BW Legal notice of county claim issued for a PCN from 2015!

Orangecordial

Hi all,
I have been given a court date of the first of July, and am very excited for this saga to be over. I am currently in the process of writing my witness statement. I found  Link Parking v Mr L C9GF5875 [2016]  on the Parking Prankster's website, I was wondering if I could include details of that case to support my own, if I have not used it in the defense.
Any advice greatly appreciated!

Thanks

Fruitcake

Include anything that you think will help.

beamerguy

One recent case is EXCEL v WILKINSON ..... claim struck out for ABUSE OF PROCESS.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0

Coupon-mad

Yes, and the most recent example WS that includes that case, is by @jrhys so copy and adapt that one to make sense for your case in all facts.

Orangecordial

Thanks everyone for your input, I don't know what I would do if it wasn't for this forum!
Here is what I have written so far, I would really appreciate any feedback you have. Please let me know if you think should add or remove any parts.

1. I am <NAME> of  <ADDRESS>, and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge. 

2. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Sequence of events and signage:

3. I had arranged to meet a friend on the 16th July, 2015, at their apartment in Worsley Mill, Manchester, who assured me that the parking there was free. He had lived there for quite some time, and was unaware of any requirements for a permit to park there. However, being in the city centre, I wanted to visually confirm myself that the car park was free to avoid being fined.

4. As I had never been to Worsley Mill before I took extra care to look around to make sure I was in the right place, as it is not a well signposted building. Blantyre street, the road used to access Worsley Mill and the car park in question, is a busy road leading directly from an extremely busy dual carriageway, with double yellow lines on each side of the road; it is not possible to safely stop and check for any signs that there are any restrictions in place for parking there before entering the car park. At the point of entry, the entrance terms and conditions sign is not visible. (exhibit 02 and 03).

5. Upon returning to my car later that evening, I saw that I had been issued a PCN, and was confused as to why. I had been assured that I was allowed to park there, and I had not seen any signs instructing otherwise. I appealed the PCN through the UK Parking Patrol Office website, as instructed, and after hearing nothing back, assumed that the appeal had been accepted.

6. In the summer of 2020, I started to receive letters from BW Legal regarding the incident, threatening legal action. this prompted me to think back to the date in question, over five years ago, and recall what happened that day. I investigated the car park on Blantyre Street using google street view, and after looking from several angles I managed to spot some signs - one on the corner of a shed, and one hidden behind a large white van, both with very small writing. (exhibit 03 and 04). I have taken an image of what I believe to be the same as the sign in question (exhibit 05) which states the terms of parking are restricted to permit holders only,  it allows NO parking licence to what the PPC deem 'unauthorised' drivers. It is what would be called a prohibitive or 'forbidding' sign, creating no contract at all.

7. Looking back on google street view as far as 2008, it is clear that the amount of signs has been reduced drastically over the years, and the placement of them seems to have become more and more obscure, for whatever reason. in 2008, there are three repeated, clearly visible signs on the wall of Worsley Mill, one of which is directly next to the entrance of the car park (exhibit 06). The next photo shows that these signs were removed, and only three new signs were put up in the car park to replace them - one on the dual carriageway gantry at the back of the car park, and one in the middle of the Worsley Mill wall (exhibit 07). The sign at the entrance was never replaced. In 2014, the signs were replaced again; this time only the sign on the shed and on the gantry remained, the two most easily obscured places in the car park (exhibit 08). no other signs have since been added to the car park (exhibit,09, 10, 11) In one photo from 2017, a small sign had been placed on the outside of the shed, facing Blantyre Street (exhibit 12). This still would have been no use to any motorist, as the extremely small text would not have been legible from a moving car unable to stop due to double yellow lines, especially as it would have to be read through the passenger side window. it certainly could not be seen from any point inside the car park. It appears that the sign had been removed again at the time of taking the next photograph in 2018, and has not since been replaced (exhibit 13 and 14). I found it very odd that a company whose main purpose is to deter non-permit holders from parking on their site would actively reduce the amount of visible signs informing drivers of the terms and conditions of parking there. 

