BW Legal LBC - Not Registered Keeper

KeithP

Thrifter01 wrote: »

However I was under the impression that the date of service was when proceedings had technically began?

Not sure where you got that idea from.
I would suggest that proceedings begin when a Claim is raised.

Anyway, do you have proof that you supplied the Claimant "the name of the driver and a current address for service for the driver" before 11th September?
On 10th September you asked "I haven’t actually provided them with the drivers address, is it too late to provide this now?".

Thrifter01

I do have proof of having provided the drivers address on 10th September. Presumably I include this in the defence and just let the judge decide if it was reasonable?

Coupon-mad

Well you definitely mention it and your lack of legal/POFA liability in the defence, yes, but there are other stages to come, where you get to fill in forms and submit your evidence.

It's not just 'put something in a defence then fast forward to a hearing/Judge'.

Just checking you know that and have read the part in the NEWBIES thread that tells you what happens when, and how to handle each stage until finally, you will have your hearing in 2020?

So, start with AOS and defence.

Thrifter01

Hi Coupon Mad, thanks and yep I have gone through the newbies post to look at next steps. AOS is now complete and I have to submit defence by this Wednesday, any comments on the defence would be much appreciated. Thanks

Thrifter01

Hi All, if anyone could review my draft defence (earlier post) it would be much appreciated as I have to submit soon and just wanted to know if I should be adding anything else on? Many thanks

1505grandad

It would be helpful if you post up the Defence that you intend to submit to Court including heading, ( D name redacted), and SoT at the end with any amendments already commented on.

Include the Abuse of Process thread paras copied from post #14 together with the latest Court successes re AoP.

Thrifter01

IN THE COUNTY COURT
CLAIM No: TO BE ADDED
BETWEEN:
Premier Park Ltd (Claimant)

-and-

DEFENDANTS NAME (Defendant)

DEFENCE


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.



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. 


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.

5. 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.

I believe the facts contained in this Defence are true.


Name

Signature

Date

Thrifter01

My defence is due TOMORROW and I have just returned home from work to find that my SAR has finally been answered!!!!!

Within the SAR and contrary to previous posts, the claimant has provided a copy of the PCN which suggests that it was attached to the vehicle. They have provided photos of the vehicle but none of them show the vehicle with the PCN attached, and I am absolutely certain that the PCN wasn't attached. Is the onus on them to prove that it was attached? If so, can I use this as a line of defence???

Le_Kirk

The onus is on the claimant to prove all of their claim. Might be more use at witness statement and evidence stage, especially if you have (the claimant's ) photos but refer to it in a one liner in your defence.

Thrifter01

Hi all, I am currently putting together a witness statement. The driver at the time in question is going to be attending as a witness, should they also be writing a witness statement separately to me to submit or should I just include their side of the story within my WS? Many thanks