Bw legal letter of claim

1505grandad

"3.On the 19/02/19 the defendant drove to the car park that serves the Dunelm and home bargains stores..."

But on page 2 of this thread you state:-

"Pcn was dated Jan 2019"

reg76

Ah, typo, thanks for the spot 👍

reg76

So I've just re done the draft and managed to erase it so I'll be here a while I guess 

reg76

Witness Statement 

1.         I am Mr xxxxxx of xxxxxxx Cheshire 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 I 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 to me by BW Legal {exhibits 1and 1a} {this was reported to the claimant at the time and ignored}. This has now been removed. 

5.The signs were poorly placed being too high to read from a vehicle and with vague small print {exhibit 1b} 

6. On the signs it stated that regular inspections were carried out, {exhibit 2}. this is not correct as TPS relies solely on the two ANPR cameras at the entrance/exit of the car park. There is not nor has there ever been to my 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 to walk to other areas of the town. 

7. I received a parking charge notice from Total parking solutions on the 26/02/19 {dated 22/02/19}. This was appealed 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 BW Legal I 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 {exhibit 3} even though they had never sent anyone to conduct an inspection visit or indeed set up any regular monitoring of traffic flow. Even if TPS 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. {exhibit 3a} 

  

9.Since February 2019 up until august 2019 I received numerous emails and letters from BW Legal attempting to gain payment the for this non-existent parking charge. BW Legal have tried numerous times to obtain personal information such as my phone number under the guise of “data protection”. I have repeatedly stated to BW Legal that they already have all the information needed. Yet they continued to send me the same email response even going so far as threatening to mention in a further letter my “reluctance” to provide my personal data to a judge. When I made a complaint about this the BW Legal stated that only the information in bold was needed, however almost all the emails from them stating the need for this personal information contain no bold lettering. {exhibit 4a} 

10. I 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” {exhibit 5}. I immediately responded stating my wish to defend this claim at court. This response was ignored and no further contact was received from BW Legal until a letter dated 16 April 2020. 

11. I received a letter dated 16/4/20 offering a “good news 20% discount offer” due to the Covid19 pandemic {exhibit 6}.  I responded with utter disgust at BW Legal using the global pandemic to gain monies. This response was also ignored. 

12. I 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.{exhibit 7} Once again, my response was to attend court. I was ignored again by BW Legal and they made no further contact made for just over a year. 

13. I 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. {exhibit 8}.   For a third time I asked to pursue the matter in court. 

14. Finally after receiving a claim from BW Legal I 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. {exhibits 9 and 9a} 

  

15. I have 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 me as possible  

I have complained to the relevant bodies about both TPS and BW Legal and also asked my local MP to investigate. 

I attempted to contact the land owner to put my concerns forward however it appears to be an offshore holding company and BW Legal would not offer any information about who TPS held their contract with. 

Since February 2019 I have been harassed for ever changing sums of money and been placed under a great deal of stress being threatened with court action no less than three times only for BW Legal to do absolutely nothing on two of those occasions.  

  

  

Parking Eye v Beavis is distinguished 

16.     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. 

17.     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.  

18.    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 

19    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.  

20.    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). 

21.    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

Abuse of process - the quantum 

22.    The quantum and interest has also been enhanced.  It is denied that the sum sought is recoverable and a significant part of this claim represents a penalty, per the authority from two well-known Parking Eye cases.  Attention is drawn to paras 98, 100, 193, 198 of Parking Eye Ltd v Beavis [2015] UKSC 67.  Also Parking Eye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet here, the learned Judge also considered added 'costs'.  The parking charge was set at £75 (discounted to £37.50 for prompt payment) then 'admin costs' inflated it to £135.  At paras 419-428, HHJ Hegarty sitting at the High Court (decision ratified by the CoA) found that adding £60 to enhance the sum sought to £135 'would appear to be penal', i.e., unrecoverable. 

23.     The Defendant's stance regarding this punitive add-on is now underpinned by Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators must comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice 

24.     Adding 'debt recovery' costs, damages or fees (however described) on top of a parking charge is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  

25.     This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs.  The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking.  Clearly an abuse of the court process. {exhibit 10} 

26.    The DLUHC considered evidence and took over two years to consult a wide mix of stakeholders before deciding this contentious issue.  According to the DLUHC, almost a fifth of all respondents in 2021 'called for the proposal to be scrapped and debt collection to be banned altogether'.  This despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and exposed as fact, in its published Response to the Technical Consultation (also on 7/2/22) that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis and are effectively Trade Body Board member colleagues passing motorists' data around electronically and inflating parking charges.  This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit. 

27.     The Ministerial Foreword to the new Code is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."  

28.     These are now banned costs which the Claimant has neither paid nor incurred, and were not quantified in prominent lettering on signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists, and came far too late. I did not agree to it. 

29.     Whilst the new Code is not retrospective, it was brought in due to the failure of the previous two competing (self-serving) BPA & IPC codes of practice and the Ministerial Foreword is indisputably talking about existing cases when declaring the add-on to be 'designed to extort money'. A clear steer for the Courts from now on. 

30.      This overrides the mistakes and presumptions in the appeal cases that the parking industry had been relying upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive or assisting with clarifying the law, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in niche private parking law and where the litigant-in-person consumers had no financial wherewithal to appeal further. 

31.      In case this Claimant tries to rely upon those old cases, significant errors were made.  Evidence - including unclear signage and Codes of Practice -was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms, and were not in possession of the same level of facts and evidence as the DLUHC. 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 

32.    As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave. 

33.     The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings) ... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.'' 

Statement of truth:  

I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. 

 

 

reg76

managed to re do it

Coupon-mad

Looks very good - except for I didn't see a paragraph stating that you have (presumably) seen no evidence that the Claimant parking firm had authority from the landowner to sue drivers in their own name (as opposed to acting 'on behalf of' the landowner as agents).  And even if such a chain of authority exists, what the agreed grace period was and whether it met or exceeded the minimums set out in the BPA Code, that allow time in moving traffic both on arrival and when leaving past cameras at the road junctions.

Did I ask already - was there a disabled or mobility-affected person in the car who needed a bit more time to shop?

reg76

Thanks I will add that, also my photos of the poorly placed signage are actually the ones I was sent by bw legal, I assume I can use them? 

reg76

Just myself in the vehicle by the way 

reg76

So I've got everything together and printed, I will copy it all and get it sent to the court and other party. 
Thanks for the assistance everyone