Court Claim Form received - BW legal; help with defence appreciated

OKjim

I have received a response from the solicitor arguing against my defence, do I need to send something arguing back about their arguments now or just wait for a court date?

They have finally acknowledged that an app was an option to pay.

I have found some very interesting posts by other users/victims of the same parking app on https://uk.trustpilot.com/review/www.flowbird.group

I have screenshotted them for evidence, as multiple people have reported similar issues around the time of the ticket in this case. In each case the app failed silently after the user confirmed payment. Some like me believed they had paid, only to be ticketed as the payment in fact was not taken. One person reported the app failed silently so they tried again to send payment, only to discover that the app did in fact take payment each time. Another said they had taken payment 3 times and refused to refund the extra payments.

On this evidence, it is very unclear whether it would have been correct to assume payment had been taken or had not been taken.

To me it looks quite clear now that the app was in fact going a bit haywire at the time, and hopefully the judge will see it the same.

I guess the advice is to send this information to their solicitors and tell them to shove their case?

Coupon-mad

Or wait till WS stage.

OKjim

I am at witness statement stage, I have 1 week to give it in and have just received their witness statement. Should I post it here or just bodge together my own witness statement and hope for the best?

They have written a section of counters to the template defence which could be interesting to share I suppose. Would it make sense for me to attempt to get my head around all the arguments of the template defence? Or just focus strictly on the facts of this case?

For example, do I need to address whether the extra £60 charge is a "double recovery" as they claim it is not per HHJ Saffman, or do I just leave it to the judge to decide that?

OKjim

Coupon-mad said:

But one thing you missed, I think (unless I missed it in their NTK): Armtrac omit the phrase 'and pass the notice to them' which is a POFA breach, if my skim-read of it is right, But that won't stop them proceeding and trying to assume you were driving.

I think you did miss it: They wrote "If you were not the driver of the vehicle, to notify us of the name of the driver and a current address for service for the driver AND pass this Notice on to the driver" <-- is this what you were referring to?

OKjim

Mentioning only the time, not the "period" of parking is apparently enough for the NTK to not satisfy POFA

Coupon-mad

OKjim said:

I am at witness statement stage, I have 1 week to give it in and have just received their witness statement. Should I post it here or just bodge together my own witness statement and hope for the best?

They have written a section of counters to the template defence which could be interesting to share I suppose. 

No thanks. 

Search the forum for it instead and you'll see why I replied 'no thanks'!

Show us your draft. DO NOT include the loooooong blurb after 'Exaggerated Claim' that people keep copying.

Your WS should be your account of what happened plus para 4-10 of the current (short) template defence.

Then your SoT and signature & date.

OKjim

I, Defendant, of [REDACTED ADDRESS], being the Defendant in this matter, state as follows.

1. Introduction

1.1 I am the registered keeper of vehicle [REDACTED REG]. On 9 June 2024 a Parking Charge Notice (PCN) was affixed to the vehicle at Sennen Beach Car Park, TR19 7BT.

1.2 I deny that I am liable for the sum claimed, or any sum at all, for the reasons set out below.

2. Faulty Payment System (Flowbird App)

2.1 I opened the Flowbird smartphone app and selected “Sennen Beach Car Park” because that location is listed in the app and had been used successfully before. I did not read or rely on any on‑site signage at the time, nor did I consciously accept new contractual terms; I simply attempted to pay via the familiar app.

2.2 After entering the necessary details and pressing *Confirm*, the app went to another screen without displaying any error message. At the time I believed that the payment had gone through, and that I had paid for the car to park all day. I later became aware that the payment must not have gone through when I found out there was a PCN demanding £100 payment.

2.3 My experience is corroborated by similar independent consumer reviews (Exhibits MP1–MP7) on Flowbird’s Trustpilot page and on the Apple App Store. They originate from users in the UK and North America. Flowbird deploys a single platform serving UK, USA and Canadian markets; recurring failure modes across jurisdictions demonstrate systemic defects. Key proximate examples: MP3 (accepted details then failed), MP6 (multiple debits/no confirmation), MP7 (triple charge). Earlier 2023 reviews (MP1, MP2, MP5) show longstanding issues; MP4 confirms persistence into late April 2024.

2.4 These examples show the app frequently malfunctions, creating ambiguity as to whether payment has been taken. Any apparent non‑payment is attributable to the Claimant’s defective chosen system, not to any fault of the motorist.

2.5 The Claimant’s own transaction log shows only 23 successful app payments that day, surprisingly low for a busy summer Sunday and indicative of intermittent faults.

3. Alternative Payment Method and Failure to Particularise Breach

3.1 The signage offered two routes to comply: (a) buy & display a ticket, or (b) pay cashlessly via the Flowbird app.

3.2 The PCN and the NTK each allege only “Not Displaying a Valid Pay & Display Ticket.” That description is incomplete when a cashless alternative exists.

3.3 By omitting any allegation that no app payment was made, both notices fail to describe “the circumstances in which the requirement arose” as required by POFA Schedule 4 paragraphs 7(2)(b) (PCN) and 8(2)(b) (NTK).

3.4 This lack of particularity renders both notices non‑compliant and incapable of creating liability.

4. Identity of the Driver

4.1 I have not admitted to being the driver. On Sundays I am usually a passenger and may have been dropped elsewhere before the vehicle was parked.

