Defence help BW legal

lime561

I've rec a claim form from BW legal on behalf of Premier Park.
I have submitted my AOS and am working on my defence - The date of the original PCN was 28th Aug 2014... I'm just wondering if there is a time limitation on companies being able to claim for these?
Secondly the reason states 'returned within no return period'. I had a membership to a gym so was allowed to park in the carpark for 2 hours provided I inputted number plate details - which I did. As soon as I parked I entered the gym & entered my numberplate, then realised I had forgotten my headphones, so left straight away to go and get them then came back & entered my numberplate again. From start to finish this wouldn't have taken more than 20 minutes all together.
I cant contact the gym as its no longer there...
Im unsure what stance to take in terms of my defence? Could I get away with focusing on a grace period that was not considered? Or do I focus on the fact I had a membership & wasnt as if i stayed 2 hours then came back straight away.. therefore no charges should apply?

KeithP

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

lime561

Issue date was 06/09 & yes from Northampton.

KeithP

lime561 wrote: »

Issue date was 06/09 & yes from Northampton.

The Claimant has up to six years to file a Claim.

With a Claim Issue Date of 6th September, and having done the Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 9th October 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 could 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.

lime561

Yes thanks - however I cant find many defences that mention returning within no return period...

Could I get away with focusing on a grace period that was not considered? Or do I focus on the fact I had a membership & wasn't as if i stayed 2 hours then came back straight away.. therefore no charges should apply?

beamerguy

Let me tell you that BWLegal issue a mass amount of robo claims.

From their pathetic try-ons of late it is clear they don't know what the claim is about.

They add on fake figures and if they have don this to you the courts say this is ABUSE OF PROCESS

Abuse of Process ... District Judge tells BWLegal
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Tell a judge just what happened and get the gym to support you.
When you sign you defence, you are signing a statement of truth.
BWLegal are signing a statement of truth to say their fake add-on is correct .... suffice to say .. IT IS NOT

Redx

lime561 wrote: »

Yes thanks - however I cant find many defences that mention returning within no return period...

Could I get away with focusing on a grace period that was not considered? Or do I focus on the fact I had a membership & wasn't as if i stayed 2 hours then came back straight away.. therefore no charges should apply?

you had landowner permission as a member to be there , plus you used the facilities of the gym as a paying member


dont bother with the no return , its de minimis and frustration of contract as a paying member of the gym at the time , an onerous term designed to trap legitimate users

Coupon-mad

Stop looking for a defence about what happened! you will not find a defence blathering on pointlessly about not returning within a time period.

What you will find is 17 example defences in the NEWBIES thread, and lots of claim threads here every week about Premier Park claims!

Read LOADS. Copy from them.

Clearly what you did here is wholly reasonable and this is your account to put in the defence where you talk about 'the facts are' (as per our defence examples):

the reason states 'returned within no return period'. I had a membership to a gym so was allowed to park in the carpark for 2 hours provided I inputted number plate details - which I did. As soon as I parked I entered the gym & entered my numberplate, then realised I had forgotten my headphones, so left straight away to go and get them then came back & entered my numberplate again. From start to finish this wouldn't have taken more than 20 minutes all together.
I cant contact the gym as its no longer there.

lime561

How is this for my 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

---

, of which the Defendant is the registered keeper, was parked on the date mentioned, in a marked bay at Easy Gym Southampton. At the time of the alleged contravention, the defendant was a paying member of Easy Gym Southampton. All members of Easy Gym Southampton were entitled to 2 hours free parking, providing the number plate was registered at the ANPR machine, which had been completed. As soon as the Defendant’s details were registered upon entering the gym, it was then noticed that headphones had been forgotten, meaning the Defendant left straight away to collect them from home, and returned to back to the gym within 15 minutes. The vehicle details were therefore re-entered and use of the gym commenced. This situation is wholly reasonable and it is denied that any ‘misuse’ of the carpark has occurred.

3) In 2014, this Claimant failed to use the statutory wording from Schedule 4 of the POFA, and thus there is no cause of action to allow pursuit of a registered keeper, when the driver(s) on each occasion have not been identified. Further, there is no applicable law that can cause a keeper to be presumed to have been the driver, as was confirmed by expert parking law Barrister and PATAS/POPLA Lead Adjudicator, Henry Greenslade, in the POPLA Annual Report 2015. This Claimant being a BPA member and subject to POPLA adjudications, will be very familiar with this fact.


