BW LEGAL CLAIM FORM

rocky24

Hi there, 

Thank you for providing a platform providing such a vast wealth of information. 

I am in the process of completing my defence using the template provided and have some questions specific to my case. 

I don't recall the details of the exact offence as I parked in 2 places on the day of the alleged contravention- 16th May 2020. One of them I have evidence of paying for parking within the car park via a bank statement. The other parking took place on a street in front of shops but I obviously didn't notice any signs at the time. The 2 spots I parked in are within walking distance of each other so the contravention location provided on the letter doesn't help as it could be either of those places I have even google searched the location and the car park and street both show up on the map. I called BW legal today to try and get more information on the alleged contravention but they wouldn't share any information as the claim is not addressed to me and I didn't tell them I was driving the car at the time or that it was addressed to my husband, in hindsight I shouldn't have called as now they know I have received the claim form as I provided the claim no and my first name. 

I had ignored  all letters up until the claim form arrived which again is why I don't know what the parking offence relates to and its been 18 months since. I also moved home in January this year so thought the letters would stop.

The claim form issue date was 19th November and I submitted AOS today 3rd December, I provided my name on the AOS as the claim form was addressed to my husband as he is the registered keeper but I was driving on the day. Whose name goes on the defence letter as the template states I can't change the name that was given on the N1?

Any advice on my specific case is greatly appreciated. 

Fruitcake

It is not an offence.

Only the person named on the claim form can deal with this. It is too late for liability to be transferred to anyone else once a claim has been made.
It was a very bad idea to do the AoS in someone else's name. This is likely to cause you no end of problems that are outside the scope of most of the regulars here.

The keeper should send an SAR as per the NEWBIES to the PPC.

Ignoring a PCN has not been advised here since the law changed in 2012. The advice here is also never to 'phone a PPC or their agents.

rocky24

Thanks for your reply, do you think I should pay the claim in light of the errors made?

D_P_Dance

do you think I should pay the claim in light of the errors made?

Absoluely not .  This is a scam and , according to an MP in a debate in the HoC recently, some of these compannies  may have links to organbised crime.   

Read the newbies, read other threads, and complain to your MP..

Fruitcake

rocky24 said:

Thanks for your reply, do you think I should pay the claim in light of the errors made?

Short answer, no. I would never pay a PCN unless a judge ordered me to do so. I am assuming the PPC and their legals have added on fake debt collector amounts that have not actually been incurred, so even if the defendant lost, they wouldn't have to pay these fake add on amounts if properly defended.

I have no idea how you can rectify your errors. This is not your claim to defend and never was, so the person named on the claim form should contact the courts to find out how to untangle this mess, but there may be a cost in doing so.
The business centre may be open until 4 pm today, so there is a chance they can do something about it today since the AoS was done today, if they get on the 'phone right now, but you cannot get involved.

D_P_Dance

Here are the fake amounts to which fruity has referred above.

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

KeithP

The Defendant is still the Defendant named on the Claim Form.

I suspect the attempt to change the Defendant to a different person will be ignored.

It might be an idea to send an email to the CCBC explaining the AoS mistake and enclosing a completed AoS form. 

rocky24 said:

The claim form issue date was 19th November and I submitted AOS today 3rd December,

With a Claim Issue Date of 19th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 22nd December 2021 to file your Defence.

That's nearly three weeks away. Plenty of time to produce a Defence, but 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.

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'.

rocky24

Thanks for the reply there was an option on the AOS form to amend the name of the defendant, it gave the option to fill in Defendant’s full name if different from the name given on the claim form that's why I thought it was ok to do so.

I will do as you say by emailing the CCBC explaining the AoS mistake and enclosing a correctly completed one. 


 KeithP said:

The Defendant is still the Defendant named on the Claim Form.

I suspect the attempt to change the Defendant to a different person will be ignored.

It might be an idea to send an email to the CCBC explaining the AoS mistake and enclosing a completed AoS form. 

rocky24 said:

The claim form issue date was 19th November and I submitted AOS today 3rd December,

With a Claim Issue Date of 19th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 22nd December 2021 to file your Defence.

That's nearly three weeks away. Plenty of time to produce a Defence, but 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.

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'.

KeithP

rocky24 said:

Thanks for the reply there was an option on the AOS form to amend the name of the defendant, it gave the option to fill in Defendant’s full name if different from the name given on the claim form that's why I thought it was ok to do so.

Yes, but that is not an option to change the Defendant to a different person.
Subtle difference and I think you know that now. 

rocky24

Please may I request some feedback on my defence statement below?

____________________
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:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied as they are not the driver. 

 

3.  The Defendant first heard about this parking charge well over a year later. The defendant has been harassed, bombarded and vilified by the ‘debt recovery’ letters received since. Moreover 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.  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.

5.       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.

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 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').

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:

(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

(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, 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.

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, 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.

 

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.

Defendant’s signature:

Date: 3/12/2021

Coupon-mad

The claim form issue date was 19th November and I submitted AOS today 3rd December, I provided my name on the AOS as the claim form was addressed to my husband as he is the registered keeper but I was driving on the day. 

Then the Defendant has not acknowledged the claim, yet or at all.  The Defendant must acknowledge his claim.

This is not and never will be your case.

The bit about 'name, if different' on the paperwork, is if the Defendant got married or divorced, or changed their name.  You can't defend this.  You are a third party.

Get him to acknowledge that claim first.  Clearly no-one would pay a court claim from any PPC if they are here.