Letter of Claim by BW LEGAL

ajbeats17

So reading through it,

I should look at including Abuse of Process as highlighted and the statement of truth that BW legal have breached by adding a fee that isn’t allowed under POFA?

Coupon-mad

It's not that simple but yes, the wording is in post #14 of the abuse of process thread.

You know from my court report in CEC16's thread what you MUST put in as evidence...the POFA 4(5) & 4(6), the relevant 3 Beavis quotes, and the CRA grey list.

If you don't get what I am on about you need to read CEC16's thread more slowly as regards the posts on it about the hearing. You come across as skim reading it, too quick!

ajbeats17

Thank you so much.

You really are making this process far easier to follow. Shall I post my Witness Statement here later?

I need to have filed my documents by 20th November. The court have informed me that I can email them directly.

Coupon-mad

Yes please show us your draft WS.

We do find this surprisingly easy, and you are basically using our words and building a WS together, just with some facts you write yourself, at the start.

And then you have the exhibits that I used in court on 11th, plus any photos of signs or other evidence specific to your case.

ajbeats17

WITNESS STATEMENT

I, X will say as follows:

I am the Defendant and was the driver of the vehicle in this case. I am unrepresented with no legal background or training and have had no previous experience of county court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

Attached to this statement is a paginated bundle of evidentiary documents marked Exhibit A to E to which I will refer.

1. I deny that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Claimant asserts that I breached the right to park in space 183 ‘X’ but have not stated the basis of any reported liability.

3. Before I describe what happened on the day when my vehicle was parked in space 183 ‘X’ car park to which I am authorised to, I confirm that the essence of my defence to this claim is that:
a) I have not breached any terms and conditions of parking.
b) My vehicle was authorised to park in space 183.

4. I was a resident of Flat 64, to which the space was allocated, and attach evidence of my residency as Exhibit A.

5. Under the terms of the Defendant’s lease, any allocated space deemed as ‘Authorised’ is one which is taxed, roadworthy and in the space allocated to my premises, at no point does the lease suggest I must display a valid permit, and attach evidence of this as Exhibit B.

5. The secure gated underground car park was accessed by key fob, a type only issued to residents who are authorised to be there, and attach evidence of this as Exhibit C and Exhibit D.

6. On November 8th 2018 I parked in my space in the secure underground car park, only to find a PCN on my windscreen. I followed the appeals process but was denied.


7. On November 21st 2018 I contacted my Landlord to explain the situation and that I wouldn’t agree to pay it. In the correspondence, the Landlord confirms that he explained the permit requirements to my housemate at the time but not me; ‘Permit needs to be displayed properly like I said to Alex’ but confirms ‘183 is purely for our flat’. This correspondence is attached as evidence in Exhibit E.

8. The Claimant, or their legal representatives, added a sum of £138.78 to the original £100 charge, totalling £238.78 with no justification. The Protection of Freedoms Act, at 4(5) and 4(6) states the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £60 in this instance. I believe this to be Abuse of Process, and attach evidence of this as Exhibit F.

9. The charge of £160 is unconscionable, due to the Beavis case paragraphs 98, 198 and 287, and attach evidence of this as Exhibit G.

10. The Claimant is also in Breach of the Consumer Rights Act 2015, Schedule 2 paragraphs 6, 10 and 14, as the guidance tells us that consumer notices are not exempt from the test of fairness, and attach evidence of this as Exhibit H.

11. The Competition & Market Authority Official Government Guidance says:
'2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent).
3.2 The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent.

12. It is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.

13. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

14. The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

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

ajbeats17

DEFENDANT'S SCHEDULE OF COSTS



(a) Ordinary Costs

Loss of earnings/leave, incurred through attendance at Court 04/12/2019 £230

Return mileage from home address to Court (3 miles at £0.45p) £1.35

Parking near Court £5.00


Sub-total £236.35
==================

(b) Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

There is no reasonable justification or lawful explanation for the Claimant's conduct, which constitutes unwarranted harassment; such conduct to be explained at the hearing.

The following additional costs are sought on the indemnity basis for the Claimant's unreasonable conduct.

The Defendant avers that such costs must apply, given the facts, primarily in order to compensate for the time taken in handling this meritless and wholly vexatiously pleaded court claim, and secondly to send a message to this legally-represented serial litigant that their conduct in the instant case is an abuse of process:

Research, preparation and drafting of documents (20 hours at Litigant in Person rate of £19 per hour) £380

Stationery, printing, photocopying and postage: £15.00

Sub-total £395
==================


(a) + (b) = £ 631.35 TOTAL COSTS CLAIMED

Coupon-mad

Very good. Not sure about #12 'promissory estoppel' unless you mean your lease/tenancy granted you a promise/a right to park?

I would just add in some words about the Jopson appeal case, which is persuasive on the lower courts, and also PACE v Noor and Link v Parkinson, and a paragraph about PCM v Bull.

All of those cases can be found in the Parking Prankster's case law pages.

And all of them can be found already in WS on this forum, so you can again copy some wording that another person has already written.

ajbeats17

Thank you! I’ve just received this from BW Legal:

Dear Mr X

I am just drafting the statement for the Claimant in this matter as per the Notice of Allocation Order from the court.

I see that your defence is that you are a leaseholder with allocated parking. I also see that we’ve not been provided a copy of your lease to support your defence.

If you would like to provide a full copy of your lease, I can consider this against the points you have raised in your defence. We can then perhaps see what is and isn’t agreed between us, and perhaps go from there.

You are of course at liberty to seek independent advice.

Coupon-mad

Dear BW Legal,

Similarly, I am just drafting my own statement in this matter as per the Notice of Allocation Order from the court.

Clearly when a parking firm decide to infest a residential car park, one of the first issues they would need to check would be the rights and easements within the Head Lease. It would be a matter of due diligence and the least that one would expect, because if they are making their money from the residents silly enough to pay their unconscionable penalties, PPM need to be sure they are not causing a private nuisance and a derogation from grant.

You email tells me that PPM have failed to even undertake a cursory glance at the Head Lease in advance, and have paid no regard to the rights and easements that the residents enjoy under the implied or express terms of the various agreements, as handed down to tenants by virtue of the leases.

May I suggest you ask PPM for their copy of the Head Lease which is something they will have, if I am wrong about their failure to undertake even the most basic checks.

Of course you have not been provided a copy of my lease to support my defence, as that will be filed with my witness statement in the usual way.

Further, if you would like to provide me with a full copy of your client's breakdown of how £100 PCN somehow becomes £160 for the purposes of this claim, I can consider this against the points you have raised in your sparse particulars.

We can then perhaps see what is and isn’t agreed between us, and perhaps go from there.

You are of course at liberty to seek independent advice.

yours,

ajbeats17

That is excellent. It isn’t a bad idea to communicate with them then.