NCP ANPR, BW Legal 2nd response

Here's my defence, I'd be very grateful for any comments.

In The County Court
Claim No: *******
Between
National Car Parks Limited
BW Legal Services Ltd (Claimant)

-and-

********(Defendant)

____________
DEFENCE
____________

1. The claim is denied in its entirety. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.

2. The facts are that the vehicle with registration ****** was captured on an ANPR camera on the 00/00/0000 entering and exiting a private car park/land located at *********, ******.

3. The Claimant wishes to pursue the Defendant for an alleged overstay beyond the allowed “observation period”. As a member of the BPA the Claimant should be aware of comments made by Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA), where he states;
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified.”

4. It is stated of the letter of claim that the Defendant is being pursued as the registered keeper of the stated vehicle. The Defendant was not the registered keeper on the material date.

4.1. Currently, the only legislation available which allows a private parking company to hold the registered keeper liable is The Protection of Freedoms Act 2012 (POFA 2012). As the Claimant was not the registered keeper on the material date, the Claimant cannot hold any liability.

5. The Defendant denies entering into any contract with the Claimant. In the alternative, if any such contract was entered into it is denied that the driver breached its terms.

6. The particulars of claim are very vague and lack suitable information as to the grounds for the Claimant’s case. They fail to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Furthermore, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as nothing is mentioned which specifies how the parking terms were breached. These assumptions indicate that the Claimant has failed to identify a Cause of Action and therefore there is no liability towards the Defendant.

7. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

8. The Protection of Freedoms Act 2012 (POFA), at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, which in this case is £100. The Claimant includes an additional £60 in this claim, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. It is apparent that apart from court fees incurred, any added legal fees/costs are simply made up by the Claimant.

8a. The claim further includes a sum of £50 described as “Legal Representatives Costs” which are again an attempt by the Claimant at a double recovery as there is no extra work involved or any other services used by them to justify this cost incurred. The Claimant is put to strict proof, by showing time-sheets or otherwise to justify these overstated costs.

9. If a parking breach did occur as alleged by the Claimant then this would be a matter for the landowner to pursue for any damages resulting from the trespass. The Claimant is put to strict proof that there is a chain of contracts leading from the landowner to National Car Parks Ltd and that it has sufficient proprietary interest in the land and necessary authorisation from the landowner to issue pieces parking charge notices pursuing payment by means of litigation.

9a. A Parking Charge cannot be disguised as a fee or a sum in damages owed to a firm which does not own the land but allows cars to trespass upon it. The decision of the supreme court in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

10. Before submitting a claim the Claimant failed to supply a letter before action that complied with the Practice direction on pre-action conduct. The information that the letter before action did not supply was as follows:
a) Facts on which the Claimant has based this claim on
b) Documents that were requested by the Defendant upon which the Defendant intents to rely
c) How the initial charge of £160.00 has been calculated and how the Claimant justifies this
d) Any photographic evidence of the driver of the vehicle or proof of the vehicle parked in a bay or within any part of the car park

11. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

12. It is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Consequently, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Coupon-mad wrote: »

BW Legal are not the Claimant, at all.

And you said:

OK, so state that you were the driver, and remove mention of registered keeper liability from your defence, as it is superfluous for a driver defendant (i.e. remove #4 and 4.1).

Replace #8 and #8a with your #9 (move it up to #8) then have as #9:

...obviously all the £sum figures in that example will need altering to suit.

Thanks for that, much appreciated. I included point 4 because all of BW Legal's letters stated that they were pursuing me as the registered keeper.

What are the consequences of late submission of WS? How long before the court date is the typical deadline?

I'll submit it anyway, I'm guessing I've just shot myself in the foot though

thanks, presumably post and email to claimant?