LBC received from BW Legal

beamerguy

OH DEAR, BWLegal are really getting their knickers in a twist

1: THE BEAVIS CASE
The Supreme Court actually said that £85 was acceptable but this was inflated to £100 by the PPC's. This does not comply with the Beavis case.
And, the Supreme court ruled that the parking charge includes the operating costs ...... that includes the fake £60

2: Relevant parking code of practice
The problem here is that the CoP of both the IPC and BPA is only for the PPC to work from. You have to be a member of either ATA to agree plus they are not terms and conditions, The CoP of practice is in an unregulated industry and the motorist is not bound by them.

The motorist can only be bound by POFA2012 and BWLegal are attempting to circumvent the law. That is why judges are kicking them out for ABUSE OF PROCESS

And they are saying to you that it's contractual and on another page it's for debt collection ????

It's no wonder they get spanked in court if they believe in their own rubbish

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

nosferatu1001

Respond back, and point out their many, many times they called it such
Also ask how it is an allowed item under the CRA Grey list...

on.wheels

Thanks all. It sounds like their mistakes/incompetence are making my (already strong!) case stronger.

And they are saying to you that it's contractual and on another page it's for debt collection ????

It would appear so! They call it debt throughout the letters, including the LBC but on the latest email they mention their Client’s contract with me and the apparent signs in the car park mention a contract.

I’ll reply to them mentioning only the fact that they have called the £60 “initial legal costs” many times and the grey list. I think I’ll save the debt/contract thing for later and push the abuse of process if it comes to it.

Thanks again for your help.

on.wheels

I was hoping this wouldn’t progress, but I recently received a county court claim from Northampton. As per the NEWBIES thread I've just submitted an Acknowledgment of Service and have begun preparing a defence using the posts on this forum. I'm confident I have multiple angles for a defence so will draft it up will post here for some advice. 

With an issue date of 5th Feb, I believe I have until the 9th March to file my defence.

beamerguy

on.wheels said:

I was hoping this wouldn’t progress, but I recently received a county court claim from Northampton. As per the NEWBIES thread I've just submitted an Acknowledgment of Service and have begun preparing a defence using the posts on this forum. I'm confident I have multiple angles for a defence so will draft it up will post here for some advice. 

With an issue date of 5th Feb, I believe I have until the 9th March to file my defence.

KeithP will be along shortly to advise

So BWLegal are off again on the trail of the lonesome pine ?
Now is the time to study the abuse of process thread and post #14 by coupon-mad which is your defence to cover ABUSE OF PROCESS.
Abuse of Process ... District Judge tells BWLegal
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal/p1

No doubt they have faked their claim again by adding £60.

No doubt they have signed a statement of truth about the fake £60

on.wheels

Oh yes, the £60 "initial legal costs" have certainly been added. I've had a good read of the ABUSE OF PROCESS thread and will use this as my biggest defence.

beamerguy

on.wheels said:

Oh yes, the £60 "initial legal costs" have certainly been added. I've had a good read of the ABUSE OF PROCESS thread and will use this as my biggest defence.

Nonsensical rubbish by BWLegal.   So what part of POFA2012 and the supreme court ruling that 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...''    DON'T THEY UNDERSTAND

The excuses given for adding the fake £60 ..
* contractual charge
* admin costs
* debt collector costs
* legal fees
* The CoP of each ATA says they can do it.
ALL OF WHICH IS RUBBISH

KeithP

on.wheels said:

I was hoping this wouldn’t progress, but I recently received a county court claim from Northampton. 

I've just submitted an Acknowledgment of Service.

With an issue date of 5th Feb, I believe I have until the 9th March to file my defence.

Your Defence filing deadline is spot on, but there might be something useful here...

With a Claim Issue Date of 5th February, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 9th March 2020 to file your Defence.

That's over three 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:

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5. 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'.
   
6. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
   After filing your Defence, there is more to do...
   
   
7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
8. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet - https://www.gov.uk/government/publications/form-n180-directions-questionnaire-small-claims-track , and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of the NEWBIES thread - https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou"]
   
9. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
   
10. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

on.wheels

Thanks both. I'll get drafting the defence.

on.wheels

Here is my first draft of my defence, I feel I have multiple reasons why I should win this. Any help/advice greatly appreciated.

