Claim Form Received BW Legal for Unauthorised Entry/Parking

1505grandad

Are you using the correct Defence template as stated by KeithP earlier? - (the first para is not as in the template):-

"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."

You only need to post paras 2 and three as amended for critique.

Also, as the parking event was in November 2020 you should be quoting from the BPA CoP V8 dated January 2020 which has also been stated by Redx earlier.

brandsoda

1505grandad said:

Are you using the correct Defence template as stated by KeithP earlier? - (the first para is not as in the template):-

"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."

You only need to post paras 2 and three as amended for critique.

Also, as the parking event was in November 2020 you should be quoting from the BPA CoP V8 dated January 2020 which has also been stated by Redx earlier.

Thanks @1505grandad , it's really helpful. 

what I understand I don't need to add para one either completely or even contents of that. which is 

"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.

I have amended section for Grace periods of my defence using BPA CoP V8 dated January 2020 as suggested :- 

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6.     Section 13 of the BPA Approved Operator Code of Practice 2012 - Version 8, January 2020

13 Grace periods

13.1 The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes.

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.”

So, 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.

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Also while reading some other threads I found these two section and would like your suggestion if these can be included after para 2 and 3. Please suggest. 

1. PCN and all reminders sent by claimant doesn’t contains any details of the signage that was in place at the time of alleged contravention, which, according to the Claimant, details the terms and conditions of the car park. Furthermore, the Letter of Claim sent on behalf of the Claimant did not include this information, which is a clear breach of the Pre-Action Protocol for Debt Claims. 

2. The BPA CoP Section 18.2 requires the Claimant to have a standard form of entrance sign at the entrance to the car park, which must follow some minimum general principles. Having inspected the site of the alleged contravention, the Defendant notes that the Claimant’s current entrance signage is positioned such that it cannot be read by drivers as they enter the car park.

Fruitcake

Remove the quotation marks from around the word vicissitude. 
I suggest you use Judge Harris's actual words as I quoted in a previous post, then state this case is no different before explaining what the actual vicissitude was in your case.

brandsoda

Fruitcake said:

Remove the quotation marks from around the word vicissitude. 
I suggest you use Judge Harris's actual words as I quoted in a previous post, then state this case is no different before explaining what the actual vicissitude was in your case.

thanks for pointing this out @Fruitcake

I have made the necessary changes and have some addition. Can you please review and I will finalise this to file my defence. 

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

________________

DEFENCE

________________

The facts as known to the Defendant:

1.     It is admitted that the Defendant was the registered keeper of the vehicle (Registration Number _XXXXX) in question but liability is denied. Defendant deny being the driver at the time of alleged contravention.

 

2.     Defendant was not aware about this incident and was in complete shock to see the parking charge final reminder with an amount due to be paid of £115.00 within 14 days. And then the mental torture and harassment started by the bombardment of ‘debt recovery’ letters with additional charge of £60.00. Finally, defendant received claim form along with inflated total amount due of £238.76.

 

3.     Defendant found that on the night of the 08th Nov 2020, driver had to stop the car in an emergency while looking for an address and car GPS malfunctioned. Driver entered the car park and 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 stopping in emergency as mentioned by Judge Harris in para 20 of Jopson v Home Guard [2016] B9GF0A9E (on Appeal at Oxford County Court) referred to "and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture".

 

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.

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...' 

 

5.     The BPA CoP Section 18.2 requires the Claimant to have a standard form of entrance sign at the entrance to the car park, which must follow some minimum general principles. Having inspected the site of the alleged contravention, the Defendant notes that the Claimant’s current entrance signage is positioned such that it cannot be read by drivers as they enter the car park.

 

6.     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. 7.     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. 8.     Section 13 of the BPA Approved Operator Code of Practice 2012 - Version 8, January 202013 Grace periods13.1 The driver must have the chance to consider the Terms and Conditions before entering into the ‘parking contract’ with you. If, having had that opportunity, the driver decides not to park but chooses to leave the car park, you must provide them with a reasonable consideration period to leave, before the driver can be bound by your parking contract. The amount of time in these instances will vary dependant on site size and type but it must be a minimum of 5 minutes. 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.” So, 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.
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brandsoda

Fruitcake said:

Remove the quotation marks from around the word vicissitude. 
I suggest you use Judge Harris's actual words as I quoted in a previous post, then state this case is no different before explaining what the actual vicissitude was in your case.

I updated and shared for final review.

I have to apply my defence today. Can you please just review last time before I raise my defence. That will be great help.

thanks in advance.

brandsoda

Hi All,

I hope you all are doing good. I would like to thank you for all your help so far.
I just wanted to update that I submitted my defence and that has been received at next day on 18th June. 

Today I also received a letter from HM Courts and Tribunal Services for acknowledgement receipt of defence..


Few days earlier I received a letter from claimants for balance due along with "It's not too late to get in touch" caption. It has usual stuff to get in touch to repay the balance in affordable and sustainable way. This came few days after doing AoS. 

I would like to understand what should be the next step. 
I have already downloaded DQ from THE NEWBIES FAQS (2nd post) but am I expecting the same from court and then fill and respond ?

KeithP

Every step in this process is detailed in the second post of the NEWBIES thread.

Start reading at the heading...

brandsoda

KeithP said:

Every step in this process is detailed in the second post of the NEWBIES thread.

Start reading at the heading...

thanks KeithP,
I am following that post for next step. I was just clueless what do to if no DQ received yet from the CCBC.

Umkomaas

brandsoda said:

KeithP said:

Every step in this process is detailed in the second post of the NEWBIES thread.

Start reading at the heading...

thanks KeithP,
I am following that post for next step. I was just clueless what do to if no DQ received yet from the CCBC.

The claimant needs to first confirm to the CCBC that they wish to continue to proceed. They have 28 days to do that from the date they are sent the copy of your defence - the CCBC only received it from you 5 days ago. But didn't you read that in the letter you've received from the CCBC?

You're far too premature in expecting anything. But to check if there has been any progress, login and look at your MCOL history page. 

brandsoda

KeithP said:

Every step in this process is detailed in the second post of the NEWBIES thread.

Start reading at the heading...

Hi @KeithP and all,

I hope you all are doing good. Recently I received DQ N180 form from CCBC and about to sent to court and claimant party. 

I have a query regarding filling DQ section D3 - witnesses. 
Will it be legally possible to use Driver as a witness while I will be one for sure, defending as keeper.
what could be challenges if using driver as witness.