Link Parking/BW Legal beaten in court.

keypulse

UPDATE: I won.


UPDATE: Hearing scheduled for 03 March

Hello all

First I apologise if I've missed anything obvious in the Newbie Sticky, I think I have done/am about to do everything I should but have a few things to clear up and may need a nudge or more in the right direction.


My vehicle had a PCN for £100 (or £60 if paid etc.) placed on its windscreen on 22 January this year. The driver was working on a private site and had been advised to park in an area that had no signage by the contractor they were supplying services to that day.


There was no signage on the site entrance and no signage a person could reasonably be expected to notice on the route to where the alleged infringement took place (a several hundred yard distance). Later that day the route was walked and pictures taken covering the entirety of the route. 2 signs were placed on posts facing the wrong direction (opposite to the direction of travel entering the site). 3 signs were placed on a low wall at knee-height, obscured by various vehicles and wheelie bins. No signs were placed near where the vehicle was parked and there were no markings on the tarmac.


After receiving an NTK on the 28th February I responded as advised on the Newbie Sticky here on the 27th March, using the Link Parking online appeal form.

Re PCN number: (Redacted)



I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a formal complaint about your predatory conduct to your client landowner and to my MP.


There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require ALL photos taken and an explanation of the allegation and your evidence, i.e.:


- If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.


- If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner. If you fail to evidence the actual grace period that applies at this site or suggest that only one period applies, this will be disregarded as an attempt to mislead. In the absence of evidence, it will be reasonably taken to be a minimum of twenty minutes (ten on arrival and ten after parking time) in accordance with the official BPA article by Kelvin Reynolds about 'observation periods' on arrival being additional and separate to a 'grace period' at the end.


- in all cases, you must include a close up actual photograph of the sign you contend was at the location on the material date.


I was able to visit the site at which the alleged infringement occurred and found your signage to be woefully inadequate. No person could be reasonably expected to notice any of your signs en-route to the location where you allege an infringement occurred. There is no signage whatsoever at the entrance to the site, nor any signage at the location the vehicle was parked in. Signage along the route is variously facing the wrong direction for a passing vehicle to be able to see them, or low down and obscured by bins and other vehicles. With this in mind on the day of the alleged offence I have taken 37 photographs, from the site entrance and all along the route to where the vehicle was parked. I will use these photographs in conjunction with a site plan to defend any litigation you may bring against me as the registered keeper. Should you wish to settle the matter before then, I am happy to send you copies. Any defence will not be limited to this evidence alone.


Formal note:
Should you later pursue this charge by way of litigation, note that service of any legal documents by email is expressly disallowed and you are not entitled to assume that the data in this dispute/appeal remains the current address for service in the future.


Yours faithfully,


(My name)

On the 31 March I received this response via email:

Dear (My name),





Ref: PCN (Redacted)
Further to your email appealing your PCN.

You parked your vehicle in a manner which attracted a charge as your vehicle was parked in a no parking area. It is the drivers responsibility to ensure they meet the parking requirements. Our signs clearly advertise the parking requirements and by not meeting them you accepted our charge.


Given the facts we are rejecting your appeal.

If you believe this decision is incorrect, you are entitled to appeal to the Independent Appeals Service (IAS). The IAS provides an Alternative Dispute Resolution scheme for disputes of this type. As you have complied with our internal appeals procedure you may use and we will engage with the IAS standard appeals service providing you lodge an appeal to them within 21 days of this rejection. For information please visit (wwwDOTtheiasDOTorg).

If you appeal this charge then you will lose the ability to pay the reduced rate in the event the appeal is unsuccessful, the full amount will then be payable. If you appeal and subsequently pay the charge prior to that appeal being determined then the appeal will be cancelled and you will not be given a further opportunity to contest the charge.

Yours Sincerely,

I noted they had ignored my request for evidence and my offer of supplying them with my photographs. Since appealing to the IAS seems pointless I didn't do so.


Since then I received a letter from Link dated 3rd July saying they were referring the case to BW Legal and a letter from BW Legal (same date) demanding £160 (initial charge plus £60 legal costs).

Having no intention of paying and no intention of corresponding with them, I ignored the letter.


This Friday just gone (11th October) I have received a Claim Form (dated 9th October) for around £240, so it looks like I may have my day in court.


