Sorry another BW legal thread!

Oliveoil88

@KeithP - Did try to PM you, but your inbox is full

"Just to say Sorry to you personally, unfortunately I shouldn't do my posting while drinking, which seems to turn me into a 12 year old child!

Genuinely sorry, especially as you have been nothing but helpful towards me

Jamie"

Oliveoil88

first defence draft.... Am I on track now?

Once again sorry @KeithP

DEFENCE
________________________________________

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


2. The facts are the Defendant was the registered keeper of the vehicle in question at the time and place of the alleged contravention


3. I entered the carpark with my young child, passing a sign that is not readable by virtue of the text size and legal requirements to drive with due care and attention whilst negotiating the entry turn as vehicles and pedestrians are prevalent


3.1 On closer inspection this sign is the ’Car Park Terms and Conditions’. The writing on this particular sign in barely legible when stood directly in front of it. It would be impossible to read when driving past. In order to read it on foot, one would be stood in a precarious position at the entrance/exit of the car park and with two small children this is not a safe option.


3.2.There are other barely legible signs dotted around the car park. These signs state ‘A parking Charge Notice (PCN) may be issued for failure to comply with the terms and conditions….’ Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist


4 I attempted to pay with pound coins which the machine repeatedly rejected them as well as the person stood behind me. I installed an app which repeatbly would not process my payment


5. I therefore repudiated my implied contract on the legal principle that the promisee was not ready, willing or able to fulfil their contractual obligations at the relevant point to take payment


6. I removed my vehicle from the carpark having been unable to conclude my intended business and returned home with my now distressed children


7.Once home and settled I attempted by internet and phone as well as email (evidence held) to pay for any charges of my presence in the carpark as a gesture of goodwill but not as a consequence of admission to a binding implied contract


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. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant. 

8.1. These have been variously described as a 'BW Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £265.42. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

8.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.

8.3. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. 

9. In summary, it is the Defendant's position that the claim 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.

Le_Kirk

You have written it in the first person and it reads more like a witness statement. A defence is a series of legal/technical arguments (later backed up by a witness statement and evidence). Go to the NEWBIE sticky post # 2 and scroll down until you see: -

Here are some defences

Then keep reading and you will find links to 17 pre-written defences. One of those can be used: -
a) as a guide for you to see the format/sttyle and
b) as an example that you can adapt to your situation.

Oliveoil88

Decided to pay claim in the morning, to enjoy/focus on Christmas

Thanks for all who helped, and once again sorry to Keith, super sorry!

Bye all

X

Coupon-mad

Hmmm. You didn't want that money then. We win 99% of defended cases here.

Your other post was interesting too, with a friend showing you a worthless 'they would say that, wouldn't they' piece of propaganda from ParkingEye, that neither of you noticed was six years old and even pre-dated the Beavis case:

https://forums.moneysavingexpert.com/showthread.php?t=6080445

You can lead a horse to water...but you can't...oh wait:

Oliveoil88 wrote: »

@KeithP - Did try to PM you, but your inbox is full

"Just to say Sorry to you personally, unfortunately I shouldn't do my posting while drinking, which seems to turn me into a 12 year old child!

Genuinely sorry, especially as you have been nothing but helpful towards me

Jamie"

Oliveoil88

Unfortunately where needing help with a defence, apart from "read newbie 2" . Nothing about machines not taking coins inserted and unable to pay via phone app on those listed defences.

I've told my wife I would deal with it, but unfortunately I can't get to grips with the defence needed, as nothing is good enough on here for my IQ... With her Christmas bonus she's happy to pay and move on as been a really tough year for her..

Anyone wants to PM me a defence by the morning I will fight on, as she was more than willing for court

"sometimes, you have to drag a horse to water"

Coupon-mad

No need to pm you a defence, she could use bargepole's concise one and then add more detail at WS and evidence stage in the New Year.

Le_Kirk

Unfortunately where needing help with a defence, apart from "read newbie 2" . Nothing about machines not taking coins inserted and unable to pay via phone app on those listed defences.

This is a self-help forum and by asking posters to go to (a sign-posted) part of the sticky for defences and read for themselves is a way of increasing their knowledge. Specifically for you, frustration of contract would have helped if the PDT wouldn't let you pay. Also today there is a post about a chap who had the PPC's case thrown out by a judge who agreed the pay-by-phone instructions were "clear as mud". Respect your decision not to fight but just in case you do, there are a couple of places to start.

Oliveoil88

Is this the defence your on about? coupon mad

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, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company XXXX at XXXX Business Park, and had a valid permit to be parked in that bay.

3. The Particulars of Claim state that the Defendant !!!8220;was the registered keeper and/or the driver of the vehicle(s)!!!8221;. 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.

4. 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.

5. 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.

6. 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.

7. The Claimant is put to strict proof that it has sufficient prorpietary 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.

9. 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

Coupon-mad

Yes, as long as you put right any facts that are not true for your case:

was parked on the material date in a marked bay allocated to Company XXXX at XXXX Business Park, and had a valid permit to be parked in that bay.

Did you copy that or change it to suit (you need to do the latter).
And remove these forum glitches you copied that date back to a year ago:

3. The Particulars of Claim state that the Defendant !!!8220;was the registered keeper and/or the driver of the vehicle(s)!!!8221;.

And as long as the Defendant signs it (who is named on the claim form, you or your wife?) and does that person realise this will need them to attend their local court (a bit like a job interview formal meeting) to sort it our in the Spring?

And as long as you have read the NEWBIES thread under the red heading IMPORTANT - KNOW WHAT HAPPENS WHEN and realise that defence is not the only thing that will need doing and sending out, as there are more stages explained there, including 'evidence' before the hearing.

I am glad you didn't pay!