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  • FIRST POST
    • SamuelHA
    • By SamuelHA 10th Feb 19, 10:26 PM
    • 5Posts
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    SamuelHA
    Britannia and bwlegal court claim - defence
    • #1
    • 10th Feb 19, 10:26 PM
    Britannia and bwlegal court claim - defence 10th Feb 19 at 10:26 PM
    Hi,

    I am newbie that has been issued a court claim by BWlegal on behalf of their claimant Britannia Parking.

    I made acknowledgement of service a week ago using the MCOL advice and have started work on my legal defences using the newbies advice and reading similar threads where assistance has already been given.
    I intend to post my defence to Northampton County Court as a word document and also send the defence by email, then checking the MCOL gets updated to defended. I have until approximately until the end of this month Feb, to complete my defence.

    It would be much appreciated if one of the legal experts could please check my defence for any errors or recommend any omissions or changes before it is sent.

    One other point to note is that I cannot find the original photo of my vehicle which was sent with the (only) PCN I received from the Claimant. The driver of the vehicle on the date the PCN was issued is certain the parking period was for less than 30 minutes allowed. I have sent SAR's to both Britannia and BW-Legal for the photo(s) with the timestamp. From memory the photo only showed the time at exit so should be confident this part of the defence is included. I also read about 10 minute grace period before enforcement action on another thread, but not certain to include this as below.

    Many thanks

    IN THE COUNTY COURT

    CLAIM NO. CXXXXXX

    BETWEEN:

    AND:

    DEFENCE STATEMENT

    1. The Defendant is the registered keeper of the vehicle in question, the driver is not identified. The Claim relates to an alleged debt arising from the driver's ‘failure to make a valid payment’, when parking at a retail car park on XX/07/2017. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge'.

    2. The allegation appears to be that the ‘no valid payment was made’ based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of a contravention or failure to make payment. Further, this contravention cannot have occurred, given the facts and evidence.

    3. The driver of the vehicle in question was parked for less than the 30 minutes in which the Chelmsford Army & Navy ANPR signage states there is no charge for parking, and it is the Claimant's own failure, caused by their deliberately obscure terms and confusing pay and display machinery that catches out far too many victims at this location, that has given rise to a 'PCN' that was not properly issued from the outset.

    No Registered Keeper Liability due to Claimant non-compliance with POPA 2012

    4. The Defendant was issued a PCN on XX/08/2017 by the Claimant, which was received a day later for the alleged offence. The PCN was received by the Defendant more than 14 days after the alleged date of contravention on XX/07/2017. Therefore, there can be no registered keeper liability established, since the NTK issued by a camera is out of time for keeper liability and schedule 4 of POPA 2012 was not followed correctly – as states a ‘Postal PCN must arrive by day 14 if there was no window screen ticket.’ The Defendant first PCN received contained a crude copy and paste template, notifying the registered keeper that the discounted period has expired and demanding £100 parking charge as a FINAL NOTICE for 'failing to make a valid payment.' Tellingly, the Defendant had never received any earlier PCN, therefore not given a reasonable opportunity to appeal the Claimant’s discounted parking charge, no evidence had been provided of an earlier PCN issued before XX/08/2017. The PCN was duly passed on to a third party Debt Recovery Agent, Debt Recovery Plus where the alleged parking charge was immediately increased to £160, issued in Sep 2017. DRP issued a second and third notice demanding £160 and intended court action on in Sep 2017. The Defendant was then issued with a further two parking charge notices from yet another third party Debt Recovery Agent, Zenith Collections, issued in Oct 2017 and Nov 2017. Since there had been no further contact and no further evidence provided with any of the notices, the Defendant reasonably assumed that the PCN had been put aside and cancelled. Contact was then made more than a year later by the Claimant at end of Nov 2018, advising their in-house solicitor BW-Legal intended to issue a claim. It is noted the Defendant was out of the country for several weeks before the date BW-Legal issued their intended claim letter during Dec 2018 and therefore given no reasonable time frame to respond before the claim was issued in January 2019 by BW-Legal. It is reasonable to assume that the Claimant has very likely waited for a year and issued a claim at end of 2018 once the Retail Chelmsford Army & Navy ANPR had updated the 30 minute period free signage. This updated signage has obviously been required to correct the previous failings of the signage which had been in place to deliberately intend to mislead many victims at this location. Since the claim was issued the Defendant has requested Subject Area Requests from both the Claimant and BW-Legal, pending receipt.

