BW Legal - NCP several tickets, Claim Form received, AoS done

GreatDriver · 27 February 2022 at 10:34PM

Coupon-mad said:

There is a whole section about Witness Statement and evidence stage in the 2nd post of the NEWBIES thread.

But you are quoting something from the first post of the NEWBIES thread about appealing a PCN.

You are not appealing a PCN, so you don't need to read the first post.

Read the 2nd reply or just do 'control and f' on your keyboard (not phone) and search the NEWBIES thread for the words 'witness statement'.

Best examples in 2021 are by @Nosy and @jrhys as they show exactly what the file bundle should look like.

Really really appreciate that, I moving forward now.
Thank you very much!

GreatDriver · 4 March 2022 at 1:07PM

IN THE COUNTY COURT

Claim No.: <CLAIM #>

Between

<PPC>

(Claimant)

- and -

<NAME>

(Defendant)

BUNDLE – TABLE OF CONTENTS

Contents	Page(s)
Exhibits Index	1
Witness Statement	2-5
Exhibit XX-01 – photo “roundabout”	6
Exhibit XX-02 – photograph “parking area and signage“	7
Exhibit XX-03 – photograph “parking area and signage“	8
Exhibit XX-04 – photograph “parking ,’20 mins parking sign“	9 – 10
Exhibit XX-05 – photograph “entrance , ANPR sign“	9
Exhibit XX-06 – photograph “minijunction“
Exhibit XX-07– photograph “outdated documents“
Exhibit XX-08– photograph “proof of postage and returned letter“
Exhibit XX-09– photograph “records of ANPR with timing“
Exhibit XX-10– costs asesement
Exhibit XX-11– NCP terms and conditions

IN THE COUNTY COURT

Claim No.: <CLAIM #>

Between

<PPC>

(Claimant)

- and -

<NAME>

(Defendant)

GreatDriver · 4 March 2022 at 1:07PM

WITNESS STATEMENT OF DEFENDANT

1. I am <NAME> of <ADDRESS>, and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Sequence of events and signage

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

3. At the point of entry, the entrance terms and conditions sign is not visible or readable (exhibit xx-02 and xx-03). The only viewable signage is placed on the level of your eyes saying ‘20 mins parking’ (exhibit xx-04) and an ANPR sign (exhibit xx-05) which do not mention anything related to a risk of paying £75 or that tickets must be purchased. Exhibits were produces by me only recently and I can not remember I have seen any signs apart of ANPR sign when alleged offences occurred.

3. After finding a suitable place to drop off a client, helping out with a luggage, sometimes directing, giving an advice on places where the client could buy a coffee or some food in the area,

there is a time to clear the job on a device clicking few buttons to be able to receive following calls. Then sometimes I try to find a parking place, to use services, or buy a coffee.

4. To get out of the drop off can be sometimes time consuming as other taxis stop next to me creating an extra line on a driver’s side. In that case I need to wait until they finish dropping off their passengers.

Eventually when I can join the queue of cars moving around the car park either finding the parking spot or trying to leave(1 way system), I can start looking for a place to park.

5. As the drop off is being processed more likely in front part of the area, it is likely I have to drive around the car park and get into the area again directly from a road leading to the exit using a mini junction turning 180 degrees. (Exhibits xx-06).

6. I need to mention up to this moment there is no ANPR. I still have not parked at all and few minutes has already passed from entering to the area, but the system being used to track your parking time will claim I have been using it for quite a while.

7. Once I manage to get to this point I get into the queue of cars and if lucky in busy times I manage to find a parking spot.

8. Parking with the front of a car, which is more dangerous than reverse parking that I use, one could see the sign saying ‘20 mins parking’. But anyway I am aware of 20 minutes limits and keep up to them. This is the moment my real parking time starts.

9. Then I go and grab a coffee, or a tea , use a toilet, and maybe let my eyes to relax after driving.

10. As a private hire driver I can receive another job . Accepting the next job, I move on to get into the car and drive a small distance to the drop off / pick up zone and wait for a client. All this time I haven’t been scanned by ANPR exiting parking yet. My actual parking time was accurate and I did my best to keep parking slot busy for less than 20 minutes .

