Bw legal letter of claim

reg76

Yes the amount on the form from the court is less than on the last few letters from BW legal 

Coupon-mad

See example WS in the thread by @ricky_balboa

reg76

thanks 
ive still got my original defense draft [further back in the thread] so i will adapt it and add the original information i took out 

Coupon-mad

No, you aren't adapting a defence.  See the examples of WS in other threads.

Fair enough if you want to use some of the commentary you prepared earlier, in this WS but do use ricky's first WS in his thread as a base because it covers the DLUHC and what they said about the false added costs to end that debate.

reg76

 ok  this is my first draft using the before mentioned ws as a template

Witness Statement 

1.         I am Mr xxxx of xxxxxx and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge. 

 2.         In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows: 

 Sequence of events  

 

   3.On the 19/02/19 the defendant drove to the car park that serves the Dunelm and home bargains stores to shop for furniture. The car park entrance is situated at one of the 4 exits of a busy roundabout in the town centre. I entered the car park negotiating the tight entrance bend and found a suitable place to park. I then made my way to the store. 

After finishing my shopping, I made my way back to my vehicle and drove around the one-way system having to wait in a small queue to leave the car park as being the only free town centre car park it is regularly busy. 

4. There were and are no marked signs at the entrance to the car park. There was a reflective sign placed in a dangerous location on a tight bend inside the carpark which could only be observed by taking the drivers concentration away from negotiating said bend as marked on the aerial photograph sent by the claimant {this was reported to the claimant at the time and ignored}. This has now been removed and another small sign placed in an equally unsafe location has been erected. 

5.The signs were poorly placed being too high to read from a vehicle and with vague small print  

6. On the signs it stated that regular inspections were carried out, this is not correct as the claimant relies solely on the two ANPR cameras at the entrance/exit of the car park. There is not nor has there ever been to the defendant's knowledge any uniformed member of TPS staff conducting car park duties as per the information on the signs including the monitoring of disabled bays, vehicles parked over lines and drivers leaving the site 

7. The defendant received a parking charge notice from Total parking solutions on the 26/02/19 {dated 22/02/19}. This was appealed by the defendant but was rejected and passed on to BW Legal. 

8.The vehicle in question was alleged to have overstayed by 16 minutes however the cameras only note the arrival and exit times and not the time parked. As previously stated, the car park is regularly busy and it often takes time to exit. Having explained this to the claimant the defendant received a letter stating among many other things that as the vehicle in question left the car park during weekday “out of rush hour” they found it “hard to believe” the delays mentioned even though they had never sent anyone to conduct an inspection visit or indeed set up any regular monitoring of traffic flow. Even if the Claimant can demonstrate that the car was indeed ‘on site’ and in the car park for a proven and synchronised 16 minutes in addition to the 2 hours of free parking, this would have been entirely within the grace periods of 10 minutes prior to entering a contract to and 10 minutes at the end of a parking event, set out in paragraph 13 of the BPA Code of Practice (BPA CoP) relevant version 2018. 

 

8.Since February 2019 up until august 2019 the defendant received numerous emails and letters from the claimant attempting to gain payment the for this non-existent parking charge. The claimant has tried numerous times to obtain personal information such as my phone number under the guise of “data protection”. The defendant repeatedly stated that the claimant already had all the information needed. Yet the defendant continued to receive the same email response with the claimant even going so far as threatening to mention the defendant's reluctance to provide his personal data to a judge. When the defendant made complaint about this the claimant stated that only the information in bold was needed, however almost all the emails from the claimant stating the need for this personal information contain no bold lettering. 

9. The defendant received a letter of claim dated August 16 2019 for £201.73 informing me that should I not respond by 20 September 2019 they were to issue a claim against me in county court “without further notice”. The defendant immediately responded stating his wish to defend this claim at court. This response was ignored and no further contact was received from the claimant until a letter dated 16 April 2020. 

