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  • FIRST POST
    • DadofTwo81
    • By DadofTwo81 16th Jan 19, 5:57 PM
    • 24Posts
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    DadofTwo81
    Claim Form Received
    • #1
    • 16th Jan 19, 5:57 PM
    Claim Form Received 16th Jan 19 at 5:57 PM
    Hello All,
    I hope you are able to help me. Thanks in advance if you are.
    I have received a claim form from BW Legal acting on behalf of Britannia Parking, I have filled out the acknowledgement of service.

    The basics of the case:
    'fluttered ticket'. probably.

    I bought a ticket for 1 hour for £1. I went about, did my business within the hour, came back drove off, noticed at home that I had a PCN on my window. This was a private car park outside a retail park.
    I noticed then the parking ticket on the passenger seat.

    This is a company car, and the lease company has a history of paying fines at first sight, our lease contract says we have to pay them and my employment contract says I have to pay my employer.

    So straight off, decided to write to employer, lease company and parking company that I was the driver at the time and to lease company not to pay the fine.

    I wrote to the parking company providing evidence that I had a ticket, requesting that this be sufficient and we could let the matter drop.

    They declined to and wrote back that I could appeal via POPLA.

    I wrote back outlining via a form letter why I wouldn't be paying and offered, without prejudice save as respect to cost to settle for £5 which was a days parking at that car park.

    You will be familiar I think with the process from here.
    Escalating letters from a couple of different but interrelated companies trying to persuade me to pay them increasing sums of money.

    I wrote to them once more to tell them they must contact me only in writing, that if this came to court I would be perusing them for my costs, that I would not be paying in the absence of a judgement from a court, and they should either take the settlement, take me to court, or give up and stop wasting money writing letters.

    Some time and many letters later....

    I now have a roboclaim (based on the scanty details in the particulars) from BW Legal.
    I filled out the acknowledgement, so I have 28 days to get a defence in, which is where I need a bit of help.

    Particular of claim are 'Sum of £85 being moneys due from the dependent in respect of a Parking Charge Notice (PCN) issued at blah blah blah.
    Also Claims interest, claims £60 contractual costs.

    So in total:
    Claim £155, court fee £25, Legal representative £50 circa £230

    Given that I bought a ticket and said I was the driver I wont be pursuing those avenues in my defence.

    My thoughts were (in summary)

    1. Vexatious claim. Sum at stake = £1. Trivial sum for court case.
    2. Robo-claim, not in public interest
    3. Penalty Clause. Generally only entitled to lost earnings for breach of contract otherwise a penalty clause. No lost earnings, as I had paid what was needed. No longer Dunedin's 4 tests (pity) due to Beavis but restated as it is a penalty if ďout of all proportion to any legitimate interest'. Argument hinges on whether charging £85 for fluttered ticket is a legitimate interest. Some of the wording the Beavis judgment would say that in that case the interest was legitimate because the car park was free (this car park was not).

    I would really appreciate help in correctly sourcing the above arguments .

    Additional thoughts:
    1. I notice that the contractual terms of this car park have changed since then (and I can prove this). What advantage running a defense which asks them to detail contract in force and hope they bring the current contract not the one at the time?

    2. Do I mention the offer to settle? Or can the judge not take this into account as I made it without prejudice (save as respect to costs)?

    3. They have claimed legal representative costs. If this goes down the small claims track, can they claim these, I thought not? Would I have to dispute these in my defence (existence of, and value of, given no solicitor is likely to have had any real part in this), or is it taken as read that they can't claim these?

    4. I can wax lyrical about size of signage, but the signs have changed since then (see point 1.) and I don't have any photos of them. I tried this in my first letter, and they just said they accorded to guidelines. I don't see much mileage in this angle, other than we both assert the signs were or weren't acceptable and neither has anything concrete. Nominally they have to prove the signs were fine, but I'm not sure it's a case winning argument with a real judge.

