Defence advice please: BW Legal for Premier Park Ltd at easyGym/Royal Mail Delivery Office car park

apcn

Hi all, years ago I received a PCN from Premier Park Ltd, as my car was allegedly parked in an easyGym space at a car park shared with a Royal Mail Delivery Office. The driver went to collect a missed delivery, but did not see the signs to identify that some spaces are only for easyGym users and that there was ANPR, although after checking at a later date did find some small text signs.

Previously the gym was Fitness First, and after changing ownership the entrance to the Royal Mail office moved. The driver parked close to the new entrance of the Royal Mail office, and was not aware they had parked in a space reserved for easyGym users. The ANPR pictures on the PCN did not show the parking space used.

All correspondence was ignored until receiving a county court claim form issued on 16th July. Unfortunately I've lost the original PCN letter, so I emailed a SAR to Premier Park on 23rd July, and sent an AoS online on 24th July stating that I intend to defend all of the claim, but I still haven't received the SAR information yet.

How long does it typically take for a SAR response? I did not provide a postal address, as I wanted the details to be emailed to me.

I've read the newbies thread and endless other BW Legal threads, but I'm struggling with what to adapt on bargepole's defence template.

Particulars of Claim
The Claimant's Claim is for the sum of £130.XX being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) issued on XX/05/2015 (Issue Date) at xx:xx:xx at easyGym (ANPR)

The PCN relates to XXXX under registration XXXXXXX. 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 XX/05/2015 to 15/07/2019 being an amount of £30.XX

The Claimant also claims £60.00 contractual costs pursuant to PCN Terms and Conditions

The total claimed amount including court fees is over £260. I thought it happened earlier than 2015, but without the PCN I can't be sure.

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 XXXXXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to easyGym.

3. [STRIKE]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.[/STRIKE]

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 which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

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. 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.

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

9. 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. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts stated in this Defence are true.

I assume I should delete paragraph 3, as that quote does not appear in my Particulars of Claim?

Should I add any more detail about it not being clear which parking is reserved for easyGym, and which can be used for the Royal Mail Delivery Office?

Any advice much appreciated!

KeithP

With a Claim Issue Date of 16th 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 over a week away. Loads of time to produce a 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.

KeithP

How long does it typically take for a SAR response?

They are allowed one calendar month to respond to a SAR.

apcn

KeithP wrote: »

They are allowed one calendar month to respond to a SAR.

Thanks for the quick reply KeithP! I was starting to panic that there was a problem with my proof of identity, as it's been just over two weeks.

With my defence needing to be filed by August 19th, and my SAR being requested on July 23rd, I might not receive the PCN and other details until after my defence has been filed. I guess more detail will go into my witness statement, so it isn't necessary for my defence, but I would have liked to check the issue date. I saw in post #2 of the newbies thread I could send a letter to BW Legal asking for the case to be put on hold, but that they will refuse, so I guess there isn't much point?

apcn

Should I change paragraph #2 of my defence if I'm not sure that the vehicle was parked in an easyGym space? And delete paragraph #3 as the quote doesn't appear in the Particulars of Claim?

KeithP

Now a County Court Claim has been issued the Claimant cannot delay the process. You have a fixed deadline for filing your Defence.

You are right, most of the SAR response will be of more use at Witness Statement time.

Egbert_Nobacon

In point 2 I would say that the bay is ALLEGEDLY allocated to easyGym.

Instead of 8 and 9 use Coupon-mad’s ABUSE OF PROCESS quote and number paragraphs accordingly:-



Costs on the claim - 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.

- 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.

- 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.

- 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.

- 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.

- 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.

- 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:
The Judge stated:-
''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...''

- 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.

- 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.

- 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.

apcn

Thanks Egbert Nobacon, I've added 'allegedly' to point #2, removed point #3, and replaced #8 & 9 with Coupon-mad’s ABUSE OF PROCESS quote. Just want to make sure I understand correctly - should each of those paragraphs be a new number, or should I bullet point them all under one paragraph number?

KeithP

Every single paragraph needs a separate sequential number.

apcn

Thanks again, I've numbered all the paragraphs now.

I noticed it mentions that the signs stated that "vehicles must be parked correctly within their allocated parking bay" a few times, but I found an old photo of the sign from around the time my PCN was issued (Google "daily echo driver fined premier park"), but it doesn't seem to have the same text mentioned.

Do I need to make any amendments to that paragraph?

Umkomaas

apcn wrote: »

Thanks again, I've numbered all the paragraphs now.

I noticed it mentions that the signs stated that "vehicles must be parked correctly within their allocated parking bay" a few times, but I found an old photo of the sign from around the time my PCN was issued (Google "daily echo driver fined premier park"), but it doesn't seem to have the same text mentioned.

Do I need to make any amendments to that paragraph?

If the PCN was issued as a result of ANPR capture, the bays are not monitored (cannot be). Unless the PCN alleges that the car somehow violated bay location/markings, what it says on the signs about bays is rather moot.