Britannia Parking Ltd (BWLegal) - County Court Claim

yettoexist

Hi All,

I have received a claim form the Northampton CCBC issued on 5th July 2019. The AoS was completed on 8th July 2019. A draft defence has been started using bargepoles defence.

The driver parked in Milton Keynes Avebury MSCP and paid for 3 hours of parking via the PaybyPhone app, the only time they saw the sign was upon entrance to the car park. The driver tried to extend parking via the app but was unable to do so due to the app experiencing issues, evidenced on PaybyPhoneUK twitter account ttps://twitter.com/PayByPhone_UK/status/1025297683945279488

The driver had a vulnerable person with them so they were unable to pay for further parking via a paper ticket. They returned to the vehicle as promptly as they could, which was 1 hour after the app parking had expired.

An appeal was made directly to Britannia but it was declined due to the PaybyPhone payment expiring.

The PCN was issued on 4th August 2018 with the first NtK received on 16th August 2018.

Costs are:

Claim: 166.70
Court fee: 25
Legal rep costs: 50
Total: 241.70

Any advice would be appreciated

yettoexist

Also, all other car parks are council run and are free after 6pm, the car park does not make it clear that the chargeable hours are different i.e until 22:00 on weekdays and 20:00 on weekends. I assume that this would be a weak defence alongside the car park being near enough empty at the time.

I have not requested a SAR yet, but I will in the morning.

MonkeyRum

https://mobile.twitter.com/PayByPhone_UK/status/1025297683945279488

PayByPhone are currently experiencing a connectivity issue when customers are trying to park via the mobile app and website. To park please call our IVR on 0330 400 7275. Apologies for any inconvenience caused at this time

Did the driver call the number provided?

beamerguy

yettoexist wrote: »

Hi All,

Costs are:

Claim: 166.70
Court fee: 25
Legal rep costs: 50
Total: 241.70

Any advice would be appreciated

BWLegal are abusing you and abusing the court system

You do NOT owe £166.70 ... the parking ticket was £100

How do they explain the extra £66.70 ?????

READ THIS:
Abuse of Process ... District Judge tells BWLegal
https://forums.moneysavingexpert.com/discussion/6014081

See post #14 by coupon-mad which you include fully in your defence

yettoexist

MonkeyRum wrote: »

Did the driver call the number provided?

I can confirm that the driver did call the number provided by PaybyPhone UK support, however, the IVR automated system was not able to confirm payment and tried to put the driver through to an operator. The driver was still in the call queue by the time they arrived back at the car.

beamerguy wrote: »

BWLegal are abusing you and abusing the court system

You do NOT owe £166.70 ... the parking ticket was £100

How do they explain the extra £66.70 ?????

READ THIS:
Abuse of Process ... District Judge tells BWLegal

See post #14 by coupon-mad which you include fully in your defence

Thank you for the information - I have been following the main AoP thread and I will include it as part of my defence. The claim seems extortionate for the alleged loss of income to the landowner at the time the PCN was issued.

I will post my draft defence over the weekend hopefully!

The_Deep

WRT BW Legal, as Beamer says, they are trying to defraud you, report the to the SRA, and complain to your MP

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies. .

http://www.sra.org.uk/home/home.page

KeithP

yettoexist wrote: »

I have received a claim form the Northampton CCBC issued on 5th July 2019. The AoS was completed on 8th July 2019.

With a Claim Issue Date of 5th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 7th August 2019 to file your Defence.

That's nearly four weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

Coupon-mad

The claim seems extortionate for the alleged loss of income to the landowner at the time the PCN was issued.

And that is exactly what you DO NOT say!

Search the forum for perfect defence and copy & adapt the facts to suit.

KeithP

Coupon-mad wrote: »

Search the forum for perfect defence and copy & adapt the facts to suit.

C-m, unfortunately that search argument will pick up many of my posts, where I say "Loads of time to produce a perfect Defence...". As can be seen in the post immediately above yours.

Le_Kirk

KeithP wrote: »

C-m, unfortunately that search argument will pick up many of my posts, where I say "Loads of time to produce a perfect Defence...". As can be seen in the post immediately above yours.

In which case use Advance Search and put Coupon-mad (note - use exactly as shown, box is case sensitive) as the user name and perfect defence as search words.

yettoexist

Hi guys,

I intend on sending my defence off later today, via email, before the deadline of Wednesday 7th. Any constructive critique would be hugely appreciated, I'm aware it appears long and it could probably do with trimming out irrelevant or frivolous points.

Is it worth mentioning that if the defendant pays via the app, that the only point they see a sign with T&Cs is when they enter the car park? You can exit via the non-pedestrian car exit point with no on-foot signs. I realise that this aspect may be worth saving for the WS stage.

All the regulars in here provide sublime advice on here every single day!





IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BETWEEN:

BRITANNIA PARKING GROUP LTD (Claimant)

-and-

XXXXXXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The Defendant is the registered keeper of the vehicle in question, registration XXXX XXX. The particulars of the claim, state the legal basis is brought against the Defendant for ‘breach of the terms of parking" by the driver. 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 when parking at XXXXXXXX on XXX XXX 2018.

3. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

4. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). 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. The Claimant's signs are unlit and not clearly visible (especially in the dark when the ANPR cameras captured the vehicle). Terms and conditions text is displayed in a font which is too small to read by the naked eye while in a stationary or moving car. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

Frustration of Contract
7. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
a. Payment for parking was made via mobile app using a cashless system provided by PayByPhone.
b. This is a distance contract which requires certain information to be supplied in advance.
c. The service makes no provision for the printing of a ticket to display.
d. The Defendant’s partner followed the PayByPhone instructions exactly as shown on the app, the car park location was selected via the integrated map, a payment to the total of £X.XX was confirmed as paid by the parking history section of the app.
e. The payment channel did not indicate any failure to make payment. As such the Defendant believed the necessary payment had been made.
f. The Defendant’s partner attempted to extend the parking by one hour, however, there were connectivity issues within the app.
g. The failure of the payment service to accept payment is not the Defendant or Defendant’s partner’s responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
h. The PaybyPhone line, being indisputably an offer of a 'distance contract', did not comply with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says:

''Confirmation of distance contracts: 16.—
(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''

8. 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 when unable to fully comply with the terms.
9. The Claimant is put to strict proof that it has sufficient proprietary 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.

10. The Claimant may rely on the case of Parking Eye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

Costs on the claim - disproportionate and disingenuous.
11. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge per each Parking Charge Notice (PCN), for which no explanation or justification has been provided.
a. Schedule 4 of the Protection of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance.
b. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

12. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
a. only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
b. resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

13. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself.

14. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

15. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of ‘cut & paste’ claims.

16. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

17. 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. It is submitted that the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

18. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member - serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member - serial Claimant (UKCPM, using Gladstone’s' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT: The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

Summary
19. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged. The Defendant submits that this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out accordingly.

20. 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.

21. For all or any of the reasons stated above, 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 to amount of £XXX.XX to which they are not entitled to recover.

22. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).


I believe the facts contained in this Defence are true.

Name
Signature
Date

Regards,