made on 28.07 with a follow up as well. No response has been received despite the 30 day limit. I believe this is to stifle the opportunities of a defence and to hide that my data had been aquired under POFA despite them not relying on it.





My Defence for reference:

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

2. The facts are that the vehicle, registration XXXXX, of which the Defendant is the registered keeper, received a Charge Notice “for a contravention on XX/XX/XXXX at XXXXXX Car Park” which has not been paid.

2.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a red/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. These 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. 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, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

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 terms on the Claimant's signage 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. The signs are also sparse in some places and are not immediately obvious from all parking bays. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6. The signage states that vehicles must be parked correctly with a ticket displayed at all times. Noting that it is impossible to have a ticket before one is parked, there is no clear given time for how long the driver was permitted to buy the ticket and display it.

6.1. There is also a distinct lack of signage available with instructions on how to pay noting that rates are not displayed on all signs and the location of signs that do display it and the machines to pay are not pointed out.

6.2 It is due to a lack of clear instructions that the driver had to spend some time finding the pay machines, finding prices and finding that they had to enter the registration number. It is due to this, along with a queue, that it took the driver longer than expected to pay and display the ticket on the car.
[FONT=&quot]
[/FONT]
[FONT=&quot]6.3 On this basis it is denied that, if a contract did exist, then the driver breached it. The requirements stated on the signage had been fulfilled and any delay was caused by obstructions made by the claimant.[/FONT]

7. 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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

7.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a postal Notice to Driver is unlikely to have been in the contemplation of the Claimant's principal.

7.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

7.3 It is also worth noting that the defendant has never been served a document labelled a “Notice to Keeper”. If the claimant wishes to claim that the postal NTD is in fact an NTK then either: it is too premature under POFA paragraph 8 as the defendant had not received a real CN; it is too late under paragraph 9 (if paragraph 9 can apply here) as it was issued on XX/XX/XXXX meaning it’s presumed delivery date is XX/XX/XXXX. This means the delivered date is 18 days after the contravention data, 4 days longer than allowed by paragraph 9.

8. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. 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.