Claim Form Received BW Legal for Unauthorised Entry/Parking

brandsoda · 26 May 2021 at 10:14PM

KeithP said:
Yes please show us both sides of the NtK. Leave all dates showing but of course hide everything that identifies you.

You say the Claimant is Premier Park.
There are a number of parking companies with 'Premier' in their name.
Please tell us the full name of the Claimant as shown on your Claim Form.

Coincidently, another poster has started a thread today about the Vicarage Field Shopping Centre.
Only they say the Claimant is ParkingEye Ltd.
There could of course be two different car parks, or indeed two Vicarage Field Shopping Centres, but worth checking.

Claimant Details as in Claim Form
Premier Park Limited
48 QUEENSEGATE HOUSE, EXETER, DEVON

brandsoda · 27 May 2021 at 10:01PM

KeithP said:

What is the Issue Date on your County Court Claim Form?
The issue date in 20th May 2021

With a Claim Issue Date of 20th May, you have until Tuesday 8th June to file an Acknowledgment of Service, but 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 Tuesday 22nd June 2021 to file your Defence.
That's almost 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.

I have filed AoS now , any advice on here on my next steps ( before preparing and sending my defence) , do I need to request for SAR ?

Le_Kirk · 28 May 2021 at 8:59AM

You can submit (rather than request for) a SAR at any time. The PPC have 30 days to respond so unlikely to help with your defence but will be more useful at witness statement (WS) stage.

Fruitcake · 28 May 2021 at 2:29PM

The SAR should be done asap, ideally when the LBC arrives, but you are past that stage now. You will need to include proof of ID such as a copy of the V5C or the claim form or two redacted utility bills or bank/card statements.

Thinking that the NTK is PoFA compliant is not the same as knowing it is compliant. That's why you need to compare it to the PoFA or show both sides of it to us with just your personal data redacted.

brandsoda · 15 June 2021 at 11:06PM

Hi
I have received SAR from Premier PARK LTD and they have shared PCN, first and final reminder letters. I am preparing the defence. I need to understand the difference between defence statement and Witness statement. While preparing my defence I found a thread which sound very useful in my case has some pints I wanted to use as well.
Can someone please explain the difference if they both needs to be prepare for two different situation or they both are same.

This is the thread I am referring for my purpose, but not the only one.

https://forums.moneysavingexpert.com/discussion/5966592/britannia-bw-legal-claim-form/p3

I have attached the received PCN for reference. Please reply asap.

Image: https://us-noi.v-cdn.net/6031891/uploads/editor/3b/wu2fhmcbq8f3.jpg

brandsoda · 16 June 2021 at 1:57AM

Hi @KeithP / @Redx / @Fruitcake / @Coupon-mad / @Le_Kirk

Thank you all for your guidance so far. I have drafted a defence based on @Coupon-mad template and almost similar incident from another thread.

https://forums.moneysavingexpert.com/discussion/6214810/bw-legal-county-court-claim-form/p3

Can you please review this and suggest if any modification needed. I need to submit this by today, if all looks good

************************************************

Between

(Claimant)

- and -

(Defendant)

____________________

DEFENCE

____________________

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

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

3. On the night of the 00th Nov 2020, driver had to stop the car in an emergency while looking for an address and car GPS stopped working. Driver stopped the car while engine was running and started looking for parking details. The car park was completely dark and the Parking signage at entrance and inside car park was not illuminated and hardly visible.

After finding its Private car park driver came out of the car park but it took few minutes and total stay in car park is 00:08:30 minutes, which is less than 10 minutes.

4. The issues in the Defendant's case are similar to the sort of temporary 'vicissitude' that the respected Senior Circuit Judge, Charles Harris QC, had in mind when he found as fact in Jopson v Home Guard [2016] B9GF0A9E (on Appeal at Oxford County Court) that a temporary stop as part of the normal action of coming & going of daily life is not something that can give rise to a 'parking charge' nor even be considered by an average, reasonable person as 'parking'.