    What is the course of events from here?
    I am assuming if they have paid the non-recoverable court fee of £25, they are planing on taking this all the way?
    If they are, where do I get to recover my costs and what costs are reclaimable?
    Do I wear a full suit and tie for the court appearance?
    Last edited by DadofTwo81; 06-02-2019 at 12:18 PM. Reason: Sp
Page 2
    • Coupon-mad
    • By Coupon-mad 11th Feb 19, 12:37 AM
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    Coupon-mad
    I briefly read about good faith in contracts would seem to suggest that in English Law, good faith is only something that can be relied on by the parties if it is expressly stated in the contract. Would that interpretation be right?
    No, with a consumer contract, the Consumer Rights Act 2015 applies and there must be good faith (that was even mentioned in the Beavis case...) in terms of fair dealing, fairness in general and transparency of terms.

    How can I get them to produce a copy of the contract with a clear reference to when this was in force.
    By 'contract' you are talking about the signs, so Google Street View might have it and you can change the date back on GSV to see an earlier timeline view which might help.

    Or Google the place and search for 'images' - maybe another forum poster has shown the signs.

    To be devils advocate (pun intended) could the claimant ask the judge to consider that the most likely set of events to be that the ticket was blown off the dash as the door closed (without offering evidence), and that that the defendant did not stop to consider his dash before leaving his vehicle (without offering any evidence).
    Yes this will be their stance. But YOU have an advantage at any hearing as YOU are the only true 'witness' sitting there with the Judge.

    The only person who was there on the day (if you defend as admitted driver) is you. Convince the Judge you are an honest witness and you are partly there.

    The Claimant can speculate about what happened (but they will merely send a hired rep, a stranger to the car park and the event) but you can state that the ticket WAS displayed when you left the car, and you can say you checked and are always diligent about this and did not breach any contract at all.

    Plus tear into the holes in their evidence and find the Achilles heel.
    Last edited by Coupon-mad; 11-02-2019 at 12:42 AM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
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    • DadofTwo81
    • By DadofTwo81 14th Feb 19, 11:58 AM
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    DadofTwo81
    Defence lodged
    Hi, Thanks so much for your comments!
    I have submitted the defence and so I await the next steps, which I understand to be a directions questionnaire from the court?

    I'm trying to summarise my lines of argument to help me get my head around it for when it comes to court:

    1. Ask for proof of a technical breach of contract
    2. Even if technical breach argue reasonable care taken to ensure compliance and so no claim
    3. Argue that consumer acted in good faith at all times so no claim
    4. Even if a breach, even if not efforts not reasonable, and good faith not considered relevant:
    a) no lost revenue, not similar to Beavis so Penalty Clause, not allowable.
    b) Maximum they could have anyway is on the notice to keeper
    c) costs claimed not reflective of actual costs
    d) Can't claim solicitors fees in SCC
    5. Even if all that doesn't work, robo claim, rubbish particulars, no effort to engage with defendant before costs incurred, taking £1 tickets to court.

    Is there anything else I am missing?
    • nosferatu1001
    • By nosferatu1001 14th Feb 19, 2:49 PM
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    nosferatu1001
    NEwbies thread, post 2, has the entire process covered. No need for questions on process, it is all covered there.

    When it comes to court, havea skeleton argument prepared. You do this AFTER you see their WItness statement and evidence bundle and you have the totlaity of their claim at that point.

    d) be very clear on tis. CPR27.14 tells you exactly wha tthey can claim. The only sol fees are the fees to file a claim. Nothing about court. Nothing elsewhere.
    • DadofTwo81
    • By DadofTwo81 14th Feb 19, 4:46 PM
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    DadofTwo81
    many thanks I will review the post again!
    • DadofTwo81
    • By DadofTwo81 3rd Mar 19, 10:14 PM
    • 24 Posts
    • 7 Thanks
    DadofTwo81
    Small Claims Mediation
    Hi All,
    The next stage has arrived, I have received a letter from BW legal that their client intends to continue the claim and they have notified the court of such.


