Armtrac Security Services BW Legal Scam

D_P_Dance

 modicum of basic research would have told you that.  

Bilbo_Baz

Sorry you have been scammed whilst holidaying in Cornwall.  Can you say which car park as I am local and want to stop this with involvement from our MP and landowners.  
If they are doing this type of thing on a regular basis perhaps you could find some local people with the same or similar circumstances  long shot but if you could you may be able to prove fraud obtaining money by deception ?.

Coupon-mad

it will cost me quite a lot to go down to Cornwall (assuming that's where it will be held and not virtual) to defend this is in court (day off work, petrol, hotel etc.),

Blimey, why on earth do people think this is what consumer Defendants have to do?!  As above, you choose the local court.

D_P_Dance

Blimey, why on earth do people think this is what consumer Defendants have to do?! 

Because they do not do even a modicum of research.  These are the people who (used to) buy stuff from Brighthouse, sell their scrap gols foe a third of sppot, and pay £100+ for trainers made in Bangladesh.  

zhonguonuren

Bilbo_Baz said:

Sorry you have been scammed whilst holidaying in Cornwall.  Can you say which car park as I am local and want to stop this with involvement from our MP and landowners.  
If they are doing this type of thing on a regular basis perhaps you could find some local people with the same or similar circumstances  long shot but if you could you may be able to prove fraud obtaining money by deception ?.

I am working on it!  I have an ongoing case with another parking company and have got the landowner to state the parking company was in breach of contract and was requesting personal data from the DVLA without authority.  The ICO has stated there was a deliberate breach of GDPR.  I am putting my case to Exeter Police and Crime Commissioner. 
I hoped that those victims who had simply paid their ticket for fear of extra costs/harassment would be able to reclaim their money - but the director dissolved his company.  I could have stopped it via Companies House but it is a criminal offence if you know you have a creditor you have not notified so it is useful evidence. 

Probonofighter

Bilbo_Baz said:

Sorry you have been scammed whilst holidaying in Cornwall.  Can you say which car park as I am local and want to stop this with involvement from our MP and landowners.  
If they are doing this type of thing on a regular basis perhaps you could find some local people with the same or similar circumstances  long shot but if you could you may be able to prove fraud obtaining money by deception ?.

I have been working with someone in exactly the same circumstances as the OP. Staged photographs at Porthpean Beach Car Park. Get in touch D Robinson

DRobinson55

Hi all,

I received a claim form from the County Court for this case on 25th March. KBT Cornwall are claiming £165.62 (£100 original cost, £5.62 interest, and £60 "recovery costs"). Submitted my AoS on the 31st March and have used the template defence and a few previous fluttering ticket threads to draft the defence below. Any feedback appreciated!

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

KBT CORNWALL LIMITED

(Claimant) 

- and -  

XXXXXXXX

 (Defendant)

____________________

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  A valid parking ticket for the period the vehicle was parked at the location was purchased and the Claimant has suffered no loss.  

 

The facts as known to the Defendant:

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

 

3.  The Defendant purchased, and still has in their possession, a valid parking ticket for the period the vehicle in question was parked at the location. The ticket was placed on the dashboard, clearly visible in accordance with the signage terms and conditions. Upon return to the vehicle the ticket was in the same location and had therefore been clearly visible when the PCN was issued.

 

4. The claimant’s photographic evidence has been taken at angles which block the ticket from view. 

5. The Defendant appealed the PCN on the 14/07/2020 explaining what had happened and included a copy 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 condition (“T&C”). This was an opportunity for the Claimant to act reasonably and cancel the charge. The appeal was rejected on the 24/07/2020. The Defendant subsequently appealed to the Independent Adjudicator. That appeal was also dismissed.

6.  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.

7.       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.

8.       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.  

9.  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 #5 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').

10.  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

11.       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.  

12.       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.

13.   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.  

14.   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.

15.       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.

16.   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 (the ‘red hand rule’ case) and

(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.

17.   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.

 

18.  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:

19.   (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.

20.   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:

KeithP

You tell us you received a County Court Claim Form on 25th March. Can you now please tell us the Issue Date on that Claim Form?

MothballsWallet

DRobinson55 said:

Thanks for the responses all. 
It was the car park at Porthpean Beach next to the sailing club. I do have pictures of my ticket on display and have kept it. 
I am not from Cornwall so assume it would only be a Cornwall MP that would be worth complaining to not a local one for me?

Attached the "final letter before debt recoery or court action" letter I received from Armtrac, is it worth replying to them with the unfair addition of costs, like in the thread linked below or wait to get something from BW Legal to do so?
https://forums.moneysavingexpert.com/discussion/6129744/bwlegal-the-scam/p1?new=1

Also, it will cost me quite a lot to go down to Cornwall (assuming that's where it will be held and not virtual) to defend this is in court (day off work, petrol, hotel etc.), do these generally get paid if the case in won and is it worth laying out these costs to Armtrac/BW Legal in advance?

Many thanks

<snipped image as it's not relevant to what I want to reply to>

BiB is mine - no, you can contact your own MP (I recommend writetothem.com to do this for free using a tracked email, #NotSponsored, and use theyworkforyou.com to find the names of your MP (if you don't already know this) and the Cornwall MP).

Your letter should be addressed to your MP, explain what happened, reference Sir Greg Knight's Bill and the PAS, and ask them to pass the information across to their colleague for that constituency - MPs can get a bit grumpy if non-constituents write to them, but going through your own MP is fine (Parliamentary procedure, I think).

MothballsWallet

Coupon-mad said:

it will cost me quite a lot to go down to Cornwall (assuming that's where it will be held and not virtual) to defend this is in court (day off work, petrol, hotel etc.),

Blimey, why on earth do people think this is what consumer Defendants have to do?!  As above, you choose the local court.

Because that's what these corporate Claimants would want to happen so that their legal is on home turf and has the psychological advantage if the law didn't work in favour of the ordinary person.