BW Legal - Small Claims Court

tadmse

Hi,

I received a parking ticket from BW Legal as my car was parked at Exeter Rugby Stadium on 24th October 2019.

The fine was now at £224. The case went to Mediation and I ended up offering £37.50, which is the original fee (if paid within 2 weeks) to settle the claim, but stated I would not accept I was the driver.

I set out my defence, detailed below, as advised on this group.

They counterclaimed with an offer of £190. I did not agree and the mediator said this would go to court now.

I would like to seek advice in order to handle this claim. Can anyone suggest the best course of action?

Thanks,

Tom

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. The facts as known to the Defendant: 2. It is admitted that the Defendant was the registered keeper of the vehicle in question but

liability is denied. The defendant was not the driver of the vehicle. The Claimant has not brought evidence to the court to prove the defendant was the driver of the vehicle.

3. The defendant heard about the parking charge some months later and felt harassed and bombarded with ‘debt recovery’ letters. The Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

4. TheParticularsofClaimsetoutanincoherentstatementofcaseandthequantumhasbeen 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.

5. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this money claim 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 parkingcharge'wouldappeartobepenal'andunrecoverable. ParkingEyehaddroppedthispunitive enhancement by the time of Mr Beavis' famous parking event. 6. 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. 7. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for

automatedlettercosts;notevenifletterswereissuedbyunregulated'debtrecovery'thirdparties. Itis 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 nofindingoffactabouttheillegalityofaddingthesame'automatedlettercosts'twice. Hewasnot 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').

8. 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

9. 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.

10. 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.

11. 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.

12. 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. 13. 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 seen, known or agreed. 14. 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:

1. (i)  Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

2. (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.

15. 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, solicitorWillHurley,theChiefExecutiveoftheIPCTradeBody,observed: 'Anyregulationor

instruction either has clarity or it doesn’t. If it’s clear to one person but not 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 for 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.

16. 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, graceperiod,hoursofoperation,etc.andanyinstructionstocancelchargesduetocomplaints. 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:

17. (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.

18. 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.

KeithP

Who is the Claimant?
Hint: it is not BW Legal.

D_P_Dance

The fine was now at £224.

It is not a fine, but I am sure that you know that.  Have you read this?

They have added what appears to be an extra unlawful amount for debt collection. Judges have dismissed an entire claim because of this. Read this and 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

Have you complained to your MP?

tadmse

KeithP said:

Who is the Claimant?
Hint: it is not BW Legal.

I have had a look at the paperwork. It’s “Link Parking Limited”.

tadmse

D_P_Dance said:

The fine was now at £224.

It is not a fine, but I am sure that you know that.  Have you read this?

They have added what appears to be an extra unlawful amount for debt collection. Judges have dismissed an entire claim because of this. Read this and 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''.

Have you complained to your MP?

Thank You.

I will file a complaint with my local MP over this. I am not based in Exeter so do you think it is also wise to write to them also?

I do not have all copies of the letters and telephone calls I have received. Am I entitled to obtain a full list and document of every correspondence they have sent to me? 

Redx

You have to go through your own local MP , parliamentary rules say so

yes , if you email a SAR to the DPO at LINK PARKING they must reply within 30 days with all your data , including documents and pictures etc, you are entitled by law , the GDPR, to all your own data, so do so, with 2 recent redacted copies of utility bills or similar as your proof of I D under the GDPR law, but not photo I D of any sort

you stated in your first post that you received a parking ticket from B W LEGAL, not true , you received the PCN from Link Parking !! , subsequently you have received letters from their legal firm, B W Legal