Claim form from BWLegal

Coupon-mad

No, just that they are not the landowner.  You can check with Land Registry for £3.50 as to who owns that parcel of land.

BWScammer

• Good evening, I have had a look with fresh eyes, so hopefully this has improved. It would not allow me to upload the file due to it being too big, and Im not sure why the bullets have come up this way on here and not numbered in order as on mine, but hopefully it will make sense. Thank you. 
  

•   I,. I am the defendant to which this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.
• Throughout this Witness Statement I shall refer to documents supplied with this statement referring as exhibits and labeled as **01. 
• The Claimant already knows from the defence the fact that, whilst I was the registered keeper I was not the driver at the time of the alleged contravention. If necessary, I am willing to confirm this fact on oath. The driver on the date in question was in fact my partner and I was the passenger. I have exercised my right not to name him because I have no obligation to do that with a private firm, despite the parking industry and their robo-claim solicitors routinely misleading courts that keepers who don't name the driver have 'failed', which is disingenuous and untrue. I also wanted to protect the driver, my partner, from the onslaught of aggressive letters that I have endured.
• Within the Parking On Private Lands Appeal Annual Report in 2015, Henry Greenslade states “there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver” (**01).
• On the date in question, my partner drove into what appeared to both of us to be access to some bricked garages behind some the high street shops with parking bays and not at all what could be assumed as a “shopping centre car park”. As you can see from exhibit **02, ‘Wales Court Shopping Centre Car Park’ is in fact a large obvious parking area further along Priory Road with its own entrance, which has very clear and obvious sign on the entry with a Pay and Display machine in visible sight for any motorist to see when entering the car park. The car park in which my car was parked was in fact a separate car park entirely. Therefore, raising the question if the Claimant actually knows which area of land he is authorised to regulate.
• The Claimant has not shown any such landowner agreement to prove they have any authority to operate the area of land to which my car was parked. Instead, it is noted on page 6 of the Claimants Witness Statement the Claimant is relying upon a mock up ‘ariel view’ from Google Maps where an unidentified person has dotted markings all over the imagine yet with no evidence that this is true in an attempt to mislead the court. I, myself have been onto Google Maps and it is clear Wales Court Shopping Centre Car Park is an entirely different car park. 
• As you can see from exhibit **03, taken from Google Maps on the 15th September 2020 the entrance of the area and sign claiming to be “Private Land” is not in clear view, as demonstrated by different angles. The sign is small and could be easily obscured from view when driving into the walled area by a nearby tree making it difficult/impossible to see. Even if the sign had been seen, the text on it was so small it would have been impossible to read from any reasonable passing vehicle given the entrance is on a busy town road, with a bus stop opposite, making it dangerous to stop prior to entering.
• The Claimant is reliant on Terms and Conditions set out within signage in the area and claims it to be contractable. In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC').  The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states “the sign should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers**04. The car park in question has neither. 
• Neither myself or my partner noticed any pay and display or any signs when entering the area stating payment or a permit was required. Once inside the walled area the signage explaining the terms and conditions of such ‘contract’ was too small to see. The font is tiny and unreadable and the sign positioned at such height to make is difficult to see (exhibit **05). Even the Claimants own Witness Statement demonstrates an illegible sign. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract, and as such, no contract was ever in place, thus rendering a breach impossible. 
• A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit**06 for comparison. In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers. 
• The Beavis case is against this claim                                                                                                                               This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause. 
• However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one. 
• Redacted Landowner Contract                                                                                                                                          The Claimant has appended a redacted ‘landowner contract’ which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?). It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent. 
• In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html Ref. paras 74 & 75
• ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision…’’.
• The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit xx07 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands. 
• Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence. 
• The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre- Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html 

• ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.'' 
• This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both. 
• This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit xx08), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14 (xx09). All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.
• Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only has the Claimant attempted to hide the vague sum on the notices by making the font too small to read, but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' which is the Claimant has used within the sign are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs. 
• CPR 44.11 - further costs                                                                                                                                                        I am appending with this bundle (xx10), a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). 

Statement of Truth: 

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signed - xx

Date x

BWScammer

Is anybody able to cast an eye over this for me please .. 

Le_Kirk

the Claimant is relying upon a mock up ‘ariel view’ from Google Maps

Perhaps should be: -

the Claimant is relying upon a mock up aerial view from Google Maps

Neither myself or my partner noticed any pay and display

Should be

Neither myself nor my partner noticed any pay and display terminals (PDT) 

and did you meant to omit the word terminals?

BWScammer

Thank you. I didn’t intend to omit it no - I will amend accordingly.  

BWScammer

Good good evening, 

I had a call from from an unknown number today stating my case has been adjourned until next year sometime. It was supposed to be tomorrow!! It suddenly dawned on me this evening could it be BW making the call so I don’t attend.. or at I being paranoid?!! I’ve had no email or written confirmation. I plan to call the court tomorrow morning to check. 

Coupon-mad

I think you should, but it's probably true because no solicitor firm would risk their SRA licence to try that.

Redx

definitely check tomorrow

beamerguy

Please tell us what the court says as the terminology does not suit the courts

BWScammer

The court confirmed the case has been adjourned and date tbc. Slightly annoying as I just wanted to get it done.