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Britania Parking PCN - Bournemouth

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  • Le_KirkLe_Kirk Forumite
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    Ticket machine not working is "frustration of contract" and is a valid defence point.
  • edited 8 August 2020 at 12:31AM
    Coupon-madCoupon-mad
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    edited 8 August 2020 at 12:31AM
    EDIT - 2020 - THIS IS AN OLD THREAD.

    WE NOW HAVE A TEMPLATE DEFENCE AT THE TOP OF THE FORUM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • edited 15 October 2019 at 12:16PM
    Icicle_BoyIcicle_Boy Forumite
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    edited 15 October 2019 at 12:16PM
    Hi again,
    Months down the line from my case, I have got a small claims hearing for Jan 2020. However, BW legal have written to me with their client's position in relation to the defence I had submitted. In effect my defence was that I was disputing who was driving the car

    In summary their response was that the matter was being brought due to a breach in contract. The driver contractually agreed to the terms and conditions outlined on the signage in the car park. The claim has been issued under Schedule 4 of the Protection of Freedoms Act 2012. As the driver has not been named the registered keeper is now liable for the outstanding amount owed.

    In relation to my claim that there is no evidence that the car was parked in the car park, they refer to the photographic evidence which shows the car entering and leaving the car park with a gap of over three hours. Reference is made to the driver contractually agreeing to the terms and conditions outlined in the signage. Therefore the driver has agreed to pay a PCN of £100 for failing to purchase a valid ticket.

    Regarding my defence of the signage being inadequate in terms of outlining the contractual terms of parking which therefore meant that it is not capable of forming a contract, they refer to being a member of the BPA and the signage complying with the recommendations outlined in the BPA's Code of Practice for Private Enforcement on Private Land and Unregulated car parks.

    In relation to the defence of inflated and random costs, they respond that the signage refers to contractual costs incurred by them in relation to the PCN which form part of the terms and conditions which were accepted by me in course of staying in the car park.

    In relation to there being no loss by the landowner, their response is that the £100 charge is regarded as a charge for contravening the terms and conditions and their client has a legitimate interest in charging infringing motorists which extends beyond the recovery of any loss. They refer to Parking Eye v Beavis which was considered by the Supreme Court where they did not consider the charging unfair. Also they refer to the car parking code of practice which does not consider £100 unreasonable. Their client is enforcing the terms and condition relating to my breach.

    BW Legal confirmed that Britannia Parking Group Ltd hold all the relevant documentation enabling them to enforce PCNs on the land and to pursue the outstanding amount due.

    They have offered a without prejudice offer for me to pay £185 without having to go to court.

    Could I have your advice urgently please as I do not really want to go to Court!!!! Thanks
  • beamerguybeamerguy Forumite
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    In relation to the defence of inflated and random costs, they respond that the signage refers to contractual costs incurred by them in relation to the PCN which form part of the terms and conditions which were accepted by me in course of staying in the car park.

    In relation to there being no loss by the landowner, their response is that the £100 charge is regarded as a charge for contravening the terms and conditions and their client has a legitimate interest in charging infringing motorists which extends beyond the recovery of any loss. They refer to Parking Eye v Beavis which was considered by the Supreme Court where they did not consider the charging unfair.


    Which court will it be heard at ???
    Is this really going to be their defence ??

    We can tie this in with the Beavis case which they state.

    1: As POFA2012 very clearly shows .....
    "The claim contains a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay, This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4"

    I would suggest that such signs are illegal and against POFA2012

    2: We know what the ruling was with the Beavis case but the Supreme court further ruled that ....
    198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''

    The set price is £100 for your ticket and that includes costs of recovery and includes a made up "contractual cost"

    You have the law on your side, BWLegal DO NOT

    ABUSE OF PROCESS BY BWLEGAL
  • Le_KirkLe_Kirk Forumite
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    They have offered a without prejudice offer for me to pay £185 without having to go to court.
    How is that better than £100 or £0? You could try going back with a counter offer and see what they say. Why are they offering anything if they are so sure of their case?
  • Icicle_BoyIcicle_Boy Forumite
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    Thanks for the quick response beamerguy, greatly appreciated. Not got my court paperwork with me, but it will be held at a small claims court in Reading in Jan 2020.

    What BW Legal have sent me is their client's position in response to the defence I submitted. Also included in this correspondence is a without prejudice offer to pay a discounted £185 which will mean the case will not go to Court.

    With your supportive comments I will go through with the small claims court appearance. Should I email BW Legal to inform them that I will see them in court and not mention the points you have mentioned?
    Thanks
  • Icicle_BoyIcicle_Boy Forumite
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    If it's ok and if it goes through to the small claims court, could I kindly ask for assistance on how to present my case please?
  • edited 8 August 2020 at 12:33AM
    Coupon-madCoupon-mad
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    edited 8 August 2020 at 12:33AM
    Yes, you will need to show us your Witness Statement and evidence like you see everyone does and we will help. You know the date to get those in, as the letter telling you about the January hearing tells you. Read it carefully.
    BW legal have written to me with their client's position in relation to the defence I had submitted
    Have they sent the usual template telling you that your defence is a template and misconceived?

    Find a memorable word from BW Legal's letter and search the forum for it and the name BW Legal, and you will find loads of results showing 'your' reply already mentioned as a template everyone gets.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Icicle_BoyIcicle_Boy Forumite
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    Hi,

    My small claims court appearance is set for 10 Jan and I am trying to work out what to put in my WS. Am I ok just to re-iterate the points made in my initial defence statement and to attach a supplementary statement hammering home the point about "abuse of process"?

