BW Legal County Court Claim Form

Sam_was_here

Redx said:

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)

Many apologies for the delay in responding, I just couldn't manage to get the photos any earlier.
1. The claim form doesn't mention the duration of stay, so I am afraid this information is not available to me. Is this something I can enquire about from BW Legal via an email? I have incidentally sent the SAR to the DPO of the PPC on the 14th Nov 2020 and received and automated response stating it would be dealt with in 30 days. And an email to BW Legal stating I have requested a SAR from their client.
2. I have now managed to get the photos of the 2 signs. One on the entrance of the parking and another on a wall further in. I am attaching the 3 Images showing the sign at the entrance, a close of this sign and the close up of the sign on the wall.
3. I did not make an appeal as I presumed they wont pursue this any further, I believe that's not an adequate reason but I am not sure what is the best response here. Appreciate your guidance on this please.

Sam_was_here

Le_Kirk said:

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".

Many Thanks Le_Kirk, apologies for the delay in posting the revised Defence, and I dont think I have managed to wordsmith it anymore than what you stated. But here it is for your further guidance please, also, does the witness statement need to be submitted with the Defence or is that something that only gets used during the hearing?

3.  On the night of the 6th Nov 2019 while on the way to his friend’s place the Defendant had to stop the car to deal with a minor passenger being (violently) ill.

The Defendant took the first turn into a car park behind the High street in an emergency to attend to this minor passenger.

The car park was completely dark, and the signage was not adequately illuminated.

 The Defendant did not get out of the car as he did not intend to park there or stay there for any extended period.

Fruitcake

Have a look at the Jopson vs Homeguard case where the judge said (around paras 19 or 20) that attending to a small vicissitude is not parking. Attending to an ill child would certainly count as a small vicissitude.
In addition, the signs are forbidding. A contract cannot be made unless there is an offer from one party and acceptance from another. There is no offer of parking to anyone without a permit therefore there could be no acceptance, and thus no breach of parking terms occurred. 

In future, never enter private land to sort out a problem with a passenger, but stop on yellow lines. As long as there are no kerb blips it is perfectly allowable.

Sam_was_here

Fruitcake said:

Have a look at the Jopson vs Homeguard case where the judge said (around paras 19 or 20) that attending to a small vicissitude is not parking. Attending to an ill child would certainly count as a small vicissitude.
In addition, the signs are forbidding. A contract cannot be made unless there is an offer from one party and acceptance from another. There is no offer of parking to anyone without a permit therefore there could be no acceptance, and thus no breach of parking terms occurred. 

In future, never enter private land to sort out a problem with a passenger, but stop on yellow lines. As long as there are no kerb blips it is perfectly allowable.

Many thanks Fruitcake. This is very helpful and much appreciated, I will search for and read through the Jopson vs Homeguard case.
I believe I should add excerpts of this judgement in my Defence statement, verbatim, and as a discrete point under my Defence statement? Much like the "The ParkingEye Ltd v Beavis [2015]"  case is referenced in the Coupon-mad's Defence template which I will be using for submitting my Defence. 

You are right, I should have stopped on the yellow lines with hazard lights on, but this road is very narrow and two buses going in opposite direction can barely pass each other even without any impediments there, it was a snap judgement and seemed safest at the time, in hindsight I should have avoided entering their parking like the plague. Duly noted, live and learn.

Le_Kirk

You only need to introduce it as a defence point (technical or legal) and then you expand on it (with evidence - the excerpts) in your witness statement further down the line.

Sam_was_here

Le_Kirk said:

You only need to introduce it as a defence point (technical or legal) and then you expand on it (with evidence - the excerpts) in your witness statement further down the line.

Apologies in coming up with the second draft of the Defence based on your's and Fruitcake's guidance, bit of a madhouse at work.
I have now revised it using help from some other posts from folks who had a similar challenge, could I please request feedback on this please.
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1.           This is the Defendant’s statement of truth and his defence.

2.           As an unrepresented litigant-in-person the Defendant seeks the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

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

4.           On the night of the 6th Nov 2019 while on the way to his friend’s place the Defendant had to stop the car to deal with a minor passenger being (violently) ill.

The Defendant took the first turn into a car park behind the High street in an emergency to attend to this minor passenger.

The car park was completely dark, and the signage was not adequately illuminated.

 The Defendant did not get out of the car as he did not intend to park there or stay there for any extended period.

 

5.            It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was entered the Parking space on the 6th Nov 2019.

Purported Basis of Claim

6.            Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the claimant's case that:
a. There was a contract formed by the defendant and the claimant on the 6th Nov 2019
b. There was an agreement to pay a sum or Parking charge
c. That there were Terms and Conditions prominently displayed around the site that meet the test laid down in ParkingEye v Beavis
d. That there was an agreement to pay unspecified sums.
e. The claimant company fully complied with their obligations within the International ParkingCommunity Code of Practice of which they were member at the time.
f. Further that the defendant has not paid the alleged debt.

Rebuttal of Claim

7.            It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the Parking charge there was an agreement to pay additional but unspecified additional sums.
e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.
f. That the defendant is liable for the purported debt.

