BW Legal/ UK parking Patrol (again!)

moneylion

Hi guys
Thanks very much for all your advice and helping many from these scammers. I have followed the advice as post 2 on the sticky. First post here but have been reading with interest over the last couple of years. I am now in receipt of a Claim form from BW legal via the County Courts Business centre Northampton.

Story so far:
The driver alleged to have overstayed at Lakeside Way Wembley 13 mins and 06 seconds(!!) in September 2020 - owner of the retail park is Quintain Ltd (found this out by FOI request to Brent council). I have done the following:

• Sent the generic cease or desist letter which was rejected by UK parking patrol (IAS governed)
• They have breached their own code of conduct as the overstay was for 10mins and driver should have gotten grace period but it was not
• ignored all their letters and drivel since then from every debt collector types that they use
• I cant recall receiving a letter before claim but no worries
• I have written to Quintain they have refused to get the fake charge cancelled

I am now at the stage where I will do the AoS to the claim form as advised on the sticky. It was issued on 4 October so 8 October plus 14 days would be my deadline?

I will draft up my defence and post it on here. I was going for the inadequate signage route. Would them not complying with their own code of conduct also be a relevant defence point. If the overstay was 13 mins and 6 secs (measured by ANPR), it does not constitute actually parking .. 3 minutes over the grace should not be enough for them to hang their claim on?!

The issue is that this piece of land looks and feels like a normal road - the driver didnt realise that they had even driven off a public highway. There is very limited signage and the one sign is in small font and hard to read at normal 20 mph driving (if at all). The issue on the day, I am lead to believe was that a construction lorry pulled up and blocked the exits for a considerable amount of time (lets call it 20 minutes) 

The total of all the charges includes a fake £60 included in the amount claimed plus £50 legal reps fees (??), £35 court fees and interest all totalling to £25x.xx claimed.

All help will be much appreciated.

thanks

moneylion

Here is my defence following the template by Coupon-mad in the sticky. Please note I have added in 2, 16-21 from my previous defence of the fake charge by the same firm 

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (Defendant)

____________________

DEFENCE

____________________

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:

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

 

2.       The defendant did not see the signs alleged by the claimant. In any case, the signage is high on a pole and of a small font size to reasonably read at maximum driving speed limit of 20 miles per hour. In addition, on the day and time in question, the parking charge relates to blockage of exit from a construction vehicle from the landowner’s land which could not have been reasonably accounted for by the defendant.

 

3.    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.

4.    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.

5.    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.  

6.    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').

7.    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

8.    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.  

9.    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.

10.  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.  

11.  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.

12.  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.

13.  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

(iii)                    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.

14.  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, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or 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.

 

15.  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.

 

16.  It is denied that the visible signage in the car park was sufficiently clear to bind any reader:

a. No terms and conditions were displayed

b. Even if entry signs were present and visible, and even if any such signs had offered terms, the Defendant denies that they would have been sufficient to bind any person by dint of driving past them, as the driver of a moving vehicle could not reasonably or safely read, consider, or accept any terms prior to entry. The Defendant asserts that this renders as immaterial any ANPR photographs taken at the entrance.

 

17.  An ANPR capture of the vehicle provided as evidence for the Parking Charge Notice (herein referred to ‘PCN’) shows entry at xx:xx:xx and exit at xx:xx:xx on the material date.

 

18.  The PCN states that the notice relates to the ‘period of parking’ – the evidence shows the vehicle as it is entering and exiting, and NOT in parking conditions, i,e. in a stationary position, parked within a parking bay.

 

19.  The International Parking Community (IPC) Code of Practice terms, for which the Claimant is an Accredited Operator, state that drivers are to be provided with a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.

 

20.  This grace period provided to drivers should take into account any and all situations that could extend the time required to observe the signs and comply with the operator’s conditions. This includes, but is not limited to: mobility, the presence (and therefore safety) of children, and the conditions of driving within the car park.