    I understand the newbies post that I should sit tight and await the Directions Questionnaire, do not agree to the mediation service, fill out and return.


    Wait for court date, file WS and Skeleton defence.
    This I think I have down from the newbies thread. The question I have is: Is there anything I could or should be doing to prepare in the next stage, to avoid time pressures later?
    • KeithP
    • By KeithP 3rd Mar 19, 10:21 PM
    • 17,988 Posts
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    KeithP
    The question I have is: Is there anything I could or should be doing to prepare in the next stage, to avoid time pressures later?
    Originally posted by DadofTwo81
    Well yes.

    Think about what goes into your Witness Statement.

    Think about the evidence you may need.
    For example, do you need pictures of signs? Probably best to get them sooner rather than later and find the PPC has changed them or put many more up.
    .
    • Le_Kirk
    • By Le_Kirk 4th Mar 19, 9:35 AM
    • 6,716 Posts
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    Le_Kirk
    I understand the newbies post that I should sit tight and await the Directions Questionnaire, do not agree to the mediation service, fill out and return.
    Originally posted by DadofTwo81
    Correct
    Wait for court date, file WS and Skeleton defence.
    Originally posted by DadofTwo81
    You have already filed your defence, do you mean Skeleton Argument? This isn't compulsory, check out if you need one.
    • DadofTwo81
    • By DadofTwo81 6th Jun 19, 1:05 PM
    • 24 Posts
    • 7 Thanks
    DadofTwo81
    Witness statement
    Hi All,
    It's been a long while since the last post, but there have not been many significant developments since, but it is though about time to submit my evidence to the court and the claimant.

    Therefore I wonder if anyone would be willing to lend me the benefit of their experience on the documents to submit and the witness statement:

    Docs:
    Copy of the Beavis Supreme court judgement
    Copy of BPA Approved Operator Scheme Code of Practice
    A copy of the ticket purchased
    A copy of one of their particularly poor quality response letters
    Should I submit a copy of all my correspondence with them?

    Witness statement: (I have all the relevant court and claim info above and the statement of truth at the bottom but have not pasted here.

    1. On X of X 2017 I parked my car at X
    2. I purchased a ticket sufficient to cover my anticipated stay and returned to my car with the ticket.
    3. It is my routine practice to put pay and display tickets that I have purchased onto my dash, close the door, and walk away, glancing back to check the ticket is still visible.
    4. I have good factual memory and attention to detail.
    5. I cannot recall specifically placing this ticket on my dash in this instance. I can remember very few instances of placing a ticket on my dash, ever.
    6. My inability to remember this specific incidence cannot be taken as evidence that I did not do it; I can rarely recall closing the door to my house on any specific occasion, but I have never accidentally left my front door open on departing the house.
    7. Accordingly, I therefore sincerely believe that this ticket was paid for and displayed on my dash.
    8. Having paid only for 1 hour and having a number of items to attend to, I was conscious of the time and returned to my car within the allotted time and drove home.
    9. On return to my house I noticed a PCN affixed to my windscreen and observed that this was for failure to display a valid ticket (it was unclear if it was not valid, or not displayed).
    10. I supplied the claimant with evidence of a valid ticket for the time in question; they have elected to pursue this matter via litigation.
    11. It is my position that the £85 (+ additional costs) sought by the claimants is not reflective of and is grossly disproportionate to the legitimate interest of the operator in this case, and therefore not enforceable.
    12. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as may be allowable pursuant to CPR 27.14. (2) (d)
    13. I request that in light of the claimants behavior in this matter (its refusal to engage in meaningful dialog, its needless delay in bringing this action, the speculative nature of this action, the poor quality, stock nature of itís submissions, costs incurred before the claimant clarified itís cause of action and attempts to use the courts to intimidate the lay public) be considered unreasonable behavior and ask the courts to awards such costs as may be allowable, pursuant to CPR 27.14 (2) (g).

