UK Parking Patrol BW Legal County Court Claim

soleldn

Many thanks Le_Kirk and beamerguy for your advice. I have taken your points on board and minimised the narrative, focusing more on the legal technical points, and including the full Abuse of Process text from the thread mentioned (most was already in there, just added the rest - apart from part around POFA - see next post please for why). Would really appreciate if anyone could let me know if there is anything else I should address. Revised defence below:

IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between

UK Parking Patrol Office Limited
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)



DEFENCE

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at the private car park/land located. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim on the Claim Form refer to 'a Parking Charge Notice' incurred on xx/06/2018. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. 6. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable.
3. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their roboclaim particulars being incoherent, failing to comply with CPR. 16.4 and providing no facts that could give rise to any apparent claim in law.
4. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3-7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

5. 4 Further , the signs, as pictured by the parking operator at the time of PCN issue refer to 'No Parking in this area”, and suggest that by parking in an area where there is no permission to park, motorists are contractually agreeing to a parking charge of £100. This is clearly nonsense, since if there is no permission, there is no offer, and therefore no contract.
6. The claimant states that, “the Defendant was made aware that the charge had arisen as a result of an alleged contract that was entered into with the Claimant, upon entry to the Site”. However, there is no evidence of signage to prove this. The picture of the sign as captured by the parking enforcement officer on the date of the alleged offence, is extremely unclear, most of it cannot be read and there is no indication as to where this sign stood.
7. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
8. Due to the Claimant’s failure in providing clear evidence of signage and terms to the Defendant, it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.
9. The PCN and reminder letter later received, do not specify where the car was parked at the time of issue. A vague description of “XXX Road” is given, with no accurate specification as to where exactly the car was parked. The Defendant will provide evidence showing that the car could not have been parked where the Claimant claims it to have been.
10. The Defendant sent a subject access request (SAR) to the Claimant by email, requiring a response within 30 calendar days, in line with the International Commissioner’s Office’s regulation. A response and the requested information (excluding the signs at the site on the day) was granted 2 months late. The delay in the provision for information is not only additional proof of the Claimant’s negligence and lack of professionalism in non-compliance with regulation, but has also prejudiced and disadvantaged the Defendant. The Defendant was unable to take the time required to produce a defence that addressed all the evidence provided, due to the SAR being granted very late.
11. On xx/06/18, the vehicle was given authorisation to enter and park on the site from a steward manning the entrance to the site. It can only be inferred that this authorisation is given on behalf of the landowner, and the vehicle was therefore authorised to park on the site on the date in question.

12. The driver had the honest belief, from the Claimant/landowner’s employee's promise, that they had a verbal licence to park and that they had done everything they could with goodwill and effort, to comply with the Claimant's terms and instructions. The Defendant argues that the usual parking restriction was expressly waived, thus the penalty charge is void under the doctrine of promissory estoppel.
13. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.
14. 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 against visitors. The Defendant has the reasonable belief and will produce evidence that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

Costs on the claim - disproportionate and disingenuous
15. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £244 the Defendant avers that this inflation of the considered amount is a gross abuse of process, and is not recoverable under CPR27.14. The fictitious amounts added on to the claim, over the £100 parking charge, are mentioned nowhere on the signs on the sign that the Claimant alleges contained contract terms.
16. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will – 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 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.
17. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny.
18. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.
19. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.
20. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.
21. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:
22. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.
23. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.
24. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''
25. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:
''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''
26. Given that it appears that: this Claimant's conduct provides for no cause of action, this is intentional and contumelious, the vehicle was authorised to park at the site on the date of the PCN , the inadequate signage did not result in the formation of a contract and the claim for a significantly inflated amount constitutes abuse of process, the Claimant's claim must fail and the Court is invited to make an Order of its own initiative, dismissing this claim in its entirety 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 wholly unreasonable conduct of this Claimant.
I believe that the facts stated in this Defence are true.

soleldn

I’m struggling to decide whether I should be defending as keeper or not. If I am asked in court who the driver is, I think I will have to say I will not be disclosing, if I do not defend as driver. In addition to this I’m not sure if the NTK is POFA 2012 non-compliant. I have studied the act alongside the PCN & NTK and noted:
1. The point mentioned in my defence point 9 that the PCN and NTK did not give the correct/accurate location as to where the vehicle was parked, only mentioning the name of a road in the area, on which the vehicle cannot have been parked. POFA 2012 para 7/8 states: A notice which is to be relied on as a notice to driver the notice must specify the relevant land on which it was parked
2. The original PCN and NTK stated the vehicle was parked on private property in contravention of the site parking restrictions as displayed on the signage in or around the site the circumstances in which the requirement arose, without giving the terms under which this happened. A letter of claim received a year after the alleged contravention arisen as a result of an alleged contract that was entered into with the Claimant, upon entry to the Site. Can the lack of clarity and specific terms in the NTK and PCN deem both to be non-compliant with POA 2012 requirement para 7/8 that the notice must inform of the circumstances in which the requirement arose?
Alternatively, is there any other way I can use the above 2 points to prove the PCN/NTK were insufficient, that will help my defence? I have linked NTK and PCN in dropbox link for reference: dropbox.com /sh/hsrcefqw88hfltw/AADs94HGHsqVwM_uTpxy32wDa?dl=0[/url]
Based on the defence and NTK circumstances, does the forum think I have a better chance fighting this as keeper or driver? Do I need to hide behind POFA and more importantly, can I?

