Sorry another BW legal thread!

Coupon-mad

Oliveoil88 wrote: »

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.

That defence is fine, but I would remove #4 entirely as it adds nothing. Then re-number.

Or, change #4 to say the signs and terms offend against the Consumer Rights Act 2015.

I'd also remove 9.1 and 9.2 as we can't argue against £50 legal fees, we now reckon.

The stuff about the added £60 can be expanded in a supplementary WS later, and it's not called 'abuse of process' which is not some sort of magic phrase that tells a Judge what you mean. I really wish people would avoid calling it that!

The adding of £60 happens to be an abuse of the court process but there are lots of abuses of the court process, it doesn't have the single meaning that some people seem to attribute to it.

Oliveoil88

Thanks all

Le_Kirk

Northampton (unless you have selected the County Court at Northampton) is the Government clearing centre (CCBC). The address you want will be on the papers allocating the date for the hearing.

For your point 3, you might want to add that it is frustration of contract.

You've also left your VRM visible!

Oliveoil88

Thanks Lee... Edited it out!!!

Will do

I will get this sent over to them today via PDF etc

Thanks all

1505grandad

"I will get this sent over to them today via PDF etc"

Your wife named as Defendant and signed by her?

DoaM

Point 3 ... defendant's phone

Put it into Word and run a spelling and grammar check?

KeithP

I've not read back over the thread, but is the Defendant the admitted driver?

If not, then paragraph 3 may well have scuppered that.
Perhaps the last few words of para 3 should be:

...this refused to install on the driver's phone.

Oliveoil88

Hi just a update...…. The last offer I got from BW legal was offering a reduction in costs at £180

I just got a letter today, 3 weeks later, saying they have basically cancelled the case against my wife!

Very happy!!

Not sure how much Corona virus helped us out 

D_P_Dance

What do mean "basically"?  Have they cancelled or not?  If they have here is something that might make life a bit difficult for them.

https://www.citizensadvice.org.uk/law-and-courts/legal-system/taking-legal-action/small-claims/Problems-with-goods---letter-before-court-action/

nosferatu1001

Basic ally?
Does it say discontinued?