BW Legal Claim Form Via County Court Business Centre please help?

Mikeh2001

Manjaik said:

Mikeh2001 said:

Mikeh2001 said:

The issue is with the highlighted parts.  It's also refers to clamping, which I don't think is true.

Is there £100 penalty cause buried in small print? If that is true then you should exhibit the signs.

It looks like you used the template defence which covers all CRA/Beavis.  If you are going to repeat this again in your witness statement, at least make it the same content. It's not your primary defence (that's chan and the terms of your lease) but I have no reason to think it doesn't also apply.

You also have three paragraphs which are marked as "1" - that needs to be fixed.

You still have text here in your latest draft (unless you have a later one offline) that references a store and clamping which has nothing to do with your case. 

updated 

https://www.dropbox.com/scl/fi/0lcvn1bieelo1vjejxeyk/WS-BW-v1.docx?rlkey=rgmu7eyaa4jk39fexsilkaaq4&dl=0

I also think that para 36 seems a bit weird....

It doesn't seem to have changed? Also statement of truth is missing.

Manjaik

Mikeh2001 said:

Manjaik said:

Mikeh2001 said:

Mikeh2001 said:

The issue is with the highlighted parts.  It's also refers to clamping, which I don't think is true.

Is there £100 penalty cause buried in small print? If that is true then you should exhibit the signs.

It looks like you used the template defence which covers all CRA/Beavis.  If you are going to repeat this again in your witness statement, at least make it the same content. It's not your primary defence (that's chan and the terms of your lease) but I have no reason to think it doesn't also apply.

You also have three paragraphs which are marked as "1" - that needs to be fixed.

You still have text here in your latest draft (unless you have a later one offline) that references a store and clamping which has nothing to do with your case. 

updated 

https://www.dropbox.com/scl/fi/0lcvn1bieelo1vjejxeyk/WS-BW-v1.docx?rlkey=rgmu7eyaa4jk39fexsilkaaq4&dl=0

I also think that para 36 seems a bit weird....

It doesn't seem to have changed? Also statement of truth is missing.

I have removed those paragraphs about pitfalls and hidden terms, since they already mentioned in defence anyway. also statement of truth have been added, just latest version has my name etc on it already.
I have to submit today afraid it might not reach on time.

Manjaik

2nd SKELETON ARGUMENT ON BEHALF OF THE CLAIMANT

Introduction

1 For ease of reference, the Claimant relies on the entirety of the Claimant’s Previous Witness

Statement (Claimant’s 1st Witness Statement) and Claimant’s Skeleton Argument

(Claimant’s Skeleton Argument) dated 28 February 2024.

2 This skeleton argument is produced in response to the Defendant witness evidence dated 5

April 2024, received at the Claimant’s solicitor’s office on 9 April 2024.

The Defendant’s alleges authority to park

3 The Claimant repeats paragraphs 29-32 of the Claimant’s 1st Witness Statement. The

Defendant failed to provide a copy of his tenancy agreement where he alleges he has rights to

park. The document he had produced does not provide a right to park.

4 The Defendant has alleged a right to park situate the Car Park. Rights can be granted in

various ways, but must usually be set out in writing in a document granting the individual a

right of occupation of the associated premises, whether in a tenancy, lease or otherwise (Basis

of Occupation).

5 Such rights may be easements (where the landlord retains possession as servient owner), part

of the demised property, or express or implied grants (eg a right to pass and repass) (The

Right).

6 Any right granted may be subject to the grantor retaining the right to control, regulate or alter

the parking arrangements (Right to Regulate).

7 Whilst not intended to quote the multitude of case law, this confirms that:

(a) Any Basis of Occupation would be subject to production of the document relied upon;

(b) The Right would be subject to its terms, so must be subject to evidence; and

(c) A Right to Regulate may also be relevant, with their Lordships of the Supreme Court

having extensively considered a landlord’s right to regulate parking (and recognised such

rights) in Montrose Court Holdings Limited v Shamash [2006] EWCA Civ 25.

