BWlegal/Premier Parking - Fluttering ticket Court claim

BBB9

Hi all


I have a court claim from BWlegal on behalf of Premier Park for an alleged P&D offence in 2015.

Prior to reading all the great help and advice on here I initially responded to PP, admitted I was the driver and evidenced I had a valid ticket and it was legible through the window although had ended up on the passenger seat. PP acknowledged receipt of my appeal letter but denied it. I then ignored everything else they sent me and the following 4 years’ worth of debt collection letters from various parties.

I’ve now received notice of the County Court Claim from the County Court Business Centre in Northampton and submitted my AOS.

I’ve read all the Newbies page and lots of helpful advice on here regarding Defence and have really copied mine from the similarly themed cases of Claxtome, Tabz123 and NoChargenotice. If any of the regulars could check the below is still relevant or have any additional suggestions it would be really appreciated.

Thanks

KeithP

What is the Issue Date on your Claim Form?

BBB9

Claim form issue date 19 july 2019


DRAFT DEFENCE

Preliminary Matters
1. The Claimant has not complied with its obligations set out in the Practice Direction – Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence, because a parking charge can be for trespass or breach of contract, both of which are treated differently in law and require a different defence. If a claim in contract, the Claimant has not explained what it claims the terms of that contract were or how it was entered into. No copy of the alleged contract has been provided to the Defendant.

1.1 The Particulars of Claim breach the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached and breach CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a “Parking Charge Notice” with no further explanation; the Claimant thus fails to establish a cause of action which would enable the Defendant to prepare a specific defence; they are not clear and concise as is required by CPR Part 16.4 1(a).

1.2 The Claimant and their solicitor are known to be a serial litigants and issuer of speculative claims, using “template” particulars of claim, with no due diligence. Research indicated they are the subject of an active investigation by the Solicitors Regulation Authority.

1.3 In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20 September 2016 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

1.4 On the 27 July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the claim was struck out.

1.5 In D3GF4P9D Private Parking Solutions London -v- Mrs A, before DJ Hammond. DJ Hammond dismissed the claim. The whole case turned on the fact that a ticket had been purchased, and therefore no further arguments were considered.

2. The Defendant appealed the windscreen Parking Charge Notice on the XX/XX/XXXX explaining what had happened and included a copy of the ticket displayed on the day providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.

2.1 This was an opportunity for the Claimant to act reasonably and cancel the charge.

2.2 Not only was the charge not cancelled but the appeal was not responded to in a complete manner.

2.3 The above constitutes a direct breach of Practice Direction - Pre-Action Conduct and Protocols; specifically - paragraph 3 (Objectives), 6(a) and (c) (Steps before issuing a claim) and 8 (Settlement and ADR). Pertinent to this defence is the Practice Direction reference to the Claimant providing the basis on which they bring the claim. As such the court's attention is drawn to the sanctions set out in paragraphs 13 - 16.

2.4 The Claimant’s conduct is also a direct breach of the International Parking Community ("IPC") Code of Practice ("CoP"), Part B, Section 6. The CoP is effectively regulation for the private parking industry, as found by the Supreme Court in the Beavis Case.


Background
3.The Defendant is the authorised registered keeper and was the driver in question at the time of the alleged incident.

The Defendant denies liability for the entirety of the claim for the following reasons:
4. If the claim is brought for breach of contract, the Defendant paid and displayed a ticket so all details could be seen, and the ticket was in place the right way up when the car was locked and left parked. The Claimant has not disputed this.

4.1 When leaving the car parked, the Defendant ensured that the Pay & Display Ticket (“PDT”) was properly displayed. The Defendant cannot be responsible for 'continuous display' after that point, given that:

a) The PDT ticket supplied by the Claimant to a paying driver is (either deliberately, or negligently) extremely flimsy with no sticky side to firmly attach to a window, windscreen or dashboard.

b) A gust of wind may have later moved the flimsy paper, despite the windows and doors being locked.

c) The employee of the Claimant may have caused the ticket to move from the windscreen by leaning across and/or quickly passing between parked cars, causing air to flow through the windscreen air vents and/or causing the vehicle to move enough for the flimsy slip to dislodge from the dashboard, as has been the reported modus operandi of rogue parking firms in this industry.

4.2 None of the above scenarios are within a driver's control (the Defendant was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

4.3 The flimsiness of the ticket is within the control of the Claimant, who must be well aware of the problem, which has become known as ''fluttering tickets''. The Claimant profits from drivers' misfortune caused by their own tickets' inability to withstand British weather, therefore it is averred that this Claimant wilfully failed to address this issue (e.g. by adding sticky backing to the ticket, allowing it to be fixed in place).

4.4 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act.

4.5 Notwithstanding the above, the ticket was still displayed within the vehicle in a location where it was legible as per the evidence provided to the Claimant.


4.6 The term, ‘A valid permit or ticket fully on display in the windscreen area’ in particular the meaning of ‘fully on display’ and ‘windscreen area’ are not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that any uncertainty must be resolved in favour of the consumer.

