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BW Legal/3D Parking – Directions Questionnaire stage

edited 18 January 2020 at 11:49PM in Parking Tickets, Fines & Parking
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  • BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    Here is our Defence from last summer. Happy to take any criticism or advice in order to prepare for our narrative WS now. I'll be adding the Abuse of Process to the Supplementary WS which we omitted but will be sure to include this time around.

    IN THE COUNTY COURT

    CLAIM No: XXXXXXXX

    BETWEEN:

    3D PARKING LIMITED (Claimant)

    -and-

    XXXXXXXX (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________
    1. The Defendant denies the Claim in its entirety, asserts that he is not liable to the Claimant for the sum claimed, or any amount.

    2. As an unrepresented respondent, the Defendant respectfully requests to be permitted to amend and or supplement this defence as may be required following a fuller disclosure of the Claimant’s case.

    3. The Defendant was the registered keeper of vehicle registration number XXXXXX between xx/xx/2018 and xx/xx/2018 and the facts are that the vehicle was parked on the material dates in a parking area allocated to Company XXXXXXX at XXXXX Address, at the XXXXX Business Park, and had a valid employee parking permit.

    4. The Particulars of Claim state that the Defendant breached the Terms and Conditions in operation on the Private Land.

    5. The particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

    6. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

    7. There is no signage specifying the terms and conditions of parking apart from a notice at the entrance of this section of the business park indicating that it is private land and trespassers may be prosecuted. No signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. There is in fact no signage at all within the parking area itself and only an email sent to employees sets out the XXXXXXXX (Employer) allocated parking areas.

    8. The vehicle had a valid parking permit for XXXXXXXX (Employer) and the vehicle was not trespassing. Employees were permitted to park in a field, which had no marked bays and the field formed part of a much larger car park which did include marked bays. The field was not segmented in any way, and vehicles parked as they could find space.

    9. The Claimant included a photo of the vehicle in question parked in a corner of the field. At no time was there any signage indicating this was not permissible.

    10. An email had been circulated to employees with an image highlighting the field, and saying employees were to park there, however the lines were not clear, and did not indicate clearly where the permitted area ended, a thick highlighter marker having been used. Given this lack of clarity and absence of signage in the car park regarding how or where a XXXXXXXX (Employer) employee with a parking permit is, or is not, allowed to park in this car park, no contract was ever agreed if a contract ever existed, or subject to the “Terms or Conditions” of said contract.

    11. The Defendant asserts that failure to provide adequate signage for XXXXXXXX (Employer) employees specifically indicating any “Parking Restrictions” or “Terms of Conditions” which apply to their, otherwise valid, permits cannot form any contractual agreement.

    12. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract. The Claimant is put to proof that it has sufficient 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. I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
    13. Prior to submitting this defence, the Defendant confirmed that to date, there is still no signage or markings on the ground where the alleged contravention took place.

    14. Since these proceedings began, a barrier has been erected in the field indicating the end of permitted parking, but this was not in place at the time of the alleged contraventions.

    15. It had been customary for employees to park on paved areas and for several months, employees together with management, habitually parked in this area. There were no yellow or white lines or any signage indicating where parking was permitted and where it was not.

    16. On the dates of the alleged contraventions, the vehicle was parked in what were believed to be authorised parking areas, and no ticket or warning was placed on the vehicle.

    17. The lack of warning speaks to the Claimant’s reliance on the lack of signage and resultant ambiguity as to where parking was permitted, in order to fine as many people as possible before they were aware there was a problem, with the defendant receiving letters in the post only several weeks after the alleged contraventions.

    18. The Claimant's signage is not capable of creating a legally binding contract.

    19. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

    20. The Claimant has at no time provided an explanation how the sum of £XXXX has been calculated, or the conduct that gave rise to it. The only breakdown of additional costs by 3D Parking Limited (should further action be taken) is to form a scaremongering threat.

    21. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

    I believe the facts contained in this Defence are true.


    Name:
    Signature:
    Date:
  • BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    Nothing makes a claim "invalid". They allege you owe them money from the invoice (NtK) they sent. thats it

    Post up the NtKs, rather than us guessing. THERE MUST BE A SECTION STATING THE KEEPER WILL BE LIABLE.

    Did you get a chance to look at my link to the NTKs? Do you think that they make specific reference to Keeper Liability to satisfy POFA? Even if they do so, at least one of them is over the 14 day limit so can be rejected on that basis.