I have created a detailed plan of the site using Ordnance Survey mapping, showing the entrance to the site from the public road and the private access road all the way to where the car was parked. I have numbered the photos and marked the plan showing where each was taken and the direction it was taken in. If anyone thinks it helpful I could return to the site and make a video too.



I have created a Government Gateway account and tried to file an Acknowledgement of Service via the MCOS service as advised in the Newbie Sticky but there seems to be a technical issue in that the site doesn't recognise the Claim Number/Defence Pack password combination from the claim form. I've emailed MCOS about this and received an automated response saying I should hear back within 10 days, which inspires zero confidence.


Questions:

- Should my next step be to send an AoS through the post tomorrow using a recorded service, rather than wait for MCOS to look into my login problem?



- Would it still be beneficial to issue Link or BW Legal with a SAR?


- Should I have my photographs printed off and how many copies (1 for me, 1 for BW Legal in case they request them and 1 for the court? I intend to recover any costs I can if they lose).


- Besides the lack of signage, should I use anything else in my defence?


- Should this case be defended by the keeper or the driver?



Thank you for reading this far if you made it. Happy to supply more info and scans etc. if needed.

KeithP

keypulse wrote: »

This Friday just gone (11th October) I have received a Claim Form (dated 9th October) for around £240, so it looks like I may have my day in court.


I have created a Government Gateway account and tried to file an Acknowledgement of Service via the MCOS service as advised in the Newbie Sticky but there seems to be a technical issue in that the site doesn't recognise the Claim Number/Defence Pack password combination from the claim form. I've emailed MCOS about this and received an automated response saying I should hear back within 10 days, which inspires zero confidence.


Questions:

- Should my next step be to send an AoS through the post tomorrow using a recorded service, rather than wait for MCOS to look into my login problem?

Firstly, do not rush to do the AoS.
Yes, of course try and resolve the issue, but you have plenty of time to complete the AoS. Phone CCBC for help with this - number on your Claim Form.


With a Claim Issue Date of 9th October, you have until Monday 28th October to do the Acknowledgement of Service. If possible, do not do the AoS before 14th October, but otherwise there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 11th November 2019 to file your Defence.

That's over four weeks 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.

beamerguy

Since then I received a letter from Link dated 3rd July saying they were referring the case to BW Legal and a letter from BW Legal (same date) demanding £160 (initial charge plus £60 legal costs).

Having no intention of paying and no intention of corresponding with them, I ignored the letter.

This Friday just gone (11th October) I have received a Claim Form (dated 9th October) for around £240, so it looks like I may have my day in court.

The claim should be ...

£100 for the ticket
£25 court fee
£50 solicitors fee as allowed in a small claims court

By adding £60 EXTRA as solicitors costs, they are attempting to circumvent the courts own ruling of double recovery ???

Then they are trying to circumvent POFA2012 which clearly says ..
This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4

Then there is the Supreme court ruling in the Beavis case which clearly says ....
198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''
In other words the amount of £100 includes the costs of operation

BWLegal have claimed many reasons for the fake £60, all of which are contrary to the law

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

keypulse

beamerguy wrote: »

Since then I received a letter from Link dated 3rd July saying they were referring the case to BW Legal and a letter from BW Legal (same date) demanding £160 (initial charge plus £60 legal costs).

Having no intention of paying and no intention of corresponding with them, I ignored the letter.

This Friday just gone (11th October) I have received a Claim Form (dated 9th October) for around £240, so it looks like I may have my day in court.

The claim should be ...

£100 for the ticket
£25 court fee
£50 solicitors fee as allowed in a small claims court

By adding £60 EXTRA as solicitors costs, they are attempting to circumvent the courts own ruling of double recovery ???

Here's the letter BW sent on 3rd July.

my.pcloud.com/publink/show?code=XZ0E44kZm1C3Yl0URmFFKMvipWE1ByAAJgSy

Here's one of the signs they refer to (this one facing the opposite direction to incoming traffic on the access road).

my.pcloud.com/publink/show?code=XZfE44kZL3C50k045X72cAs0nxpMxbA0iCY7

keypulse

Ok, the helpful people at MCOL got back to me, my login issue is resolved and my AoS is filed. I've also sent a SAR to Link Parking since I have nothing to lose by doing so and I'm interested in what they have.


