Claim Form Received BW Legal for Unauthorised Entry/Parking

Coupon-mad

Why would you? 

It then gives the PPC the name and address of the driver in their witness statement and they could come after the driver, if they fail against you.

brandsoda

Coupon-mad said:

Why would you? 

It then gives the PPC the name and address of the driver in their witness statement and they could come after the driver, if they fail against you.

thanks for your input, yes you are right and I won't do that.

Redx

The DQ stage requirements are name etc of local court , plus the number of witnesses who may attend , more useful when it was in a court room due to how much space was required , less so nowadays due to remote hearings !!

If it was 100 witnesses , it would require a very large accommodation , but not for 1 to 4

So maybe put 2 , not everyone has to turn up and the hearing is by phone or teams or video link anyway

No need to over complicate matters , or overthinking it , email the completed DQ PDF to the ccbcaq email address and CC the claimant or their lawyers as well , so one email , one attachment , 2 email addresses

Then check your MCOL claim history next week to ensure that it's been logged

brandsoda

Hi Folks,
Hope you all are doing great. 
I have my hearing on 11th March and missed to get my WS submitted yet due to some personal reason. So far I haven't received any WS from BW legal as well. Received a letter from hearing court that hearing will take place in person than on Call.


 I have almost drafted my WS and will share in next message. Will it be possible to help me out and review it. 

Also I have 2 days left to send it to BWlegal and Court, will it be good to send by post or email will work ?

@Coupon-mad, @KeithP, @beamerguy, @D_P_Dance, @Le_Kirk, @Umkomaas, @Redx, @Fruitcake and @SayNoToPCN.

KeithP

brandsoda said:

I have 2 days left to send it to BWlegal and Court, will it be good to send by post or email will work ?

Email is fine - obviously to the hearing court, not to the CCBC... and of course to the Claimant.
One email to two addressees - that way the Claimant can't deny receipt if the Court has a copy.

Fruitcake

Email it to yourself as well. If the claimant says they didn't receive it you can show the judge that since it arrived in your inbox and the court's, then on the balance of probabilities the claimant must have received it as well.

brandsoda

Fruitcake said:

Email it to yourself as well. If the claimant says they didn't receive it you can show the judge that since it arrived in your inbox and the court's, then on the balance of probabilities the claimant must have received it as well.

KeithP said:

brandsoda said:

I have 2 days left to send it to BWlegal and Court, will it be good to send by post or email will work ?

Email is fine - obviously to the hearing court, not to the CCBC... and of course to the Claimant.
One email to two addressees - that way the Claimant can't deny receipt if the Court has a copy.

thanks @KeithP and @Fruitcake . Will send WS through email. 

brandsoda

here is my WS draft , can you guys please look into it and let me know if any changes. I believe I have added few extra but it's an act of doing something is hurry + due to referring few similar posts.

Also I have a question regarding "Redacted Landowner Contract", is this needed and can you please guide for right set of statement if any.

@KeithP,  @Fruitcake  @beamerguy, @D_P_Dance, @Le_Kirk, @Umkomaas, @Redx,@Coupon-mad and all 

---
WITNESS STATEMENT
---

1.     I am MR XXXXX, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge and online research.

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

3.     Given that the Claimant is pursuing me as the Keeper of the vehicle under Schedule 4 of the Protection of Freedoms Act (POFA) 2012 (Appendix 1), there is no requirement for me to identify the Driver of the vehicle at the time of the alleged contravention.

4.     The Defence is repeated and I will say as follows:

 

Sequence of events as explained by driver and Signage

5.     I have appended the actual signage, photographed by me on 15th June 2021, in a good weather, and will refer to them throughout.

6.     On 8th Nov 2020, driver was in urgent need to park the car in emergency while looking for an address and the car GPS malfunctioned. It was raining and visibility wasn’t very good.

a)     Driver saw a parking sign P from almost 15-20 meters away. Apart from that P sign (exhibit xx-01 and exhibit xx-02) nothing was visible on that small signage. The car park was completely dark and the Parking signage at entrance and inside car park was not illuminated and hardly visible in bad weather on that day.

b)    At the point of entry, the entrance terms and conditions sign are not visible or readable (exhibit xx-01 and xx-02). The only way any driver can read the parking details as either parking the car on that busy road or enter the car park. Driver found it’s safer to enter the car park and stopped the car in the first parking bay on entrance while the engine was running and started looking for parking details and terms and conditions.

