LBC received from BW Legal

beamerguy

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.”

As usual BWLegal actually don't know what they are claiming for...
initial legal costs   or  Debt recovery costs ........ what is it BWLegal, it's make your mind up time ? This something you refer to the Judge ....... it cannot be both can it

I would include this nonsensical conflicting rubbish which they cannot claim for anyway.  
Where on that sign does it say they can add a scam charge ?????
YES, as BWLegal are in their usual scam mode, your defence against this scam is here

DEFENCE FOR ABUSE OF PROCESS by coupon-mad can be found here .... USE IT
https://forums.moneysavingexpert.com/discussion/comment/75937581/#Comment_75937581

on.wheels

Ok, thanks beamerguy - I'll look to add coupon_mad's whole defence in to my next draft and will look to mention them calling it initial legal costs, debt recovery costs and contractual costs.

beamerguy

on.wheels said:

Ok, thanks beamerguy - I'll look to add coupon_mad's whole defence in to my next draft and will look to mention them calling it initial legal costs, debt recovery costs and contractual costs.

So they said contractual costs as well ?????     And BWLegal still don't understand why the courts spank them and will continue to spank them whilst they are in their nonsensical mode

on.wheels

So they said contractual costs as well ????? 

Yes. In the actual Claim Form in the Particulars of Claim it says "The Claimant also claims £60.00 contractual costs as set out in the Terms and Conditions".

beamerguy

on.wheels said:

So they said contractual costs as well ????? 

Yes. In the actual Claim Form in the Particulars of Claim it says "The Claimant also claims £60.00 contractual costs as set out in the Terms and Conditions".

We have seen many times that BWLegal believe in the fairies
* contractual charge
* admin costs
* debt collector costs
* legal fees
* The CoP of each ATA says they can do it.

All of which is rubbish and a scam because POFA2012 does not allow it, the Supreme court says NO, the courts own ruling about double recovery and of course The Consumer Rights Act 2015 

Your job is to  ensure the court knows about this BWLegal scam

on.wheels

Here is my new draft after starting again using coupon_mad's new template. I've changed everything in red and also made additions relative to my case in paragraphs 16 - 25. Is this beginning to look good to go?

__________

DEFENCE

__________

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant.
   
   
2. In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £160. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case.  
   
   
3. The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair.
   
   
4. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs. The sum exceeds the maximum amount which can be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA.
   
   
5. Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix A) and two similar Orders from Deputy District Judge Josephs, sitting at Warwick County Court (Appendices B and C).
   
   
6. Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made.  
   
   
7. The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage.  That Judgment is appended (Appendix D).
   
   
8. The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.
   
   
9. Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''   
   
   
10. The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''   
    
    
11. In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.
    
    
12. The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’
    
    
13. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach.  Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.
    
    
14. This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.
    
    
15. Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.
    
    
16. The vehicle, registration **** ***, of which the Defendant was the driver but not the registered keeper was parked on the material date.
    
    
17. 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.  
    
    
18. It is denied that the Claimant’s signs sets out the terms in a sufficiently clear manner which would be capable of binding any person reading them under common contract law. 
    
    
19. 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.
    
    
20. The Claimant’s signs in addition to that stated above have vague/hidden terms and a mix of small font and colours, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was entered into with the Claimant, whether express, implied, or by conduct. 
    
    
21. 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. 
    
    
22. The ticket issued by the payment machine 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. 
    
    
23. 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. 
    
    
24. 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.
    
    
25. The Defendant appealed the postal Parking Charge Notice on the **/**/**** 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. This was an opportunity for the Claimant to act responsibly and cancel the charge. The appeal was rejected on **/**/**.
    
    
26. The Beavis case is fully distinguished and a more relevant list of binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 and (ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.

on.wheels

cont.

27.  Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary landowner authorisation to issue PCNs under these circumstances and to pursue keepers by means of civil litigation. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, other terms (or instructions to cancel charges due to a surge of complaints) and there is no evidence that the freeholder authorises this particular Claimant (Companies House lists their company number as 08087077).  Any purported landowner 'contract' which fails to properly identify the two contracting parties and/or which is in any way redacted (including the signatories, which in some parking claims have been revealed not to be that of the landowner) should be disregarded, along with any undated and/or unsubstantiated records, documents, boundary maps or aerial views, or photos which are capable of manipulation.

28. For any or all of the reasons stated above, the Court is invited to dismiss this claim.

29.In the matter of costs.  If the claim is not struck out, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) the Court to reserve, assess and award the Defendant’s Summary Costs Assessment, to be filed and served at Witness Statement stage in anticipation of a typical late Notice of Discontinuance (‘NoD’) from this Claimant.

30. At NoD stage, or at a hearing if the case proceeds that far, the Court will be taken to facts to support a finding of wholly unreasonable conduct by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer & anor v Paul Jones Financial Services Ltd.

31. In summary, the Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA,  The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

Statement of Truth

I believe that the facts stated in this Defence are true.

Defendant’s signature: 

Defendant’s name:   

Date:                              

Appendix A attached: Order to strike out a similar claim; abuse of process (Skipton) 

Appendix B attached: Order to strike out a similar claim; abuse of process (Warwick)

 Appendix C attached: Order to strike out a similar claim; abuse of process (Warwick) 

Appendix D attached overleaf: Judgment and reasoning for refusal to set aside Order (Southampton)

Castle

The name KBT Cornwall Ltd or even Armtrac doesn't appear on the sign you refer to in paragraph 19; so that particular sign can't offer a contract since there's no legal entity stated on it. (B.R.C.P Ltd doesn't exist at Companies House).

on.wheels

Great spot, Castle. I'll amend that paragraph to highlight this. Thanks.

Coupon-mad

Very happy to see the template can be adapted for something as specific as a fluttering ticket case - IMHO your defence is really good!  Just needs the addition of the point observed by Castle, which is really important because there is no certainty regarding which legal entity (apart from the landowner) might be offering a contract based on site rules.

Are you attaching two Warwick Orders (there are two on the forum)?  They are the same, though, so don't add much, which is why I only appended one of them and only had A, B and C as my suggested appendices.