4) Furthermore, it is denied that the Claimant's signage sets out the rest of the terms in a sufficiently clear manner, which would be able to bind any reasonable person reading them. The signs were small, placed at an awkward angle and minimal for such a large car park. Therefore it is unreasonable to assume the clause stating ‘no return within 1 hour’ could be clearly read and understood by any person driving through the carpark. The small print on this sign do not clearly state the intention to issue PCNs even where no parking infringement has occurred. To fit more information into a small space the salient points were unreadable due to the small font that was used. Even when read up close they were confusing and the whole emphasis of the sign is that the parking charge will be issued for parking misuse. It is not made sufficiently clear that even though no misuse of the carpark has occurred, it will still lead to a fine.


5) 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. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver did not see or accept the sum the claimant states on the contract. Therefore, it is denied that the Claimant's signage is capable of creating a legally binding contract.

6) It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner, Easy Gym. Premier Park therefore cannot overrule the elements of the lease or introduce them subsequently. As the defendant had permission from the landowner to park, by means of a paid gym membership, it is therefore denied that there are any grounds for Premier Park to be pursuing this charge.


7) 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(s) include an additional £171, for which no reasonable calculation or explanation is given, and which appears to be an attempt at double recovery. The Claimants are put to strict proof that they have incurred, and can lawfully add an extra £171 to the PCN and that those sums formed part of the contract in the first instance.

8) The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

beamerguy

Paragraph # 7

Why have you left out the most important point about Abuse of Process especially for Southampton

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

READ POST #14 ON THIS THREAD BY COUPON-MAD and copy that text in full

lime561

Ok have added in the following - ok to submit?

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

---

, of which the Defendant is the registered keeper, was parked on the date mentioned, in a marked bay at Easy Gym Southampton. At the time of the alleged contravention, the defendant was a paying member of Easy Gym Southampton. All members of easy gym Southampton were entitled to 2 hours free parking, providing the number plate was registered at the ANPR machine, which had been completed. As soon as the defendant’s details were registered upon entering the gym, it was then noticed that headphones had been forgotten, meaning the defendant left straight away to collect them from home, and returned to back to the gym within 15 minutes. The vehicle details were therefore re-entered and use of the gym commenced. This situation is wholly reasonable and it is denied that any ‘misuse’ of the carpark has occurred.

3) In 2014, this Claimant failed to use the statutory wording from Schedule 4 of the POFA, and thus there is no cause of action to allow pursuit of a registered keeper, when the driver(s) on each occasion have not been identified. Further, there is no applicable law that can cause a keeper to be presumed to have been the driver, as was confirmed by expert parking law Barrister and PATAS/POPLA Lead Adjudicator, Henry Greenslade, in the POPLA Annual Report 2015. This Claimant being a BPA member and subject to POPLA adjudications, will be very familiar with this fact.

4) Furthermore, it is denied that the Claimant's signage sets out the rest of the terms in a sufficiently clear manner, which would be able to bind any reasonable person reading them. The signs were small, placed at an awkward angle and minimal for such a large car park. Therefore it is unreasonable to assume the clause stating ‘no return within 1 hour’ could be clearly read and understood by any person driving through the carpark. The small print on this sign do not clearly state the intention to issue PCNs even where no parking infringement has occurred. To fit more information into a small space the salient points were unreadable due to the small font that was used. Even when read up close they were confusing and the whole emphasis of the sign is that the parking charge will be issued for parking misuse. It is not made sufficiently clear that even though no misuse of the carpark has occurred, it will still lead to a fine.

5) 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. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver did not see or accept the sum the claimant states on the contract. Therefore, it is denied that the Claimant's signage is capable of creating a legally binding contract.

6) It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner, Easy Gym. Premier Park therefore cannot overrule the elements of the lease or introduce them subsequently. As the defendant had permission from the landowner to park, by means of a paid gym membership, it is therefore denied that there are any grounds for Premier Park to be pursuing this charge.

7) 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(s) include an additional £171, for which no reasonable calculation or explanation is given, and which appears to be an attempt at double recovery. The Claimants are put to strict proof that they have incurred, and can lawfully add an extra £171 to the PCN and that those sums formed part of the contract in the first instance.

8) 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 earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''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...''

9) That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

10) 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 untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable. The Court is therefore 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.

11) The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.