NCP/BW ANPR PCN Claimform - case stayed - now N244 to lift stay and resume the claim - Ashford park mall

[FTMDave]

20 hours ago, spikes62 said:

They have my WS and I have there’s scan it tomorrow.k

Have you posted your WS here? I can't find it. 

[lookinforinfo]

It's a shame that you did not post up their WS and yours as there may have been things that we could see which would help strengthen your case. Would you please post up their WS now to see if there is something more we can glean to help you. 

 

It is possible that they have updated their signs since you received your PCN. They are supposed to show the ones that were relevant at the time not the current ones.

 

If they have improved them compared to what you saw that could strengthen their case. As you took photos of the carpark before they changed their signs,  apart from disabled bays, what else is different. The font size of their signs for instance ?

 

 Get them to  confirm  when they up dated them and do they have copies of the signage when you parked there. Ask them in Court so hopefully they cannot produce them.

 

Then say it calls into question the legality of their old signs if they felt it necessary to change them. Perhaps they had lost a case or two their because their signage was not good enough.

 

I am not sure that even if you found out that there was no planning for their signs that you could raise it now.  Most councils now have a  website for their planning dept. Usually all you need is the carpark postcode.

 

Unfortunately you appear not  to have put enough work into your case so so many things that you have been asked for have not been downloaded.

 

But you do need to see a copy of their contract and post it up here. Get them to email it or try getting a copy from the Court if you are having difficulty. 

[spikes62]

They said it was in the CPR 31.14 pack but it wasn’t.  Also its not in the WS bundle either s they might not produce it at court.  Ther are loads of errors in the WS they supplied which if i get the opportunity i will raise in court.  I will scan and post my defence tomorrow 

[FTMDave]

Rereading the thread it seems like lack of keeper liability and their rubbish signage will be your strongest points 

[spikes62]

ok here is my defence  sorry merged page 2 first

Def merged (1).pdf

[FTMDave]

Is this your defence or your Witness Statement? 

[dx100uk]

On 10/11/2018 at 14:22, spikes62 said:

N THE COUNTY COURT

 

CLAIM No:

 

BETWEEN:

 

BW Legal services LTD

 

-and-

 

 

 

________________________________________

DEFENCE

________________________________________

All correspondence from BW Legal were sent to the wrong address for the registered keeper and such like I have had no opportunity to discuss the issues with them. I believe the claimant has behaved unreasonably by not ensuring they used my correct contact details. . I suggest the claimant did not make reasonable enquiries as to my current address before perusing the court order especially considering they had good reason to believe they did not hold my current contact details. Furthermore, considering they received no response from me to their correspondence this should have been a clear indication of the obsolescence of the address. This is clearly a breach of the GDPA I am still waiting for answers to my questions. A counterclaim for breach of GDPA will be forthcoming.

The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at car park on 30/11/2017.

 

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 contractual costs pursuant to PCN Terms and conditions which the Defendant submits have not actually been incurred by the Claimant.

 

In the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £247.80 This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14)

 

According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

 

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.

 

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. They are at the entrance to the ramp going into the car park and it would be dangerous to stop and read the sign. Video to be presented to the court.

 

The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily particularly at night in a badly lit area It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

The area in which the driver parked had NO signage displayed, photo to be provided, and when the driver was ready to purchase a ticket there was NO signs in and around the pay area. Photo to be presented to the court.

Any contract must have offer, acceptance, and consideration both ways. There would not have been consideration from the claimant to the driver. Therefore, there is no consideration from the driver to NCP.

On this basis I believe that the claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

 

I would like to enquire that 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 by means of litigation.

 

The Protection of Freedoms Act 2012, Schedule 4, 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, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

 

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.

 

I believe the facts contained in this Defence are true.

 

Name:

 

Date:

 

 

My defence feel free to let me know where I have gone wrong please

 

looks like a re hash of the above defence that was filed nov 18....

[FTMDave]

Yes, it's headed "Defence" but I suspect it's a WS. 