    5. The Defendant's vehicle was parked by an insured female driver within a marked bay and according to the Claimant's own images, remained on site for less than the 30 minute period offered in large lettering on a sign, where other terms were in much smaller font size and were not visible at the date of XX/07/2018.

    6. Conclusive evidential photographs with timestamp
    6.1 The car park in which the Defendant’s vehicle was parked states a period of 30 minutes in which no charge can be levied or required by the landowner or Claimant.
    6.2 The Defendant’s vehicle, as evidenced by the Claimant’s own photographs, show the time of entry into the car park as XX/07/17 at and the time of exit as XX/07/17 is less than 30 minutes. In addition, Parking operators should also give drivers a grace period of 10 minutes to leave a car park before taking any applicable enforcement action.
    6.3 At no point was the Defendant’s vehicle in the car park during any chargeable period for which the Claimant can seek financial loss or compensation. There was no breach, and no contract at all.

    7. ParkingEye Ltd v Beavis [2015] UKSC 67 ('Beavis') also related to a retail car park, but it is fully distinguished. In the instant case before the court, there was a 'concealed pitfall or trap' in the misleading signs which were emblazoned 'FIRST 30 MINUTES PARKING FREE'. The doctrine of contra proferentem must be applied in favour of the consumer, where terms are in any way ambiguous in their drafting or display.
    7.1. There can be no 'commercial justification' nor legitimate interest in charging drivers who are patrons of the shops, for using the free parking time offered. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant who parked in good faith.

    7.2. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers).

    8. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

    8.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.

    8.2. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:

    i) Lack of an initial privacy impact assessment, and

    ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

    iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR, together with a Pay and Display style system as a secondary data processing system at this site, as opposed to a less privacy-intrusive method of parking enforcement, such as (very simply) not applying for DVLA data to issue any PCNs to keepers of cars seen on site for less than the 30 minutes advertised as free, and

    iv) Failure to consider the number of complaints from the landowner and other businesses, which would have alerted this Claimant to the fact that their ‘Pay and Display / ANPR' and confusing signage was not being seen and/or understood by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against Evans Cycles patrons, and

    v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the Pay & Display system and how the data captured on both would be used, and

    vi) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.

    9. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.

    10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.

    11. The excessive, inappropriate and unjustified use of ANPR alongside a hidden Pay & Display system is both unfair and lacking in transparency for an average consumer relying upon the large lettering offering free parking. As such, this claim must fail.

    12. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this includes litigation against patrons who stay less than 30 minutes.

    Unconscionable and unrecoverable inflation of the 'parking charge'

    13. This claim inflates the total to an eye-watering £xxx.xx, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition.

    13.1. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.

    13.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste Britannia robo-claims at all. According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on preparing a claim in a legal capacity.

    13.3. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Claimant knows this, as do their solicitors. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, arising from BW Legal clients artificially inflating their robo-claims, which are filed in tens of thousands, per year.

    14. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

    I confirm that the facts in this defence are true to the best of my knowledge and belief.

    DATE:

    SIGNATURE:
Page 1
    • KeithP
    • By KeithP 10th Feb 19, 10:28 PM
    • 14,258 Posts
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    KeithP
    • #2
    • 10th Feb 19, 10:28 PM
    • #2
    • 10th Feb 19, 10:28 PM
    What is the Issue Date on your Claim Form?

    Please wait until after my next reply on here before posting anything to the County Court Business Centre.