5. Protection of Freedoms Act 2012 (POFA) – Keeper Liability Not Established

5.1 POFA Schedule 4 paragraph 8(2)(a) requires a Notice-to-Keeper (NTK) to “specify the period of parking to which the notice relates.”

5.2 The NTK dated 9 July 2024 (Exhibit MP8) provides only a single timestamp (09/06/2024 15:01) and no start or end time, thereby failing this mandatory requirement.

5.3 In addition, both the PCN and NTK breach paragraphs 7(2)(b)/8(2)(b) because they do not describe the full circumstances of the alleged breach (i.e., that payment could be made via app).

5.4 The NTK also fails to restate the 14‑day driver‑discount provisions required by paragraph 8(2)(g).

5.5 Keeper liability cannot arise where any one POFA condition is missing; here at least three conditions are absent – paragraphs 8(2)(a), 8(2)(b) and 8(2)(g) – consistent with Excel Parking Services Ltd v Smith (HHJ Smith, Manchester CC, 2017).

6. Landowner Authority

6.1 The Claimant relies on a contract dated 4 December 2019 (Exhibit MP9). No evidence is provided that this agreement remained in force in June 2024. Accordingly, the Claimant has not shown it had authority to offer or enforce parking contracts on the material date.

7. Inadequate Signage and Site Layout

7.1 The Claimant’s own site map (Exhibit MP10) shows lengthy stretches of bays with no nearby signage or machine.

7.2 The IPC Code of Practice requires prominent signage throughout the site. The lack of signage renders any alleged contract unenforceable.

8. Unreasonable Additional Costs

7.2 The nearest parking‑terms sign to the bay where the vehicle was parked is approximately 26 metres away, as measured on Google Maps (Exhibit MP11). At that distance – as confirmed by the Claimant’s own photographs – the text on the sign is completely unreadable from the driver’s seat. The signage therefore fails the CRA requirement of prominence and the Beavis test of conspicuous notice.

8.1 The Claimant adds a £60 “debt‑recovery” fee. Such add‑ons are prohibited by the IPC Code of Practice (§15.4) and exceed the CPR 27.14 cost limits for small‑claims.

8.2 The £60 add-on is unrecoverable. POFA Sch 4 para 4(5) limits keeper recovery to the amount specified in the NTK (£100). In Excel Parking Services Ltd v Wilkinson (HHJ Jackson, 2020) the court struck out an identical £60 ‘debt recovery’ add-on as an abuse of process / double recovery because the Supreme Court in ParkingEye v Beavis confirmed the headline charge already subsumes operating & enforcement costs. The Government’s 2022 Impact Assessment likewise condemned these mostly automated ‘debt recovery’ uplifts.

9. Litigant‑in‑Person and Use of Public Templates

9.1 As a litigant‑in‑person I have necessarily drawn on publicly available defences and consumer forums. This is proper and consistent with the overriding objective in CPR 1.1.

9.2 The Claimant’s criticism of a so‑called “template defence” is irrelevant; substance, not format, is what matters.

10. Conclusion

10.1 The Claimant has failed to prove a valid contract, compliance with POFA, or continuing landowner authority. I respectfully invite the Court to dismiss the claim.

Le_Kirk

You will, of course, add a Statement of Truth at the end.

Coupon-mad

I would remove this (or at least remove 'read or') because you are expected to read signs on site:

"I did not read or rely on any on‑site signage at the time, nor did I consciously accept new contractual terms; I simply attempted to pay via the familiar app."

After 8 you have a sub para 7.2.

You've referred to a discount that is never offered in a paragraph 8 NTK because it was offered to the driver in the NTD. The NTK wasn't wrong not to re-offer a discount.

You refer to Excel v Smith and Excel v Wilkinson but haven't listed either transcript as an exhibit. The judge doesn't have or know them.

And what about VCS v Edward as well, and also There is a persuasive appeal decision about no 'period of parking':

- Brennan v Premier Parking Solutions

 (Plymouth Court, on appeal to HHJ Mitchel) ref H6DP632H, 21/8/2023 (finding: no 'period of parking' on a NTK meant that it was a non-compliant notice and a keeper could not beheld liable).

I am on a device with no access to the PDF link for that, unless @bargepole or @ParkingMad see this and can supply it.  We were given it by @troublemaker22 courtesy of Jackson Yamba.

OKjim

Coupon-mad said:

I would remove this (or at least remove 'read or') because you are expected to read signs on site:

"I did not read or rely on any on‑site signage at the time, nor did I consciously accept new contractual terms; I simply attempted to pay via the familiar app."

After 8 you have a sub para 7.2.

You've referred to a discount that is never offered in a paragraph 8 NTK because it was offered to the driver in the NTD. The NTK wasn't wrong not to re-offer a discount.

You refer to Excel v Smith and Excel v Wilkinson but haven't listed either transcript as an exhibit. The judge doesn't have or know them.

And what about VCS v Edward as well, and also There is a persuasive appeal decision about no 'period of parking':

- Brennan v Premier Parking Solutions

 (Plymouth Court, on appeal to HHJ Mitchel) ref H6DP632H, 21/8/2023 (finding: no 'period of parking' on a NTK meant that it was a non-compliant notice and a keeper could not beheld liable).

I am on a device with no access to the PDF link for that, unless @bargepole or @ParkingMad see this and can supply it.  We were given it by @troublemaker22 courtesy of Jackson Yamba.

Thanks for your criticisms. It would be great if you could share the Brennan v Premier if you get to your computer at some point? It's the only one I cannot find on public posts so far...