    In effect my WS will be as follows:-

    1) It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident, although the claimant has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the alleged charge

    2) There is no evidence of the alleged vehicle being parked in the car park at Exeter Park Road, Bournemouth – The NTK does not meet PoFA 2012 requirements

    The BPA Code of Practice point 20.5a stipulates that:"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and timestamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

    The images included on the NtK contain two close-up license plate images and two images of the car manoeuvring at the either the entrance or exit of the car park.

    None of the images show the vehicle parked in the car park. Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

    3) From investigations by the Defendant, the signs in the car park at Exeter Park Road, Bournemouth are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. 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.

    4) There is no evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. Britannia Parking Group Ltd (No 08182990) issued the NTK, but the “Landowner” contract is with Britannia Parking Services Ltd (No 08187238), which is a different company. Therefore, there is no evidence that Britannia Parking Group are authorised by the landowner to issue PCNs/NTKs.
    5) The Claimant’s representatives, BW Legal have artificially inflated the value of the Claim. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
    a. If the “parking charge” listed in the particulars of claim is to be considered, a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
    b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has increased.
    6) As previously stated, Britannia Parking Group are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
    a. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
    b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
    c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge
    d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs Parking Eye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.
    7) From the Defendant’s initial investigations there is no planning consent to operate this site (Exeter Park Road, Bournemouth) as a car park, so there is no legal standing for issuing PCNs.
    8) This claim most importantly, IS an ABUSE OF PROCESS. In a very recent case, District Judge Taylor, dismissed a case from BWLegal that included a false amount of £60. “Claim number is F0DP201T District Judge Taylor Southampton Court, 10th June 2019

    IT IS ORDERED THAT
    The claim is struck out as an abuse of process

    "The claim contains a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay, This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4 not with reference to the judgement in parking eye v Beavis. 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.
    This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the civil procedure rules 1998 "

    Whilst this does not set a precedence in a county court and each judge is entitled to make their own decision, the adjudicator of this case should be invited to read this case decided by a District Judge.

    9) Fluctuating and random charges. 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 legal cost of £60, for which no calculation or explanation is given, and which appears to be an attempt at maximising revenue for the pursuing parties. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
    10) It is denied by the Defendant, that a contract was formed and that there was any agreement to pay a parking charge.
    11) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking a true course of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims.

    12) The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute to their significant detriment as an unrepresented Defendant.

    13) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.
    14) The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

    15) The Defendant invites the court to dismiss this claim out as it is in breach of pre-court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

    16) In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and should be disallowed.
    I believe the facts contained in this Defence are true.

    SUPPLEMENTARY EVIDENCE

    ABUSE OF PROCESS (APPENDIX TO CONTAIN RECENT COURT CASES
  • edited 20 December 2019 at 2:15PM
    Icicle_BoyIcicle_Boy Forumite
    20 Posts
    Forumite
    edited 20 December 2019 at 2:15PM
    My small claims hearing is on 10 Jan. Am I ok to just reiterate the points I made in my defence statement or does this have too be different? My WS would read:

    1) It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident, although the claimant has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the alleged charge

    2) There is no evidence of the alleged vehicle being parked in the car park at Exeter Park Road, Bournemouth – The NTK does not meet PoFA 2012 requirements

    The BPA Code of Practice point 20.5a stipulates that:"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and timestamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

    The images included on the NtK contain two close-up license plate images and two images of the car manoeuvring at the either the entrance or exit of the car park.

    None of the images show the vehicle parked in the car park. Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract.

    3) From investigations by the Defendant, the signs in the car park at Exeter Park Road, Bournemouth are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. 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.

    4) There is no evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. Britannia Parking Group Ltd (No 08182990) issued the NTK, but the “Landowner” contract is with Britannia Parking Services Ltd (No 08187238), which is a different company. Therefore, there is no evidence that Britannia Parking Group are authorised by the landowner to issue PCNs/NTKs.
    5) The Claimant’s representatives, BW Legal have artificially inflated the value of the Claim. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
    a. If the “parking charge” listed in the particulars of claim is to be considered, a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
    b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has increased.
    6) As previously stated, Britannia Parking Group are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
    a. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
    b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
    c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge
    d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs Parking Eye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.
    7) From the Defendant’s initial investigations there is no planning consent to operate this site (Exeter Park Road, Bournemouth) as a car park, so there is no legal standing for issuing PCNs.
    8) This claim most importantly, IS an ABUSE OF PROCESS. In a very recent case, District Judge Taylor, dismissed a case from BWLegal that included a false amount of £60. “Claim number is F0DP201T District Judge Taylor Southampton Court, 10th June 2019

    IT IS ORDERED THAT
    The claim is struck out as an abuse of process

    "The claim contains a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay, This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4 not with reference to the judgement in parking eye v Beavis. 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.
    This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the civil procedure rules 1998 "

    Whilst this does not set a precedence in a county court and each judge is entitled to make their own decision, the adjudicator of this case should be invited to read this case decided by a District Judge.

    9) Fluctuating and random charges. 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 legal cost of £60, for which no calculation or explanation is given, and which appears to be an attempt at maximising revenue for the pursuing parties. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
    10) It is denied by the Defendant, that a contract was formed and that there was any agreement to pay a parking charge.
    11) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking a true course of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims.

    12) The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute to their significant detriment as an unrepresented Defendant.

    13) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.
    14) The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

    15) The Defendant invites the court to dismiss this claim out as it is in breach of pre-court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

    16) In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and should be disallowed.
    I believe the facts contained in this Defence are true.
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