11. When client or clients come, sometimes they have lots of luggage which I need to help them with, to load into my car. Sometimes they use sticks to walk, then I help them to sit inside and fit legs inside.

12. Once we all get into the cab I get my seatbelts done, occasionally I help my clients fasting the seatbelt and start a ride. Getting out of drop off zone is described in point 4. This time after struggling between other cars I head towards the exit and eventually come across ANPR.

13. Even though I used parking for the time which is allowed, and what is suggested on ‘20 mins parking’ signs, I have been recorded by a camera as a driver who overstayed.

LATER EVENTS:

14. 4.2 After obtaining my details from the DVLA, I received 5 times Notice To Keeper from The Claimant sent with the date of 31at/10/2019, demanding a payment of £75 within 28 days or £50 if paid within 14 days.

15. After spending some time researching issues and complaints surrounding Private Parking Companies (hereafter referred to as PPCs), I decided to wait.

16. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since the Defendant has received only 2 out of 5 documentation within 14 days (exhibit xx-07) from the Claimant prior to finding out about the claim, the Defendant submits the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against the Defendant as the Registered Keeper in any case.

17. I received final reminders from NCP dated on 1st/12/2019 demanding payment of £75 each, yet later I received letters from Trace Legal Department dated with 15th/05/2020 demanding payment of increased amount of £135 in each letter.

ABUSE OF PROCESS

18. However, I received five PCN each of them for £75 and now am asked to pay an inflated charge of £135 each which changes the charges into fines what is not legal.

19. The Southampton Court approved judgement in Britannia Parking v Crosby and anor, where this was recently tested. It was tested again at Skipton court in a hearing in February 2020, outcome was the same - the exaggerated parking charge claims at those courts remained struck out.

20. BWL had sent a Letter of Claim dated 30th/06/2021, stating that the estimated the sum in alleged debt was £905, and later a Claim Form from BW Legal with total amount claimed of £928.

21. I responded to NCP and to BW Legal on 13th/10/2021 with a letter explaining the situation was a misunderstanding. The letter sent to NPC was not received by the company and delivered back to sender exhibit xx-08, xx-09, even it was send to a proper address from their webside. BW Legal replied : “… By your action of entering our Client’s Car Park, and remaining there in excess of a reasonable consideration period to consider the terms and conditions. …”

THE BEAVIS CASE IS AGAINST THIS CLAIM

22. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

23. However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the view that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

24. In addition, the Beavis case 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.

GRACE PERIOD

25. There is no grace period taken into consideration in NCP Terms and Conditions at all, which makes it breaching the BPA code of practice. 10 minutes is a must minimum but in such a busy, with a narrow road place, with such a complicated process of buying a ticket and with a drop off area function extending ‘not a parking time’ and with a daily parking time as a minimum, it is far not enough.

26. BPA code of practice January 2018 states:
31.2, if the parking location is one where parking is normally permitted you most allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.
13.4 " You should allow the driver a reasonable period to leave the private car park after the parking contract has ended before you take enforcement action. If the location is one where parking is normally permitted the grace period at the end of the parking period should be a minimum of 10 minutes

27. Periods of time from the entry to the exit registered by ANPR as NCP provides on following Parking Charge Notices are [rounded by me to minutes]: 31, 36, 36, 32 and 22 minutes exhibit xx-10,11,12,13,14. None of this times indicates any signs of ignorant and careless parking in the area even there was no clear terms and conditions visible apart of sign exhibit xx-04.

UNFAIR PRICING

28. Taking into consideration that price for a day (up to 24h) is set to £12.50, charge for not purchasing the parking for a few minutes is disproportional [1440 minutes for £12.50 makes it around 14 minutes for 12 pence]. Therefore the sum demanded is unconscionable and unfair as a result of the Consumer Rights Act 2015.

29. There is no pay and display machine to buy a ticket at the station. Spending some time investigating how the system works for the purpose of this case, I found it very difficult and complicated to pay for the parking. It requires to set up an account, which is time consuming, and doesn’t make sense with an idea of a short stay in the parking area. Moreover, parking charges are set to a daily periods of time without giving an option to pay for a short period of time.

