BW Legal / Premier Park Limited LOC Unauthorised Entry/ Parking

nobodygotimeforthat

Hi All, I have now drafted my defence. I have used Bargepoles excellent defence for the beginning part along with my own facts. From paragraph 10. I have used Coupon-Mads stinging defence. The first part of paragraph 10 I had to change slightly to fit my case, but the rest applies so I have kept it all in just to save you rereading what I am sure you have read in it's entirety. It makes for an incredible read!

Please let me know of any bits you feel need to be changed, or anything I may have worded incorrectly. I think I have carried out the defence properly, do let me know if I need to keep out any points in order to use in my Witness Statement or would be better suited to a WS rather than a defence.

Thank you all in advance, your input is appreciated more than you know.

It's struggling working mums like me that would just have to put charges like this on a credit card as we wouldn't have a clue how to defend it and the thought of court or a CCJ would be too much to bear. It would take me an age to repay it, that is a months worth of food for my family or council tax, so you guys have NO idea the real good you are doing to help families fight these scamming gits!

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Premier Park Limited (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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 REGISTRATION, of which the Defendant is the registered keeper, entered the car park on DATE 2018.

3. Letters recovered from a subject access request, which the Defendant did not receive due to a change of address, show the PCN issued on DATE states the driver became liable for a parking charge. The Particulars of Claim state that the PCN relates to MODEL under the registration REGESTRATION. The claim then indicates the defendant had 28 days from the issue date to pay the PCN. The claim fails to specify whether the Defendant is held liable as the driver or as the keeper of the vehicle. 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.

4. 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.

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner. The entrance sign shows in large and bold font with white writing upon a blue background in order to have it stand out; ‘Welcome’ and ‘P’. Any driver in a passing sign would see this sign as an invitation rather than a deterrent. Additional signage in the car park can only be seen once inside the car park and outside of a vehicle. They cannot be read prior to the parking of a vehicle which the Claimant has purported “the act of parking your vehicle is acceptance” of the terms and conditions displayed.

6. 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. BPA Approved Operator Scheme Code of Practice 13.1 states, “If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”. The IPC code of practice 15.1 states “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.”. The Defendant believes no grace period has been granted. The Claimant is attempting to recover £160 for the vehicle entering and exiting the car park within a 10 minute period. Sections 13.2 and 13.4 of the BPA code of practice advise a grace period in most cases should be a minimum of 10 minutes.

8. 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.

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 clear explanation is given, and which appears to be an attempt at double recovery.

10. The additional £60 has been referred to by the Claimant on separate occasions as ‘Initial legal costs’, ‘Total debt recovery costs’, ‘Receipt of Instruction Fee’ and now most recently on the Particulars of Claim a “Contractual cost pursuant to the PCN Terms and Conditions'. The Defendant is therefore lead to believe that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

11. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

12. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
13. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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 an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

13.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

13.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

13.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

13.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim
14. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' (further, 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.

The Consumer Rights Act 2015 ('the CRA') is against this claim
15. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

15.1. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

15.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

15.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

15.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''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 the Beavis case. 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...''

15.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

15.3.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

15.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

15.3.5. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

15.4. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

15.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

16. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

16.1. The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

17. 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

18. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

19. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth:

I believe that the facts stated in this Defence are true.


Name
Signature
Date

Le_Kirk

3. Letters recovered from a subject access request, which the Defendant did not receive due to a change of address, show the PCN.......

You might want to change this as it reads that you did not receive the SAR results: -

3. Letters, which the Defendant did not receive due to a change of address but subsequently received after submitting a subject access request show the PCN.......

1505grandad

Para 3 - " The claim fails to specify whether the Defendant is held liable as the driver or as the keeper of the vehicle. 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 .............."

where are the "assertions" and what is the "menu of choices"? Do the PoC say "driver &/or"?


Para 7 - not sure why the IPC CoP is quoted as well as the correct BPA CoP

nobodygotimeforthat

Thank you Le_Kirk I have now changed that

nobodygotimeforthat

1505grandad wrote: »

where are the "assertions" and what is the "menu of choices"? Do the PoC say "driver &/or"?

The particulars of the Claim says "the PCN relates to the (Model and Reg of car). The PCN allowed the Defendant 28 days from the issue date to pay the PCN."

I have never said I was the driver. The PCN I have seen from my SAR says the driver is liable, while the claim says that while the PCN relates to the vehicle, I (as the defendant) am liable. They have assumed I was the driver and I am trying to say they are being vague in the claim particulars as they are blurring the lines between the vehicle and me as the defendant. They have not specified that I as the keeper am liable. Should I remove the bit about menu of choices and leave it as assertions? The claim never refers to me as the driver or the keeper, simply the Defendant.

1505grandad wrote: »

Para 7 - not sure why the IPC CoP is quoted as well as the correct BPA CoP

Is the IPC redundant now? did the BPA replace the IPC? I shall take out the IPC reference if so.

Thank you for your help!

Fruitcake

nobodygotimeforthat wrote: »

Is the IPC redundant now? did the BPA replace the IPC? I shall take out the IPC reference if so.

Thank you for your help!

There are two ATAs, the BPA and the IPC, and they have different CoPs. The parking scammer can be members of both but only members of one approved operator scheme.

Umkomaas

nobodygotimeforthat wrote: »

The particulars of the Claim says "the PCN relates to the (Model and Reg of car). The PCN allowed the Defendant 28 days from the issue date to pay the PCN."

I have never said I was the driver. The PCN I have seen from my SAR says the driver is liable, while the claim says that while the PCN relates to the vehicle, I (as the defendant) am liable. They have assumed I was the driver and I am trying to say they are being vague in the claim particulars as they are blurring the lines between the vehicle and me as the defendant. They have not specified that I as the keeper am liable. Should I remove the bit about menu of choices and leave it as assertions? The claim never refers to me as the driver or the keeper, simply the Defendant.




Is the IPC redundant now? did the BPA replace the IPC? I shall take out the IPC reference if so.

Thank you for your help!

If Premier Park met the requirements of PoFA, it doesn't much matter who was driving as they can hold the keeper liable.

There are 2 ATAs, both still in full function - the BPA and the IPC. PPCs will be a member of one or the other's Approved Operator Scheme. Premier Park Ltd are members of the BPA AOS. The IPC is irrelevant in your case.

Coupon-mad

I'd remove #3 entirely as it doesn't add anything, and if you were the driver you might want to admit it in the defence as it makes for a more comfortable stance in court, especially when talking about the signs not being clear.

nobodygotimeforthat

To be perfectly honest, I don't remember if I was driving. I have no idea whatsoever. I do not remember parking there at all, however, there evidence shows my vehicle in there so it must have been me.

I moved during the time the ticket was sent, I did update my address with the DVLA but it was after that ticket was sent so I never received the first PCN. The first letters to my new address were ones from BW Legal saying I owed £160.

I shall certainly take out number 3 and write in the defence somewhere that I was the driver if you think it would help/not make any difference if I was not.

Thank you all very much for your feedback!

beamerguy

(I can hardly believe they have the balls to write this on the court papers - I live in Southampton.)

Your comment above ...... yes it's amazing and clearly the left hand of BWLegal is divorced from the right hand. Some might say they are as thick as two pins ??

The question must be in the Southampton court is why are BWLegal abusing the rulings of the judges, what authority does BWL have to continue this abuse of process

When writing to your MP, ask him/her to refer the matter to the Justice Secretary, Robert Buckland QC for investigation into this abuse of process by BWLegal