 

You go on and on, and then on some more, about not playing your cards too soon. If ever there was a case that proves you are 100% right, this is it. The defence was ridiculously detailed and BW Legal have done some work for once and have been able to counter every point. 

[FTMDave]

spikes62, can you please upload the Claimant's WS without the car registration number and your son's address showing? People are trying to help, but you're not making it easy. dx asked for this in post 127 as did lookinforinfo in post 132.

[spikes62]

got it right this time

BW_Witness-compressed_compressed_compressed (1).pdf

[lookinforinfo]

There are some things to be queried on their WS.

 

It would have helped if we had seen it before you had completed yours.

Then you could have answered a lot of his points on your WS which makes it easier for the Judge to get your points.

 

Looking at their WS on

 

number 9 ]

their signs are not large and highly prominent.

Most of them are small and their font sizes are far too small.

 

In addition the first sign should contain their T&Cs so that you know what you are driving into.

 

Their first sign says  Terms and conditions apply but nothing is legible from their photo and too far away to read while driving. So you don't know  what their terms are. you don't know if the parking is free, or you have to pay, who runs it or anything else.

 

Appendix B of the BPA code of Conduct states that

"The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead." That is certainly not the case here. There is so much light reflection too that renders the whole sign almost illegible. And the writing that is below the headline is too small to read from any car. So it is an offer to treat -no need to accept the T&Cs because they cannot be read.

 

In addition the BPA Code says  at 28.1

"A driver who uses your private car park with your permission does so under a licence or contract with you.

If they park without your permission this will usually be an act of trespass". 

The driver of your car did not pay so did not have permission to stay so they were trespassing.

Only the landowner can sue not the agent.

 

14] there is more to the contract than just the signage-though that fails here anyway with unreadable sign at the entrance and most of the signs dotted around are too small and there fore sizes too small also.

 

A contract requires PoFA compliant PCNs as they are relying on keeper liability; a contract signed by  the landowner; compliant with all legislation for running a carpark to be in place and  compliance with BPA Code.

 

16] the driver would have agreed to the T&Cs if had they paid. As they didn't pay, they didn't accept the Terms and so were trespassing 

 

30] it is averred that the solicitors did not send their correspondence and Letter of claim to the same address as the Creditor .The keeper found out much later that the solicitors correspondence was sent to the wrong address. This was a complete breach of the keeper's data protection. The last known residency was the address on the DVLA register and to which the Creditor had correctly sent their PCN's.

 

36] the keeper was not being disingenuous when he said that he did not live there. it was only by luck that the addressee who received the claim form passed it on to the keeper albeit some time later. It is the fault of the legal team that they sent the vital correspondence to the wrong address.

 

37] it is BW legal who are being disingenuous here as they did not send their mail to the last known address. The Creditor managed it without a problem why couldn't the legal team.

 

38] the keeper was lucky to have  received the Claimform from the person residing at another address from mine so am at a loss what BW legal can aver that the Claim was properly served. The fact that the Defendant was able to file the defence in time was no thanks to the incompetence of BW legal.

 

39] it is quite clear that BW legal are in breach of the Defendant's GDPR.

 

44] the keeper was not being disingenuous in not identifying the driver. Under PoFA there is no obligation for him to do so and it is therefore incorrect of BW legal to say that the defendant was being ingenuous.

 

45] surely BW Legal should know that in Law there can be no assumption that the keeper is the driver.

 

48] as the Defendant is being presumably sued as the keeper then he can only be charged with the amount quoted on the Signage. As keeper the Defendant has no contract with either the Creditor nor their Legal team .

 

49] it is questionable that anything was agreed by the driver since no money was paid on the day. And certainly do not apply to the keeper.

 

In any event under the Debt Collection Guidance by the OFT they stated that even if there was a contract with the driver, the amount should not be disproportionate to the principal.  £60 is totally disproportionate and should be considered as a penalty.  I am surprised that BW Legal are including this amount when so  many Courts have established that the amount of £60 is either an abuse of process or an attempt at double recovery.

 

That is as far as I have got.

I notice hat Ericsbrother and Dx100uk have both claimed that your Notice to Keeper was out of time.