c)     The approach and entrance to the car park is on a single-track road with double yellow lines (exhibit xx-01, exhibit xx-02 and exhibit xx-04). This is a busy road beside the bus station where stopping is both impossible due to the double yellow lines and traffic (including many buses) not being able to pass. The only safe way to stop to view the car park terms and conditions is by entering.

d)    Driver found another small signage “Permits Holders Only” (exhibit xx-02 and xx-03) on the parking building wall, after looking into every corner for any parking instructions. Driver further went to check for main entrance signage on a pole above normal viewing site and found it’s a private car park.

e)     Once realised it’s a Private car park, driver took another 2-3 minutes to start the car and GPS on mobile and came out of the car park immediately but it took a few minutes and total stay in the car park is 00:08:30 minutes, which is less than 10 minutes.

 

7.     However, I received a PCN and later asked to pay an inflated charge of £160 as debt recovery by claimant legal team. This further overblown to £238.76 with other charges from legal team.

 

8.     A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit xx-05 for comparison. In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

 

Grace Period and CoP

9.     According to Claimant and their legal team, on contravention date, I breached the terms and conditions which resulted in receiving a PCN. As I mentioned earlier, driver entered the premises looking for a parking space but wasn’t fully aware about any terms and conditions and the signage wasn’t fully visible from road. Even if driver breached the T&Cs, Claimant is still obliged by the compulsory Code of Practice of its own Accredited Trade Association to apply separate grace periods of at least 10 minutes at the start and end of each period of parking to allow for potential delays in finding a space, exiting the car park and to allow time for drivers to find and read the terms and conditions offered, and the 08:30 minutes stay is well within these grace periods.

10.  In addition to considering the breach of contract element of the claim, I have considered the Code of Practice ("CoP") of the British Parking Association ("BPA"), of which the Claimant is an accredited member. A copy of paragraph 13 of the CoP (exhibit xx-06), which relates to grace periods and a statement from “Kelvin Reynolds, BPA Director of Corporate Affairs” (exhibit xx-07), explaining ‘grace’ periods and ‘observation’ periods in parking.

 

11.  In order to be an accredited member of the BPA, compliance with the CoP is compulsory, and a copy of paragraphs 4.1 and 6 of the CoP is at exhibit xx-08. The significance of being a member of the BPA and subscribing to its CoP is that the Claimant is only entitled to ask the DVLA for the details of a car’s registered keeper if it is a member (so without membership a private parking company would not be able to function without the ability to trace drivers/registered keepers).

 

12.  Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking. The CoP makes clear that such grace periods are to be applied both at the start of any parking period and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking, and time to exit the carpark once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of the actual parking (paragraphs 13.2 and 13.4). It is worthy of note that the recommendation is a minimum of 10 minutes, not a maximum.

 

13.  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.

 

14.  The BPA CoP Section 21.1 requires the Claimant to have signs notifying drivers that ANPR camera technology is in use at the car park, and what the captured data will be used for. The Defendant has it on good authority that no such visible signs are in place, clearly visible at the time of the alleged contravention, and puts the Claimant to strict proof. As such, the Claimant is in breach of the BPA CoP.

 

15.  In the well-known parking case of Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis, the Supreme Court made clear in its judgment that strict compliance with the CoP is paramount where a Claimant seeks to enforce a private parking charge. Paragraphs 96 and 111 of the judgment stated:
96. ''The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
111. “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.'' (emphasis added).

 

16.  There is no explanation for why the Claimant has declined to apply any grace period at all in my case, which is a clear breach of the CoP. Also, when claimant legal partner was contacted explaining the same but didn’t consider that this best falls under acceptable grace and observation period.

 

17.  This car park is on main road with just small P sign and hard to find it’s a Private Car Park, inviting people to enter the car park premises. Once entered the premises, hardly you won’t breach the 5 minutes terms and condition mentioned on Permits Holder Only signage. I believe, there would have been many entered into this car park and would have stayed more than five minutes just before realising it’s a private car park.

 

Case of temporary stopping in emergency

18.  The situation 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 (para 20) in that appeal case and the transcript of his decision is provided as evidence in exhibit xx-09.

 

19.  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...'

