Sorry another BW legal thread!

Oliveoil88

Ok to upload defence Coupon-mad?, defence is section 3 added a little of my own to 7

OBVIOUSLY I WILL EDIT ALL HER INFO IN AND ALL THE !!!8220 OUT

...….. Abuse of process, is best to be added to witness statement rather than defence?...……… I only have a good few days left to upload on that government site.

Hopefully its ok now


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 owner of parked at the noted car park on the time and day in question

3. Many Attempts were made the driver to pay at the allocated paystation but pound coins were repeatedly rejected and refused to register. Further attempts to pay were carried out with using the app "paybyphone" but due to signal failure or possible app malfuctions, this refused to install on the defendants phone

4. 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.

5. 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.

6. 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.

7. 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, especially due to its dangerous position being so close to incoming and outgoing traffic, It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. 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.

9. 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.

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.

Name
Signature
Date
"

Le_Kirk

You don't upload to the Government site, you send it as a signed pdf as per the following instructions. You may well have had a post from KeithP containing this advice: -

Send the pdf as an email attachment to [EMAIL="CCBCAQ@Justice.gov.uk"]CCBCAQ@Justice.gov.uk[/EMAIL]
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'.

Oliveoil88

You are correct!! thanks lee!

seem ok to you?

waamo

The abuse of process bit goes in the defence. You cannot introduce new evidence or arguments in your witness statement.

Le_Kirk

If you are going with the long Abuse of Process on your WS, then your defence has rebuttal of the POC, signage and landowner authority and seems to be based around a Bargepole concise defence so should be OK, although as waamo says you do need to include the short Abuse of Process part so you are not accused of ambushing the claimant. If you have time before you need to submit, hang on in case any other regular wants to chip in.

Oliveoil88

Will add in, thanks all!

Oliveoil88

Added Abuse of process...… is it worth mentioning the case with judge Taylor as reference for Abuse of process as well? or not needed?

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 owner of parked at the noted car park on the time and day in question

3. Many Attempts were made the driver to pay at the allocated paystation but pound coins were repeatedly rejected and refused to register. Further attempts to pay were carried out with using the app "paybyphone" but due to signal failure or possible app malfuctions, this refused to install on the defendants phone

4. 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.

5. 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.

6. 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.

7. 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, especially due to its dangerouse possition being so close to incoming and outgoing traffic, It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. 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.

9. 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.

9.1 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.

9.2. 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.

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.

Redx

It seems a bit short to me on abuse of process compared to this one

https://forums.moneysavingexpert.com/showthread.php?t=6082895

And every paragraph should have a separate number

Oliveoil88

Will add some more meat to it! , thank you kind sir!

DoaM

This is a Defence and not a Witness Statement? If a defence then I don't think it needs to go into "chapter and verse" on all aspects - the Witness Statement stage expands on the details behind each defence point and provides the evidence. (Unless I'm mistaken?)