    I've also added below a new link to 3D's rejection letter to our appeal. They rely on Beavis to justify their claim: https://imgur.com/a/WE7CMhS

    I never mentioned this in my Defence. Will I need to, or even be permitted to, add my rebuttal in the Supplementary WS?
  • UmkomaasUmkomaas Forumite
    32.8K posts
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
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    There appears to be no formal PoFA warning on the NtKs. Telling us the dates of contraventions and dates the NtKs were sent would help to nail this down.

    Their letter of rejection quotes (verbatim)
    We would refer you Bevis V Parking, Supreme Court ruling
    Woeful and unintelligible. If they can't even spell or get names correct, there's little chance they even understand the ruling. Probably believe that it's simply the Court's full approval for them to print money.

    While you have to go through all the motions, this looks more like a frightener process than a steely determination to pursue through to a hearing. But, unfortunately, that gives no room for complacency.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • edited 18 January 2020 at 12:29PM
    BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    edited 18 January 2020 at 12:29PM
    There appears to be no formal PoFA warning on the NtKs. Telling us the dates of contraventions and dates the NtKs were sent would help to nail this down.
    Thanks Umkommas. I'm slightly paranoid putting out the contravention and NtK dates in case they are reading this, but I need to win this case, so here goes!

    First contravention: 08/08/2018
    NtK Issued: 05/09/2018
    No of Days: 28

    Second contravention: 04/09/2018
    NtK Issued: 06/09/2018
    No of Days: 2

    So that would mean that the first alleged contravention is against POFA. Am I right?

    Yes, I also noticed that misspelling of Beavis. More like Beavis and Butthead over at BW Legal!
  • CastleCastle Forumite
    3.2K posts
    Sixth Anniversary 1,000 Posts Name Dropper
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    Umkomaas wrote: »
    There appears to be no formal PoFA warning on the NtKs. Telling us the dates of contraventions and dates the NtKs were sent would help to nail this down.

    Their letter of rejection quotes (verbatim)
    We would refer you Bevis V Parking, Supreme Court ruling
    Woeful and unintelligible. If they can't even spell or get names correct, there's little chance they even understand the ruling. Probably believe that it's simply the Court's full approval for them to print money.

    While you have to go through all the motions, this looks more like a frightener process than a steely determination to pursue through to a hearing. But, unfortunately, that gives no room for complacency.
    I agree with all of this; they even refer to the 1998DPA despite the fact it was superseded in May 2018.

    It's a pity the defence didn't make reference to the fact that the defendant wasn't the driver; (and probably isn't even the "day to day" keeper). (Just mean that it will need to be "front and centre" in the witness statement).
  • BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    Thanks Castle. Yes, when we were drafting the defence we a bit late to the game and rushed it to meet the deadline without sufficient research. In the WS I am making it very clear that I wasn't the driver. I'm just concerned that my partner is my witness as stated on my DQ, and it was her place of work that the car was parked at. Will they seek to issue the NtK to her if they lose on this case?
  • UmkomaasUmkomaas Forumite
    32.8K posts
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    First contravention: 08/08/2018
    NtK Issued: 05/09/2018
    No of Days: 28
    Too early for a NtD (windscreen ticket) and too late for a NtK (camera capture, notice through the post) for them to be able to pass liability to the keeper.
    Second contravention: 04/09/2018
    NtK Issued: 06/09/2018
    No of Days: 2
    At face value, those dates fit into the PoFA timescales, but how did they get your details so quickly and issue the ntk? Even with electronic transfer to and from the DVLA, that's a spectacular turnaround.

    In order to meet one of the PoFA requirements for keeper liability, they must access the data from the DVLA each and every time they issue a PCN.

    You should email the DVLA and ask which organisations (when and for what reason) accessed the registered keeper's data from them between a range of dates which includes the dates of both of the parking incidents. You need to provide the registered keeper's full name and address, the address on the V5C logbook and the Vehicle Registration Mark of the vehicle involved in the parking incident.

    [email protected]

    This service is free of charge.

    Even though you email your request, the DVLA will respond via Royal Mail.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    Thank you. I need to submit my WS by the middle of next week so I don't think I will be be able to include the DVLA's response in it.

    I hadn't realised that the PPCs needed to access DVLA data every time a PCN was issued for each separate incident. I just thought that since they had the details for the first time, they could just do an internal search again the second time, hence my lack of surprise at their two day turnaround!

    I'll incorporate my rebuttals to their NtKs in my WS. It's a busy day!
  • RedxRedx Forumite
    33.9K posts
    10,000 Posts Seventh Anniversary Name Dropper Photogenic
    ✭✭✭✭✭
    If they did , they breached their Kadoe contract and defrauded the DVLA

    Plus the vehicle could have been sold and had a new keeper
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
  • edited 18 January 2020 at 7:22PM
    BrokenSkyBrokenSky Forumite
    29 posts
    Second Anniversary
    edited 18 January 2020 at 7:22PM
    Ok, I got four and a half pages into my narrative WS before re-reading the Newbies board and realising the relevance of Skeleton Arguments to my situation. Basically I'm trying to write too much: describing what happened, and then trying to concurrently argue legally with each event in my story why I don't owe what 3D claim.

