BW Legal County Court Claim Form

Sam_was_here

Dear Forumites,

Trust this post finds you safe and well.

Many thanks for all the guidance available here, I am extremely grateful for the support people like us are getting here to fight off these scammers.

All the help I am getting from this forum I promise to pay them forward by helping others in areas where I can.

 

Below are the details of my case:

PPC – Premier Parking Limited

Law Firm for PPC – BW Legal

Stage of this Scam –

1.       Just yesterday I received a Claim Form from County Court Business Centre, which is over a year after this harassment started

2.       I have created the MCOL login but have not submitted the AoS  to allow for some time to prepare the defense.

 

 

My Defence Draft (Bold Text in Sections 2 and 3 requires your guidance please, rest of the text is copied as-is from the template)

IN THE COUNTY COURT

Claim No.: xxxx

Between

Premier Parking Limited

(Claimant) 

- and -  

xxxx

 (Defendant)

____________________

DEFENCE

____________________

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:

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

 

3.    On the night in question while on the way to a friend’s place for dinner my 10-year-old son felt discomfort in the car and vomited. I took the first turn into a car park behind the High street in an emergency to attend to him, my wife then made a dash to the nearby shops to buy some water and tissues for him, while I stayed in the car with him and my younger daughter.

I kept the engine running and kept the lights on for the entire duration while we were there which was for no more than a few minutes, until my wife returned.

The car park was completely dark, and I did not notice any sign boards, I did not get out of the car as I did not intend to park there or stay there for any extended period.

That evening was meant to be a social event with friends after my Son’s last 11+ entrance test which turned into a rather unpleasant situation for us as a family, but we didn’t expect that we will be faced with this unfair claim as a result of it.

4.  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.

5.       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.

6.       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.  

7.  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').

8.  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 statutory code of practice being prepared, given that the two Trade Bodies have failed to properly govern this industry.

 

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

9.       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.  

10.       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.

11.   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.  

12.   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.

13.       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 agreed.

14.   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.

15.   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:

16.   (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.

17.   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:

 

 

Redx

Post the issue date from the claim form

There is no S in defence , please check in future that a C is used

Email a SAR to the DPO at PP if not done already , attaching a copy of the claim form as proof of I D under the GDPR law

If that is the Coupon mad template , only post any paragraphs that you have altered , not the unaltered ones , you only need your changes checking

Check your PPC name as a few exist , there is

Premier Park LTD

Premier Parking Logistics

Or Premier Parking Solutions Ltd

Plus some other derivatives of that type of name , but not what you wrote

Clarity is key here

Le_Kirk

What is the date of issue of the court claim form.  If you post that here @KeithP will be along to give you some guidance on deadlines.  if possible do not submit your AoS until FIVE days after the date of issue (this gives you more time to compile the defence).  What you have written in your defence in #3 is for the witness statement (WS), a defence is a series of legal and technical arguments, so you introduce the fact in the defence and back it up with your narrative and evidence in the WS.  A defence is written in the third person.  You would say something along the lines of "due to a passenger being (violently) ill, the defendant (as you have admitted being the driver) had to stop the car to deal."  You might add to the signage part already there in #13 or you could leave the detail as narrative for your witness statement when you can back it up with photos as evidence.  I certainly would not be saying "I did not notice" rather "the signs were not clear/obvious/illuminated".

Sam_was_here

Redx said:

Post the issue date from the claim form

There is no S in defence , please check in future that a C is used

Email a SAR to the DPO at PP if not done already , attaching a copy of the claim form as proof of I D under the GDPR law

If that is the Coupon mad template , only post any paragraphs that you have altered , not the unaltered ones , you only need your changes checking

Check your PPC name as a few exist , there is

Premier Park LTD

Premier Parking Logistics

Or Premier Parking Solutions Ltd

Plus some other derivatives of that type of name , but not what you wrote

Clarity is key here

Many Thanks for the prompt guidance. Below are the additional details that you pointed out:

1. The date of issue is 10 Nov 2020. (So I am hoping to submit the AoS on the 15th, hope that is the optimal time for it.
2. Apologies for the Typo in the word Defence. Have taken a note of that so it doesn't happen again
3. I also made a typo in the Claimant name, many thanks for pointing this out too. It is listed as: Premier Park Limited
   48 Queensgate house
   Queen Street
   Exeter
   Devon
   EX43SR
4. I am now preparing the email for the SAR and identifying the email of the Premier Park Limited DPO to dispatch it to. Will update shortly when this is done.
5. The Defence I shared is copied from Coupon Mad's TEMPLATE DEFENCE - NEW FROM OCTOBER 2020 post. I will only share the text which I have added. 

Many thanks
Sam

KeithP

Sam_was_here said:

The date of issue is 10 Nov 2020. (So I am hoping to submit the AoS on the 15th, hope that is the optimal time for it.

With a Claim Issue Date of 10th November, you have until Monday 30th November to file an Acknowledgment of Service. If possible, do not file an AoS before 14th November, but otherwise, 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 Monday 14th 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.

Sam_was_here

Many Thanks Keith. I have followed your instructions on the MCOL Registration so I am already registered on MCOL. And should be able to submit the AoS tomorrow.
I have also read through your guidance on filing the defence via email. I have bookmarked that post to comeback to it when I have established the defence, which I am hoping I should be able to conclude in next few days with the kind guidance from the forumites.

Le_Kirk

Sam_was_here said:

1. I am now preparing the email for the SAR and identifying the email of the Premier Park Limited DPO to dispatch it to. Will update shortly when this is done.

This has been used before: -
DPO@premierpark.co.uk 

Le_Kirk

I have posted here to bump this to top (for a while anyway) of the forum list, as OP stated he couldn't find it.

Sam_was_here

Le_Kirk said:

I have posted here to bump this to top (for a while anyway) of the forum list, as OP stated he couldn't find it.

Many Thanks for this Le_Kirk. Thanks also for your feedback on the SAR Email to PPC DPO and the note to their solicitors. I will make the amends as suggested by yourself and Keith. Thanks again

Sam_was_here

Le_Kirk said:

Sam_was_here said:

1. I am now preparing the email for the SAR and identifying the email of the Premier Park Limited DPO to dispatch it to. Will update shortly when this is done.

This has been used before: -
DPO@premierpark.co.uk 

Thanks Le_Kirk. My replies are showing up again in the thread now, after you bumped this thread up. I will use this email to dispatch the SAR. 

Redx

What duration has the claimant stated the driver was onsite for ?

What do the signs actually say ? Pictures please

Why was no appeal or Popla appeal made ? (If there weren't made)