CC Claim - BW Legal Help!

Lynxy

Hello Everyone.

Apologies in advance if the the following thread does not make much sense to you but it wont allow me to post any links as I am new user so I am unable to provide any of the correspondences I have had with BW Legal et al.

I visited my friends and coming back to my car, I found a parking ticket :mad:
Pic 1
Pic 2

I thought it would be safe to park here (as there was no double yellows)
Pic 3
Pic 4

And on the adjacent side, there was double yellows:
Pic 4

Parking ticket:
Pic 5

The parking ticket says 'The vehicle was parked on private property in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site' - No I did not agree!!

Parking sign:
Pic 6

Waited for the NTK.
Fast forward, I got a further PCN through the post.

Page 1 - Pic 7
Page 2 - Pic 8

Schedule 4 paragraph 7 of the PoFA, stipulates the that a set of information must be included in the parking ticket.
I appealed accordingly with
Ground 1, When and how the parking rules were broken - They do not actually state this, all they say is 'parked in a manner whereby the driver became liable for a parking charge'

They rejected with the following:
Page 1 - Pic 9
Page 2 - Pic 10
Page 3 - Pic 11

I was waiting for a letter before claim, but this never came.
Fast forward to yesterday, I got Claim from the courts:
Pic 12

Slightly beginning to panic - I acknowledged the claim so now I would like some assistance in building a case.

I got some help from Pepipoo:
The signage 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.

In reference to the following case laws: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

But could they argue that they are acting on behalf of the landowner?

Also, I found the following that could assist in my defence:
A defence about unclear signs
MSE Post 74674865
AND
Poorly marked lines and unclear signs
MSE Post 74833078

Is there any other cases I can use to build up my defence?

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?

Lynxy

The issue date is 16th May which from what I understand in these forums give me 5 + 20 days to respond?

The_Deep

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Lynxy

@The Deep - thanks for the info, that is handy to know. I will write to my local MP regarding this issue. But will this help in my defence? Or hold any weight when I am at court before a judge?

KeithP

Lynxy wrote: »

The issue date is 16th May which from what I understand in these forums give me 5 + 20 days to respond?

Don't know where you got the '20 days' bit from, but...


With a Claim Issue Date of 16th May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 18th June 2019 to file your Defence.

That's four weeks away. Loads of time to produce a perfect Defence, but don't leave it to the 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 "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 the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Lynxy

Sorry typo - I meant 19 days to acknowledge the claim. Yes, 4 weeks should be plenty. I am just making some notes and doing some research, I will post defence in about a week for review

Lynxy

Hello Team,

I have made a defence with the help of a few threads. Your feedback would be greatly appreciated.
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________________________________________
DEFENCE
________________________________________

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

2. The Particulars of Claim state that the Defendant “was the registered keeper and/or the driver of the vehicle(s)”. 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.

2.1. The identity of the driver of the vehicle on the date in question has not been ascertained. The Claimant has not identified the driver. The Defendant does not know who the driver was. He has made reasonable enquiries of third parties who were authorised to drive the said vehicle at the time of the alleged incident. None have admitted that they were the driver because they cannot remember, and the Defendant cannot remember who used the car on the 20 October 2018, a date more than 8 months ago. The Defendant has no means of finding out who the driver was, and is not obliged to do so by the Protection of Freedoms Act 2012 or any other legislation, or pursuant to any contractual obligation.

2.2. With regard to the Claimant’s assertion that the Defendant, as keeper of the vehicle, should be presumed to be the driver unless he sufficiently rebuts this presumption, which it claims is a
principle established by Elliott v Loake 1983 Crim LR 36:

2.3 The case relied upon does not provide that any such presumption can or should be made, nor that it is for the Defendant to rebut it. A claim is for the Claimant to prove and there is no reverse burden of proof in respect of parking charges;

2.4 In the case relied upon there was overwhelming evidence that the keeper of the car was driving it at the relevant time – there is no such evidence in this Claim

3. The signage 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. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

3. 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.

4. 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. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

5. 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6. The claimant repeats through a series of communications that the vehicle was ‘parked in a restricted/prohibited area’ yet provides neither by adequate signage, distinctive markings or later particulars of claim any information where a reasonable person can distinguish any such difference between available parking spaces.

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 parking charge notices, and to pursue payment by means of litigation.

8. 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 £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8.1 Schedule 4 paragraph 7 of the PoFA, stipulates the that a set of information must be included in the parking ticket and when and how the parking rules were broken - The Claimant does not state this, but instead says 'parked in a manner whereby the driver became liable for a parking charge' - the alleged "manner" was remains ambiguous.

8.2. The particulars of claim also include a sum of £50, described as "Legal representative's costs". This work is done as part of the Claimant's everyday routine and no "expert services" are involved. The Claimant is put to strict proof, by way of timesheets or otherwise, to show how this cost has been incurred

8.3. Legal services cannot be claimed in the small claims court as per CPR 27.14

9. This case can be distinguished from ParkingEye v Beavis (2015) UKSC 67 (The Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage which formed a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park fee. None of this applies in this case.

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.

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Thanks in advance

Coupon-mad

I got some help from Pepipoo

Good. It's hard for us to know what your case is about though, so I looked on there but couldn't find your thread or pics.

Can you show us your links by changing the URL to http and/or change www.

The_Deep

Elliot v Loake was a criminal case which hinged on forensic evidence, (flakes of paint from one vehicle found on another). It has nothing to do with private parking charges.

Lynxy

Pepipoo - http://forums.pepipoo.com/index.php?

Summary:

I visited my friends and coming back to my car, I found a parking ticket mad.gif :
https://imgur.com/L1ekJuq
https://imgur.com/9BetXdv

I thought it would be safe to park here (as there was no double yellows)
https://imgur.com/DyxX9IN
https://imgur.com/P8kHxPg

And on the adjacent side, there was double yellows:
https://imgur.com/S96dcaC

Parking ticket:
https://imgur.com/yas183z

The parking ticket says 'The vehicle was parked on private property in a manner where the driver agreed to pay a parking charge as displayed on the signage at the site' - No I did not agree!!

Parking sign:
https://imgur.com/ZNowOow

I dont see what contravention I have broken, I didnt park on a double or single yellow. I didnt park on someones bay.

Followed by PCN NTK:
Page 1 - https://imgur.com/nxbZJkV
Page 2 - https://imgur.com/3bGNQlF

Appealed and got the following reply:
Page 1 - https://imgur.com/FE4usYw
Page 2 - https://imgur.com/27ML5wK
Page 3 - https://imgur.com/ImNnGuV

Ignored as suggested and got the following letter:
https://imgur.com/scFOyQN