Claim Form - Premier Park/BW Legal - draft defence

BlueBumblebee

Hi everyone,

Received a Claim Form with an issue date of 17th July 2019, and the Acknowledgement of Service was submitted on 23rd July 2019. The Claimant is Premier Park Ltd, with BW Legal as their representatives, relating to an alleged PCN from December 2015. From my understanding, I have until 19th August 2019 to submit the defence?

The problem I'm facing at the moment is that I didn't know I needed to make a specific request for the evidence, so I haven't done an SAR until very recently. But how can I form a solid defence when Premier Park Ltd can drag their feet on the SAR for a full calendar month, which would be past the deadline for the defence? If I don't receive the data in time to go over it and incorporate it into my defence, can the evidence not being received in a timely manner itself become part of the defence?

The Particulars Of Claim are:

The Claimant's Claim is for the sum of <over £120> being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice issued on <December 2015> at <early afternoon> at <Pay & Display Car Park>.

The PCN relates to <vehicle make> under registration <VRN>.

The terms of the PCN allowed the Defendant 28 days from the Issue Date to pay the PCN, but the Defendant failed to do so. Despite demand having been made, the Defendant has failed to settle their outstanding liability.

The Claim also includes statutory interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum a daily rate of 0.02 from <December 2015> to 16/07/2019 being an amount of <over £20>.

The Claimant also clams £60 contractual costs pursuant to PCN Terms and Conditions.

Their total claim is in excess of £260.

The first draft of the defence is in progress. Some parts I'm copying from other similar threads on this forum, and some I'm writing from scratch - namely some specifics on the signage being positioned in such a way that it can be easily missed by some people using the car park, and is difficult to read even by those who know it's there. This includes the fact that the signs are impossible to read after parking without standing in the path of vehicles entering and leaving the car park, as there are no pavements at or near the signs for pedestrians to use.

Because the relevant date was so long ago, it's impossible to say whether the driver of the vehicle on that day was the registered keeper or another insured driver (documentation from the insurance company showing all insured drivers will be obtained). Consequently, no admission of who was driving has been sent to Premier Park/BW Legal. The fact that they haven't established who was operating the vehicle that day should be in the defence, yes?

Also because it was so long ago, the exact specifics of the alleged parking contravention are not recalled. What is known is that all insured drivers were using mobile phone apps RingGo and PhoneAndPay to pay for parking from 2014 onwards. Which app the car park in question was using at the time is not known. It is not known if the wrong location reference number was entered into the app by mistake, whether the wrong app was used to pay (as many car parks around here have switched which apps they require on a regular basis), or whether the app failed to take payment due to busy servers on their end or inadequate mobile phone signal on the driver's end (both common problems). In any case, whichever driver was using the vehicle on that date would have tried to pay by app, and would have left the vehicle in the car park under the belief that payment had been made.
For this, some slight rewording of the defence in the "Failure of Pay By Phone app" thread (listed in Newbies thread) would be the way to go?

And with the extra £60 BW Legal have added to the claim, my defence will also need the Abuse of Process paragraphs, as well?

What should I say regarding the 8% interest charged? I remember reading somewhere that I should address it in the defence, but I can't find it again, and I have so many tabs open that my head is swimming.

Thanks in advance for any help you wonderful people can give.

Quentin

The interest is allowed

Though only if they win, and not on any added charge that is shown to be incorrect

KeithP

BlueBumblebee wrote: »

Received a Claim Form with an issue date of 17th July 2019, and the Acknowledgement of Service was submitted on 23rd July 2019. From my understanding, I have until 19th August 2019 to submit the defence?

You are right with your Defence filing date.


With a Claim Issue Date of 17th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's nearly three 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 the NEWBIES FAQ sticky thread to find out exactly what to do with it.

The_Deep

I'll bet they are after interest. Complain to the SRA, BWL know they are overclaiming

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

Alsso complain to your MP as nine times out of ten these tickets are scams.

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.

beamerguy

Another BWLegal scam attempt .....

The £60 is ABUSE OF PROCESS

READ THIS
Abuse of Process ... District Judge tells BWLegal
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

PLEASE READ POST #14 ON THIS THREAD BY COUPON-MAD
In your defence you add the text shown. Make certain the judge clearly understands what other judges have said about the fake add on by BWLegal

BlueBumblebee

First draft of the defence. A few bits may need to be modified depending on what evidence is sent under the SAR. Currently working on the assumption that the PCN wording was "no valid ticket displayed".

Further research and fact-finding by the Defendant and other insured driver(s) have determined that the mobile app used in the car park in question was RingGo, and that payments have been correctly made at the same car park on prior and subsequent occasions. The defence therefore proceeds under the assumption that a failure of service led to payment not being taken on the material date.

If the SAR data isn't provided before the date the defence is due, can that be included in the defence? Something along the lines of "failure to produce evidence"?

Are there any recommended templates for the complaint to the SRA? Or the complaint to the Defendant's MP?

In The County Court
Claim No: <redacted>
Between
Premier Park Limited (Claimant)
-and-
<redacted> (Defendant)


DEFENCE


I am <redacted>, Defendant in this matter, and I assert that the Claimant has no cause of action for the following reasons:

1. The Defendant was the registered keeper and driver of vehicle registration number <redacted> on the material date. 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 number <redacted> was parked on the material date in <redacted> Pay and Display Car Park, and that the driver made payment using the RingGo mobile phone app. Due to an assumed system failure, no payment was actually taken.

