UK parking patrol/ BW legal

KeithP

moneylion wrote: »

I am now in receipt of a Claim form from BW legal via the County Courts Business centre Northampton.

I am now at the stage where I will do the AoS to the claim form as advised on the sticky. It was issued on 11 October so 16 October plus 14 days would be my deadline?

With a Claim Issue Date of 11th October, you have until Wednesday 30th October to do the Acknowledgement of Service. If possible, do not do the AoS before 16th 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 Wednesday 13th 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.

moneylion

Hi KeithP - thanks for the above. I am submitting the AoS today (after the 16th as you suggested)

I have tried to work on my defence (thanks to all the defences posted in the sticky plus recent one from digeridoo and couponmad) and posting it below for comment:

EDIT: SEE UPDATED DEFENCE BELOW

beamerguy

Very good, within the abuse of process, you can confirm to the judge that the Supreme Court in the Beavis case, ruled ....

198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''

Coupon-mad

Just picking up some clunky grammar here, don't isolate ''of'' like this:

10. The International Parking Community (IPC) Code of Practice terms, for which the Claimant is an Accredited Operator of,

And change 'keeper' to Defendant, and edit here:

12. The [STRIKE]Keeper[/STRIKE] Defendant therefore states that the additional time beyond the bare minimum (not 'maximum') 10 minutes grace period — alleged to be 37 seconds over — is a reasonable amount taking into account the driver's personal factors. To evidence this alleged 37 seconds, the Claimant is relying upon two separate images from ANPR cameras, which is a system known for failure and even when 'working' the two cameras are not synchronised with each other to the last minute and certainly not to the second. Even the Police and their system manufacturers, have stated that their ANPR systems are only about 90% reliable. Thus a '37 seconds over ten minutes' allegation is absurd - de minimis at best, even if it is to be believed - and the Claimant is put to strict proof.

moneylion

beamerguy wrote: »

Very good, within the abuse of process, you can confirm to the judge that the Supreme Court in the Beavis case, ruled ....

198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''

Hi beamerguy thanks - have updated para 3 .. does it sound ok?

Coupon-mad wrote: »

Just picking up some clunky grammar here, don't isolate ''of'' like this:

And change 'keeper' to Defendant, and edit here:

Hi couponmad - thanks a lot .. have updated those points by removing of and adding your additional points. I looked at the images again and it is only 6 seconds (did a proper calculation) .. cheeky sods!

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Claimant has notified the Defendant that this claim seeks to rely on Schedule 4 of the Protection of Freedoms Act 2012 (POFA) in order to transfer liability to the registered keeper.

3. The Claimant has demonstrated at least seven failures to meet the strict requirements of POFA, both in the Notice to Keeper (NTK), and in the sum claimed in the particulars. POFA Schedule 4 Section 4(5) limits the maximum sum recoverable to the sum shown on the NTK, in this case £100. This claim includes an additional unexplained sum of £60 which the Defendant avers is an attempt at double recovery and, as such, is an abuse of process, as stated in the Orders of various District Judges when recently striking out similarly inflated claims without a hearing. Two examples are Claim F0DP201T, 10th June 2019 and F0DP163T, 11th July 2019. Further, in Supreme Court Case of The Parking Eye Ltd v Beavis case found that the authority for recovery of the parking charge itself and no more. Under para 198, the judge concluded that “'...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''.

4. The particulars do not state the legal basis on which the claim is brought, whether for breach of contract, contractual liability, or trespass. Nonetheless 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.

5. Signage at the location represents “Stadium Retail Park” such as where it states: “Free parking for customers of Stadium Retail Park only whilst on site”. It is averred that any alleged contract could only exist between a driver and “Stadium Retail Park”. Thus the Defendant submits that the Claimant has no standing to bring this claim.

6. The facts are that, on the material date, the vehicle, XXX, of which the Defendant was the registered keeper, was parked correctly within a marked bay for less than 90 minutes. The Defendant’s vehicle vacated the parking bay before the expiry of the said period, but the driver was unexpectedly delayed in exiting due to the poor design of the car park and it being extremely busy (such that there was a long queue to exit) on the material date.

7. It is denied that the visible signage in the car park was sufficiently clear to bind any reader:

a. No terms and conditions were displayed
b. Even if entry signs were present and visible, and even if any such signs had offered terms, the Defendant denies that they would have been sufficient to bind any person by dint of driving past them, as the driver of a moving vehicle could not reasonably or safely read, consider, or accept any terms prior to entry. The Defendant asserts that this renders as immaterial any ANPR photographs taken at the entrance.

8. An ANPR capture of the vehicle provided as evidence for the Parking Charge Notice (herein referred to ‘PCN’) shows entry at xx:xx:xx and exit at xx:xx:xx on the material date.

9. The PCN states that the notice relates to the ‘period of parking’ – the evidence shows the vehicle as it is entering and exiting, and NOT in parking conditions, i,e. in a stationary position, parked within a parking bay.

10. The International Parking Community (IPC) Code of Practice terms, for which the Claimant is an Accredited Operator, state that drivers are to be provided with a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.

