BW LEGAL County Court Claim Issued - please help

Asd345

Firstly, thank you all for your help.

So, I have amended my WS and have included abuse of process in my defence. Can someone knowledgeable please read my WS and advise if I have to make any changes to it?

Witness Statement of DEFENDANT

For Hearing on

I am xx and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge. 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:

1.      On 18/06/2021, 19/06/2021 & 20/06/2021, I was the driver of the car xx that was parked at North Car Park. Upon parking the car, we followed the signage and instructions, and my partner paid the amount due for each day via the app, entering the location reference number and making full payment for each day. The full amount was paid and the documents confirming this are attached below – see exhibit 1.

2.      Since making the payments, I have received numerous letters from BW Legal demanding a sum of £835.48, because they allege that no payment was made on the day(s) in question.

3.      Despite being provided with the evidence confirming correct payment was made, the claimant is still pursuing this claim and has added sum of £480 as ‘damages/admin’ or ‘debt collection’, when no debt or monies is owed.

 

Abuse of process - the quantum

4.      This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 193 and 198 of ParkingEye Ltd v Beavis [2015] UKSC67 (see exhibit 03). Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal', i.e. unrecoverable.

5.      My stance regarding this punitive add-on is now underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice.

6.      Adding debt recovery/costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." 30. This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £100 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

7.      The Code's Ministerial Foreword is unequivocal about abusive 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."

8.      The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response (also in February 2022), they identified that some respondents were '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 motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced. This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

9.      These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it.

10.   Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

11.   This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

12.   It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit -03) where she went into great detail about this abuse.

13.   The Semark-Jullien case is now unreliable going forward and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring muchneeded clarity for consumers and Judges across England and Wales.

14.   I am appending with this bundle, a fully detailed costs assessment which also 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 remind the court that I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid. Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.

15.   My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14 25. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

16.   The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

DEFENDANT’S SCHEDULE OF COSTS

 

17.   Ordinary Costs Loss of earnings through attendance at court hearing : £95.00

18.   Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11 Research, preparation and drafting documents (15 hours at Litigant in Person rate of £18 per hour): £270 Stationary, printing, photocopying and postage: £24

TOTAL COSTS CLAIMED £484

I have drafted the above on Microsoft Word, as part of the attachment with the above, there will be three exhibits (evidence of payment, para 98,193, 198 Beavis vs PE, and CC court judgment Wilkinson vs Excel Parking). Is this enough? Have I missed anything? I had a look at the draft WS provided by this site, as members mentioned above, the rest of it doesn't apply to me as I don't have any pictures of the car park etc, signage (the site is 150 odd miles away from me!) so I have not included those paragraphs in my WS (regarding signage etc), though I may have mistakenly included it in my initial defence that I filed.

Also, are my costs claimed reasonable?

Any help/advice will be greatly appreciated.

Coupon-mad

Few Judges ever award any costs so you are unlikely to get those anyway.

Your WS doesn't explain what went wrong and why you are still being pursued.  You are saying you paid.  If you did (and the Claimant knows this) then the allegation IS NOT that you didn't pay.

They must be alleging a VRM typo or 'paying too late' or some such scammery.

Have you seen their WS?  You need to answer to what they are actually saying, which is not that you didn't pay.

I did already say this:

Coupon-mad said:

I think the fact you paid is your main point but would never, ever advise you to make it your only point.  If nothing else you should always attack the quantum (over £830 for 3x PCNs is unconscionable by Beavis case standards) AND distinguish your case from Beavis, as the aphex007 WS example does.

What is the allegation?

Are they saying you made a typo on the app and paid for the wrong VRM or wrong location code?  Or did the system reject your payments later ... unlikely if payments are showing on your bank statement, so I guess this is all about a typo?

They are not saying you didn't pay.

Even if you don't know because they've never explained, I'd advise you to cover the 'typo' possibility and quote the BPA Cop and the new incoming DLUHC CoP about keying errors.