I am not so sure.

Perhaps one of the siteteam could look at it. 

The NTK was dated on a Friday and the Monday was the 14th day. 

[spikes62]

Thanks for this. I will add some of what u say to my argument in court if I get a chance.  however just for info as you didn’t get to the end the ws states that the claimant states the signs were in place at the time of the contravention. ?   Well they are good,  with a 2mtr distance sign up 3 years early.     Pre COVID signs 

[brassnecked]

Hope you make sure that point is well indicated Covid signs

[spikes62]

Oh I will 

[FTMDave]

That's brilliant work lookinforinfo.

 

Yes, mistakes have been made here, but the OP still has a lot going for them, from the idiots sending the claimform to the wrong address to the rubbish signage.

 

The PCN seems to have been sent out within POFA timeframes though.

[brassnecked]

The fact they have  included a modern sign regarding Covid rules  from now in their bundle and the signage should have been as was at the time, might be some mileage in introducing doubt about the signage for sure.  Bit sloppy that one.

[spikes62]

The picture with the entrance signs really looks like it has been photo shopped as well I think they are trying to pull a fast one 

[lookinforinfo]

Carrying on with their WS .........

50] regardless of the work they took in their pre legal process it still breached GDPR whichever way you look at it. There are often payouts of £750 for those breaches so perhaps you can use that to offset any costs that the Court may impose on you.

 

51] we do not know as yet how much a Court would add, if anything, for debt recovery costs. and they would only be for the driver not the keeper. And they should also be proportionate to the original debt. And also should not be the cost that DCBL debt collectors cost since they failed to recoup the alleged debt. 

The Indigo v Watson case was in Scotland where they are inexperienced in parking law. The costs added were disproportionate and had they been appealed may well have been reduced. Especially as the costs of enforcement were included in the cost of the PCN which invites the charge of double recovery. Moreover before going to court Indigo had used an english debt collector and a legal company followed by a  Scottish legal company before going to Court does sound excessive. 

 

52] the costs are not reasonable in relation to the original debt as per the Office of fair trading. Indeed many judges are rejecting the £60 additional amounts as either double recovery or an abuse of process which DCBL is well aware.

 

53] since when have the BPA been arbiters on Law. They and the IPC have been so poor in managing their members that the government has stepped in and later this year a new system will come into operation that does not involve either company and looks to improve and clarify parking regulations.

 

61] exactly. the claimant is pirsuing the keeper therefore only the £100 can be claimed.

 

76] the Defendant knew about the signage after receiving the PCN. The signage is too small most of the time and the examples shown by DCBL who have averred that they are as at the time of the offence is wrong .There was no covid back in 2017/8

 

84] PoFA does not say that recovery charges are allowable. Only parking charges are allowable.

 

85a] the defendant does not deny the car was parked but does deny he entered into a contract.

[spikes62]

Nice one ill add some of that into my defence. Thanks for taking the time to read n reply

[lookinforinfo]

TO help your case you need to taks a copy of Excel v Cutts  Stockport court september 2011 you can find it on parking-prankster.com/case-law.html .

 

The case was won on signage where there was no mention on the entry  sign that it was a park and pay car park so the motorist thought it was  a free carpark. And the Judge agreed. He also did not agree that just entering the park meant that the motorist accepted the contract. [Appendix B  5,6,7,8] You really do need to get this printed off and get the Judge to see it.

 

There is another case excel v wilkinson july 2020 Bradford where the Judge threw out the case because of the extra  £60. it isn't easy to find so I will see if I can dig it out.

 

Both these cases refute BW's arguments but not all judges accept them.

 

 

[spikes62]

Ok thanks I’ll look for them 

[spikes62]

Anticipation and excitement now extended, received this this morning:

 

Good morning

 

Please be aware that unfortunately the hearing on 25/02/21 at Canterbury County Court will not go ahead. The matter is being stood out of the Court list due to the Judge now having to deal with urgent children’s matters.

[lookinforinfo]

I wonder if that means you can add an amendment to your WS.

[spikes62]

I could ask the court and see wat they say   Shall I do that