Preliminary issue: strike out based on particulars

8 The Claimant has noted increased use by Defendants relying on the County Court appeal of

Civil Enforcement Limited v Ming Tak Chan (Aug 2023) in requests for strike out of claims.

If the Court considers this persuasive decision, it must equally consider the County Court

appeal of Parking and Property Management Limited v Kieran Day (May 2023). The

decisions can be compared as follows:

(a) Both came before His Honour Judge Murch, in May and August 2023;

(b) Both considered arguments on whether the claimant’s particulars were compliant with

Practice Direction 16, and specifically paragraph 7.5;

(c) In his earlier decision of Day, HHJ Murch set out the full particulars of claim. He

determined that in Day, the particulars, as drafted by the current Claimant’s solicitors,

BW Legal, “did meet the requirements of the Practice Direction”. This Claimant relies

on the same satisfactory particulars, tailored to the facts of this claim.

(d) In his later decision of Chan, HHJ Murch did not set out the full particulars of claim, and

without sight of Civil Enforcement Limited’s full particulars of claim, it is not clear from

paragraph 5 of that judgment whether the driver’s conduct was set out at all.

9 In addition to the distinguishing particulars in each of these cases, it is submitted that the

reason for these different outcomes was down to interpretation. We refer to paragraphs 7.4

and 7.5 of PD 16:

“7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out

the contractual words used and state by whom, to whom, when and where they were spoken.”

“7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must

specify the conduct relied on and state by whom, when and where the acts constituting the

conduct were done.”

10 Both of these paragraphs request that where an agreement is entered into, the contractual

words used (for an oral agreement) or the conduct relied upon (for an agreement by conduct)

must be set out.

11 In Chan, HHJ Murch was misdirected by the Appellant’s advocate that the conduct to be

specified was the breach of the agreement (at paragraph 9 of the judgment), rather than the

conduct which created the agreement, with the Respondent not arguing against the

misinterpretation. That is not however consistent with the wording of 7.4 & 7.5, as both

require the words or conduct forming the agreement, not the breach.

12 It is submitted that Chan is distinguishable from the current claim, where the particulars do

set out the conduct leading to the contract, the place, the date and time, as in Day. It is also

respectfully submitted that Chan is incorrect for the above reasons, and as a persuasive

authority only, it must therefore be regarded with caution.

13 Further, the Claim has already passed through the hands of a judge upon allocation to the

small claims track. As such, it has already been deemed CPR-compliant.

Debt recovery costs

14 On 28 September 2021, HHJ Saffman handed down the judgment in Vehicle Control Services

Ltd v Mr Adam Percy (currently unreported) in an appeal in the County Court in Leeds. HHJ

Saffman fully considered lengthy skeleton arguments concerning Beavis, the Consumer

Rights Act 2015 and the recoverability of debt recovery costs under the parking contract (set

out in the signage) where no specific amount was set out. He concluded that:

(a) Such costs were not considered in Beavis. He said at paragraphs 42-43 "True it is, as [the

judge below] says in paragraph 15 and 16 that Beavis concerned a motorist who did not

pay but it does not touch on the question of recovery of an additional charge for Stage 2.

It deals only with the lawfulness of the original charge for failing to comply with the

contractual terms - not the additional charges for chasing up the motorist who has failed

to pay what was owed for failing to comply with the contractual terms."

(b) Such costs are not built into the parking charge, saying at para. 39 "… It is inevitable that

further work of some kind is necessary where the motorist does not respond to the PCN.

Fundamentally it requires the appellant to undertake the stage 2 activity which would

have been avoided if payment had been made at stage 1... it is not double recovery. It is

an attempt to recover in respect of stage 2 work that would not have been incurred if

payment had been made at stage 1." For the same reasons, he found that such costs were

not a duplication of post-issue legal costs restricted by CPR, as these costs relate to pre-

issue.