30. While I fully appreciate the need for parking control on private land I do not appreciate the apparent business tactics of the claimant NCP whereby they insist people going about their daily business have entered into some kind of vague “contract” with them, based on the small wording on unobtrusive signs.

NO CONTRACT EXISTS

31. 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. As shown in exhibit xx-05 the sign seen on entry does not mention any information about charges.

32. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

33. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

34. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in attempting to claim fanciful costs which they are not entitled to recover.

35. The Claimant allegedly sent the Defendant a letter purporting to be a 'letter before claim' but it did not include essential information including details of what the alleged breach was, any photographs taken, what time it occurred and for how long, and proof that a breach actually occurred. This amounts to a failure to comply with Practice Direction 6 (a). This claim is being made over 2 years after the alleged breach took place, and after all this time without adherence to Practice Direction 6. The expectations of the court outlined in Practice Direction 3 have not been met.

36. The Particulars of Claim (PoC) do not specify what are the terms breached by the driver of the vehicle. As such, the Claim fails to meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms were and how they were breached.

MY FIXED WITNESS COSTS – ref PD 27, 7.3(1) and CPR 27.14

37. Upon confirmation that attendance at any hearing would result in a loss of leave, 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).

38. As a litigant-in-person I have had to spend considerable time researching the law online, 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 being exposed to this process.

39. Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX-11) which covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I first draw the Court’s attention to the fact that the Claimant was aware there was no signage at the entrance to the parking area and no signage visible from my vehicle, and that any terms or conditions of parking outlined on any elsewhere-placed signage could not be binding. Even if it was binding, there is no grace period mentioned in Terms and Conditions at all (exhibit xx-12) and that Such matters, forming a significant part of the Claimant’s business model, can be reasonably considered to be within the Claimant’s expertise, and the Claimant could have avoided this claim.

Statement of Truth:

I believe that the facts stated in this witness statement are true to the best of my knowledge and belief

XX-11 Schedule of costs

DEFENDANT’S SCHEDULE OF COSTS

Ordinary Costs

Loss of leave through attendance at court hearing:

£95.00

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents:

(XX hours at Litigant in Person rate of £19 per hour):

£YYY (£XX x £19)

Postage: £xx.xx

TOTAL COSTS CLAIMED:

£ZZZ (£YYY + £95)

Signed <NAME>, Defendant:

<SIGN HERE>

Date: <DATE>

GreatDriver · 4 March 2022 at 1:25PM

Hey
1.I'm not quite sure about:
35 - Practise Directions - (ihrys used this arguments) Is it some legal requirements for claimant to presise what the alleged offence was? Letters from NCP stating 'the brach was related to period of parking', and a letter from BWL (as response to my request for withdrawing the case) stating '... By action of entering our Client's Car Park, and remaining there in excess of resonable consideration period to consider terms and conditions, it is well established by case law that this amounts to an acceptance of the terms and conditions.' are not enough? Am I| ok to keep this paragraph like it is right now?

39

2. Also I used Beavis - does it corresponds well to my case?

3.Thinking of adding something more regarding the grace period.

4. Is it ok to add as an exhibit copied terms and conditions from NCP? Or better just to use a link?

KeithP · 4 March 2022 at 1:41PM

Your Statement of Truth needs to be far more comprehensive.

Something like...
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.

Coupon-mad · 4 March 2022 at 3:54PM

Unless I missed it, you haven't started by telling the Judge you are taxi driver!

I'd remove 'unfair pricing' as a company can set whatever price they want as long as it has a legitimate interest and is prominent.

Replace all the abuse of process stuff with a few paragraphs about the DLUHC's ban on debt recovery pseudo 'fees/damages'.

To do that, adapt some wording from the reply I wrote last night in the JD Parking thread it was a defence but can be adapted to explain in a WS why the Govt ban and the quote from the Ministerial Foreword matters in existing cases.

GreatDriver · 5 March 2022 at 10:20AM