3. The vehicle in question had more than one insured driver, and the Claimant has failed to establish who was driving on the material date. Because the Claimant failed to make a claim in a reasonable time after the alleged incident took place, none of the persons insured to use the vehicle remember who was operating the vehicle when the alleged contravention took place.

4. The Particulars of Claim do not state in what capacity the Defendant is being pursued, be it the registered keeper and/or the driver of the vehicle. This lack of information indicates 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 driver of the vehicle made all reasonable efforts to make payment for parking by using an approved payment channel.

a. Payment for parking was made via mobile phone app using a cashless system provided by RingGo. The driver followed the RingGo instructions exactly as shown on the signage at the payment machine.

b. It is denied that the Ringo app, being indisputably an offer of a 'distance contract', complied with 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.''

c. The service makes no provision for the printing of a ticket to display. “No ticket displayed” therefore cannot be a contravention when a driver uses the RingGo app.

d. The payment channel did not indicate any failure to make payment. As such the driver of the vehicle believed the necessary payment had been made.

e. The failure of the payment service to accept payment is not the Defendant’s responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.

f. 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.

7. Further and in the alternative, it is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

a. The Claimant’s signage is vague and non-specific about the Terms and Conditions of parking on the land. The signs do not communicate any additional punitive parking charges of £100 (effectively a private ‘fine’) at all, and it is therefore denied there was any agreement to pay a parking charge.

b. The signage refers drivers to additional signs for the full Terms and Conditions, but no such sign is present anywhere on the land. In the absence of signage correctly and prominently stating the terms of the contract and the sum of punitive parking charges, the Defendant denies agreeing to any contract.

c. There are two entrances to <redacted> Pay & Display car park, and the Claimant’s signage is only visible from one entrance. It is therefore possible for a driver to enter the land via the second entrance, park their vehicle, and then leave the land on foot through the same entrance without seeing the signage. This will be the case for all persons arriving from and heading towards the <redacted> area rather than the town centre.

d. The signage present at the primary entrance to the land is positioned on the left side as a vehicle enters the car park, and it can therefore not be read by the driver of a vehicle, and not every vehicle will have a passenger able to read the sign as the vehicle enters the land. A passenger in a vehicle cannot agree to a contract on behalf of the driver.

e. The signage is in such a position that anyone attempting to read the sign on foot after parking their vehicle will be standing in the path of other vehicles entering and leaving the car park. Merely approaching the signage therefore presents a potential physical danger during peak times, and it is unreasonable to expect anyone to stand in front of oncoming vehicles in order to read the signage.

f. In addition, people approaching the signage on foot pose a further obstacle to drivers reading the signage, as they cannot look out of the passenger side window to read the signage while also maintaining due care and attention to what is occurring in front of their vehicle, specifically remaining alert for people approaching the signage on foot.

g. The terms on the signage are also displayed in a font which is too small to be read from any reasonable distance, such that it cannot be read from within a parked vehicle. It is, therefore, denied that the Claimant’s signage is capable of creating a legally binding contract.

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 reasonable calculation or explanation is given, and which appears to be an attempt at double recovery.

Costs on the claim - disproportionate and disingenuous

a. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will:
i. 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
ii. 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.

b. 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.

c. 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.

d. 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.

e. 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.

f. 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.

g. 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...''

h. 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.

i. 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.

j. 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.

Statement of Truth:
I believe that the facts stated in this Defence are true.

<redacted>

Date

BlueBumblebee

Hey, so I don't like to bump a thread, but I really would appreciate some feedback on the draft defence if possible.

beamerguy

IT IS ORDERED THAT ?

Best change to "the Judges said IT IS ORDERED THAT "

And a point on the Beavis case. The court said that £85 was acceptable (even though it has risen to £100)

The Supreme Court DID NOT say that add-ons were acceptable

The_Deep

Have you complained to your MP yet?

BlueBumblebee

I haven't complained to my MP yet. To be honest, I'm not really sure what to say in the letter.

BlueBumblebee

So I finally received the data from the SAR I sent many weeks ago, and I'm not sure any of their "evidence" is valid.

The "copy" of the PCN is a screenshot from their computer system showing that at some point, somebody typed the vehicle details into a computer to record that a parking contravention allegedly took place.

The photos showing the vehicle parked in the car park can only be described as microscopic, being low resolution and approximately 2cm x 1cm in size. The VRN of the vehicle isn't shown, nor is there a timestamp on any of the images.

There's no "notice to keeper" letter here, only a "first reminder" letter, dated 31 days after the alleged contravention, with the threats to pass it over to a debt collector.

Obviously it's far too late to include any of the above in my defence document (which was sent weeks ago, but I DID include a paragraph in the defence about the lack of a timely response to the SAR), but... am I correct in thinking that the lack of a valid NTK letter makes their entire claim invalid? And that fuzzy, tiny photos with no timestamp can't be considered evidence?

There's also records for a second PCN from about a year later, again with only a computer screenshot for a PCN, microscopic photos, and a "first reminder" letter, not a "notice to keeper" letter. As I understand it, they're not allowed to pursue this second PCN through a second claim after failing to include it in the first one?