    Could you please confirm that I can submit the WS before the 14 day deadline, and then the Skeleton Argument (SA) with evidence later once I've received the WS from BW? I've seen other posters have received WS from the POC and been able to 'tear them apart' with your help.

    Here is my first 'blended' WS. It contains both factual statement and my first legal arguments.
    I'm going to take on board your comments and critique and then split this up into a WS and SA if I can submit these to the Court at separate dates. The WS is due in the middle of next week.

    In terms of the evidence pack, what definitely needs to go along with the WS? Will it be the factual correspondence only, such as NTKs, Court correspondence etc? I assume then that case law and statute evidence can then accompany the SA later?

    IN THE COUNTY COURT

    CLAIM No: XXXXXXXX

    BETWEEN:

    3D PARKING LIMITED (Claimant)

    -and-

    XXXXXXXXXXX (Defendant)

    ________________________________________
    WRITTEN STATEMENT
    ________________________________________

    1. I am XXXXXXXXXX, of XXXXXXXXX, the Defendant in this matter. I will say as follows:
    2. The facts in this Witness Statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.
    3. Along with this statement is a bundle of documents to which I will refer. This Witness Statement is prepared for the hearing at XXXX County Court, on XXXXX 2020 in support of my own defence against the Claimant.
    4. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way the Claimant may do, I trust the Court will excuse my inexperience.
    5. I am not liable to the Claimant for the sum claimed, and this is my Witness Statement in support of my Defence as already filed.
    6. I assert that I was the registered keeper of the vehicle (registration number: XXXXXX) in question in this case, during the dates of the alleged contraventions on XXXXXXX 2018 and XXXXXXX 2018. However, I was not the driver. I was not the ‘day to day’ keeper of the vehicle and I have never driven this vehicle to this business park.
    7. On the dates of the alleged contraventions my vehicle was parked in an allocated area for XXXXXX (Employer) employees, and had a valid employee parking permit affixed to its windscreen. A photograph of this parking permit is attached as Exhibit XXX.
    8. I received two parking charge notices from the Claimant. The first was issued on XXXXXX 2018, and the notice for the second alleged contravention was issued on XXXXXX 2018.
    9. Upon receipt of the parking charge notices from the Claimant, it was stated that I had breached the terms and conditions of the parking for “not parked wholly within the markings of the bay or space”. As cited earlier in (5), I was the registered keeper of the vehicle, but not the driver.
    10. Neither of the parking charge notices sent by the Claimant refer directly to keeper liability and are therefore not compliant with the Protection of Freedom Acts 2012 (POFA 2012), Schedule 4, Section (9)??. I was the registered keeper of the vehicle but not the driver, and the Claimant cannot hold a registered keeper liable under the applicable law. An excerpt of Schedule 4 of POFA 2012 is attached as Exhibit XXXXXXXX
    11. Even if the Claimant could rely on POFA 2012, under this Act, Schedule 4, Section 9 paragraphs (4) & (5), the notice must be given within 14 days. The parking charge notice was received more than 14 days after the date of the first alleged contravention which is against this statute. As the registered keeper of the vehicle, but not the driver in this instance, the claim for the first alleged contravention should be struck out.
    12. Further to (9) and (10) above, the Parking on Private Land Appeals body (POPLA), has clarified how private car parking management companies should utilise registered keeper information they request from the DVLA under Schedule 4 of POFA 2012. This is stated in the POPLA Annual Report 2015 where Henry Greenslade, then Lead Adjudicator of POPLA, wrote on Keeper Liability (pages 12-13 of the Annual Report). This excerpt is attached as Exhibit XXXXXX
    13. From this excerpt, Mr Greenslade stated that private car parking management companies could not make a reasonable presumption in law that the registered keeper of a vehicle was the driver.
    14. The Claimant has failed to serve their parking charge notices to the driver of the vehicle and the both notices were not compliant with POFA 2012, therefore, as the registered keeper, I cannot be liable for either.
    15. Notwithstanding the POFA 2012 non-compliance of the Claimant’s parking charge notices, on XXXXXX (Date) I wrote an appeal letter to the Claimant, stating that there was no contract formed between myself and the Claimant, and that therefore there could not be any payment of damages caused for breach of contract. My appeal letter is attached as XXX.
    16. Within the appeal letter, I further elaborated by quoting the Claimant’s parking charge notices’ reason for issue, being that the vehicle was not parked wholly within markings of the bay or space. In response, I stated that there were no markings, yellow, or double-yellow lines indicating where parking was prohibited in this employee parking designated area.
    17. The Claimant rejected my appeal with a two letters in response, both dated XXXXX. These rejection letters are attached as XXX.
    18. The rejection letter for the first alleged contravention on XXXXX, rejected my appeal on the basis that my vehicle “had breached the Terms and Conditions of Parking. The vehicle was not parked in a marked bay contrary to the terms and conditions displayed.” No detail of the Claimant’s Terms and Conditions were provided or explained.
    19. The rejection letter for the second alleged contravention on XXXXXX, rejected my appeal on the same basis as above. However, the Claimant also added this statement “We would refer you to Bevis (sic) V Parking, Supreme court ruling. Parking in contravention of the terms and conditions displayed, not parked within a marked bay.”
    20. In (19), although misspelled, the Claimant was referring to ParkingEye v Beavis (2015).
    21. The Beavis case is not relevant to support a penalty charge in a permit only car park. In fact, the Beavis judgment was clear that each case is in fact specific and that parking charges are unconscionable and unrecoverable if they are set to punish a driver, which this clearly is. The Beavis case was also judged to have a commercial justification, where the onsite businesses relied on the turnover and availability of free car parking spaces. Mr Beavis was fully aware of the terms and conditions upon parking and chose to challenge based on the monetary value to the car park operator of overstaying the allowed time. In my case, there are no clear signs for a driver to enter into a contract with the Claimant. Further detail on the Beavis case relates to my own is contained in my Supplementary Witness Statement.
    22. I refer to the case of Excel Parking Services v Smith (appeal) Stockport, (included in evidence bundle XXXX) in which it was found that a person is not liable in law for the actions of somebody when they have allowed somebody else to use their property. If they were, then there would have been no need for the Protection of Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. The hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars. Excel Parking Services v Smith (appeal) Stockport is attached in evidence bundle as XXXX.
    23. As reiterated in my Defence submitted to the Court in XXXX 2019, neither myself, nor the driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied or by conduct.
    24. I received the claim form from the Court dated XXXXX 2019 and submitted my defence in a timely manner despite the Particulars of the Claim not specifying what Terms and Conditions had been breached.
    25. I have received correspondence from the Court notifying me that the hearing for this case would be held on XXXXXXXX 2020. See evidence bundle XXXX.
    26. In the same correspondence it was stated that the Claimant had until 3.30pm on XXXth January 2020 to either pay the £25 trial fee or apply for assistance with the fee.
    27. I contacted the Court on 17th January 2020 to check whether they had received this trial fee, and was informed that there was a backlog on the Court’s paperwork. Therefore the Court administrators were unable to inform me whether the Claimant had made the payment for the trial fee, or if the case had been stayed due to their failure to make this payment on time.
    28. I have proceeded with my submission of my Witness Statement on the basis that the Claimant has paid the trial fee on time and will be attending the hearing.
    29. At the time of writing, I have not received a copy of the Claimant’s Written Statement or their accompanying evidence. (I’m assuming this is a redundant statement as BW Legal still have a few days before the 14 day deadline?)
    30. I believe that the facts stated in this Witness Statement are true.


