BW Legal Defence

Cloudy23

Hi all, I've been issued with a County Court Claim from BW Legal with Premier Park being the claimant. I've been following the Newbie's guide and I'm at the stage of submitting my defence. The issue date of the claim was the 17th May and I've submitted my AOS on 25th May.

I've prepared a defence and would be very grateful for any pointers. Thanks in advance.

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The Defendant denies being the driver of the vehicle at the time of the alleged breach.

3. The Defendant was notified of the Parking Charge on the 11th September 2020 via a letter through the post. The Defendant has felt harassed with a series of ‘debt recovery’ letters and phone messages left by the Claimant’s representative. As the Claimant has not complied with the Keeper Liability requirements as set out in the Protection of Freedoms Act 2012, Schedule 4, the Defendant cannot be held liable.

4. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £140.06, which appears to be an attempt at double recovery.

5. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

(I've copied the rest of the defence template and I'm only showing the parts that I have added/amended).

beamerguy

And BWLegal have added a fake £60 ???

These legals regularly get zapped in court for fakery and especially signing a statement of truth ... which is not true

After you read the NEWBIES thread then read further on this thread
https://forums.moneysavingexpert.com/discussion/6103933/abuse-of-process-thread-part-2

You can see what the courts do to fakers.  Pay attention to the EXCEL v WILKINSON ..... claim struck out for ABUSE OF PROCESS

Cloudy23

Thanks Beamerguy, I'll have a read today.

beamerguy said:

And BWLegal have added a fake £60 ???

Yes, a breakdown of their claim is:
£100 for the PCN
£60 'recovery costs' (as set out in the ATA AoS Code of Practice)
£5.06 interest
£25 Court Fee
£50 Legal representative's costs

I pretty confident that this constitutes double recovery so the case can be struck out for abuse of process.

D_P_Dance

1. £60 'recovery costs' (as set out in the ATA AoS Code of Practice)

This is unlawful, read this sand complain to your MP

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0

Cloudy23

Thanks D_P-Dance. Just to confirm, am I right in thinking that I can't quote the Excel v Wilkinson case in my defence as it was a county court trial?

beamerguy

Cloudy23 said:

Thanks Beamerguy, I'll have a read today.

beamerguy said:

And BWLegal have added a fake £60 ???

£60 'recovery costs' (as set out in the ATA AoS Code of Practice)


I pretty confident that this constitutes double recovery so the case can be struck out for abuse of process.

As usual, BWLegal are talking rubbish about the code of practice

THE CODE OF PRACTICE IS NOT A LAW FOR THE MOTORIST

BWLegal are going against the Supreme court

You can watch what the Supreme Court said here
https://forums.moneysavingexpert.com/discussion/comment/78383337#Comment_78383337

 "The main reason for the charge was to meet the costs of enforcing the parking rules"

BWLEGAL fail to understand and the £60 is an unlawful fake 
YES ... DOUBLE RECOVERY which is ABUSE OF PROCESS

So in court you alert the judge to this.  He may not strike it out but gives him good reason to dig deeper into the claim such as signs and contracts ....... and then strike it out

beamerguy

Cloudy23 said:

Thanks D_P-Dance. Just to confirm, am I right in thinking that I can't quote the Excel v Wilkinson case in my defence as it was a county court trial?

Of course you can

Cloudy23

Great, thank you! I'll add the relevant cases to my defence and post a 2nd draft.

KeithP

Cloudy23 said:

Hi all, I've been issued with a County Court Claim from BW Legal with Premier Park being the claimant. I've been following the Newbie's guide and I'm at the stage of submitting my defence. The issue date of the claim was the 17th May and I've submitted my AOS on 25th May.

With a Claim Issue Date of 17th May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 21st June 2021 to file your Defence.

That's less than a week away but plenty of time to produce a Defence. 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.

Coupon-mad

Your point #5 needs removing as it makes no sense to have a summary near the start and the content is already in the template defence anyway.

Also remove the stuff saying the NTK was non compliant with the POFA as I highly doubt it. Really?  are you sure?

And you have told the Judge precisely NOTHING about the car park or event, or how you know you were not driving. If that is not true DO NOT deny driving (obviously).

This section is meant to deal with the allegations and explain your facts, not clutch at straws that are not even suitable, perhaps, for your case.

Cloudy23

Hi Coupon-mad, thank you for the feedback. I've amended my defence to reflect the points you've raised:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The Defendant denies being the driver of the vehicle at the time of the alleged breach.

3. The Defendant was notified of the Parking Charge on the 11th September 2020 via a letter through the post, for an alleged contractual breach on the 4th September 2020. The Defendant has felt harassed with a series of ‘debt recovery’ letters and phone messages left by the Claimant’s representative.

4. At the time of the alleged breach the Defendant was working from home and did not have access to the vehicle as it was in use by the Driver. The Defendant has since spoken with the Driver and has explained that they were unaware of the terms and conditions for parking in the car park due to the lack of clear signage.

I'd be very grateful for any comments that you have, thanks.

I mentioned that the NTK was non-compliant with the POFA because I think the dates they have given to me do not comply with the POFA. In the final paragraph of the NTK they state that after 29 days from the date given (which is presumed to be the second working day after the Date Issued), they have a right to recover the charge from the keeper.

The issue date was 11/09/2020 which was a Friday, so 29 days after the second working day which would be 33 days in total. In the POFA the Keeper should be notified that the charge can be made recoverable after 28 days starting from the following day of the issue date so 29 days total.

I'm not sure if this counts as not complying with the POFA, as you say I could well be clutching at straws here and there's nothing in it but I'd be grateful for any advice on this. I've attached the NTK below in case I've completely miss the point.

Thank you all so much for your help so far.