Claim form from BWLegal

Le_Kirk

"This Court must now systematically strikes out claims for those costs" and also said to refer back to the instructors if they wanted to appeal this decision and that this is the position which is going continue to be adopted.

When you do rewrite it, after following beamerguy's advice and reading again the latest comments by Coupon-mad, pay attention to the grammar: -

"This Court must now systematically [strike]strikes[/strike] strike out claims for those costs" and also said to refer back to the instructors if they wanted to appeal this decision and that this is the position which is going continue to be adopted.

The rest of that sentence does not make sense; who is to refer back to whom; who are the instructors? Make sure that what you are telling the judge is sensible.

Some of what you write may be of more use in your Witness Statement (WS) but don't forget that you will have to provide evidence of any allegations you make such as in your paragraph 6. Do you have evidence of what you write?

BWScammer

Ok, thank you.

Some of what you write may be of more use in your Witness Statement (WS) but don't forget that you will have to provide evidence of any allegations you make such as in your paragraph 6. Do you have evidence of what you write?

I don't no, other than many generic letters. None of which have a signature other than a printed "BW Legal".

Writing this defence is much harder than I anticipated it being.

BWScammer

Le_Kirk - would this be enough? Backed up by the mountain of letters all signed by "BW Legal"..

6. The Claimants solicitors, BW Legal are known to be a serial issuer of generic claims, similar to this one.
-BW Legal do not have a valid signature.
-Practice Direction 22 (3.7) states that the representative for the Claimant must state the capacity in which he signs and the name of his firm where appropriate. These items are not present.
-Practice Direction 22 (3.4) requires that a statement of case on behalf of a company must be signed by a senior member of staff and state their position. The claim does not state such person or position of the names representative. It is merely signed “BW Legal”.
-The Defendant would like to bring attention to a similar case where the District Judge has run out of patience with such robotic claims, which sadly are becoming a lucrative business due to the percentage that go undefended. F0DP201T, District Judge Taylor, Southampton, 10th June 2019
-Parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

Coupon-mad

You are using some old wording; too much for me to tackle.

And the thread by basher52 for a more up to date version of a defence, then just change the first 5 points to talk about the fact the driver was not given a fair opportunity to read the overly wordy signage, and any other facts that you know (i.e. did the car stay there and the driver paid once they got change? Or, did the driver leave within a few minutes and chose not to accept any contract?).

Also change stuff like basher52's PCNs (more than one) were for £80 so of course yours was £90 and therefore his point about adding 75% will need recalculating, and all words that talk in the plural about charges and 'on any occasion' will need simple edits to make sense for one PCN.

BWScammer

Ok, thank you all so much for your assistance.

Could somebody have a look at this and advise if this is any better..


IN THE COUNTY COURT

CLAIM No: xxxxxxx

BETWEEN:

NAPIER PARKING LIMITED (Claimant)

-and-

xxxxxxx (Defendant)

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. However, the claim relates to an alleged debt in damages arising from the drivers alleged breach of contract, when allegedly parking at xxxxxxxxxx on the xxxx/2018.

3. The particulars of the claim state the Defendant is liable for a sum of £xxxxx for a breach of contract when the driver failed to display a valid permit.
It is denied the Defendant was the driver of the vehicle at the time of the supposed event.
It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, and therefore has not breached any terms or conditions whether expressed, implied, or by conduct.

4. It is denied the Claimants signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
The terms on the Claimant's signage are 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.

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.
The Defendant wrote to the Claimant asking them to provide a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1.
The Defendant was informed they had no right to inspect such documents.

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 £90.00. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

Then ill go on to abuse of process as per Coupons post..

Coupon-mad

This isn't a sentence, and I see no facts?

2. The facts are that the vehicle, registration xxxx, of which the Defendant is the registered keeper.

I asked you (and the Judge will wonder, so spell it out):

just change the first 5 points to talk about the fact the driver was not given a fair opportunity to read the overly wordy signage, and any other facts that you know (i.e. did the car stay there and the driver paid once they got change? Or, did the driver leave within a few minutes and chose not to accept any contract?).