    Whatever you do, do not post anything to Northampton County Court which is a different place.
    Last edited by KeithP; 10-02-2019 at 10:58 PM.
    .
    • Redx
    • By Redx 10th Feb 19, 10:41 PM
    • 22,221 Posts
    • 28,085 Thanks
    Redx
    • #3
    • 10th Feb 19, 10:41 PM
    • #3
    • 10th Feb 19, 10:41 PM
    your header and footer are incorrect (no word STATEMENT for a start)

    read the concise defence by BARGEPOLE in post #2 of the NEWBIES thread

    read his opening one word headline, and his statement of truth

    this will be signed and dated and sent as a pdf to their email address as an atatchment, no need for anything else
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 10th Feb 19, 10:57 PM
    • 70,207 Posts
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    Coupon-mad
    • #4
    • 10th Feb 19, 10:57 PM
    • #4
    • 10th Feb 19, 10:57 PM
    Looks like that's based on an old one. Why not just use bargepole's concise example?
    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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    • SamuelHA
    • By SamuelHA 11th Feb 19, 7:24 PM
    • 5 Posts
    • 2 Thanks
    SamuelHA
    • #5
    • 11th Feb 19, 7:24 PM
    • #5
    • 11th Feb 19, 7:24 PM
    KeithP, the issue date is 31 Jan 2019 and the Claim Form is from County Court Business Centre with an address in Northampton.
    Thanks
    • KeithP
    • By KeithP 11th Feb 19, 7:31 PM
    • 14,258 Posts
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    KeithP
    • #6
    • 11th Feb 19, 7:31 PM
    • #6
    • 11th Feb 19, 7:31 PM
    KeithP, the issue date is 31 Jan 2019 and the Claim Form is from County Court Business Centre with an address in Northampton.
    Thanks
    Originally posted by SamuelHA
    With a Claim Issue Date of 31st January, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 5th March 2019 to file your Defence.

    That's just over three weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


    When you are happy with the content, your Defence should be filed via email as suggested here:
    1. Print your Defence.
    2. Sign it and date it.
    3. Scan the signed document back in and save it as a pdf.
    4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    6. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
    7. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
    8. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
    .
    • SamuelHA
    • By SamuelHA 15th Feb 19, 9:55 PM
    • 5 Posts
    • 2 Thanks
    SamuelHA
    • #7
    • 15th Feb 19, 9:55 PM
    • #7
    • 15th Feb 19, 9:55 PM
    I have now had time to read the concise defences by BARGEPOLE in post #2 of the NEWBIES thread, plus several other BWL defences posted. Below is my second attempt.

    I would appreciate if someone could please check if this defence content is good to go?

    I will send as signed & dated pdf attachment and email to CCBCAQ@Justice.gov.uk as per your guidance. Thanks


    In The County Court

    Claim No:

    Between

    xxxx (Claimant)

    -and-

    xxxx (Defendant)

    ____________
    DEFENCE
    ____________

    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

    2. The Defendant is the registered keeper of the vehicle in question, registration XXXXXX. The particulars of the claim, state the legal basis is brought against the Defendant for ‘breach of the terms and conditions of the car park’ by the driver. 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. when parking at xxx car park on xxx.

    2.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

    3. The Particulars of Claim state that the Defendant; was the registered keeper and/or the driver of the vehicle; xxx. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

    4. The Defendant is the registered keeper of the vehicle. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording and/or deadlines set by the POFA. Any non-compliance voids any right to ‘keeper liability’.

    5. Further and in the alternative, it is denied, that on the material date, the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. It is ,therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

    6. The Claimant is put to strict proof of full compliance that it has sufficient proprietary interest in the land under the correct address, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

    7. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs.

    8. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67. However, with no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail.

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

    Statement of Truth:

    I believe the facts contained in this Defence are true.

    Signature xxxx

    Date XXXX 2019
    • Coupon-mad
    • By Coupon-mad 15th Feb 19, 10:57 PM
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    Coupon-mad
    • #8
    • 15th Feb 19, 10:57 PM
    • #8
    • 15th Feb 19, 10:57 PM
    Looks very good. Similar advice as to this poster (might have been the same car park?):

    https://forums.moneysavingexpert.com/showthread.php?p=75467715#post75467715

    So like I said to them, add a little bit of detail about the car being there less than 30 minutes and the Claimant already knows this from the ANPR data, thus there is no cause of action and any 'obligation' to obtain a ticket for the free parking was in such small print as to be unseen.