    Many thanks for everyone's help so far!
    • Coupon-mad
    • By Coupon-mad 6th Jun 19, 1:45 PM
    • 76,841 Posts
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    Coupon-mad
    Have you waited till you got their WS first? We always recommend waiting till the last days before the deadline to file & serve your own WS, so you can use it to demolish theirs.

    Therefore I wonder if anyone would be willing to lend me the benefit of their experience on the documents to submit and the witness statement:

    Docs:
    Copy of the Beavis Supreme court judgement
    Copy of BPA Approved Operator Scheme Code of Practice
    A copy of the ticket purchased
    A copy of one of their particularly poor quality response letters
    You never need to file the Beavis case as it is Supreme Court level = well known.

    You don't need to file & serve the whole BPA CoP but you could select a page or two relating to something you think they breached.

    You need to adduce copies of the signage as we doubt it requires a person to continuously display a ticket even once they've left the site.

    You need the Council key cases if you can find them, as mentioned here in #6 and #7 of a fluttering ticket defence:

    https://forums.moneysavingexpert.com/showthread.php?p=75833857#post75833857

    Some good wording there you can work into your WS.


    Should I submit a copy of all my correspondence with them?
    No.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
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    • DadofTwo81
    • By DadofTwo81 7th Jun 19, 11:41 AM
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    DadofTwo81
    Thanks for tour help Coupon!
    I have not had their WS. However this needs to with them next week, so I wonder how much longer I can feasibly hold off?

    Thanks for the info regards the SCJ. During the case I hope to refer to some of the specific points made by the judges. Whilst the case is well known - can I expect the judge to know the ruling that well, or would they automatically just bring their own copy knowing the background of the case?

    I don't make reference to the signage in my case - they changed the terms of the contract shortly after my incident, so signage photos I could bring are of limited relevance. It seems like I shouldn't therefore include them - should I anyway? I could check what they currently say regards continuous display. If they don't say it, it might be supporting evidence?
    In my case, I am asking the claimant to provide evidence that the contract entered into entitles them to what they claim.

    Will find and serve the key council cases on the matter as suggested.
    • Coupon-mad
    • By Coupon-mad 7th Jun 19, 10:13 PM
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    Coupon-mad
    Whilst the case is well known - can I expect the judge to know the ruling that well, or would they automatically just bring their own copy knowing the background of the case?
    You can expect them to know about the Beavis case not word for word) but the Judge is able to refer to it on their screen quickly if needed.

    But if you want to take some pages (in triplicate to hand out to the Judge and the rep) with you on the day in your bundle, with highlighter on it to quote from the Judges, that's fine.

    I don't make reference to the signage in my case - they changed the terms of the contract shortly after my incident, so signage photos I could bring are of limited relevance. It seems like I shouldn't therefore include them - should I anyway?
    You absolutely categorically MUST say the signs are inadequate, in your WS. The entire contract hinges on clear terms on signs so you cannot let them get away with not having to prove what the signs said.

    It's their case to prove, not yours - you just set out the banana skins!

    I would not show pics of the new signs, but I would say in your WS that you are aware that they've changed the signs which suggests they were inadequate and/or failed an audit from their Trade Body, and put them to 'strict proof'.

    Will find and serve the key council cases on the matter as suggested.
    There is a Council Penalties TPT portal with key cases on it but I've always found it tricky to find decisions based on keywords. Good luck with finding them if not just quote them anyway.

    I'd hang fire till 48 hours before you have to file & serve your WS/evidence.

    Often they seem to post theirs to arrive at a weekend, not sure if it's deliberate to make the person and their family feel bombarded by their 32 page trash (or however many pages!) and give up. I reckon it will hit your doormat tomorrow or Monday.

    When you scratch the surface, the holes in the WS & evidence are there so do not be intimidated by what on first cursory glance looks like they've covered all angles. Wrong, they never have and it's all a template of trash.
    Last edited by Coupon-mad; 07-06-2019 at 10:17 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
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    • DadofTwo81
    • By DadofTwo81 10th Jun 19, 8:17 PM
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    DadofTwo81
    Thanks Coupon,
    One point, in regards to the strict proof on the signage- that seems like a point for a defence, rather than the WS - or should I be trying to shoehorn some legal argument into the WS?