Le_Kirk

The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at the private car park/land located.

This just stops, were you going to add the location in your full defence for submission?

International Commissioner’s Office’s regulation.

Maybe better: -

[strike]International[/strike] Information Commissioner’s Office’s regulation.

11. On xx/06/18, the vehicle was given authorisation to enter and park on the site from a steward manning the entrance to the site. It can only be inferred that this authorisation is given on behalf of the landowner, and the vehicle was therefore authorised to park on the site on the date in question.

This is promissory estoppel and a very strong point.

Regarding defending as driver or keeper, only you can know if you were driving or not. This forum's advice is always Do Not Lie in Court!

soleldn

Thanks for reviewing Kirk!

This just stops, were you going to add the location in your full defence for submission?

- yes will add in the road name in the defence submission

This is promissory estoppel and a very strong point.

- I have included a reference to promissory estoppel in point 12, is this sufficient?

Regarding defending as driver or keeper, only you can know if you were driving or not. This forum's advice is always Do Not Lie in Court!

Of course - lying would not be an option. I imagined the option to avoid identifying driver, would be to just say "no comment" or simply refuse to identify the driver if asked - would this weaken my position? What is the norm in a case like this? I understand all cases are different, but generally, do judges ask who the driver was and what happens if a "no comment" answer is given?

The deadline is 4pm tomorrow so will be submitting by then per KeithP's instructions above. Any last minute comments on anything that needs to be amended would be appreciated!

Thanks all for your help

Coupon-mad

lying would not be an option. I imagined the option to avoid identifying driver, would be to just say "no comment" or simply refuse to identify the driver if asked - would this weaken my position?

Yes. It WOULD weaken your position in the eyes of the Judge.

What is the norm in a case like this? I understand all cases are different, but generally, do judges ask who the driver was and what happens if a "no comment" answer is given?

They might ask, ''were you driving?'' and it is NOT a good idea to refuse to answer. When you have a defence like promissory estoppel of course you will have to explain that as the driver, it will be so much more of an honest stance!

The driver asked the steward if there was somewhere they could park while visiting the resident’s home on the Wembley Park estate and was shown to a parking space that the steward had blocked with a cone. The steward removed the cone and informed the driver they could park there, making no mention of any time limits.

The above also lends itself to you citing the CPUTRs 2008 with your later WS about 'misleading omissions' - the direction to park there then getting a PCN anyway, being an unfair trading practice.

And you will know from CEC16's thread that you were directed to read, that you will also be putting the CRA 2015 in evidence re unfair consumer signs, so go and read that thread now in advance, if you haven't already.

soleldn

UPDATE: I received earlier this month a letter informing me the hearing had been set for April and the witness statements must be served by early March. I subsequently received a letter from BW legal (days before the witness statement was due) as Notice of Discontinuance of the claim. While it would have been nice to take down UKPP in court, it is a relief to not have to dedicate all that time to writing a statement and preparing for/attending court! Thank you to all who helped me with this, I am forever grateful for this forum and the wonderful people who dedicate their time to assist others!

Le_Kirk

A win is a win howsoever it was achieved - well done!

beamerguy

soleldn said:

UPDATE: I received earlier this month a letter informing me the hearing had been set for April and the witness statements must be served by early March. I subsequently received a letter from BW legal (days before the witness statement was due) as Notice of Discontinuance of the claim. While it would have been nice to take down UKPP in court, it is a relief to not have to dedicate all that time to writing a statement and preparing for/attending court! Thank you to all who helped me with this, I am forever grateful for this forum and the wonderful people who dedicate their time to assist others!

Great stuff, they chickened out again.  Even Southampton court said recently they are timewasters

But, hey that is not the last for you, a severe complaint to the SRA about BWLegal and their constant scamming.
https://www.sra.org.uk/consumers/problems.page

It costs nothing and you will join others who have complained about this disgusting firm

Coupon-mad

soleldn said:

UPDATE: I received earlier this month a letter informing me the hearing had been set for April and the witness statements must be served by early March. I subsequently received a letter from BW legal (days before the witness statement was due) as Notice of Discontinuance of the claim. While it would have been nice to take down UKPP in court, it is a relief to not have to dedicate all that time to writing a statement and preparing for/attending court! Thank you to all who helped me with this, I am forever grateful for this forum and the wonderful people who dedicate their time to assist others!

Yay, hooray!  ANOTHER UKPPO ONE BITES THE DUST!