11. This grace period provided to drivers should take into account any and all situations that could extend the time required to observe the signs and comply with the operator’s conditions. This includes, but is not limited to: mobility, the presence (and therefore safety) of children, and the conditions of driving within the car park.

12. The Defendant therefore states that the additional time beyond the bare minimum (not ‘maximum’) 10 minutes grace period — alleged to be 6 seconds — is a reasonable amount taking into account the driver’s personal factors. To evidence this alleged 6 seconds, the Claimant is relying upon two separate images from ANPR cameras, which is a system known for failure and even when 'working' the two cameras are not synchronised with each other to the last minute and certaparainly not to the second. Even the Police and their system manufacturers, have stated that their ANPR systems are only about 90% reliable. Thus a '6 seconds over ten minutes' allegation is absurd - de minimis at best, even if it is to be believed - and the Claimant is put to strict proof.

13. Pursuant to paragraph 6 of Practice Direction – Pre Action Conduct, and POFA 2012 Schedule 4, Section 9 (2)(a), the Defendant puts the Claimant to strict proof on the “period of parking” allegedly contravened, as well as how and when such contravention is alleged to have occurred. It is denied that the Defendant’s vehicle was parked in breach of any terms at any time.

14. The particulars do not meet the requirements of Civil Practice Direction 16 (Paragraphs 7.3 through 7.5) as they do not state the specific “conduct relied on” by the Claimant.

15. The Claimant is put to proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner, to issue PCNs, and to pursue payment by means of litigation. The Claimant is further put to proof on its authority to litigate on behalf of “Stadium Retail Park”, the contracting party represented on signage.

16. Contrary to the requirements of CPR Part 16.4 (1), the particulars do not provide “a concise statement of the facts on which the claimant relies”. There is merely a reference to a "Parking Charge Notice” with no further description, thus the Claim fails to establish a Cause of Action.

17. The Claimant failed to issue a compliant Letter Of Claim, pursuant to Pre Action Protocol for Debt Claims (Para. 3). The Defendant advised the Claimant of this. The Claimant responded: “Please be advised should this matter proceed to the Courts, a suitable Letter of Claim shall be issued” and “As aforementioned, a Letter of Claim maybe issued in due course with the relevant details and information to accompany the claim”. No such letter was issued.

18. The Defendant invites the Court to consider sanctions against the Claimant in accordance with Practice Direction on Pre-Action Conduct & Protocols. Paragraph 13: “If a dispute proceeds to litigation, the Court will expect the parties to have complied with a relevant pre-action protocol or this Practice Direction. The Court will take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)).” and Paragraph 14 (c): “sanctions are to be applied.” The Defendant has no legal training, nor experience. The Claimant is an experienced serial litigant, thus the Defendant submits that sanctions are of particular relevance to this claim, given the inordinate number of procedural failures and POFA 2012 violations.

19. In addition to the original PCN sum of £100, for which any liability is denied, the Claimant has artificially inflated the claim’s value by adding alleged “contractual costs” of £60, as well as interest. In the particulars, the Claimant seeks to justify the £60 sum with the phrase “pursuant to PCN Terms and Conditions”. The Defendant asserts that:

a. There were no terms offered in the PCN.
b. If terms had been offered in the PCN, they would have no relevance, as any such terms would, if accepted, form an entirely new and secondary contract, extraneous to this claim.
c. Signage referred only to “PCN £100”. There was no reference to any additional £60 sum.

20. The particulars refer to a further sum of “£50” purportedly for “legal representative’s costs”, inflating the total to £24x.xx (excluding court fee). This sum amounts to more than double recovery and the Defendant puts the Claimant to proof on having incurred any such “costs”. In Bagri v BW Legal Ltd, BW Legal boasted of processing 'millions' of Claims with an admin team, yet only a handful of Solicitors. Given the fact that ‘robo-claim’ solicitors and parking firms process tens of thousands of claims handled by administrators or paralegals, the Defendant avers that no Solicitor is likely to have handled this claim at all, which would render the Claimant's legal representatives, BW Legal, in contravention of the SRA's Code of Conduct.

21. Furthermore, BW Legal have sought to mislead the Defendant, causing sincere and prolonged distress to his already impoverished family, by repeatedly threatening a CCJ for monies known to them to be unrecoverable under POFA, the Statute on which they have twice confirmed this claim relies. The Defendant even received another similarly vexatious letter over 30 days after the claim was issued, again threatening a CCJ and the worrying implications of such things, and stating: “You can prevent this by calling us on 0113 323 4479 before xx xx 2019…”

22. CPR 44.3 (2) states: “Where the amount of costs is to be assessed on the standard basis, the court will –

a. only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
b. resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

The Defendant submits that significant doubt exists thereto, and invites the Court to resolve it.

23. Whilst the Defendant acknowledges that this Claim does not seek relief ‘in equity’, the spirit of the doctrine of laches is submitted to be at least relevant to this claim, insofar as this Claimant has not communicated with the Defendant for over 1 year regarding a PCN issued almost 2 years ago. The Defendant submits that this undue delay sought to unfairly prejudice the Defendant’s ability to defend the claim, for example in the increased likelihood of the loss of documents, logs, general recollections, and photographic evidence. The Defendant invites the Court to consider the possible reasons for such a delay.