    Signature of Defendant
    Name:
    Date:

    Evidence that will be provided with the Bundle
    (This is cribbed from Lawpmany1 and coupon-mad and is still under construction while I clarify if I’m able to do a WS and a separate Skeleton Argument later):

    Contents Page
    Car Park signs taken by defendant – outstanding
    Google earth pictures – outstanding
    Excel Parking Services v Smith (appeal) Stockport
    Beavis Case – Which paragraphs do I cite? I will also include Coupon-mad’s entire post 14 from the ‘Abuse of Process’ thread for the Supplementary WS.
    CRA 2015 Schedule 2 paragraphs 6,10, 14 and 18
    Supplementary Witness statement – Abuse of Process thread
    Costs Schedule
    Notices to Keeper (Should I call these Notices to Keeper or Parking Charge Notices in the body of my WS?
    VCS v Quayle 2017
    POFA
    IPC Code of Contact
    Car insurance certificate
    Court Orders
    Appeal Letter to 3D Parking
    3D Parking Rejections of Appeal
    POPLA (should I just include the Keeper Liability excerpt or the whole Annual Report?)
    Costs Schedule

    Apologies if my work looks a bit of a dogs dinner, but this is the first draft of hopefully not too many once your expert eyes have reviewed.

    I also want to thank the many posters on this board who have provided much of the wording that I have adapted or straight up copied and pasted.
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