 

21.  The Defendant therefore states that the additional time beyond the bare minimum (not ‘maximum’) 10 minutes grace period — alleged to be 3 minutes and 6 seconds — is a reasonable amount taking into account the driver’s personal factors. To evidence this alleged 3 minutes and 6 seconds, the Claimant is relying upon two separate images from ANPR cameras, which is a system known for failure and even when 'working' the two cameras are not synchronised with each other to the last minute and certaparainly not to the second. Even the Police and their system manufacturers, have stated that their ANPR systems are only about 90% reliable. Thus a '3 minutes and 6 seconds over ten minutes' allegation is absurd - de minimis at best, even if it is to be believed - and the Claimant is put to strict proof.

 

In the matter of costs, the Defendant seeks:

22.  (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.

23.  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:

Coupon-mad

You have two numbered '1' and the second one should include 'keeper and driver' because you then go on to admit being there and not seeing signs.

Le_Kirk

As well as changing the early paragraphs as advised by @Coupon-mad, I would move your main defence points (grace periods) to earlier in the piece, so that the judge reads them and gives them the prominence they deserve.

KeithP

moneylion said:

I am now in receipt of a Claim form from BW legal via the County Courts Business centre Northampton.

I am now at the stage where I will do the AoS to the claim form as advised on the sticky. It was issued on 4 October so 8 October plus 14 days would be my deadline?

With a Claim Issue Date of 4th October, you have until Monday 25th October 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 in a timely manner, you have until 4pm on Monday 8th November 2021 to file your Defence.

That's almost four weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving 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.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

moneylion

Hi all 
I filed my defence with suggested wording changes a couple of weeks back. I have received a confirmation letter saying that the defence will be sent to the claimant for them to decide what to do next. 

I had a question re Form N180 directions questionnaire. I am going to be unable to collect my mail for an extended period over the next few weeks. I am concerned that I may not be able to pick up the N180 request and reply back by their deadline. Can I pre-emptively send it off ? 

I wouldnt know what to fill in in the very first box at the top of the page after "In the" 

Apologies in advance if  I missed this part of the discussion in the sticky's 

thanks

Jenni_D

Keep checking your MCOL file history on, say, a weekly basis - that will show when a DQ has been sent. Then you simply download a copy, fill it in and email it back to the CCBC ... you don't need to be at home to do that.

moneylion

Hi guys. Thanks for all your help so far. I have logged into MCOL online and saw that a request for N180 had been sent to me. 

I have filled out the form electronically and sent it to the ccqac email address. My question is if it is necessary to also send it to bw legal. I don’t have their service email address as I can’t currently physically see the papers they sent me. 

Thanks

KeithP

moneylion said:

Hi guys. Thanks for all your help so far. I have logged into MCOL online and saw that a request for N180 had been sent to me. 

I have filled out the form electronically and sent it to the ccqac email address.

Then you need to resend it to the CCBCAQ email address.

moneylion said:

Hi guys. Thanks for all your help so far. I have logged into MCOL online and saw that a request for N180 had been sent to me. 

My question is if it is necessary to also send it to bw legal. I don’t have their service email address as I can’t currently physically see the papers they sent me. 

Yes it is necessary to send a copy to BW Legal.

Google has their email address or search this forum.

D_P_Dance

They have added what appears to be an extra unlawful amount for debt collection. This amounts to double recovery and some 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%20Excel%20v%20Wilkinson.pdf?dl=0

However, a VCS appealed this so it may not apply in all cases, read this

https://www.dropbox.com/s/ntksx9g7177ahyg/VCS v Percy v1 Amendments (2).pdf?dl=0Also read this

https://forums.moneysavingexpert.com/discussion/6279348/witness-statements-2-transcripts-re-parking-firms-false-costs-recorder-cohen-qc-judgment-2021/p1

Also consider complaining to The SRA about the solicitor, iThey are fully aware of the unlawful nature of most of thse additions yet persist in adding them..

https://www.sra.org.uk/consumers/problems/

moneylion

Hi all - It's been a while but I received a letter from court giving details of a hearing. It is for 1 August. I have been away but I have noted that the witness statement and evidence needs to filed 14 days before, i.e. by 18 July (by my calculations?). I will pull together witness statement in similar indexed way to the post in the sticky. 

I wanted to check if there is a way to find out that the claimant has paid the court fees that were due by 4 July? Or do i just assume that they have done so given I have not heard from the court that the case has been discontinued? 

I will post my witness statement here soon so any help will be much appreciated