Link Parking and BWLegal advice please

KeithP

mgmju411 said:

Yes you are correct it was from Northampton.  The issue date is 26th Nov 

With a Claim Issue Date of 26th November, you have until Tuesday 15th December to file an Acknowledgment of Service, but there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS, you have until 4pm on Tuesday 29th December 2020 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Of course everywhere I have said 'you' or 'your' I mean the named Defendant.

Coupon-mad

But you knew the claim would arrive.  BW Legal are a robo-claim firm and emailing them about the added £60 doesn't stop a claim, but this is the stage where (in 99% of reported outcomes on this forum), the Defendant wins.  The court claim is inevitable in these cases and this is what the TEMPLATE DEFENCE thread is for.

mgmju411

Thanks for all you comments.  I will file the AOS after the 2nd dec as advised and then I will post my defence which I would appreciate your comments.  I'm doing this on behalf of my wife, if BWlegal doesn't back down and it does go to court am I able to represent her

Ralph-y

some reading for you 

link to court section in newbies thread 

.

https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585

and

https://forums.moneysavingexpert.com/discussion/6130456/telephone-hearings-re-parking-firm-claims-can-we-all-discuss-strategy-and-outcomes-here/p1

Ralph

Coupon-mad

mgmju411 said:

Thanks for all you comments.  I will file the AOS after the 2nd dec as advised and then I will post my defence which I would appreciate your comments.  I'm doing this on behalf of my wife, if BWlegal doesn't back down and it does go to court am I able to represent her

If she attends too, yes of course, as a lay representative (search the forum, it's done to death).

Were_Doomed

YOU don't have any defence or involvement. Your WIFE does if the claim is in her name. (You can help her, but everything must be in her name. This is easy to forget if you get too involved in the detail - you see the trees but forget about the wood; you forget about the context. This could lead to a (legally) fatal mistake being made. So please when replying here make sure you're clear in the terms you're using as it will help you/her going forward).

KeithP

mgmju411 said:

I will file the AOS after the 2nd dec as advised...

I've adjusted my earlier post.

Because of Christmas, see Christmas and New Year closures for courts and tribunals 2020, there is no need to delay the filing of an AoS.

mgmju411

Once again thanks for all your comments and as I have been dealing with this over the last year and constantly reading the posts I think I understand what to do but just want the detail checked.  I know this is in her name so I hope I won't make any mistakes

Coupon-mad

Make sure the AOS is done in her name, her Govt Gateway account.

mgmju411

AoS has been submitted. I have now drafted my defence using the template and also adding information specifically about the lack of signs.  I would really appreciate your comments.  For some reason the formatting when copying from Word to this forum has added an additional number 1 to each paragraph which I can't remove.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Link Parking Limited 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (Defendant)

____________________

DEFENCE

____________________

1. 1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

1. 2. It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied. 

1. 3. It is admitted that the Defendant was the driver of the vehicle on the date referenced but liability is denied. 

1. 4. The points below are within the scope of the Defendant’s own knowledge and honest belief. Whilst parts of this defence may be familiar to the Claimant and/or their legal representatives, it would not be right for a litigant-in-person to be criticised for using all relevant resources available.  It is noted in any case, that these Claimants use third party pre-written templates as standard.  This statement was prepared by the Defendant specifically for this matter and unlike the Claimant’s case, it deals properly and individually with the facts, the alleged contract, and the quantum.  The contents of this defence represent hours of research by the Defendant, in order to grasp some knowledge of alien concepts of law, codes of practice and procedures relating to the specific area of Parking Charge Notices (‘private PCNs’).   

1. 5. The Claimant states, that the signage is ‘clearly displayed’ but this is not agreed.  Despite numerous written requests the Claimant failed to provide proof that the signage was legal.  They only provided one stock close up photo of a parking sign which did not display a location code.  The sign displayed in the photo did not exist at this site.  See exhibit????

1. 6. It is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any driver noticing them especially at night. There were no signs at the entrance or exit of this land

1. 7. The signage on the site does not conform to the IPC’s Code of Practice (Schedule 1 – Signage), which states: “Signs must, where practicable, be placed at the entrance to a site.

Otherwise the signage within the site must be such that it is obvious to the motorist.” The

sign is not located nor mentioned near the site entrance, nor is it obviously located.

1. 8. Further, the sign is neither illuminated nor “made of retro-reflective material” – “You

need to ensure that all signs are readable during the hours of enforcement as they form

the legal basis of any charge. If signs cannot be read then resulting charges that depend

upon their content will not be enforceable.” (“Contrast and illumination”).

1. 9. The Claimant’s PCN was not attached to the windscreen despite the questionable photos produced by them following a SAR request. 

1. 10. Following the receipt of the ‘Notification to keeper’ (NTK) the Defendant, in preparation for the defence, searched the site and only found a small unlit sign that was not visible to a driver entering the site.  

1. 11. The only visible signage was obscured by another sign implying that parking was acceptable by stating that “parking was at the users own risk”.  This is shown in exhibit ??

1. 12. The positioning and lack of illumination meant the sign is hard to see even if a driver knows where to find it, particularly at night.

1. 13. The Defendant is bemused by the Claimant’s statement that the signage which they refer to be as the contract which was breached at the material time. The Defendant has the right to believe that there were no signs located in an easy to see place, with sufficient lighting which would make it visible in the dark at the material time. 

1. 14. The signage at this location is entirely inadequate, misleading and incapable of creating a contract with the Defendant. 

It is an Abuse of Process for the claimant to issue a knowingly inflated sum which they are not entitled to recover:

1. 15. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

1. 16. It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

1. 17. 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 the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

1. 18. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #16 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA’).

1. 19. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

1. 20. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

1. 21. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  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 (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

1. 22. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  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.  

1. 23. The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

1. 24. The Claimant’s signs have vague/hidden terms and a mix of small font, 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 Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

1. 25. 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:
1. (i) Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and
2. (ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 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''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

1. 26. Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

1. 27. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

In the matter of costs, the Defendant seeks:

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

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant and will seek further costs pursuant to CPR 46.5.

1. 29. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence 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.

Defendant’s signature:

Date: