NCP, BW Legal & Impending LoC

Coupon-mad

I have amended so that para 1 ends with "Liability is denied"

No it doesn't! 

Don't remove the important end phrase from para 2 "the boilerplate text in the Particulars of Claim ('the POC')" otherwise the lower parts of the template that talk about "the POC" make no sense.

Add some simple words to join the dots and bring that phrase back in.

And obviously you must have spotted when you went through the template as carefully as you did, that the first phrase in para 4 does not apply in your case because there WAS a small loss (the parking fee)?

I think para 3 & 4 should say:

3. The Defendant recalls arriving in the driving rain on the material date in May 2021 and noted down the car park code from a payment terminal located directly underneath two large yellow signs, one stating ‘Have You Paid’ above the claimant's brand name and another which stated ‘Pay Here’.

3.1.  The Defendant accessed the required mobile app, paid the appropriate fee and later, within the allotted time, returned to their car and exited the car park.

3.2.  The Defendant knew nothing about this 'parking charge' until they received a misleadingly-worded £170 debt demand three months later, in August 2021 and immediately supplied proof of app payment. The Claimant and its agents did not respond to this contact or three subsequent attempts from the Defendant to get to the bottom of it.

3.3.  As the threats became more aggressive and the matter dragged on for two years with no explanation from NCP, the Defendant revisited the site to acquire evidence. It was at this point that it was realised payment had been made to a separate car park operator, whose machine and app code was placed immediately adjacent to the Claimant's signs. It was impossible to distinguish between the two areas, as the other operator's bays were directly opposite the last row in the NCP car park, separated only by a thin yellow rail at licence plate height (thus hidden by cars). The Defendant has photo evidence of this poor delineation of the site boundaries.

4. The Claimant will concede that clarity of site boundaries is every bit as important in a car park as clear signage.  Consumer notices in a car park context include all messages (whether they include text, images, arrows or physical barriers: including signs, lines and boundary delineation).  Both operators are at fault if it is unclear to an honest, paying motorist which car park code and bay areas are which, when two parking areas are immediately adjacent.

4.1.  The only minor loss is a parking fee and this was caused by a failure by this Claimant.  This set up was a 'concealed pitfall or trap' (Supreme Court's phrase in the seminal ParkingEye authority where the learned Judges' discussed cases that would be unfair and thus, unenforceable). In order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(as template).

You also seem to have missed reading this recent development and adding a paragraph explaining it and asking your Judge to strike the claim out:

https://forums.moneysavingexpert.com/discussion/6473149/major-judgement-where-judge-strike-out-the-claim-form/p1

How to word that is seen in the thread by @manooo - albeit they only had 2 other ordinary strike out judgments, and not this REALLY IMPORTANT third one!

Another thread at exactly the same stage as yours tonight is by @andyl3004

stutaylor86

Coupon-mad said:

I have amended so that para 1 ends with "Liability is denied"

No it doesn't! 

Don't remove the important end phrase from para 2 "the boilerplate text in the Particulars of Claim ('the POC')" otherwise the lower parts of the template that talk about "the POC" make no sense.

Add some simple words to join the dots and bring that phrase back in.

And obviously you must have spotted when you went through the template as carefully as you did, that the first phrase in para 4 does not apply in your case because there WAS a small loss (the parking fee)?

I think para 3 & 4 should say:

3. The Defendant recalls arriving in the driving rain on the material date in May 2021 and noted down the car park code from a payment terminal located directly underneath two large yellow signs, one stating ‘Have You Paid’ above the claimant's brand name and another which stated ‘Pay Here’.

3.1.  The Defendant accessed the required mobile app, paid the appropriate fee and later, within the allotted time, returned to their car and exited the car park.

3.2.  The Defendant knew nothing about this 'parking charge' until they received a misleadingly-worded £170 debt demand three months later, in August 2021 and immediately supplied proof of app payment. The Claimant and its agents did not respond to this contact or three subsequent attempts from the Defendant to get to the bottom of it.

3.3.  As the threats became more aggressive and the matter dragged on for two years with no explanation from NCP, the Defendant revisited the site to acquire evidence. It was at this point that it was realised payment had been made to a separate car park operator, whose machine and app code was placed immediately adjacent to the Claimant's signs. It was impossible to distinguish between the two areas, as the other operator's bays were directly opposite the last row in the NCP car park, separated only by a thin yellow rail at licence plate height (thus hidden by cars). The Defendant has photo evidence of this poor delineation of the site boundaries.

4. The Claimant will concede that clarity of site boundaries is every bit as important in a car park as clear signage.  Consumer notices in a car park context include all messages (whether they include text, images, arrows or physical barriers: including signs, lines and boundary delineation).  Both operators are at fault if it is unclear to an honest, paying motorist which car park code and bay areas are which, when two parking areas are immediately adjacent.

4.1.  The only minor loss is a parking fee and this was caused by a failure by this Claimant.  This set up was a 'concealed pitfall or trap' (Supreme Court's phrase in the seminal ParkingEye authority where the learned Judges' discussed cases that would be unfair and thus, unenforceable). In order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(as template).