(c) Such costs were not unfair as against the Consumer Rights Act 2015:

(1) Considering examples 10 and 14 of Schedule 2 to the Act, he said at para 61 "I

do not think that the term, albeit that it seeks an unquantified amount, causes a

significant imbalance in the parties' rights and obligations. As HHJ Maloney

QC observed [in Beavis], the motorist is being given the valuable privilege of

parking on private land in return for a promise to pay a specified sum in the

event that he/she fails to display a ticket and, in this case, an additional sum if

he/she fails to pay the specified sum."

He went on to say at para 64 that "...any imbalance in that case did not arise

contrary to the requirements of good faith because ParkingEye and the owners

had a legitimate interest in inducing Mr Beavis not to overstay... I do not see

why VCS does not have a legitimate interest in inducing motorists to pay on

receipt of the PCN so as to avoid... the stage 2 procedure."

(2) Considering example 6 of Schedule 2 to the Act, he said at para 65 & 66. "VCS

is governed by a Code of Practice which currently limits the additional charge

to £70.00. I fully accept that the Code of Practice does not bind the court but it

is clearly a consideration in the context of all the circumstances. The Supreme

Court in Beavis had in mind the Code of Practice in the course of its finding

that the contract term was fair…It is also appropriate to observe that I do not

think that the charge of £60 is excessive or disproportionate. Even if that sum

does not represent VCS' loss, it cannot be said that it is a charge that is higher

than is necessary to achieve VCS' legitimate objective of inducing motorists to

pay at stage 1." He also concluded at para 57 that previous judgments up and

down the country in the County Court had erred in their findings that such a

term was unfair.

(d) Finally, he also found that such costs were not contrary to paragraph 4(5) of Schedule 4

of the Protection of Freedoms Act 2012 given it sets out the content of the PCN, but

regardless of this, para 4(6) provides for an “other remedy”.

15 Under the Claimant’s Trade Association’s Code of Practice, where parking charges become

overdue, debt recovery charges may be added. This was endorsed by HHJ Saffman in the

above appeal, acknowledging the Supreme Court’s recognition of the Code of Practice in

Beavis.

Conclusion

16 In light of the foregoing, the Claimant’s claim ought to succeed and judgment be granted for

the following sums:

(a) The parking charge - £800.00

(b) Debt recovery costs - £480.00

(c) Court fee – issuing the claim - £80.00

(d) Hearing fee - £123.00

(e) Solicitors costs on issue (CPR 45.2) - £80.00

(f) Interest as the court deems fit - £91.71

BW Legal Services Limited

Date: 18/04/2024

Manjaik

Received this today

Coupon-mad

They've tried hard, but given these facts:

(a). the Claimant has in fact incurred/paid NOTHING for debt recovery because the reminder letters are done on a no-win-no-fee basis in the parking industry, and;

(b). HHJ Saffman was misled (or misdirected himself) in VCS v Percy (2021) into a bare presumption that "there must be costs" for stage 2 (in fact there were none, and not a single debt recovery letter was even in evidence, let alone payment by the Claimant for same) AND he wrongly took it upon himself to look up and quote from the BPA Code of Practice after the hearing, which had not been relied upon by either party ... because VCS aren't in that Trade Body(!) AND he was also incorrectly persuaded by the DLUHC's Summer 2021 Public Consultation, where (at that early stage) the Government wrongly suggested that they might just copy the BPA & IPC 'cap' of £70 DRA fees ... a wholly disproportionate idea that they dumped after hearing evidence from responders to the Consultation (and then described it as "extorting money from motorists"), and;

(c). HHJ Murch's two decisions differ because in Day, the POC were only briefly referred to in passing and were not the crux of the appeal nor his judgment, whereas the later appeal in Chan focused solely on the inadequacy of the typical parking case boilerplate POC, and;

(d). In any event, even if one accepts the Claimant's desperate 'second skeleton' point, that a POC must state the conduct/terms agreed (as opposed to the breach) these BW Legal POC specify neither, and;

(e). even if one begins to think about the Trade Body Code's self-serving 'cap' that rewards their members for bad practice and aggression at pre-action stage (by lining their pockets more if they can reach the later stage), it is clearly intended to be a cap of £70 for DRA 'work' which could never be reasonably or in good faith be claimed in multiples (per PCN), morphing to an eye-watering £480, and;

