BW Legal LBC - Not Registered Keeper

Thrifter01

I haven’t actually provided them with the drivers address, is it too late to provide this now? I.e have court proceedings technically already began now that I have received the claim from the court or does it go from the date of service (5 days after the day it was issued)?

Thrifter01

I am currently in the process of drafting my defence, the problem is I still don't have a response to the SAR. I get the feeling that Premier Park are deliberately holding out on this as long as possible, given how long ago this was I don't have any record of the initial letters sent to me so my defence at present is based solely on the my memory from 5 years ago and the most recent letters. Is there anything I can do other than wait for them to respond to the SAR?

KeithP

Of course replying to a SAR is not at the top of their 'to do' list. It costs them money to respond to a SAR, so money generating activities are higher up that list.

Do not miss your Defence filing deadline.

Coupon-mad

I am currently in the process of drafting my defence, the problem is I still don't have a response to the SAR.

You were not meant to be waiting for the SAR. This is normal and it's why we have examples of near-template defences so people can still put one in that covers the bases.

Le_Kirk

PPCs (along with anyone else receiving a SAR) have 30 days to respond however, the results of the SAR will probably be more useful at witness statement stage.

Thrifter01

Hi all, I have a draft defence below, mainly copied and pasted from others where relevant but any assistance would be much appreciated. I am unable to visit the car park due to the distance so can't comment on signage, I also have none of the original correspondence due to the fact that this took place 5 years ago and I have still no response to the SAR.


THE DEFENDANT WAS NOT THE DRIVER

1. The Defendant was the registered keeper of the vehicle in question at the time of the alleged contravention. The Claim relates to a debt of damages arising from a Driver's alleged breach of contract, when parking at (LOCATION) on (DATE). The Claim is denied in full by the Defendant.



1.1. The Defendant was not the driver of the vehicle on the date of the alleged contravention, in fact the Defendant has never visited the city in which the alleged contravention took place. The Claimant has been informed on numerous occasions that the Defendant was not the driver at the time of the incident but has refused to acknowledge this and continues to pursue the Defendant.

1.2 The Defendant has provided the Claimant and their previous Debt Recovery Agents (Debt Recovery Plus Ltd (DRPL)) the contact details of the Driver on the date of the alleged contravention, the Defendant has therefore transferred liability to the Driver of the vehicle and as such cannot be pursued any further in relation to the Claim. DRPL even corresponded with the driver who refused to pay the PCN, for the reasons stated in paragraph 2 of this defence. When it became clear that the Driver was refusing to pay the PCN, the Claimant decided to revert to pursuing the Defendant for the alleged debt. (A couple of questions: 1. Is it a breach of POFA that they picked up email correspondence with the driver then came back to me when the driver refused to pay? I don’t have any evidence of having provided the drivers name and address until recently when I emailed the details to BW and the Claimant, this was after the issue date but before the date of service on the count court letter, can I used this as a defence as I am not sure if legal proceedings had technically already began? 2. As the claimant has not yet responded to the SAR and I don’t have copies of the NTK I can’t ascertain whether or not they complied with POFA in issuing the documents, any advice?)



1.3 The Claimant has spent almost 5 years harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters and causing the Defendant and their family significant distress, despite having no basis to charge £270, and despite knowing that the Defendant was not the driver at the time of the alleged contravention.



Thrifter01

THE PARKING TARRIFF HAD BEEN PAID FOR IN FULL, THE CLAIMANTS APP WAS NOT FIT FOR PURPOSE

2. The Driver (not the defendant) paid for the Parking Tariff in full at the time of the alleged contravention using a mobile phone app. It is believed to be a matter of common ground that the payment made by the Driver would have been sufficient to cover the vehicle for the entire time in which it was parked in the location.

2.1 The app used by the Claimant requested that the Driver enter certain details of the vehicle to allow payment, one of which was simply entitled “Vehicle”, to which DRPL advised that the Vehicle Registration Number should have been entered here. The driver entered the make and model of the vehicle. The app accepted these details and then accepted payment and as such the driver had no reason to question the transaction. In!Jolley v Carmel Ltd![2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach. It is clear that the Driver made more than reasonable attempts to comply with the contractual terms, the root cause of the issue is a poorly designed application used by the Claimant which is not fit for purpose.

2.2 Given the fact that the ANPR data did not match with a payment made, an automated PCN was issued. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose. It should be concluded that the apps is not fit for purpose in that it fails to specifically request the Vehicle Registration Number.


2.3 A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the Claimant's failure to rectify a fault with their app. 


Thrifter01


THE REASON FOR ISSUING THE PCN IS INVALID

3. The allegation appears to be based on a parking charge notice ('PCN') that was issued for "No Ticket on Display”. This cannot be considered as a breach of contract or an act of trespass when payment is made via a mobile phone app which the Driver of the vehicle did at the time. The reason for enforcing this PCN is therefore invalid and as such this claim should be struck out.


ABUSE OF PROCESS

4. In an Abuse of process, in addition to the 'parking charge' the Claimant's legal representatives, BW Legal, have artificially inflated the value of the Claim by adding costs of £60 which have not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to read Claim number F0DP201T District Judge Taylor, Southampton Court, 10th June 2019 on the subject.

4.1 The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. (SHOULD I USE THIS IF I DON’T HAVE COPIES OF THE ORIGINAL NTK?) It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.


4.2 There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.


4.3. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.


Sorry for the multiple posts, this won't fit on one for some reason.

KeithP

In your notes in para 1.2 you seem to be saying that you did not supply the driver's name and address to the Claimant until after the County Court Claim had been issued naming you as the Defendant.

Is that right?

If so, then I fear you were too late to transfer liability back to the driver.


Edited to add:

In post #22 above you told us:

Thrifter01 wrote: »

I haven’t actually provided them with the drivers address, is it too late to provide this now? I.e have court proceedings technically already began now that I have received the claim from the court or does it go from the date of service (5 days after the day it was issued)?

Sorry, too late to transfer liability back to the driver.

Thrifter01

Hi Keith,

The drivers name had been provided plenty of times before and I have evidence of email correspondence between DRPL and the driver from a few years ago (thus showing that they were now pursuing him not me). I think I provided the drivers address via phone (I won’t make that mistake again!) at the time.

I was hoping that this would be sufficient evidence to show that I had made more than reasonable attempts to provide drivers details, but you are correct that I have no proof of having provided the address until after the issue date of the court letter. However I was under the impression that the date of service was when proceedings had technically began?