Premier Parking Solutions Limited & BW Legal - 2016 - Another One Bites the Dust!

mixMZ

Claim issued on 09 Feb 2021

Already done AOS

Defence is in preparation but I am unsure if NTK complies with POFA2012 and therefore if Claimant is able to transfer driver's liability to the keeper. Would really appreciate if you could have a look at response to SAR

Here is a link:

drive.google.com/file/d/1-SYaZ-utOSwBgus7LyjVELa6nhuOf8G1/view?usp=sharing

Ticket = x day

keeper data imported from dvla 38 days after x day

NTK received after 40 days from x day

reminder notice sent aprox 4 months later

Amount Claimed £195.xx

Court Fee £25.00

Solicitor Costs £50.00  

Total Amount £270.xx

Particulars of Claim

The Claim is for the sum of £135.x being due from the Defendant in respect of a Parking Charge Notice (PCN) for a contractual breach which occurred on xxxxx in private car park/land at Totton Retail Park in relation to a xxx registration mark xxxx.

The PCN was issued as the driver failed to comply with the terms and conditions as displayed.

Despite demands, the charge remains unpaid.

The Claim also includes Statutory Interest pursuant to section 69 of the County Courts Act 1984 at rate of 8% per annum (a daily rate of £0.02) from xxxx to xxxx being an amount of £35.xx

The Claimant also claims £60 recovery costs as set out in the Terms and Conditions and in ATA AoS Code of Practice.

Fruitcake

Your link made live.

SAR PPS.pdf - Google Drive

The NTK looks PoFA compliant to me.

Fruitcake

Have you found the guide to court written by bargepole in the second post of the NEWBIES, as well as the ready written template defence in the sticky threads?
You only need to change paragraphs 2 and 3, and show them here.

Anything over the original £100 charge (plus allowed court fees) is prohibited. This is covered in the NEWBIES and int the template defence.

1505grandad

"The PCN was issued as the driver failed to comply with the terms and conditions as displayed."

Do you know what t & c's the driver did comply with?

KeithP

mixMZ said:

Claim issued on 09 Feb 2021

Already done AOS

I am going to assume that you filed an Acknowledgment of Service sometime after 12th February.
Please confirm that - your MCOL Claim History will have the definitive answer.

With a Claim Issue Date of 9th February, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 15th March 2021 to file your Defence.

That's nearly three 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 at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Snakes_Belly

Did you think that it was a free car park? It appears to be free for 90 minutes but you have to get a ticket. If you were there for less that 90 mins but failed to get a ticket then there was no loss. 

For these sort of cases where there is no loss and other drivers have not been disadvantaged there should be a maxiumum of a £10.00 admin fee to cover the cost of obtaining details from the DVLA and a letter. Hopefully the new CoP will reduce the level of charge on very minor transgressions (De Minimis).

I have seen a number of cases on the forum where the judge is very fair to the defendant when there is no loss and/or other drivers have not been disadvantaged. 

Umkomaas

keeper data imported from dvla 38 days after x day

NTK received after 40 days from x day

If those timescales are correct and this is a windscreen ticket (as they state in their NtK), the NtK's wording looks sufficiently compliant with PoFA, the PPC are able to pursue the registered keeper.

However, they do say in their NtK that a notice was placed on your windscreen - their own photographic evidence fails spectacularly in supporting this. Something you must not overlook in defending the claim - not a showstopper, but should hopefully push things in your direction. It can be argued that there is an unreliability in their statements. 

Snakes_Belly

What is the yellow small rectangular thing in the third picture of the car? Could it be a ticket that has fallen off the dashboard?

mixMZ

Due to covid I had to leave UK for quite long time and before I left I submitted my defence to CCBCAQ@justice.gov.uk with below points:

This Claim is inflated, includes a significant element of double recovery and the Particulars of

Claim lack specificity or any breakdown to justify the exorbitant sum sought. The Defendant sets

out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Defendant is the registered keeper of the vehicle in question. The particulars of the

claim, state the 'contractual breach' by the driver.

However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual

agreement with the Claimant, whether express, implied, or by conduct when parking at Totton

Retail Park on 1x/0x/2016

3. Any breach is denied, and it is further denied that there was any agreement to pay the

Claimant's £1x5.1x - 'Parking Charge Notice ('PCN')'.

4. It is denied that the Claimant has standing to bring any claim in the absence of a contract

that expressly permits the Claimant to do so, in addition to merely undertaking parking

management. The Claimant has provided no proof of any such entitlement. It is denied that the

Claimant has any standing flowing from the overall landowner and it appears (at best) that their

position is as third party agents with a bare licence from another third party agent, neither of whom

are in possession.

5. The Defendant is the registered keeper of the vehicle. 'Keeper liability' under Schedule 4 of the Protection Act 2012 

("the POFA") is dependent upon full compliance with that Act.

It is submitted that the Claimant's Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording 

and/or deadlines set by the POFA. Any non-compliance voids any right to 'keeper liability'.

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 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 Defenant's possition 

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 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 for 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 of 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 un-redacted 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.

mixMZ

Luckily now I am back, and just went through all paperwork I received by post from Court and it looks like case have been transferred to my local County Court in Southampton and the case will be heard on 1x August 2021

They estimated hearing may take up to 1hr, they also says each party must deliver to the other party and to the court office copies of all documents on which party intends to rely on by 4pm on 30 June 2021. It also says that due to covid this hearing will now take place by telephone.

I also received couple letters from BWLegal, first with discounted offer for £160, then 2nd letter with interesting section "response to your defence" - please find doc attached.

drive.google.com/file/d/1ImpxYbuoahHIjrvcagCEoQAlBvR9e9I-/view?usp=sharing

&

drive.google.com/file/d/1zQ4AhP8uwb9e6aT2HAquYjnoUzVKD2lT/view?usp=sharing

should I be worried anyhow by what BWlegal says or is it just another scary tactic they use?

I only have 1 week to complete WS , and obviously I still haven’t received any other docs from BW Legal which probably will arrive in last minute so not quite sure what should I concentrate on now.

I honestly cannot remember much about this parking event so any links to solid points I could use in WS would be very appreciated. 

Apologize for short notice but it has been challenging time for last couple months for me.

Coupon-mad

Unless the OP did also file and serve a DQ, which they must have done to have got this far?  Anyway, as long as a hearing has been set they must be on track, so can adapt the latest WS example by @jrhys