BW Legal Letter of Claim & Court Claim

deedot

Hi all (opening a new thread on behalf of my partner),

Received a letter from BW legal on 25 April 2019 in regards to a parking fine on 12 November 2018.

Previously I had received a letter of claim from Gladstones, but did not hear back after responding to them. Since then it is believed Link Parking (the claimant) has changed solicitors to BW Legal for this case.

I responded to BW legal on 27 May 2019 with the SAR response (they gave me a deadline to respond of 30 May 2019) and they replied on 5 June 2019 stating they just sent all details regarding the SAR by post.

Unfortunately, I also received a county court claim form in the post yesterday dated 5 June 2019 from BW legal.

Question is, do I wait for their response to my SAR? Can they actually claim at the same time as me requesting SAR?

Am I right in assuming I should just do the usual defence stuff and start prepping a defence now?

Thanks
D.

Umkomaas

Question is, do I wait for their response to my SAR? Can they actually claim at the same time as me requesting SAR?

No, you don't wait, but as the claim provides you up to 33 days to defend, you might get the SAR response in time. Although the SAR information is probably more useful at Witness Statement stage which won't come for around 2-3 months.

A SAR has no bearing on what they do.

Am I right in assuming I should just do the usual defence stuff and start prepping a defence now?

Your first priority is to acknowledge service of the claim (AOS) within the first 19 days so you have a further 14 days to complete and serve your defence. Your 33 days are already counting down.

KeithP

deedot wrote: »

Unfortunately, I also received a county court claim form in the post yesterday dated 5 June 2019 from BW legal.

I am going to assume that the Claim Form came from the County Court Business Centre in Northampton. Please confirm.

With a Claim Issue Date of 5th June, you have until Monday 24th June to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 8th July 2019 to file your Defence.

That's a month 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.

deedot

Hi,

I will be responding to the claim form this weekend and doing the AOS as well as preparing my defence.

In the meantime, we received the response to our SAR.

A points to note:
- They state the PCN contravention took place on 12 November 2019 at XX Park, XX Road (Car Park).

It obviously could not be 12 November 2019, it was actually 2018.
It was also not on XX Road but YY Road where the residential car park is. This is also outlined in the google map image they sent us.

Can I use the above against them?

I will be responding by asking for all photos taken of the vehicle, and all data held regarding my partner and the vehicle by Link Parking. Is there anything else I should respond to them with at this moment in time?

Thanks,
D.

Redx

you should not be responding to them or the claim form

you should do the AOS online asap as KeithP told you to do

then start preparing your defence and post it below

nobody will be "responding" to anything at all , capiche ?


however , your SAR reply should have contained all pictures and NTK docs etc , so reply and insist on those IF they failed to provide all of your data in their SAR reply

deedot

IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between

[NAME OF PARKING COMPANY]
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)



DEFENCE

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

2. The Particulars of Claim on the Claim Form refer to 'Parking Charge(s)' incurred on [DATE]. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates 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.

3. The Particulars refer to the material location as 'XX Park - XX Road'. The Defendant has, since [DATE], held legal title under the terms of a lease, to Flat No. 1 at XX Park - YY Road. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate. It should be noted that the Particulars state the vehicle was parked in breach of the terms at XX Road, however the vehicle has never parked at XX Road but at YY Road.

4. The road contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the road is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.
The definitions, at para.1.1, define the "Allocated Space" as the car parking space numbered P77 on the Plan for which a right to use is granted. In Schedule 4, para.10, the Lease states that the lessee has the right to use the Allocated Space for parking one private motor vehicle.

5.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

8.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

8.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

10. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £239.10, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

I believe that the facts stated in this Defence are true.






………………………………………………………. (Defendant)

……………………… (Date)

The above will be used as my defence, thoughts?

I am a resident and this was a parking fine for a secure residential car park.

Thanks!

beamerguy

With regards to the £60 ... have read this thread yet

https://forums.moneysavingexpert.com/discussion/comment/75930070#Comment_75930070

Le_Kirk

In your point 7, if you have not submitted your defence yet, you might want to add that the landlord and tenant act also states that along with 75% in agreement, no more than 10% should disagree.

deedot

beamerguy wrote: »

With regards to the £60 ... have read this thread yet

https://forums.moneysavingexpert.com/discussion/comment/75930070#Comment_75930070

Interesting! How can I add this to my Defence? Or should this be in the witness statement instead.

Le_Kirk wrote: »

In your point 7, if you have not submitted your defence yet, you might want to add that the landlord and tenant act also states that along with 75% in agreement, no more than 10% should disagree.

Thanks! I'll include that last part.

beamerguy

deedot wrote: »

Interesting! How can I add this to my Defence? Or should this be in the witness statement instead.

In post 10
May I bring to the notice of the court that District Judge Taylor at Southampton County Court, claim number F0DP201T, ordered that the claim is struck out as an abuse of process

Coupon-mad

Interesting! How can I add this to my Defence?

Like this (delete any defence point you already had about their add-ons):

https://forums.moneysavingexpert.com/discussion/comment/75922229#Comment_75922229

Obviously all paragraphs need numbers.