You also seem to have missed reading this recent development and adding a paragraph explaining it and asking your Judge to strike the claim out:

https://forums.moneysavingexpert.com/discussion/6473149/major-judgement-where-judge-strike-out-the-claim-form/p1

How to word that is seen in the thread by @manooo - albeit they only had 2 other ordinary strike out judgments, and not this REALLY IMPORTANT third one!

Another thread at exactly the same stage as yours tonight is by @andyl3004

Brilliant, thank you very much!

I have added the strike out points from the suggested thread and the relevant images.

Before i repost i wanted to check this too please. I spotted the below in the other thread and wondered whether i should add too, as it is accurate for my case too. The only thing i thought is whether it clashes/contradicts with the way para 3 is now lain out with reference to no contact until the debt collection cowboys.

5. The Defendant did not receive initial communication from the Claimant until inflated charges had been added, as correspondence was sent to a previous address linked to the Defendant’s vehicle’s V5 document.  Thus the Defendant was denied any opportunity to appeal because the current parking industry line is "it's too late - pay up and pay more".  This despite the fact that the Government's new statutory Code (linked later in this defence) requires a fresh Notice to be served at the original rate, and appeal to be made available, in cases where the first Notice was not received. 

stutaylor86

stutaylor86 said:

Coupon-mad said:

I have amended so that para 1 ends with "Liability is denied"

No it doesn't! 

Don't remove the important end phrase from para 2 "the boilerplate text in the Particulars of Claim ('the POC')" otherwise the lower parts of the template that talk about "the POC" make no sense.

Add some simple words to join the dots and bring that phrase back in.

And obviously you must have spotted when you went through the template as carefully as you did, that the first phrase in para 4 does not apply in your case because there WAS a small loss (the parking fee)?

I think para 3 & 4 should say:

3. The Defendant recalls arriving in the driving rain on the material date in May 2021 and noted down the car park code from a payment terminal located directly underneath two large yellow signs, one stating ‘Have You Paid’ above the claimant's brand name and another which stated ‘Pay Here’.

3.1.  The Defendant accessed the required mobile app, paid the appropriate fee and later, within the allotted time, returned to their car and exited the car park.

3.2.  The Defendant knew nothing about this 'parking charge' until they received a misleadingly-worded £170 debt demand three months later, in August 2021 and immediately supplied proof of app payment. The Claimant and its agents did not respond to this contact or three subsequent attempts from the Defendant to get to the bottom of it.

3.3.  As the threats became more aggressive and the matter dragged on for two years with no explanation from NCP, the Defendant revisited the site to acquire evidence. It was at this point that it was realised payment had been made to a separate car park operator, whose machine and app code was placed immediately adjacent to the Claimant's signs. It was impossible to distinguish between the two areas, as the other operator's bays were directly opposite the last row in the NCP car park, separated only by a thin yellow rail at licence plate height (thus hidden by cars). The Defendant has photo evidence of this poor delineation of the site boundaries.

4. The Claimant will concede that clarity of site boundaries is every bit as important in a car park as clear signage.  Consumer notices in a car park context include all messages (whether they include text, images, arrows or physical barriers: including signs, lines and boundary delineation).  Both operators are at fault if it is unclear to an honest, paying motorist which car park code and bay areas are which, when two parking areas are immediately adjacent.

4.1.  The only minor loss is a parking fee and this was caused by a failure by this Claimant.  This set up was a 'concealed pitfall or trap' (Supreme Court's phrase in the seminal ParkingEye authority where the learned Judges' discussed cases that would be unfair and thus, unenforceable). In order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(as template).

You also seem to have missed reading this recent development and adding a paragraph explaining it and asking your Judge to strike the claim out:

https://forums.moneysavingexpert.com/discussion/6473149/major-judgement-where-judge-strike-out-the-claim-form/p1

How to word that is seen in the thread by @manooo - albeit they only had 2 other ordinary strike out judgments, and not this REALLY IMPORTANT third one!

Another thread at exactly the same stage as yours tonight is by @andyl3004

Brilliant, thank you very much!

I have added the strike out points from the suggested thread and the relevant images.

Before i repost i wanted to check this too please. I spotted the below in the other thread and wondered whether i should add too, as it is accurate for my case too. The only thing i thought is whether it clashes/contradicts with the way para 3 is now lain out with reference to no contact until the debt collection cowboys.

5. The Defendant did not receive initial communication from the Claimant until inflated charges had been added, as correspondence was sent to a previous address linked to the Defendant’s vehicle’s V5 document.  Thus the Defendant was denied any opportunity to appeal because the current parking industry line is "it's too late - pay up and pay more".  This despite the fact that the Government's new statutory Code (linked later in this defence) requires a fresh Notice to be served at the original rate, and appeal to be made available, in cases where the first Notice was not received. 

Presumably after the examples of strike outs and accompanying images, i still retain the remainder of the defence template from the below section onwards? 

Exaggerated Claim and 'market failure' currently being addressed by UK Government

B789

stutaylor86 said:

Presumably after the examples of strike outs and accompanying images, i still retain the remainder of the defence template from the below section onwards? 