4.7 A valid ticket was displayed in the Defendant’s vehicle visible and legible through the windscreen, driver window and passenger window. If the Claimant wanted to impose a different term to require the ticket to be displayed in a prescribed manner (eg within a certain distance from the windscreen), then the terms should have stated this clearly and unequivocally. Likewise, there is then contradictory directions for the display of the ticket written on the ticket itself with the requirement to ‘fix ticket inside window’. An instruction not included prior to purchase or indeed possible given the nature of the flimsy ticket supplied.

4.8 The Claimant does not dispute that the Defendant purchased a ticket, that it gave him a licence to park for the entire day and that it was displayed and visible at all times.

Limited contract
5. The signage on this site is inadequate to form a contract to pay £100 or any sum at all. It is barely legible, making it difficult to read and it is not believed that such terms were proclaimed with the tariffs at the machine. Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which the Claimant is a member), clearly obliges the Claimant to display legible signs in appropriate locations.

Locus standi
6. The Claimant has failed to establish its legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

6.1 Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.


Claimant is seeking a penalty and inflated costs
7. The Claimant seeks £189.42 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown he did purchase a valid ticket and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

7.1 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the valid ticket that was displayed and again when provided with the evidence in the Defendant’s appeal letter dated 10 July 2015. Both were opportunities which enabled the Claimant to establish that the Defendant had paid for a full day’s parking.

7.2 £60 of the £160 ‘parking charge’ (for which liability is denied) the Claimant has untruthfully presented as contractual charges, which amounts to double charging, which the PoFA 2012 Schedule 4 specifically disallows. Any term allowing for the Claimant to pursue such additional charges must be void for uncertainty. In any event, such charges must be covered by the addition of the discounted element of the charge after a driver has failed to pay within 14 days (£40).

7.3 There is no possible commercial justification for the Claimant to found an action based on such a trivial matter, caused by the Claimant's own ticket paper which is not robust enough for a driver to display with any confidence. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated that in that case there was a commercial justification as it was a free car park and the Claimant needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a Pay and Display car park where revenue is earned from the purchase of tickets for an agreed period of time.

7.4 The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid and that due to the sparse particulars the £50 claimed for filing the claim has not been incurred either. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

7.5 The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”.. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

7.6 The Defendant denies that the Claimant is entitled to any interest whatsoever.

8. The Defendant invites the court to consider this matter a trifle; the Defendant has acted in good faith; made reasonable endeavours to adhere to the terms of a pay and display contract and the Claimant has suffered no actual loss. In plain language, the Claimant has spent four years aggressively seeking extravagant sums for the erroneously claimed failure to display a £3.50 parking ticket; evidence for the purchase of which it has never contested.

8.1. The Defendant requests the court use its case management powers to strike the claim out as the Claimant has failed to provide basic details about its claim; is seeking an extravagant and unconscionable penalty and is automating its use of the court process against the public interest to intimidate and harass those acting in good faith.

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

Quentin

Post your draft defence up here for comments before sending it

KeithP

BBB9 wrote: »

Claim form issue date 19 July 2019.

I am going to assume you did the Acknowledgement of Service before Wednesday 7th August. Please confirm.


With a Claim Issue Date of 19th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 21st August 2019 to file your Defence.

That's just over a week away. Plenty 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 [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

Le_Kirk

Looks like you have found an old defence there, did you look at the NEWBIE sticky post #2 and review the 17 pre-written example defences by Bargepole and others? DO that, pick the one that suits your circumstances the best and add in any other technical/legal points you need to counter the details in the POC.

BBB9

Thanks Le_Kirk


This was mainly taken form a defence submitted in March 19 so assumed it was still all relevant given the timing and the commonality in the case. Which bits do you think our outdated?

Coupon-mad

Remove this lot:

Preliminary Matters
1. The Claimant has not complied with its obligations set out in the Practice Direction – Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence, because a parking charge can be for trespass or breach of contract, both of which are treated differently in law and require a different defence. If a claim in contract, the Claimant has not explained what it claims the terms of that contract were or how it was entered into. No copy of the alleged contract has been provided to the Defendant.

1.1 The Particulars of Claim breach the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached and breach CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a “Parking Charge Notice” with no further explanation; the Claimant thus fails to establish a cause of action which would enable the Defendant to prepare a specific defence; they are not clear and concise as is required by CPR Part 16.4 1(a).

1.2 The Claimant and their solicitor are known to be a serial litigants and issuer of speculative claims, using “template” particulars of claim, with no due diligence. Research indicated they are the subject of an active investigation by the Solicitors Regulation Authority.

1.3 In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20 September 2016 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

1.4 On the 27 July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the claim was struck out.

1.5 In D3GF4P9D Private Parking Solutions London -v- Mrs A, before DJ Hammond. DJ Hammond dismissed the claim. The whole case turned on the fact that a ticket had been purchased, and therefore no further arguments were considered.

Replace it with bargepole's usual point #1 which denies liability for a charge.

BBB9

Thanks Coupon-Mad


Should I also take out 7-7.6 and replace with your Abuse on Process wording?