    Also, I wrote to the claimant shortly after the incident showing them proof of the ticket - should I submit this letter as evidence, and I also wrote them a without prejudice (save as respects to costs) offer to settle fairly early on - should I submit this?
    Last edited by DadofTwo81; 10-06-2019 at 8:24 PM.
    • Coupon-mad
    • By Coupon-mad 12th Jun 19, 1:52 PM
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    • 90,197 Thanks
    Coupon-mad
    or should I be trying to shoehorn some legal argument into the WS?
    I always do.



    I wrote to the claimant shortly after the incident showing them proof of the ticket - should I submit this letter as evidence,
    Yes, that can be one of your exhibits plus other cases about fluttering tickets.

    and I also wrote them a without prejudice (save as respects to costs) offer to settle fairly early on - should I submit this?
    No, you CANNOT raise WP offers in court, except when it comes to claiming costs at the end of the hearing.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
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    • DadofTwo81
    • By DadofTwo81 14th Jun 19, 11:33 AM
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    DadofTwo81
    Hi,
    I believe I have had some good news - today I received a notice of discontinuation. This would appear to be a win but ever cautious - is this the case? Can they re-initiate proceedings later and are there any pitfalls I need to be aware of? This is on the small claims court track - so am I able to claim costs this far?
    • nosferatu1001
    • By nosferatu1001 14th Jun 19, 12:43 PM
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    nosferatu1001
    If theyve discontiniued thats it. No court would allow them a fresh claim once you point out they discontiunued

    Check with the court that THEY havea copy of this notice

    No, no chance of claiming cost, but a 70p letter to the court MAY persuade them that, having discontinued only after..... were exchanged, they knew they had a poor claim and wer being unreasonable as per CPR27.14(2)(g) . Dont hold yoru breath on it.
    • DadofTwo81
    • By DadofTwo81 14th Jun 19, 1:17 PM
    • 24 Posts
    • 7 Thanks
    DadofTwo81
    Thanks for the advice. I'll make the effort - I was going to claim that they had acted unreasonably in my case anyway.
    Good point re: the court - and I have checked and they have received and closed the case.
    • Coupon-mad
    • By Coupon-mad 15th Jun 19, 12:24 AM
    • 76,841 Posts
    • 90,197 Thanks
    Coupon-mad
    Yay, well done, scam over! You won.

    Enjoy your summer with the scammers off your back.

    ANOTHER ONE BITES THE DUST!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
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    • DadofTwo81
    • By DadofTwo81 17th Jun 19, 4:12 PM
    • 24 Posts
    • 7 Thanks
    DadofTwo81
    So many thanks
    Excellent!!!!
    Thank you so much to all the people who have commented on my posts and assisted me and hopefully many others. This forum gave the confidence to stick it out to the bitter end - and I am glad that I did + I learnt a few things along the way.
    • Coupon-mad
    • By Coupon-mad 18th Jun 19, 1:51 AM
    • 76,841 Posts
    • 90,197 Thanks
    Coupon-mad
    Well done.
    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
    • DadofTwo81
    • By DadofTwo81 29th Jul 19, 11:55 AM
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    DadofTwo81
    Reply from Court recieved
    Hi All,
    I thought I would update you and see if there is anything further I can do.

    I wrote a letter to the judge, begging for some costs for having to defend myself past the point when the claimant either did or should have know they would discontinue. I got a fairly firm response from the judge's superior telling me I couldn't write to the court directly and that if I wanted a court order I would have to make an application.

    This, I think, tells me I have hit the end of the road in applying for costs, but I'm open to suggestions. I'm prepared to put in some work to rattle their cage, and put little cash behind it, if it stands any chance at all, but I can't afford to expose myself to paying their costs if I am unsuccessful.

    Are there any options that are even remotely likely to be successful here?
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