(f). even if one begins to think about that, clearly the Consumer Rights Act 2015 (AND the rationale in Beavis) disallows a sum so disproportionate and punitive as to be unconscionable.  It is clearly unrecoverable to try to 'extort' (DLUHC Minister's word) £480 as punishment against a motorist for 'work' that the DLUHC's draft Impact Assessment shows costs under £9, and;

(g). In any event, BW Legal have described these as "our costs" in other cases.  In other words this is their extra (hugely inflated) piece of the pie, working out at some SIX TIMES the costs of drawing up and completing Will services, for example, and on a par with house purchase disbursements!  You do not, in any other industry, see a more obviously unconscionable money-grab than this unjustified enhancement. It's not a 'contractual charge' owed to a parking operator at all.  And the small claims rules deliberately 'cap' legal fees at £80 (CPR 45.2) which is per CASE not per element of case, and the cap is there to cover minor work in anticipation of litigation (e.g. the very minor cost of sending a template LBC) as well as post-claim costs, and that £80 is already included on the claim form.  BW Legal cannot have more ... and if they did get that eye-watering sum, or even a portion of that, they'd have to account for VAT on it because it's a debt recovery fee, yet in similar cases when this is queried, BW Legal have stated that "VAT doesn't apply".  One might say, if it looks like a duck and quacks like a duck... ergo, someone appears to be making a LOT of money without any tax (seemingly) going to HMRC. A third party's fees for such services are not 'PCNs' and if they are not accounting for VAT on that 'fee' there are serious concerns about parking roboclaim firm's VAT accounting (already raised with HMRC recently). The courts cannot possibly allow that;

...the conclusion must be that the added £480 has no merit and is arguably an abuse of the court process and the doctrine of good faith.  Certainly charging £480 to run an aggressive 'template letters' strategy that FAILED to recover £800 and merely delayed the claim, bears all the hallmarks of double recovery. 

Manjaik

I see, what would you suggest ? @Coupon-mad

Manjaik

hearing is on Friday. so will get prepared.

Manjaik

Okay so had a hearing today, and so far Judge asked claimant how can charges be imposed to a person who has tenancy agreement with Landlord.
however there was a debate that flat I live in is managed by housing company, but my tenancy agreement is with Landlord who bought the apartment.

Also was a discussion regarding parking permit, have I contacted the parking company regarding this I have, had back and forth emails stating I haven’t received the permit, and that i have to make another witness statement regarding this, which I can. 

Did not had chance to say my main points of argument like PoC. Ot filled nor point out precedents….

Coupon-mad

Manjaik said:

Okay so had a hearing today, and so far Judge asked claimant how can charges be imposed to a person who has tenancy agreement with Landlord.
however there was a debate that flat I live in is managed by housing company, but my tenancy agreement is with Landlord who bought the apartment.

Also was a discussion regarding parking permit, have I contacted the parking company regarding this I have, had back and forth emails stating I haven’t received the permit, and that i have to make another witness statement regarding this, which I can. 

Did not had chance to say my main points of argument like PoC. Ot filled nor point out precedents….

So, was this only a short 30 minutes facts & Directions Hearing?  The Hearing Order that gave you this hearing date tells you.

Manjaik

Coupon-mad said:

Manjaik said:

Okay so had a hearing today, and so far Judge asked claimant how can charges be imposed to a person who has tenancy agreement with Landlord.
however there was a debate that flat I live in is managed by housing company, but my tenancy agreement is with Landlord who bought the apartment.

Also was a discussion regarding parking permit, have I contacted the parking company regarding this I have, had back and forth emails stating I haven’t received the permit, and that i have to make another witness statement regarding this, which I can. 

Did not had chance to say my main points of argument like PoC. Ot filled nor point out precedents….

So, was this only a short 30 minutes facts & Directions Hearing?  The Hearing Order that gave you this hearing date tells you.

This was a 90 minute hearing Judge was questioning the Claimant mostly. and only few questions asked to me.