24. In summary, it is the Defendant's position that the claim discloses no Cause of Action, is without merit, has no real prospect of success, and was improperly issued in contravention of numerous Civil Procedure Rules. Furthermore, the Claimant has flagrantly contravened a plethora of obligations prescribed by the very Statute on which their claim relies, obligations with which they are required to comply in order to secure the transfer of liability required to sue the Defendant in this matter.

25. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4, 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 excessively unreasonable conduct of this Claimant.

Statement of Truth:

I believe the facts contained in this Defence are true.

Name!
Signature
Date

Coupon-mad

6 seconds over the 10 mins, even though the 'out' photo could have been taken seconds earlier...but no, scammers will scam. You should pursue your full costs for this wholly unreasonable conduct if this goes to a hearing, so make sure later, that your costs schedule you file before the hearing goes to a high 3 figures.

Typo here, and everything else looks fine to my skim-reading eye:

certaparainly not to the second.

moneylion

Coupon-mad wrote: »

6 seconds over the 10 mins, even though the 'out' photo could have been taken seconds earlier...but no, scammers will scam. You should pursue your full costs for this wholly unreasonable conduct if this goes to a hearing, so make sure later, that your costs schedule you file before the hearing goes to a high 3 figures.

Typo here, and everything else looks fine to my skim-reading eye:

Really appreciate your help! I have been trying to read up on the recommended approach re claiming costs and trying to keep a log of the research I am doing. If I lose a day out from work, it costs me a lot of money - is that claimable ? thanks for your advice.

Fruitcake

moneylion wrote: »

Really appreciate your help! I have been trying to read up on the recommended approach re claiming costs and trying to keep a log of the research I am doing. If I lose a day out from work, it costs me a lot of money - is that claimable ? thanks for your advice.

Costs are capped at £95, so make sure you reasonably reach or exceed that amount.
If you can prove the court process was unreasonable then you can claim more, but this is not easy to do.

Lost earnings/time at your normal pay rate, plus 'phone calls, stationery, printing, estimated parking costs on the date of the court appearance etcetera are the normal things you can claim for.

If you can prove a DPA/GDPR breach then you can counterclaim for more.

Clarify para 9 a little better.

9. The PCN states that the notice relates to the ‘period of parking’ – the evidence shows the vehicle as it is entering and exiting, and NOT in parking conditions, i,e. not shown in a stationary position nor shown parked within a parking bay.

Can you estimate how long it would take in busy conditions to drive in and find a place to park, how long it would take to walk to the nearest readable sign, and how long it would take to drive out after the parking period had ended?
If the nearest sign was unreadable, say so and add in the extra time it took to find another sign that was readable.

All of that added together must surely have taken longer than 10 minutes and should therefore be subtracted in order to determine the actual period parked.

moneylion

KeithP wrote: »

With a Claim Issue Date of 11th October, you have until Wednesday 30th October to do the Acknowledgement of Service. If possible, do not do the AoS before 16th 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 Wednesday 13th 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 to find out exactly what to do with it.
   

Hi Keith - thanks a lot for your instructions. Can I just check that the collective wisdom is to submit the defence closer to the 28 day expiry date ? I .e. if I have the defence ready, is it detrimental to submit it early - does it give the scamlitors some extra time to trick me into another scam or anything like that?

moneylion

Fruitcake wrote: »

Costs are capped at £95, so make sure you reasonably reach or exceed that amount.
If you can prove the court process was unreasonable then you can claim more, but this is not easy to do.

Lost earnings/time at your normal pay rate, plus 'phone calls, stationery, printing, estimated parking costs on the date of the court appearance etcetera are the normal things you can claim for.

If you can prove a DPA/GDPR breach then you can counterclaim for more.

Clarify para 9 a little better.


9. The PCN states that the notice relates to the ‘period of parking’ – the evidence shows the vehicle as it is entering and exiting, and NOT in parking conditions, i,e. not shown in a stationary position nor shown parked within a parking bay.

thanks Fruitcake .. so it could be (sorry if I am repeating you and being silly with clarification):

• £95 for costs (ie reasonably reach this at £19/hr research and other things) plus
• Unreasonably court process - 6 seconds could be counted as unreasonable? have you come across anyone successful with this? PLUS (?)
• My lost earnings on the day and stationery, car parking etc?
• What would be a data GDPR breach? They havent responded to my SAR - is that enough?

thanks have made para 9 clearer. It can easily take 10 mins just to exit the car park on a busy day - its a one way system and the exit road can be very busy so you end up queuing. I went to take some pictures and it would easily take you a few minutes (say 2) to locate a sign especially if you are parked in the middle of the car park as the signs are located at the edges and at times about 10 bays apart. So you could park somewhere and find a sign, go read it and digest the words on a size 2 font and get back to the car park. the bays are extremely tight so can probably take you 2 mins to just to park properly especially with cars behind you not giving you space to manoeuvre

should I word each of these into the defence or wait for the witness statement stage?