I'm also just copying your first post below, so that people know the level of extortion involved here, for 3 PCNs:

NCP Car Parks Limited. Back in 06/2021, I parked my car at Cambridge Station for 2 nights, I was staying at a hotel that is situated next to the rail station. For both nights, the parking was paid via their app/website on the day and I have screenshots/bank statement to prove this. Even though I advised BW legal of this via email and sent the screenshots, they have still issued this claim! They are demanding £835.48, and I won't be paying a penny.

Asd345

Their allegation is that no payment was received by them. They're not alleging it was VRN typo error, or anything along those lines - they're alleging that they reconciled their transaction log for that day and no payment showed up matching my car plate, so a contravention was occurred. However, that isn't the case, the app states my correct reg, location number that was there when we parked, and the amount due. The same amount is backed up on the bank statements of my partner.

Coupon-mad

They're not alleging it was VRN typo error, or anything along those lines -

They are and must be.

they're alleging that they reconciled their transaction log for that day and no payment showed up matching my car plate,

Yep.  "Matching your car plate".  So they are alleging typo but not spelling it out.

Have they appended a partly redacted log from the app payments received that day?  Anything odd?  Part plate?  Your partner's car selected by the app instead?

Asd345

When I filled my defence sometime ago, they sent me a letter and in that they responded to all the points I raised. Their allegation about non payment was in that letter. Since then, I have only heard from the court regarding the hearing date
 So it looks like that wasn't their WS and I should be expecting one soon?

With regards to the allegation of non payment in my WS, how should I word it? Should I say something along the lines of payment was made and claimant is still pursuing the claim? If not on payment defence, I'm hoping the claim will be struck out on abuse of process- is the rest of my WS fine and should I submit it?
Thank you for your help

Coupon-mad

They have the same WS deadline as you unless the hearing Order staggers the dates.  I'd want to see their WS and evidence first.  What are the deadlines from the court?

Asd345

At work now, double need to check the date but I think it's around 20/01 and I need to file my WS no later than 14 days before the hearing date, so within first few days of new year. So I will continue working on it for now and prepare to file it by end of this month. Thanks

Johnersh

My statement would be shorter. But you do you.

The statement needs to tell the story first and foremost. Contrary to the claimants approach its a place for facts as interpreted by the witness not pure argument.

So:

1. You saw the sign (appended) 2. You paid (app screenshots/receipts)
3. The claimant avers that they have no record of your registration but in relation to the pre-action phase of the litigation have failed to
3.1. Disclose a log or reveal if there are partial reg entries that may be tallied 
3.2. Undertake any enquiries via bank records to confirm the payment made
4. Even if there had been a minor error on your part, for example with registration input, the claimant has received full payment and has incurred no financial loss or loss in kind. If the court accepts that, it follows there can be no claim to interest and the litigation wholly avoided with proper engagement with the points raised pre-action. 
5. The additional sums sought by the claimant for an alleged breach of contract are wholly disproportionate to the contractual sum and amount to an impermissible penalty in relation to both the PCN and, certainly, the enhanced amounts which [insert - double/triple etc the sums sought] and which are ill defined in correspondence, vary in amount and are wholly unreceipted or costed. The rules permit correspondence to be bunched in date order, paginated and attached as a single exhibit.

Worth triple checking the parking location codes. Many a poster on here has fallen foul by selecting the wrong carpark. 

Asd345

Thanks, I will amend my WS statement above and post another draft here...

If, for any reason, I was to lose this case - would I have to pay the fully amount claimed by BW?  Or would it be less? Just asking so that I can budget accordingly. 

Coupon-mad

For three PCNs it would be far less than £835.48 unless you get the unlucky combo of

(a) a terrible Judge and
(b) you also get tongue tied about how to argue against the extortion of +£70 per PCN and 8% interest on the whole lot as if it were a debt from day one.

Johnersh is a solicitor with a concise and well-argued writing style.  The above is gold dust for you.