BWScammer

The car did stay parked for about half an hour. There wasn’t anywhere to pay for a ticket. It was parked round the back of some shops, not a proper shopping car park. The ticket says it was observed for 1.36 minutes, however I was sent a photo which was stamped a time of around half an hour later.. I’m guessing they would use this as evidence in court of the car being parked rather than choosing not to accept the contract?

BWScammer

OK, I have rewritten some of this based on the feedback, thank you.
Do incriminate the driver further by saying they parked longer than the 1 and a half minutes, or do I leave that bit out and hope the representative doesn't bring the photo with the late time stamped on it??

Any help would be appreciated. I go on holiday on Thursday, so need to get this printed, signed and sent before I go to meet the deadline.


IN THE COUNTY COURT

CLAIM No: xxxxxxxx

BETWEEN:

NAPIER PARKING LIMITED (Claimant)

-and-

xxxxxxxxx (Defendant)

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

The Defendant is the registered keeper of vehicle, registration xxxxxx. However, the claim relates to an alleged debt in damages arising from the drivers alleged breach of contract, when allegedly parking at xxxxxxxxxxx on the xxxx/2018.
a) Under the Protection of Freedoms Act 2012, there is no presumption in law as to who parked a vehicle.


3. The particulars of the claim state the Defendant is liable for a sum of £2xxxx for a breach of contract where by the driver failed to display a valid parking permit.
- It is denied the Defendant was the driver of said vehicle at the time of the supposed event.
- “xxxxxx Shopping Centre Car Park" is not an actual car park. It is private land behind some shops which appears to be access to bricked garages.
- There was no means of which to pay for a parking permit within the area of land in question. Meaning the driver did not have the opportunity to access one.
- It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, and therefore has not breached any terms or conditions.

4. It is denied the Claimants signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
- The terms on the Claimants signage are displayed in a font which is too small to be read, and is at such a height 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.

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.
- The Defendant wrote to the Claimant asking them to provide a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1.
- The Defendant was informed they had no right to inspect such documents.

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 £90.00. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
- It would appear neither the Claimants solicitor BW Legal understand what their inflated cost represent and claim the subsequent £60 to be ‘Initial Legal Costs’, then ‘Additional Charges/Costs’, then ’Contractual Costs’, ‘Instruction Fee’ and finally ‘Debt Recovery Costs’.
- It would appear the additional £60 charge is in fact an abuse of process and the Claimant is attempting to double charge.

7. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair’.

8. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £90 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

9. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
10. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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. 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.

-This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. ''What matters is that a charge of the order of £85 is an understandable ingredient of a scheme serving legitimate interests”.
- In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.’'
- At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services…''
- At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim
11. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

The Consumer Rights Act 2015 ('the CRA') is against this claim
12. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 66.6% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

- In the Caernarfon Court in Case number F2QZ4W28 (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 in 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.''

- That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

- In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

- Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, 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 the Beavis case. 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...''

- BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

- That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(i) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(ii) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(iii) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

- At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

- A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

13. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

14. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

15. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

- The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

16. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

17. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

18. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth:

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


Name
Signature
Date



I question if I should include this...

-The Claimants solicitors, BW Legal are known to be a serial issuer of generic claims, similar to this one.
BW Legal do not have a valid signature.
- Practice Direction 22 (3.7) states that the representative for the Claimant must state the capacity in which he signs and the name of his firm where appropriate. These items are not present.
- Practice Direction 22 (3.4) requires that a statement of case on behalf of a company must be signed by a senior member of staff and state their position. The claim does not state such person or position of the names representative. It is merely signed “BW Legal”.
-The Defendant would like to bring attention to a similar case where the District Judge has run out of patience with such robotic claims, which sadly are becoming a lucrative business due to the percentage that go undefended. F0DP201T, District Judge Taylor, Southampton, 10th June 2019

Coupon-mad

You are missing about ten paragraph numbers, surely. You can't copy paragraphs without numbering them all.

BWScammer

I have numbered them on my saved document, but they didn't copy into the text box correctly. I have added an - instead.. (I hope this makes sense).