10. The defendant received a letter dated 16/4/20 offering a “good news 20% discount offer” due to the Covid19 pandemic. The defendant responded with utter disgust at the claimant using the global pandemic to gain monies. This response was also ignored. 

11. The defendant received a second letter of claim identical to the first dated 20/8/20 except that the claimant had raised the sum demanded to £207.50. Once again, the defendant's response was to attend court. This response was also ignored by the claimant and no further contact made for just over a year. 

 12. The defendant then received a third letter of claim identical to the first two dated 20/09/21 but once again the sum demanded by the claimant had been raised to £234.63.   once again, the defendant asked to pursue the matter in court. 

13. Finally after receiving the claimants claim the defendant filed the acknowledgement of service with the intention of attending court yet still continued to receive letters from the claimant stating “it's still not too late “and to pay up before court. 

 

14. The defendant has responded to all correspondence and emails as robustly as possible and has been met with threats, harassment and misinformation all to extract as much money from him as possible  

The defendant has complained to the relevant bodies about both TPS and BW Legal and also asked their local MP to investigate. 

The defendant attempted to contact the land owner however it appears to be an offshore holding company and the claimant would not state with whom their contract was with. 

Since February 2019 the defendant has been harassed for ever changing sums of money and has been placed under a great deal of stress being threatened with court action three times only for the claimant to do absolutely nothing on two of those occasions.  

  

  

 Parking Eye v Beavis is distinguished 

 15.     Unlike in this case, Parking Eye demonstrated a commercial justification for their £85 PCN and overcame the possibility of it being dismissed as punitive.  However, their Lordships were clear that ‘the penalty rule is plainly engaged’ in these cases.  Their decision mentioned a 'unique' set of facts including the legitimate interest, site location and prominent, clear signs with the parking charge in the largest/boldest text.  The unintended consequence is that, rather than persuading Judges that these charges are automatically justified, the Beavis case facts (and in particular, the brief and conspicuous yellow/black warning signs) set a high bar that this Claimant has failed to reach. 

 16.     Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

 17.    The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests. 

 
 

 
 

POFA and CRA breaches 

 18.    Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with the other requirements (e.g., adequate signage, correct wording and dates of Notice to Keeper, and the existence of a relevant contract/relevant obligation that was properly communicated).  The Claimant is put to strict proof of full compliance, if seeking keeper/hirer liability under the POFA, because liability is not accepted by the Defendant.  

 19.    Claiming unexpected ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the official Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA goes further than the UTCCRs, introducing a requirement for 'prominence' of both contract terms and 'consumer notices' (i.e., signage and any other notices/communications, including the timely service of any PCN in parking cases). 

20.    Section 71 provides for the duty of court to consider the test of fairness. This includes whether all terms and notices were unambiguously and conspicuously brought to the attention of the consumer.  In the case of letters/the PCN, this means such communications must have been served.   In the case of signage, this must be prominent, plentiful, well placed and lit, and the terms clear and unambiguous.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and having regard to the requirements for transparency and good faith and as guidance, examples 6, 10, 14 & 18 of Schedule2.  

 
 

 

reg76

i cut the abuse of process part but its on the actual draft

Coupon-mad

OK, what are your exhibits? 

Photos of unclear signs from Google StreetView from that year would be good. 

And things like this have to be an exhibit:

paragraph 13 of the BPA Code of Practice (BPA CoP) relevant version 2018. 

And so does the Excel v Wilkinson transcript in the part about double recovery/abuse of process of the added fake 'debt fee'.

Jenni_D

The Defendant is used in a Defence ... in a Witness Statement then you do use Me, Myself and I - after all you're giving a statement from your own knowledge.

1505grandad

There are 2 paras numbered 8

reg76

Cheers for the response, yeah sorry this is just the first draft I was messing with, I've not numbered the evidence yet or played around with the wording, I just wanted you guys to throw your experience at it. 
I'll be back at it this evening