Defence

Claim No. : *******

Issue Date: 05/02/2020

________________________________________

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 was the driver but not the registered keeper, was parked on the material date.

3. 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. 

3.1. A large sign adjacent to the payment machines clearly states seven numbered ‘Tariff and Rules’ applied, none of which have been infringed. It makes no attempt to inform the driver of any further rules, terms, or any form of contract.

3.2. The terms on the Claimant's signage in addition to that stated above are displayed in a font which is too small to be read, in colours and contrast that making reading difficult and in a location that anyone attempting to read either from a passing vehicle or on foot would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

3.3. Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which the Claimant is a member), clearly obliges the Claimant to display legible signs in appropriate locations. This Code of Practice also states that entrance signs must ‘make it clear that the motorist is entering onto private land’. There are 2 entrance signs to this car park, neither of which are visible from a car entering the property. The first is behind a car parking space where any parked car obscures it from view with the other positioned so low and so close to the entering vehicle that it can not be seen.

4. Due to the sparseness of the particulars, 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.

5. 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.

6. 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.

7. The Defendant paid, using a debit card, and displayed a ticket so all details could be seen and returned to their vehicle before the expiry time. The ticket is made of flimsy paper with no method of fixing, and was, to the full knowledge of the Defendant at the time, in place with the details displayed when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket turned over. The Defendant notes it was a very windy day.

8. The flimsiness of the ticket, which certainly played its part, is within the control of the Claimant, who must be well aware of the problem, which has become known as ''fluttering tickets''. Because they profit from drivers' misfortune caused by their own tickets' inability to withstand the weather, it is averred that this Claimant wilfully failed to address this issue (e.g. by adding sticky backing to the ticket, allowing it to be fixed in place). Several similar court cases have been previously dismissed on the basis that it is deemed by the judge to be the responsibility of the parking company to provide sticky backed tickets.

9. Notwithstanding the above, the sign which is visible in the car park merely states “All vehicles must display a valid ticket at all times.’ not defining which way the ticket should be placed. The ticket has printed information on both sides with the Claimant during the initial appeal stating that the numbers printed on the ‘back’ were the batch number for the roll. There is no way the Defendant would know this.

10. The Defendant appealed the postal Parking Charge Notice on the **/**/2019 explaining what had happened and included a photograph of the ticket displayed on the day providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and conditions - as far as they were understood.

10.1 This was an opportunity for the Claimant to act reasonably and cancel the charge.

10.2 The appeal was rejected on **/**/2019. The Defendant subsequently appealed to the Independent Adjudicator on **/**/caution 2019 that was also dismissed.

11. The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act.

12. 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

________________________________________ 

I also have some questions regarding my defence, if anyone can offer help.

• In paragraph 3.1 I mention that no rule has been broken, this is dependent on the interpretation of the rule. The visible sign next to the payment machine states ‘All vehicles must display a valid ticket at all times.’ It was on display, just upside down. It does say on the additional signage that “vehicles must display a valid pay and display ticket in the front windscreen so that all details can be inspected” but this is only on the signs that I have stated are neither adequate or clearly visible.

• Should I mention the Southampton case (F0DP201T District Judge Taylor) on paragraph 6? And also that the Supreme court ruled that the parking charge includes the operating costs, i.e. the £60.

• Should I include all of coupon_mad’s from post #14 of the abuse of process thread? Or should that be included in my WS?

• In the Particulars of Claim on the claim form the £60 is described as ‘contractual costs as set out in the Terms and Conditions’. Whereas the LBC they sent calls it both “initial legal costs” and “Debt recovery costs”. Should I attempt to mention this? The (inadequate) sign says “Enforcement action may incur additional costs that will be added to the value of the parking charge for which you will be liable on an indemnity basis.”

• Should I explain that this does not comply with the Beavis case?

• I did say in my appeal to the IAS that I placed the ticket on the dashboard but the wind then blew the ticket over without me realising. Should I therefore adjust paragraph 7?

• In paragraph 8 should I add examples of cases being dismissed for ticket flimsiness?

Here is a photo of the sign I mention in paragraph 3.1

Apologies for the number of questions. Many thanks in advance for any help.