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PCN / Britannia Parking & BW Legal

1246710

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  • moon_dustmoon_dust Forumite
    56 Posts
    Forumite
    7 should be split.
    you have two abuse of process claims. make them seprately then the claimant has more f a problem. You need to substantiate HOW this is an attempt at double recovery.

    Thanks, I'll have another go!
  • moon_dustmoon_dust Forumite
    56 Posts
    Forumite
    I have revised with help from the AoP thread on the first page of the forum. I hope this is now correct.
    IN THE COUNTY COURT

    CLAIM No: xxx

    BETWEEN:

    Britannia Parking Group Limited (Claimant)

    -and-

    xxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    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 xxxx xxx, of which the Defendant is the registered keeper, was parked on the material date in a marked bay for use by customers of the Old Green Parade shops. The driver, who is not required by law to be named, parked the Defendant’s vehicle to use the shops for a period of 1 hour and 10 minutes; 50 minutes longer than the permitted time of 20 minutes.

    3. A contract was not knowingly entered into as the signage is poorly placed, difficult to read and, above all, not illuminated.The terms on the Claimant's signage are 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.

    4. It is unreasonable to expect that 20 minutes is sufficient time to use the shops and facilities in this location.

    5. There are signs displayed within the window of the Raj restaurant which states “No Time Limit For Customer Parking”.

    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. The New Milton Advertiser published an article on Friday 22nd December 2017 which gives an account of the local shopkeepers who wrote to Britannia Parking to state that “this car park belongs to all the shopkeepers and for our customers’ use and nobody has a right to make any decision without all the shopkeepers’ consent”. This letter was stated to have been signed by representatives from 6 of the 9 shops there.

    7. The Protection of Freedoms Act 2012, Schedule 4, 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 £64.28, for which no calculation or explanation is given, and which appears to be an attempt at double recovery, which is an Abuse of Process. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

    8. The Claim contains a substantial charge additional to the parking charge which it is alleged the Defendant is contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012 Schedule 4 nor with reference to the judgement in Parking Eye v Beavis. It is an Abuse of Process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

    9. In a very recent case, District Judge Taylor, dismissed a case from BWLegal that included a false amount of £60. Claim reference is F0DP201T, District Judge Taylor, Southampton Court, 10th June 2019. This case was struck out as an Abuse of Process. This order was made by the Court of its own initiative without a hearing pursuant to Rule 3.3(4) of the Civil Procedure Rules 1997 and a party affected by the order may apply to have it set aside, varied or stayed not more than 7 days after the date the order was served upon that party.

    10. 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 the facts contained in this Defence are true.

    Name
    Signature
    Date

    Thanks again!
  • nosferatu1001nosferatu1001 Forumite
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    I said to split it
    The first is 7: that POFA says you cannot be charged more than the NtK. That is the ONLY argument to make in 7); eliminate anything about double recovery there. Its not relevant

    You state that in 8) the charge was never incurred if it relates to debt colelction, as their provider does not charge unless it recovers which it manifestly has not done. If it relates to legal fees, these are not allowable in small claims ICPR27.14) and in any event, the only allowable fees are the filing fee.
  • moon_dustmoon_dust Forumite
    56 Posts
    Forumite
    I said to split it
    The first is 7: that POFA says you cannot be charged more than the NtK. That is the ONLY argument to make in 7); eliminate anything about double recovery there. Its not relevant

    You state that in 8) the charge was never incurred if it relates to debt colelction, as their provider does not charge unless it recovers which it manifestly has not done. If it relates to legal fees, these are not allowable in small claims ICPR27.14) and in any event, the only allowable fees are the filing fee.

    OK, I think I understand your point re. para. 7.

    Re. para. 8. I'm not sure I understand your comment. Are you saying that I should make a similar statement to your comment. Or are you saying that the point I am making is irrelevant?

    Thanks.
  • nosferatu1001nosferatu1001 Forumite
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    You have para 7 and 8 in your current defence above. Look a tthem and read them. You will notice that 8 is basically a repeat of 7

    So you take your CURRENT 7) and SPLIT THE CONTENT OUT.

    you have two items
    - POFA limits liability to the amount on NtK; therefore abuse of process as they claim an amount for which they are not entitled
    - They add on an amount which is described as... (TELL US WHAT IT IS DESCRIBED AS! my guess is - debt recovery or "admni" or "legal fees" but Im not going to go and find out - tell us, or rather tell the damned court!) and this is double recovery beccause... and therefore abuse of process...
  • moon_dustmoon_dust Forumite
    56 Posts
    Forumite
    You have para 7 and 8 in your current defence above. Look a tthem and read them. You will notice that 8 is basically a repeat of 7

    So you take your CURRENT 7) and SPLIT THE CONTENT OUT.

    you have two items
    - POFA limits liability to the amount on NtK; therefore abuse of process as they claim an amount for which they are not entitled
    - They add on an amount which is described as... (TELL US WHAT IT IS DESCRIBED AS! my guess is - debt recovery or "admni" or "legal fees" but Im not going to go and find out - tell us, or rather tell the damned court!) and this is double recovery beccause... and therefore abuse of process...


