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  • FIRST POST
    • danslerouge
    • By danslerouge 1st Nov 18, 6:11 PM
    • 9Posts
    • 3Thanks
    danslerouge
    NCP ANPR, BW Legal 2nd response
    • #1
    • 1st Nov 18, 6:11 PM
    NCP ANPR, BW Legal 2nd response 1st Nov 18 at 6:11 PM
    I parked at an NCP car park with new ANPR that I wasn't aware of, it replaced an old pay and display in the city centre. In my POPLA appeal I stated that I thought I was within the initial grace period that you're usually allowed but they say I stayed too long. They claim I stayed 20 minutes. I know that the grace period isn't stated on their sign. I received a letter from BW legal, looked at some threads, I used post #10 on "Civil enforcement ltd parking fine" (can't post link), I replied as advised and BW responded with the email below.

    Good Afternoon

    Thank you for your email, the contents of which have been noted on file.

    1. Our Client's cause of action is that you breached the terms and conditions of the contract which you entered into by parking your vehicle in the car park without making payment of the parking charge.

    2. Our Client is pursuing you as the registered keeper of the vehicle.

    3. Our Client does not intend to rely on Schedule 4 of Protection of Freedoms Act 2012.

    4. The details of the claim are that your vehicle parked without making payment of the parking charge.
    The Parking Charge Notice (PCN) which you have been issued with is for a breach of contract. The only right which you have to enter the land In question are on the terms and conditions which apply. It is unnecessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with Our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance.

    5. Please be aware that the contract between Our Client and the landowner is a legally privileged document which you have no right to inspect. However, should this matter progress to court, the contract will be adduced as evidence.

    6. The Parking Charge Notice (PCN) which you have been issued with is for a breach of contract. The only right which you have to enter the land In question are on the terms and conditions which apply. It is unnecessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with Our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance.

    7. Our Client is under no obligation to supply this.

    8. As established members of the Independent Parking Committee, Our Client adheres to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks ('Code of Practice'). This Code of Practice gives recommendations in regards to the signage within the Car Park. The signs within the car park comply with the recommendations in the Code of Practice and are therefore deemed reasonable.

    9. £100.00 remains unpaid for the Parking Charge Notice. Additionally, you are also liable for our £60.00 instructions fee as your file has been passed to us.

    Should you wish to discuss this matter further, please contact our office on 0113 323 4479

    Kind Regards,
    bwlegal

    How should I go back to them? I am not the registered keeper of the vehicle, that is my wife. However for the initial appeal I told NCP that I was driving to avoid giving her any distress because she is currently pregnant. Also arriving today, by post, was a 2nd letter of claim, this time with additional annex about debt advice etc. They are giving me until 2nd December (it was 16 days for the 1st claim letter) to pay or respond, which is very generous of them.
Page 2
    • KINGER123
    • By KINGER123 4th Jan 19, 5:12 PM
    • 2 Posts
    • 0 Thanks
    KINGER123
    Hi New to this how do I so a new thread
    • Le_Kirk
    • By Le_Kirk 4th Jan 19, 5:14 PM
    • 3,713 Posts
    • 2,762 Thanks
    Le_Kirk
    Hi New to this how do I so a new thread
    Originally posted by KINGER123
    You need to: -
    a) Read the NEWBIE sticky on the first page of the forum and then, if you still have questions
    b) Start your own thread
    c) Use the NEW THREAD button on the front page of the forum. If you cannot see it, you might be on a phone. Forum works best on full size equipment
    • danslerouge
    • By danslerouge 13th Jan 19, 9:12 PM
    • 9 Posts
    • 3 Thanks
    danslerouge
    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
    • By Coupon-mad 14th Jan 19, 1:42 AM
    • 65,698 Posts
    • 78,231 Thanks
    Coupon-mad
    Between
    National Car Parks Limited
    BW Legal Services Ltd (Claimant)
    BW Legal are not the Claimant, at all.

    And you said:
    I am not the registered keeper of the vehicle, that is my wife. However for the initial appeal I told NCP that I was driving to avoid giving her any distress because she is currently pregnant.
    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:

    https://forums.moneysavingexpert.com/showthread.php?p=75304578#post75304578

    ...obviously all the £sum figures in that example will need altering to suit.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • danslerouge
    • By danslerouge 14th Jan 19, 10:14 AM
    • 9 Posts
    • 3 Thanks
    danslerouge
    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.
    Originally posted by Coupon-mad
    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.
    • Coupon-mad
    • By Coupon-mad 15th Jan 19, 1:13 AM
    • 65,698 Posts
    • 78,231 Thanks
    Coupon-mad
    That's because they don't know their a*se from their elbow!

    If you appealed as driver at the start, continue as driver & an honest witness in court who is not trying to hide behind a defence point that doesn't apply.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
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