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

Coupon-mad

Sounds good.

removing 16 - although I thought it was strong to point out I received first PCNs in November(sent  on 31st of OCT) regarding parking in August (3 of them are from August).

Not a valid point for an admitted driver to use.  The POFA only protects keepers.  That's why it needed removing.

GreatDriver

May I attach Terms and Conditions - a large word file attach as a separate file exhibit XX-10 ?
Exhibit XX-01 - XX-06 - Is it ok to use googlemaps screenshots or better to use photographs of mine? Shall I post it here to show you what I mean?

GreatDriver

###REDACTED###

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	2-11
Exhibit XX-00A, B – Driver, Vehicle License	12
Exhibit XX-01 – photo “roundabout”	6
Exhibit XX-02 – photograph “entrance , ANPR sign“	7
Exhibit XX-03 – photograph “parking area and signage“	8
Exhibit XX-04 –  photograph “parking area and signage“	9 – 10
Exhibit XX-05 –  photograph “parking ,’20 mins parking sign“	9
Exhibit XX-06A, B –  photograph “minijunction“
Exhibit XX-07A, B, C–  photograph “proof of postage and returned letter“
Exhibit XX-08–  photograph “records of ANPR with timing“
Exhibit XX-09–  costs asesement
Exhibit XX-10–  NCP terms and conditions

 

 

IN THE COUNTY COURT

 

Claim No.: <CLAIM #>

 

Between

<PPC>

(Claimant) 

 

- and -  

 

<NAME>

 (Defendant)

 

 

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:

GreatDriver

Sequence of events and signage

4. I am a private hire driver (exhibit XX-00) working for different operators but mostly for Uber in town of Cambridge. I collect and drop off my passengers in different places but the most popular destination is without a doubt a train station.

5. The approach and entrance to the car park located in the area of the train station is on a single-track road with double yellow lines on a roundabout (exhibit XX-01). This is a busy road 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.

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

7. 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. To get out of the drop off  can be sometimes time consuming as other taxis stop next to me creating an extra lane on a driver’s side (exhibit XX-6A). In that case I need to wait until they finish dropping off their passengers.

8.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. 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-06B,C).

9.  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.

10. 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.

11. 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.

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

13. 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 .

14. 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.

15. 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.

16. 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:

17. 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.

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

19. 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. 

 

Debt recovery pseudo 'fees/damages'.

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-07A, XX-07B), 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.   The quantum and interest has also been enhanced beyond the parking charge sum.  It is denied that the sum sought is recoverable and this claim seems to represent (in whole or in part) a penalty, applying the authority from two well-known ParkingEye cases.  The court's attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet this was a case where the learned Judge also considered added 'costs'.  The parking charge was set at £75 (discounted to £37.50 for prompt payment) then increased ultimately to £135.  At paras 419-428, HHJ Hegarty sitting at the High Court (decision later ratified by the Court of Appeal) found that adding £60 on top and taking the sum sought to £135 'would appear to be penal' and was unrecoverable.  

23.   My stance regarding the pseudo 'debt recovery/admin fees' enhancement is supported by the Government. The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice

24.      The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unjustified and is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  

25.    This particular Claimant continues to add a sum on top of each PCN, despite indisputably knowing that these are banned costs which they have neither paid nor incurred.  The DLUHC considered evidence and took over two years to consult a wide mix of stakeholders before deciding this contentious issue.  According to the DLUHC, almost a fifth of all respondents in 2021 'called for the proposal to be scrapped and debt collection to be banned altogether'.  Although the parking industry flooded both public consultations, some even resorting to masquerading as consumers, the DLUHC saw through this and identified in its published Response to the Technical Consultation (also on 7/2/22) that some respondents were clearly 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis and are effectively Trade Body Board/member colleagues, passing data around electronically.  Parking firms such as the Claimant have not incurred any additional costs (not even for their own letters) because the full parking charge itself more than covers what is merely a 'letter chain' business model that generates a healthy profit.

26.     The Ministerial Foreword to the new Code is unequivocal, saying this about existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

27.    The Government banning such add-ons altogether must be viewed as a clear steer for the Courts in existing cases and overrides the mistakes and/or presumptions in the appeal cases the parking industry used to rely upon (Semark-Jullien, Wilshaw or Percy) where Circuit Judges who appeared to be somewhat inexperienced in niche private parking law, DVLA rules about landowner authority and the proper application of the CRA 2015, were led in one direction by legally trained counsel for the parking firms, and were not in possession of the same level of facts and evidence as the DLUHC considered.

 

GRACE PERIOD

28. 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.

29. 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

30. 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-8A, XX-8B, XX-8C, XX-8D, XX-8E. 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-02. 