    Thanks - I think this makes more sense now. I will revise again.
  • nosferatu1001nosferatu1001 Forumite
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    Basically - dont mix up different subjects in the same paragraph

    The limitation on liability in POFA is an absolute - the keeper cannot be charged more than that amount. It is beyond credibility for ANY PPC to be unaware of this, and certainly no legal firm can be allowed to pretend they didnt know. So this should be a slam dunk abuse of process. Abuse of process *should* come with some sanction, other than just striking this additional amount from the claim - that doesnt actually punish (sanction) them. Hence you should request the claim is struck out entirely - otherwise theyve done something knowingly wrong, but not suffered for it.
  • moon_dustmoon_dust Forumite
    56 Posts
    Forumite
    Thanks, nosferatu, for the help and clarifying your points.

    I think I now understand. This legal stuff is still quite alien to me. Thanks for bearing with me.

    Right, I have revised my defence to now identify both the limitation set by POFA of the parking charge, and the separate attempt at double recovery of a legal fee to the sum of £50, as stated on the Claim Form.

    Please see below:
    IN THE COUNTY COURT

    CLAIM No: xxx

    BETWEEN:

    Britannia Parking Group Limited (Claimant)

    -and-

    xxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    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 xxxx xxx, of which the Defendant is the registered keeper, was parked on the material date in a marked bay for use by customers of the Old Green Parade shops. The driver, who is not required by law to be named, parked the Defendant’s vehicle to use the shops for a period of 1 hour and 10 minutes; 50 minutes longer than the permitted time of 20 minutes.

    3. A contract was not knowingly entered into as the signage is poorly placed, difficult to read and, above all, not illuminated.The terms on the Claimant's signage are 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.

    4. It is unreasonable to expect that 20 minutes is sufficient time to use the shops and facilities in this location.

    5. There are signs displayed within the window of the Raj restaurant which states “No Time Limit For Customer Parking”.

    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. The New Milton Advertiser published an article on Friday 22nd December 2017 which gives an account of the local shopkeepers who wrote to Britannia Parking to state that “this car park belongs to all the shopkeepers and for our customers’ use and nobody has a right to make any decision without all the shopkeepers’ consent”. This letter was stated to have been signed by representatives from 6 of the 9 shops there.

    7. The Protection of Freedoms Act 2012, Schedule 4, 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 £64.28, for which no calculation or explanation is given and this is an Abuse of Process. The Claim is also not recoverable with reference to the judgement in Parking Eye v Beavis. It is an Abuse of Process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

    8. A further amount is requested by the Claimant to a sum of £50 to cover legal representative’s costs. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself. This is a further Abuse of Process and an attempt at double recovery. The Civil Procedure Rules Part 27, under Rule 27.14, does not allow such claim for legal fees within the Small Claims Court.

    9. In a very recent case, District Judge Taylor, dismissed a case from BWLegal that included a false amount of £60. Claim reference is F0DP201T, District Judge Taylor, Southampton Court, 10th June 2019. This case was struck out as an Abuse of Process. This order was made by the Court of its own initiative without a hearing pursuant to Rule 3.3(4) of the Civil Procedure Rules 1997 and a party affected by the order may apply to have it set aside, varied or stayed not more than 7 days after the date the order was served upon that party.

    10. 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 the facts contained in this Defence are true.

    Name
    Signature
    Date
  • nosferatu1001nosferatu1001 Forumite
    13K Posts
    10,000 Posts Third Anniversary Name Dropper
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    Is this £50, which has appeared for the firs ttime here, the £50 filing fee listed on the claim form?

    They CAN claim that!

    The £64.28 - what is this amount specified as, on the claim form, because I still dont know meaning the court doesnt

    My suggestion is you just copied and pasted 8) in from elsewhere.
  • edited 12 July 2019 at 12:51PM
    moon_dustmoon_dust Forumite
    56 Posts
    Forumite
    edited 12 July 2019 at 12:51PM
    Is this £50, which has appeared for the firs ttime here, the £50 filing fee listed on the claim form?

    They CAN claim that!

    The £64.28 - what is this amount specified as, on the claim form, because I still dont know meaning the court doesnt

    My suggestion is you just copied and pasted 8) in from elsewhere.

    No.

    It states on the claim form that £50 is required for legal representative's costs.

    The Claim Form also requests £60 for contractual costs pursuant to PCN Terms and Conditions.

    I got the main body of text from the AoP thread but modified it to suit my case.

    To clarify, the exact details on the Claim Form are:

    Amount claimed £164.28
    Court fee £25.00
    Legal representative's costs £50.00
    Total amount £239.28

    It also notes that the Claim includes Statutory Interest pursuant to section 69 of the County Courts Act... being the extra £4.28.

    The Claimant also claims £60 contractual costs pursuant to PCN Terms and Conditions.
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