 

brandsoda

Costs on the claim - disproportionate and disingenuous

20.  CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

 

21.  The Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. All these debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself.

 

22.  The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

 

23.  The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity. The Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims and any purported 'legal costs' are also made up out of thin air.

 

24.  According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

 

25.  According to The Protection of Freedoms Act 2012, Schedule 4 (POFA) (exhibit xx-10), the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

Abuse of process – the quantum

26.  The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.

In addition to the disputed Parking Charge Notice claim amount of £100(principal debt), the Claimant has added a sum of £60 that is disingenuously described variously as 'debt recovery costs’, and others costs like ‘Estimated Interest, ‘Estimated court fees, ‘Estimated Solicitors Fee, and ‘initial legal costs’ which further inflate the estimated total to £240. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit xx-11- transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

 

27.  Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 

28.  19. The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

 

29.  This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

 

30.  This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit xx-12), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

 

31.  In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60 that is disingenuously described variously as 'debt collection costs', ‘additional charges levied to cover the cost of recovery’, ‘additional administration costs’, ‘debt recovery costs’, ‘initial legal costs’ and ‘recovery costs’. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is exhibit xx-13). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

 

32.  After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

Redacted Landowner Contract

33.  My statement here

34.  In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html

Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

My fixed witness costs – ref PD 27, 7.3(1) and CPR 27.14

35.  Upon confirmation that attendance at any hearing would result in a loss of work, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

CPR 44.11 – further costs

36.  As a litigant-in-person I have had to spend considerable time researching the law online along with my partner, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records.

 

Statement of truth:

I believe that the facts stated in this Witness Statement 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.

 

SIGNATURE

……………………..

 

Mr XXXXX

 

DATE xx/02/2022

Fruitcake

Include the transcript of the redactions in disclosure case as an exhibit. It is acceptable to redact, say, sensitive financial details such as how much a PPC is being paid, or how much they will charge to cancel a PCN.

Other redactions are not acceptable. Often the signatory details of a contract are redacted, for example the name or position in the company or the date the contract was signed, meaning that you can't tell who signed it, or whether they have authority to form a contract with or flowing from the landowner. 
The Companies Act 2006 Sections 43 and 44 cover who is authorised to sign a contract or whether documents are validly executed. 
If signatory details are redacted, then you can aver that they did not have the authority to form a contract otherwise there is no reason to hide them.
You should point out for this and the Jopson case that appeal court cases are persuasive on the lower courts.

This is something I knocked up for another poster, so have a look and see if any of it applies.

Companies Act 2006

 

Companies Act 2006 (legislation.gov.uk) Section 43

 Companies Act 2006 (legislation.gov.uk) Section 44

 For S43

 43 Company contracts

(1) Under the law of England and Wales or Northern Ireland a contract may be made—

(a) by a company, by writing under its common seal, or

(b) on behalf of a company, by a person acting under its authority, express or implied.

(2) Any formalities required by law in the case of a contract made by an individual also apply, unless a contrary intention appears, to a contract made by or on behalf of a company.

 

1 (a) Rarely used

1 (b) Express authority means a statement from a person such as the owner, a company director or company secretary, or someone with significant interest in the company, who has the authority to form legally binding contracts with another party.

Implied authority would usually be found in the company’s Articles of Association or similar as held by Companies House stating that a person holding a specific title such as Regional Manager or Property Manager has authority, or a person specifically named by the owner, director, company secretary, or someone with significant interest in the company has authority.

 For S44

 44 Execution of documents

(1) Under the law of England and Wales or Northern Ireland a document is executed by a company—
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.

(2) A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.

(3) The following are “authorised signatories” for the purposes of subsection (2)—
(a) every director of the company, and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.

The alleged contract has not been executed in accordance with paragraph 1 because the neither party has affixed its common seal, it has not been signed by two people from each company nor by a director and witness of each company in accordance with the requirements of paragraph 2, and has not been signed by authorised signatories as defined in paragraph 3.

 

 

District Judge Simon Middleton said in his judgment of case number F1DP92KF heard at Truro County Court on the 3rd of July 2020 that, "Claire Williams could not have signed the contract on behalf of the owner because she is not a director of the owner."

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Comments in italics are my interpretation. Both Acts are very short, so are worth a quick read so you understand them.

I'm going to send you a pm in a few minutes with more info about redactions in contracts.