HHJ Harris attempted to define parking in that appeal case and the transcript of his decision will be provided in evidence. Similarly, in Moncrieff and Another v Jamieson and others: HL 17 Oct 2007, at para 123 Lord Neuberger held that to 'park vehicles' was 'to station them on a longer-term basis' as opposed to 'the coming and going of motor vehicles along the way...[including]...the right to turn around such vehicles, and to station such vehicles for the purpose of loading and unloading...' The Defendant contends that the vehicle was merely stationed to attend to an ill child and this is not parking, and no contract was agreed or even seen, to pay £100 for the privilege.

5. 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.

6. 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.

7. Section 13 of the BPA Approved Operator Code of Practice 2012 - Version 7, January 2018

13 Grace periods
13.1 If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.

As per the Claimants PCN and Photo evidence, the total duration in car park adds up to 8 minutes and 30 seconds. This duration is not excessive given the Defendant's circumstances and should be considered as a reasonable grace period.

Kelvin Reynolds, BPA Director of Corporate Affairs says

There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minute depending on various factors, not limited to disability.”

8. 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.

9. 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.

10. 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.

11. 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').

12. 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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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:

20. (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.

21. 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:

Fruitcake · 16 June 2021 at 7:44AM

The year is a bit too short in your para 2.

Judge Harris in para 20 of Jopson vs Homeguard referred to "and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture".

You should compare the problems encountered in your case where the vicissitude of short duration was dealing with a faulty navigation system and finding parking information in an unfamiliar and unlit location, or words to that effect.

D_P_Dance · 16 June 2021 at 7:45AM

Have y read this?

http://parking-prankster.blogspot.com/2014/03/waiting-for-space-is-not-parking.html

have you read the newbies? Have you complained to your MP

brandsoda · 16 June 2021 at 1:14PM

Fruitcake said:

The year is a bit too short in your para 2.

Judge Harris in para 20 of Jopson vs Homeguard referred to "and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture".

You should compare the problems encountered in your case where the vicissitude of short duration was dealing with a faulty navigation system and finding parking information in an unfamiliar and unlit location, or words to that effect.

Thanks @Fruitcake for your feedback.
I have modified the para 4 as suggested, actually used your words indeed. Also year corrected year in para 2.
do you find any more other

I am planning to file my defence tomorrow So may I again request your final review and guidance on the below defence text. As I said earlier I have been following a thread to prepare my defence where you all contributed already but a final review will be very helpful. kindly help.

https://forums.moneysavingexpert.com/discussion/6214810/bw-legal-county-court-claim-form/p3

Defence Text :

*********************************

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

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

3. On the night of the 00th November 2020, driver had to stop the car in an emergency while looking for an address and car GPS stopped working. Driver stopped the car while engine was running and started looking for parking details. The car park was completely dark and the Parking signage at entrance and inside car park was not illuminated and hardly visible.

After finding its Private car park driver came out of the car park but it took few minutes and total stay in car park is 00:08:30 minutes, which is less than 10 minutes.

4. The issues in the Defendant's case are similar to the sort of temporary 'vicissitude' that the respected Senior Circuit Judge, Charles Harris QC, had in mind when he found as fact in Jopson v Home Guard [2016] B9GF0A9E (on Appeal at Oxford County Court) that a temporary stop as part of the normal action of coming & going of daily life is not something that can give rise to a 'parking charge' nor even be considered by an average, reasonable person as 'parking'.

HHJ Harris attempted to define parking in that appeal case and the transcript of his decision will be provided in evidence. Similarly, in Moncrieff and Another v Jamieson and others: HL 17 Oct 2007, at para 123 Lord Neuberger held that to 'park vehicles' was 'to station them on a longer-term basis' as opposed to 'the coming and going of motor vehicles along the way...[including]...the right to turn around such vehicles, and to station such vehicles for the purpose of loading and unloading...'

The Defendant contends that the vehicle was merely stationed dealing with a faulty navigation system and finding parking information in an unfamiliar and unlit location and this is not parking, and no contract was agreed or even seen, to pay £100 for the privilege.