Exaggerated Claim and 'market failure' currently being addressed by UK Government

Yes.       

stutaylor86

Ok thanks everyone. My updated and renumbered defence now runs to 15 pages and below is the new section from the start including the strike out claims.

The rest is as per the template from the "Exaggerated Claim..." heading.

Is there anything else I need to add before submission? I have until Monday at 1600 but would like to get boxed off asap as I'm due on a flight at 1800 on Monday.

DEFENCE

 

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, assuming the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

 

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case.  The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper and driver of the vehicle.

 

3. The Defendant recalls arriving in the driving rain on the material date in May 2021 and noted down the car park code from a payment terminal located directly underneath two large yellow signs, one stating ‘Have You Paid’ above the claimant's brand name and another which stated ‘Pay Here’.

3.1.  The Defendant accessed the required mobile app, paid the appropriate fee and later, within the allotted time, returned to their car and exited the car park.

3.2.  The Defendant knew nothing about this 'parking charge' until they received a misleadingly-worded £170 debt demand three months later, in August 2021 and immediately supplied proof of app payment. The Claimant and its agents did not respond to this contact or three subsequent attempts from the Defendant to get to the bottom of it.

3.3.  As the threats became more aggressive and the matter dragged on for two years with no explanation from NCP, the Defendant revisited the site to acquire evidence. It was at this point that it was realised payment had been made to a separate car park operator, whose machine and app code was placed immediately adjacent to the Claimant's signs. It was impossible to distinguish between the two areas, as the other operator's bays were directly opposite the last row in the NCP car park, separated only by a thin yellow rail at licence plate height (thus hidden by cars). The Defendant has photo evidence of this poor delineation of the site boundaries.

4. The Claimant will concede that clarity of site boundaries is every bit as important in a car park as clear signage.  Consumer notices in a car park context include all messages (whether they include text, images, arrows or physical barriers: including signs, lines and boundary delineation).  Both operators are at fault if it is unclear to an honest, paying motorist which car park code and bay areas are which, when two parking areas are immediately adjacent.

4.1.  The only minor loss is a parking fee and this was caused by a failure by this Claimant.  This set up was a 'concealed pitfall or trap' (Supreme Court's phrase in the seminal ParkingEye authority where the learned Judges' discussed cases that would be unfair and thus, unenforceable). In order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

 

5. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

6. In addition to these facts, a recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The Defendant asserts that this Claim is based upon an agreement by conduct. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the POC. See below.

7. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. See below.

 

8.  Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. See below.

 

9. Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. See below.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

10. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:  

stutaylor86

Hi, just an update on this to share. Since submitting my defence on time and receiving email and postal confirmation, I’ve now had 2 letters from BW Legal pressuring me to settle on the basis their client intends to proceed and i am likely to get a CCJ if i lose in court.

I’ve completely ignored these but from reading a couple of other threads it seems like this is their standard approach now.

KeithP

Remember that checklist you were following when you filed a Defence?

Item 7 on that list tells you to expect that 'intends to proceed' letter and what to do with it.
Items 8, 9 and 10 on that list might also be useful in the coming days/weeks.

stutaylor86

Further brief update - the usual letter from BW Legal received pushing for settlement along with their N180 form which included a yes to mediation but a no to hearing on papers.

I've since had my N180 from the form and have now completed and submitted that per the instructions in the Newbies thread, so a no to mediation and also a no to hearing on papers (the reasons to include for the latter took a bit of finding but were very useful when i did!).

Fingers crossed the next correspondence i receive is one of discontinuance! 

stutaylor86

Hi all, alas the next communication was not a discontinuance but the following letter which was also accompanied by the NCP ANPR evidence and PCN letters that i had already seen from my SAR to them last year (and which went to an old address, hence this getting this far):

(Image removed by Forum Team)




I haven’t spotted anything similar on other recent BW Legal threads, should i be concerned that they have gone to the trouble of responding to specific aspects of my defence (even if they have paraphrased them terribly)? Or does this give me something to use against them later? Or perhaps is it simply more bin fodder?


On a related note, my wife has been reading up (as she is the keeper and we weren’t given the chance to name me as the driver due to the errant initial letters) and she has been spooked by the fact that there seem to have been a few lost cases on here involving BW Legal of late. She is doubly concerned on the basis that she is a solicitor (not this area of law sadly) and were we to lose, the subsequent judgement entered, even if we paid immediately so it was lifted, would affect her professionally. Is there any substance to this or has anyone encountered anything similar that could put her mind at rest? Does a lost case and immediate payment class as a CCJ set aside, or is it nothing of the sort? 

I’m keen to continue fighting but clearly, painful as it would be, the cost to pay here pales against a potential impact on livelihood.

Coupon-mad

No, the judgment would not affect her if she lost and paid. See what @Johnersh says to reassure her on that point, as he is also a solicitor.

But if she's only the keeper and wasn't driving, how on earth can she lose? I doubt the NTK is a POFA worded one? The two types of NTK from NCP are shown on my thread of NTK pictures.