31. The new statutory Code of Practice published by DLUHC also clarifies grace period and consideration period.

Paragraph 5.1 states that the parking operator must allow a consideration period of appropriate duration, taking the following factors into account:

a) the time required for a driver to identify and access a parking bay appropriate to their needs;

b)the time required for a driver to identify and read signs that display the parking terms and conditions, or the consequences of choosing to park where public parking is not invited;

c) the time required for a driver to identify and comply with requirements for payment;

d) the time required for a driver to leave the controlled land if they decide not to accept the terms and conditions;

e) the impact of the layout of the controlled land on 5.1a) to 5.1d);

f) the impact of the number of vehicles accessing the car park on 5.1a) to 5.1d); and

g) the impact of the volume of traffic within the controlled land on 5.1a) to 5.1d).

It states later that the consideration period ends at the point where there is evidence that the driver has, by parking, accepted the terms, conditions and restrictions applying (whether or not they have chosen to read them) which may be evidenced by the driver parking the vehicle and leaving the premises, paying the applicable parking tariff, or turning off the ignition of the vehicle and remaining stationary for more than 5 minutes.

32. The following paragraph of DLUHC code of practise states about grace period at the end of the parking as follows:

“5.2 Grace period

A grace period as set out at Annex B to this Code must be allowed by the parking operator at the end of the parking period, such that in calculating whether a parking charge is due the permitted period allows for a grace period beyond:

· the time-limited period of permitted free parking, or

· the period for which pre-payment has been made where a parking tariff applies,

at public use car parks and private use car parks for the defined set of vehicles allowed, other than for clearly signed, designated ‘short stay’ locations.”

 

GreatDriver

NO CONTRACT EXISTS

33.Signage fails to adhere to the standards laid out by DLUHC. In the paragraph 3.1.2 of the Private Parking Code of Practise  it says :

“The entrance sign must display:

a) the fact that terms and conditions apply to accessing/parking on the site;

b) whether payment is required, or whether free parking is only available for a limited period;

c) the name of the parking operator;

d) the logo of the accredited parking association to which the parking operator belongs; and

e) where payment is required, whether on-site cash payment is available. “

It also says that : ”The size and positioning of the sign must take into account the expected speed and direction of travel of vehicles approaching the entrance and must be visible (i.e. not be obscured e.g. by foliage or other objects).”

 As shown in exhibit XX-02 the sign seen on entry does  not mention any information about charges.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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

39. 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).

40. 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.

41. Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX-09) 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-10) 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.  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.

 

 

 

 

 

 

 

 

 

XX-09 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

Exhibit XX-00A - Driver License

Private content

Exhibit XX-00B - Vehicle License

Private content

 

Exhibit XX-01A – photograph “roundabout”

Exhibit XX-01B – photograph “roundabout”

 

Exhibit XX-02 – photograph “entrance , ANPR sign“

 

Exhibit XX-03 – photograph “parking area and signage“ 

 

Exhibit XX-04 – photograph “parking area and signage“ 

Exhibit XX-05 –  photograph “parking ,’20 mins parking sign“

 

 Exhibit XX-06A –  photograph “Two lanes at the drop off“

Exhibit XX-06B –  photograph “minijunction“

 

 Exhibit XX-06C –  photograph “minijunction“

Exhibit XX-07A–  photograph “proof of postage“

Private content

Exhibit XX-07B–  photograph proof of “returned letter“

Private content

Exhibit XX-07C–  photograph “letter“

Private content

Exhibit XX-08–  photograph “records of ANPR with timing“

Private content

 

 

 

 

XX-09 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>

 

 

Exhibit XX-10 –  NCP terms and conditions

File attached

1505grandad

Please make sure that any copy and paste excercises are relevant to your case  -  for instance para 33 states IPC CoP

GreatDriver

1505grandad said:

Please make sure that any copy and paste excercises are relevant to your case  -  for instance para 33 states IPC CoP

Shall I attach IPC CoP as an additional file then or try to change the paragraph and stick to BPA  / DLUHC ?

GreatDriver

Whould this be better you think?:

33.Signage fails to adhere to the standards laid out by DLUHC. In the paragraph 3.1.2 of the Private Parking Code of Practise  it says :

“The entrance sign must display:

a) the fact that terms and conditions apply to accessing/parking on the site;

b) whether payment is required, or whether free parking is only available for a limited period;

c) the name of the parking operator;

d) the logo of the accredited parking association to which the parking operator belongs; and

e) where payment is required, whether on-site cash payment is available. “

It also says that : ”The size and positioning of the sign must take into account the expected speed and direction of travel of vehicles approaching the entrance and must be visible (i.e. not be obscured e.g. by foliage or other objects).”

As shown in exhibit XX-02 the sign seen on entry does  not mention any information about charges.

Coupon-mad

GreatDriver said:

1505grandad said:

Please make sure that any copy and paste excercises are relevant to your case  -  for instance para 33 states IPC CoP

Shall I attach IPC CoP as an additional file then or try to change the paragraph and stick to BPA  / DLUHC ?

Is it a BPA firm?  Then don't use the IPC at all.

I wouldn't use the close up of the red sign.