BW Legal Defence Thread - WS Stage - Court Date < 2 weeks

beamerguy

JP26 wrote: »

So I've heard back from my friend's landlord, she states there is nothing in the lease that's relevant to parking (good news) although I'm waiting for her to reply to my request to send the whole lease over as I'll need to quote this in my defence.

Given I have to submit by Monday the 23rd ( ideally Friday to be safe) and without the lease to quote yet , I'm going to have to rely on other defence points mainly: abuse of process and possibly landowner authority.

My questions are:

1. If I am provided with the lease at a later date, can I add this to my defence before the court hearing? Can I mention in my defence that the lease makes no reference to third party parking companies being able to impose new T&Cs on permit holders? ( Even though I haven't seen the lease yet and can't quote it)

2. Apart from the BW legal abuse of process, and landowner authority ( I can't confirm this for sure), I'm not sure what other defence points I can rely on. The signage seems mostly compliant with the IPC guidelines apart from the font is a little small ( picture above). Can I argue that I am a valid permit holder and complied with the T&Cs on-site when entering the car park, only for the permit to fall off during? ( although this defence point would link to ME being the driver)


Thanks again all.

That sounds like very good news.
I think the courts are getting very fed up with these financial attacks on residents.

You can be seen to hi-jack in court by just providing a copy of the lease on the day.

However PPC's often state that they will provide papers to a judge on the day. If in your statement you make it clear that you are waiting for a copy of the lease which you will show in court, all parties will be aware and you will not be hi-jacking

Your statement must highlight the ABUSE OF PROCESS by BWLegal and use coupon-mad's text in post#14 of this thread.
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

On the subject of ABUSE OF PROCESS, you need to know on what authority do BWLegal have to change the law and the courts own rule of double recovery

JP26

Thank you both, so do you think I should run with this defence point of Primacy of Contract, even though I'm still light on the details of the lease and relying on a third party ( the leaseholder) providing the information so far? As Beamerguy says I can mention I am awaiting a copy of the lease which can be later presented in court.

I have a draft defence ready with coupon-mads very helpful defence template regarding BW Abuse of Process. My hearing will likely be after the November hearing so I will be watching closely.

I've drafted the following email to the BW Bandits:

Dear Sir or Madam

I am writing in response to the claim form issued on the 20th of August for an alleged parking offence which I fully refute.

I have since had confirmation from the lease agreement that makes no reference to a third party parking firm being able to form terms and conditions with permit holders of Dairy Croft carpark, nor does it mention the requirement to display a permit in the windscreen as per your client’s terms and conditions. As I’m sure you are fully aware, the leasehold agreement of a property gives the resident the unfettered right to park and this cannot be altered later, for instance by requiring a permit to park. This will form part of my defence in court as Primacy of Contract.

In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park. There are numerous other cases similar to this which further reinforce the primacy of contract and the lease agreement as the ultimate contract on the property.

I trust you will acknowledge this evidence and proceed to terminate the court process and delete all of my personal information that you hold.

Yours faithfully

Coupon-mad

I would add this (by the way it will not stop them):


I trust you will acknowledge this evidence and proceed to terminate the court process and delete all of my personal information that you hold. Should you continue with this baseless claim where your clients have ridden roughshod over the rights and interests of the residents, I will have no hesitation in seeking my full costs on the indemnity basis, at trial.

beamerguy

As said, BWLegal are well known for ignoring, they seem to enjoy being spanked in court ?
Whatever floats their boat is unknown

BwLegal file these cases with no due diligence to ascertain whether the claim has the remotest chance of succeeding.

Read this >>>> Residential Parking
https://parking-prankster.blogspot.com/search?q=residential

Le_Kirk

JP26 wrote: »

1. If I am provided with the lease at a later date, can I add this to my defence before the court hearing? Can I mention in my defence that the lease makes no reference to third party parking companies being able to impose new T&Cs on permit holders? ( Even though I haven't seen the lease yet and can't quote it)

So long as there is a point in your defence about the lease, you can expand upon it and show it as evidence at witness statement stage.

JP26 wrote: »

2. Apart from the BW legal abuse of process, and landowner authority ( I can't confirm this for sure), I'm not sure what other defence points I can rely on. The signage seems mostly compliant with the IPC guidelines apart from the font is a little small ( picture above). Can I argue that I am a valid permit holder and complied with the T&Cs on-site when entering the car park, only for the permit to fall off during? ( although this defence point would link to ME being the driver)

Answered by others.

JP26

Right so here is defence draft is below, some notes to start:

Paragraphs 3 > 9 focus on the primacy of contract. I have changed some of the wording to reference permit holder as I am not a leaseholder to the building and 13 onwards is the latest and greatest from coupon-mads #14 post. I'm a bit concerned that I am leaning on this defence point without having seen the lease in detail as of yet, only verbal communication that the lease does not reference parking/

It's fairly hefty at 26 paragraphs, do I need all of this?

I also had a letter just now from BW titled ' Notice of impending county court judgment' stating 'if you do not respond to us the country court claim, we will enter a CCJ against you after 29 September 2019. ' Why are they sending me these when I did the AOS on the 16th Aug ( Claim form date 20th Aug) , Is this just another pressure tactic?

Le_Kirk

Is this just another pressure tactic?

Yes but they are naughty to imply a CCJ is coming your way even BEFORE the judge has read your defence and WS and BEFORE the case has been heard in court. Some might say it looks like unreasonable behaviour and is worth a mighty three-figure claim for costs or at least a complaint to the SRA.

KeithP

Remember...

...you have until 4pm on Monday 23rd September 2019 to file your Defence.

Are you going to show us your draft Defence anytime soon?

Don't allow yourself to be distracted by other stuff.

JP26

Having issues with pasting the thread, asks me for a Captcha and never seems to post.

JP26

________________________________________
DEFENCE
________________________________________

1. The Defendant was the registered keeper of the vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is denied that any 'parking charges’ are owed and any debt is denied in its entirety because no keeper liability, no cause for action against the defendant. The claimant has failed to show locus standi, the defendant does not believe they have a right to bring an action against anyone.

3. The Particulars refer to the material location as '[LOCATION]'. The Defendant has, since [June 2018], held a guest parking permit to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. Entry to the underground parking is by means of a key fob, of a type only issued to residents and permit holders. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. The defendant has reasonable belief that there are no terms within the lease agreement of the land requiring the display parking permits on the vehicle windscreen, or to pay penalties to third parties, such as the Claimant, for non-display of same, nor is there any reference in any clause relating to a third-party parking operator to form Terms and Conditions with residents and permit holders.

6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

8.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents and permit holders.

8.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents and permit holders, as is on offer to the general public and trespassers. However, residents and permit holders are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

9. Accordingly, it is denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct as no enforceable contract offered at the time by claimant, no cause for action can have arisen.

10. The Claimant also stated in the Particulars of Claim that ‘the driver became liable for a parking charge’. However, the claimant has failed to provide evidence of that agreement and failed to identify who the driver that it is referring to. Should I change ‘Particulars of claim’ to PCN ( as the original PCN I have states the driver is liable for the charge whereas the particulars of claim in my claim form don’t mention anything regarding driver liability?

11. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event hence incapable of binding the driver as the claimant failed to comply with International Parking Company Code of Practice ‘PART E Schedule 1 – Signage’. The signage font is small and difficult to read from a passing vehicle which further compounded by the poor lighting present in the car park.


12. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.


13. 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.

14.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.

15.The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument 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.

16. 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 and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

17. 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.