8.            It is further denied that the defendant owes any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

9.            The claimant is put to the strictest proof of their assertions.

10.        The Defendant requests that the court orders the claimants to provide the necessary documentation in order for his to fully plead his case else the case should stand struck out.

11.        In the event that the relevant documents are received from the claimants the Defendant will be in a position to amend his defence and would ask that the claimants bear the costs of the amendment.
11. The Particulars of the Claim submitted to the Defendant provide no statement to the nature of the claim and the Defendant does not believe these particulars to be compliant with Civil Procedure Rules 16.4 nor Practice Direction 16 7.3-7.5 inhibiting the ability of the Defendant to provide a comprehensive and conclusive defence statement.

12.        That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.

13.        The Particulars of Claim do not give any reasons why the Claimant requires a payment other than it results from ‘breaching the terms of parking on the land’. Signage displayed on ADDRESS are forbidding signs that cannot create a contract. In the cases of B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L it was demonstrated that forbidding signage at residential parking spaces did not create a contract.

14.        The defendant relies upon the Oxford County Court decision in JOPSON v HOME GUARD SERVICES, Appeal case number B9GF0A9E on 29/9/2016 where Senior Circuit Judge Charles Harris QC found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.  Para 19 and 20:

“19. The appellant’s case could also be put in another way. The purported prohibition was upon “parking”, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time.

20. Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moment for these purposes. Discussion in this area left the respondent in obvious difficulties, from which the attractive advocacy of Miss Fenwick was unable to rescue it.”

 

15.        Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith. Para 205:

“The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

16.        Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:

2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under the Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.

2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code

17.        The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.

18.        Section B.1.1 of the IPC Code of Practice outlines to operators:
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the “Creditor” within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

The Claimant is put to strict proof they have such authority to operate on site and to take action in their own name. The same is a requirement of any contract based on conduct.

19.        If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.

20.        That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £60 or £30 if paid within 14 days.

21.        In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper(in lieu of the driver), where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

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I will then append Para 4 to Para 18 from CouponMad's Defence template here.  I read through these points and although I see there is some overlap between Para 4 to Para 18 from CouponMad's Defence template and the 21 Paragraphs I pasted above in my defence, I am hoping that wouldn't be an issue?

Sam_was_here

Dear Forumites,
I have received a reply from BW Legal to my email updating them about the SAR sent to their client. This is what I had written to them on the 13th Nov. Incidentally I submitted my AoS on the 16th Nov (The claim form was issued on the 10th Nov.)
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Dear Sir or Madam,

Claim Number xxxxxx

With regards to the aforementioned Claim Number, I am seeking debt advice but I deny any debt and the case must be put 'on hold' for not less than 30 days under the PAP for debt claims 2017.

I am attaching the Claim Form to confirm my identity.

I would also like to advise you that I have sent your client a SAR.

Yours faithfully,

-------------------------
Below is their response. Do I need to respond to this email or can I ignore this and continue with my Defence and WS preparation?
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BW Legal Litigation Team <litigation@bwlegal.co.uk>	Sat, 21 Nov, 11:15 (4 days ago)
to me

Dear Mr xxxx, 

Thank you for your email. 

You mention debt pre-action protocol. We sent a letter of claim fully compliant with the debt pre-action protocol on 18 September 2020 allowing you until 23 October 2020 to respond. As you did not respond to this within the timeframe specified, a claim was issued through the County Court on 10 November 2020 and deemed served 16 November 2020. We have not been notified by the court of any issued regarding service of the claim form.

 

As a claim has been issued, if no contact is received within the timeframe specified on the claim in regards to the outstanding balance of £242.40, we will be at liberty to enter a County Court Judgment (CCJ) against you. In order to avoid this you can call us on 0113 487 0430 within 14 days from the date of this email to set up an affordable payment arrangement which is suitable for you.

 

If you do not wish to set up a payment arrangement in regards to the above balance, please respond to the claim form accordingly.

 

We have passed your email to our client to ensure they have received your Subject Access Request (SAR). It is important to note that a SAR does not affect the validity of our client’s Claim meaning that our client has an overriding legitimate interest to recover the sums due to them. As such, your account will not be suspended from further legal action unless we are instructed to do so by our client.

 

We look forward to hearing from you.

 

Kind Regards,

 

Litigation Team

bwlegal

KeithP

Just file that. It was pointless asking for a delay after the County Court Claim Form had been issued.

A delay should be sought when a Letter of Claim is received.

Coupon-mad

I will then append Para 4 to Para 18 from CouponMad's Defence template here.  I read through these points and although I see there is some overlap between Para 4 to Para 18 from CouponMad's Defence template and the 21 Paragraphs I pasted above in my defence, I am hoping that wouldn't be an issue?

Your first defence effort in your first post was better.  The one you've just posted for critique is ANCIENT and mentions the IPC Code of Practice (Premier Park are not in the IPC).  It's also badly written IMHO, long since binned as an example on this forum.

Sam_was_here

KeithP said:

Just file that. It was pointless asking for a delay after the County Court Claim Form had been issued.

A delay should be sought when a Letter of Claim is received.

Many thanks Keith. I should have read the sequence of actions and rationale for sending this email properly. I have ignored their response now.