    Thus any such term fails the basic consumer contract tests of fairness and transparency as set out in the Consumer Rights Act 2015, and such a hidden and unexpected term represented a 'concealed pitfall or trap' of the exact type that the Supreme Court Judges in Parkingeye Ltd v Beavis held would render such a parking charge as unconscionable and unrecoverable.

    If unsure about whether the car was there longer than 30 minutes, wait till you get the SAR results first, which is unlikely to take more than a week or so IMHO, so almost certainly before the first days of March when you will need to get the defence in.

    Also, was this an event from 2016 or 17?

    If so, then check the NTK for POFA wording as Britannia only changed their NTK to be able to hold a keeper liable, in the past year or so (not sure of the exact date). Before that, they could not hold a keeper liable, and if so, you need to add a point in the defence about that too. Pretty sure I wrote a point exactly like that today about the POFA and no keeper liability in a Britannia 2017 defence but it's a blur!
    Last edited by Coupon-mad; 15-02-2019 at 11:01 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
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    • SamuelHA
    • By SamuelHA 16th Feb 19, 10:52 PM
    • 5 Posts
    • 2 Thanks
    SamuelHA
    • #9
    • 16th Feb 19, 10:52 PM
    • #9
    • 16th Feb 19, 10:52 PM
    Thanks again for reviewing and your comments.

    It's likely it is the same car park as discussed in the other thread copied. I will add the less than 30 minutes and APNR data detail once certain.

    Also, could a PCN issue reason be included in the defence if 'failed to make a valid payment' is issued but the alleged breach of contract is due to the driver of the vehicle allegedly not compliant with their terms and conditions of 30 mins free parking?

    The event was from Aug 2017. I could add to the no keeper liability point under POFA. if I understand correctly, Britannia has failed POFA on two counts: 1) by not issuing the NTK within 14 days (which was my intention to cover in bullet 4) and 2) their NTK wording used in 2017 was incorrect, not compliant with POFA?
    • SamuelHA
    • By SamuelHA 11th Apr 19, 9:06 PM
    • 5 Posts
    • 2 Thanks
    SamuelHA
    Notice of Proposed Allocation to the Small Claims Track

    After filing a near perfect defence (in my view!) my case has now progressed to the Directions questionnaire (Small Claims Track) to complete and return form N180 Directions questionnaire to Northampton County Court Business Centre (form N149A)

    I've checked Bargepole's court claim procedure to fill out the N180 form correctly, no to mediation etc.
    Section B - contact details is bothering me slightly as disclosing personal contact numbers for first time in this process.

    Since I have to serve copies of the N180 form on all other parties - Britannia and BW, is this likely to lead to further contact/harassment before the case is allocated to my local court as the Hearing venue?

    Thanks
    • Coupon-mad
    • By Coupon-mad 11th Apr 19, 9:12 PM
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    Coupon-mad
    No, but if there is space you could add:

    ''This phone may be answered by minors in the family, and under the GDPR, I prohibit the Claimant or their agents to use, store, share or process this phone number''.

    And/or put something similar in the body of the email that you send to BW Legal.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
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    • Mazzamonkey
    • By Mazzamonkey 15th Apr 19, 9:49 PM
    • 20 Posts
    • 17 Thanks
    Mazzamonkey
    Hi Samuel HA

    Do you have any photos of the signs from around the time of the event? I was hoping to use in my witness statement but can only find an image from the year before online. I didn’t take photos at the time and it was over a year later they issued the LBC. I know the signage has changed and increased significantly now and although bw said they would provide photos of signs I don’t trust they will be from Aug 17

    Thanks
    • Coupon-mad
    • By Coupon-mad 18th Apr 19, 11:23 PM
    • 70,207 Posts
    • 82,782 Thanks
    Coupon-mad
    Did you change the date in Google Street View, using the little arrow & clock?
    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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