I'm going to take a drive to the site later to see if more signage has been added since the Parking Charge Notice was issued, if so this can only help my case.


I'll then begin preparing a defence based on the lack of signage at the time of the PCN and I'll also make reference to the Abuse of Process as directed by beamerguy but if there's anything else I should rely on as a defence please let me know.


Thanks to both of you (and to all the contributors on this forum) for the help so far!

keypulse

Forgot to mention, I also received a letter from BW today ("It's not too late to get in touch" etc.) but I'll assume that's just standard.

Le_Kirk

keypulse wrote: »

I'm going to take a drive to the site later to see if more signage has been added since the Parking Charge Notice was issued, if so this can only help my case.

Don't get another PCN!

keypulse wrote: »

I'll then begin preparing a defence based on the lack of signage at the time of the PCN and I'll also make reference to the Abuse of Process as directed by beamerguy but if there's anything else I should rely on as a defence please let me know.

Have a look at the NEWBIE sticky post # 2 where you will find 17 pre-written defences, some of them about signage. Also, if the claimant has added spurious charges, search for a thread by beamerguy about Abuse of Process and look specifically at post # 14 on that thread.

keypulse

Le_Kirk wrote: »

Don't get another PCN!

I did not let my car out of my sight


I think that was a worthwhile trip. Sometime since January they have added more signs and have changed existing ones to now mention an extra £60 in fees (on top of the original £100). I've photographed the new signs at the same angle as the old pictures to prove they have added more signs and I will argue that the reason they would do this is because the signage wasn't sufficient in the first place (it still isn't in my opinion).

Coupon-mad

Even if a PPC adds £60 onto their signs, and even though the Trade Bodies have changed their pointless 'Codes of Practice' to say that their fee paying members 'can' add daft sums to a parking charge, they still can't recover that, if a Defendant knows what to say to a Judge.

The Beavis case (paras 98, 193 and 198) the POFA and the CPRs (about costs 'proportionality and justification') all kick out the £60 add-on.

keypulse

Ok, time has flown by and I need to get my defence in by Monday, but would like to do it sooner.

In summary, my defence is that there was no signage visible at the site entrance and no signage visible all along the route to where the car was finally parked. A later walk and inspection of the route (after the vehicle was ticketed) showed that there were small signs, either facing away from traffic traveling in or placed so low down they were obscured by bins and other vehicles. Not only that but they were the same size and colour of other signage warning of deep water. I also want to argue the abuse of process. I have no idea who owns the land or what rights Link have to be giving people tickets there.

I'll mainly be shamelessly plagiarising from @bargepole (thanks)

__________________________________

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Link Parking (Claimant)

-and-

(Me) (Defendant)

________________________________________
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 XXXX, of which the Defendant is the registered keeper, was parked safely and without causing obstruction near to a building to which equipment was being unloaded from the vehicle. The claimant states that the vehicle was targeted for "Parking in No parking area", however there was no signage or marking on the ground anywhere in the area to suggest this was the case.

3. Due to the sparseness of the Particulars of Claim, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, 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.

4. It is denied that the claimant's signage was visible to a reasonable person driving into the site and along the route to the alleged contravention. Photographic evidence will show that there was a total lack of signage at the site entrance, signs facing the opposite direction to the direction-of-travel of vehicles driving the route and signs placed so sparsely and so low on the wall of a river embankment that they were obscured by recycling and refuse bins, and by other vehicles. To further confuse matters, signs warning of "Deep water" were interspersed with the claimant's signs, using the same black and yellow colours on a white background. Signage in the vicinity where the vehicle was parked was non-existent, as were any kind of markings on the ground to indicate the area was a "No parking area".

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The signs merely state "NO PARKING IN THIS AREA FOR ANY VEHICLE" in areas with marked parking bays where many vehicles were parked, whereas in the area where the material vehicle was parked there was no signage whatsoever

6. 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. 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.

8. 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 includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. 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

____________________________________

Please let me know if I'm on the right track with this or if I need to make changes, I'm happy to clarify anything. Thanks.

Coupon-mad

You are certainly on the right track and that defence including the changes, is fine. Can you add the bit you said about other signs warning of deep water that were more prominent (were they?).

I also want to argue the abuse of process.

You can save that for WS stage, as you have mentioned it in #9 and can use the full words later.