7. As can be seen in the pictures, the sign on the gantry is frequently obstructed by a large white van, as it is the same van in several of the photos, which span a several year timeframe. (exhibit 15, 16, 17) It is safe to assume that the van in question was present at the time of parking at Worsley Mill, obstructing the view of the sign. The claim that my car was “parked next to” the sign on the shed is false, as from the claimant’s own photographs it is clear that I had parked one bay away from the sign. (exhibit 18) Any vehicle could have been parked in the bay next to the sign, obstructing my view of it. With only two very easily obstructed signs in the car park it is easy for any motorist to fall victim to this parking scheme. 

8. I would like to draw your attention to the Judge’s findings about Link Parking Ltd parking signage in 2016 in Link Parking v Mr L. (case no. C9GF5875 at the Cardiff Court) resulting in the case being dismissed due to inadequate signage. it is clear from the photos that the signs were not visible upon entry to the car park, and were similarly hidden behind a wall. Again, previous images from google street view show the previous position of the sign, which had been removed at the time of incident (exhibit 19).

 

The Beavis case is against this claim

10. 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.

11. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage and varying acceptability of parking areas are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

12. Even taken as an extreme close-up, with no proof as to its visibility from the parking area, the sign that the Claimant has presented as evidence has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, even if I had seen signage of the sort presented by the Claimant – which I didn’t as it was not visible – no contract to pay an onerous penalty would have been seen, known or agreed.

Abuse of process 

13. In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is exhibit XX-04). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

14. After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''. 

My fixed witness costs – ref PD 27, 7.3(1) and CPR 27.14

18. Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

CPR 44.11 – further costs

19. As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records. This was especially difficult during a global pandemic which had caused significant financial struggle to begin with.

20. Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX-05) which 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). 

21. Secondly, given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.

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.

 

Witness’ signature:

<SIGN HERE>

 

 

Date:

<DATE>

Le_Kirk

We don't refer to it as "abuse of process" anymore but "double recovery".

Fruitcake

It is not a fine.

If/when you receive the scammer's witness statement, please post it here. Only redact YOUR personal data. I cannot stress the words I have highlighted enough. If the scammers have redacted anything, please tell us.

Upload it to Dropbox or similar and paste the link here, but ensure passwords or agreeing to have personal data harvested is not a requirement.
Please also ensure real names are not used to set up the account on the hosting site, and no other personal data is visible. We don't want to see photos of kids on holiday! Believe me, it has happened.

You haven't show us the evidence/exhibits you will be submitting with your WS such as the comments and GSV images I posted back on the 17th of November.
Stress that GSV images three years apart showing no change (or reduction) in signage would suggest on the balance of probabilities that the signage was not changed (or not improved) between those dates.
Make sure the Google image capture dates are showing in your exhibits.

Exhibits should be identified using your initials followed by sequential numbers, and referred to in your WS.
If your real name was Orange Cordial, then, instead of saying, as can be seen in the pictures, you say something like, as can be seen in exhibit OC1, OC2 etcetera.

Coupon-mad

How can you have no exhibit number 1 that I can see, then 'exhibits - 02 through to 08' in your early paragraphs, but then in 13 you've just copied ' exhibit XX-04' and not given the Excel v Wilkinson transcript your own sequential exhibit number.  The whole point is you append it with your other evidence and give it a number. 

That case transcript is in @jrhys' thread and on loads of others threads so please don't ask for a link to it.

Orangecordial

Thanks so much for your responses, I have taken your changes on board. I hadn't finished with the editing and formatting, so apologies for that! I have uploaded it to dropbox now, here is the link:
https://www.dropbox.com/s/3rseh503cx29k1n/Witness Statement REDACTED.docx?dl=0
Again, I really appreciate you all taking the time to help with this.

Coupon-mad

Looks good but I couldn't see any point repeating what was in your defence (I hope) that there is no evidence of landowner authority, as required by the BPA and DVLA.