Have they made a critical error on the claim form?

elgordo9

Hi All,

I wonder if I may have stumbled across a very simple yet possibly effective defence?

Here are the particulars for a claim from Norwich Traffic Control and BW Legal.


As you can see, the particulars state that "The terms of the PCN allowed the Defendant 28 days from issue date to pay the PCN". Surely those particulars and specifically that sentence strongly suggest that they are perusing me as the driver and not as the keeper? Needless to say that they do not have any evidence that I was the driver.

Of course this will not be my only point in my defence, a SAR revealed that they do not have a photo of any signage in relation to my car, or even any signage at all. What's more, they don't state the location of the PCN within the particulars.

This may be nothing, but I thought it was at least worth posting!

beamerguy

It's BWLegal adding fake charges.

This time it's a contractual charge they claim and means that somewhere on the signs it makes mention of a £60 charge.

This is doubtful and you need to take pictures of the signs
It may be hidden in small terms and conditions. Even so, POFA2012 does not make provision for this as only the face value of a £100 ticket is applicable.

READ THIS
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

elgordo9

With reference to this claim, a SAR revealed that they do not have evidence of any signage on the site at the time of the PCN, not least with reference to the location to my car. I've had a read of the thread you linked, that's great stuff. Will be sure to include it within my defence and witness statement.

The_Deep

They appear to have forgotten the court fees and hearing charge. Read this about the unlawful contractual costs.

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

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.

elgordo9

Hi All,

I've drafted my defence. Any feedback would be hugely appreciated.

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

2. 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 breached any contractual agreement with the Claimant, whether express, implied, or by conduct. 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.

3. The facts are that the Defendant is the registered keeper of the vehicle in question. The claim relates to an alleged debt in damages arising from a driver's alleged breach of contract.

4. The Particulars of Claim strongly suggest that the Defendant is pursued as the driver of the vehicle. The defendant was not a driver of the vehicle on the date in question. The registered keeper does not admit to being a driver of the vehicle in question on the date in question.

4.1 The Protection of Freedoms Act 2012 Schedule 4 has not been complied with. The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of charge and prescribed Notice to Keeper letters in time/with mandatory wording.

5. The Claimant has supplied ‘evidence’ to the defendant as a result a Subject Access Request (SAR) issued by the defendant. Within this evidence, signage is not visible within any of the photos, not least in relation to the location of the vehicle. It is therefore denied that the legally binding contract was created.

6. 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.

7. Costs on the claim are entirely disproportionate and disingenuous. 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.

7.1 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.

7.2 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.

7.3 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. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

7.4 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.

7.5 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 the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

7.6. 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 Gladstones' 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...''

8. 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.

9. 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.

9.1 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.
I believe the facts contained in this Defence are true."

Coupon-mad

The only thing I would add is more about the facts in #3. You can add to #3 that:

Whilst the Particulars fail to state any contravention, or expand on any (POFA 2012 pre-requisites) 'relevant contract or relevant obligation' that was allegedly breached, the Defendant is aware from local knowledge... (what?)

...that it is a permit car park and...

or

...that this is a free car park and...

or

...that this is a pay and display car park, and...'