Britannia/BW ANPR PCN PAPLOC now Claimform - Quayside Poole

[FTMDave]

I'm a Night Owl and am quite willing to do some work on it tonight after I get off work in an hour and a quarter.  Maybe you can send it off tonight? 

 

Two questions as I've very quickly glanced at some of the stuff.  What date was the original "offence" and what date did they send the PCN out?

 

In their (2.1) they talk about a "Letter of Authority"?  Have they really just included a letter rather than a contract?

[hamadryad]

THis is the letter of authority from Stanborough Developments Ltd, who own the land.

 

The date of the 'offence was 17 Aug 2021, and the PCN was sent out, (to my old address), on 24 Aug 2021

Scan_20221115 (9)_Compressed.pdf

 

I'll send it all off by email tonight too.

 

Thats how I got it from BW

[brassnecked]

The £60 would be included in WS as being abuse of process by using Beavis against them as it was found in Beavis that the original charge was adequate to included any debt collection cost, further under POFA only the original charge can be claimed if the alleged debt is validly transferred to Keeper vis POFA.

[FTMDave]

OK, have a look at the attachment in post 110 here  https://www.consumeractiongroup.co.uk/topic/421775-vcs-spycar-pcn-paploc-now-claimform-no-stopping-east-midlands-airport/page/5/#comments

 

If it's not in post 110 it'll be a couple of posts above or below, sometimes the post count goes wonky.

 

This is a superb WS that can be your base.

 

You can use the first page up to point (3) verbatim.

 

You can also use the Statement of Truth on the last page (head it Statement of Truth, Alaska101 forgot to do so).

 

Your last section will be DOUBLE RECOVERY and you can use (18) and then all of (20)-(27).  Obviously read the paragraphs and make sure the amounts match yours and remove anything which doesn't match yours.

 

More in a minute after I've read the bilge in the fleecers' WS.

 

 

[hamadryad]

Tks!

[FTMDave]

So their WS says you didn't pay - er, that's it.  The sections of your WS, in order, should be -

 

Sequence of Events

No Locus Standi

Illegal Signage

No Keeper Liability

Frustration of Contract

Double Recovery

 

Let's take one at a time.

 

Meanwhile, a question:  did you check if the fleecers' have planning permission for their signs?

 

 

 

 

 

Sequence of Events

 

In a similar way to Alaska101, explain what happened.  Lay it on thick about spending ages trying to get the machine to work.  Mention that all the initial letters from the fleecers were sent to your old address so you never received them, which is why you requested a SAR from them as pointed out in para 21 of their WS. 

 

No Locus Standi

 

This is one of your aces.  Point out that they are not the landowner.  They merely manage the car park.  In your CPR request you asked to see proof of a contract with the landowner giving them the right to take court action in their own name, but they refused to do so.  They are continuing to refuse to do so in their WS.  In their para 2.1 they refer to a "Letter of Authority" and produce it as an exhibit.  A letter saying a contract exists is not the same thing as showing a contract.  It should be simple to produce a contract if it exists.  You believe it does not.

 

Illegal Signage

 

You have researched and have found no evidence that they have been granted planning permission for their signs.  Lack of planning permission is a criminal offence and no contract can be formed when criminality is concerned.  In your CPR request you asked to see proof of planning permission but they refused to produce the same.  They do not produce it in their own WS.  You believe it doesn't exist.

 

No Keeper Liability

 

Their PCN does not show the period of parking as required by Schedule 4 of the Protection of Freedoms Act 2012.  The times of entrance to and exit from the car park are not the same as the period of parking as it takes time to park up, read the signage, etc.  You do not believe a contract was formed, but if it was formed it was formed with the driver, and the fleecers cannot use the POFA to transfer liability to the keeper.

 

This IMO is your weakest section because the fleecers have abided by the POFA timescales.

 

If you can, get up half an hour earlier tomorrow and see if there are any last-minute comments by a Cagger called Lookinforinfo who is an expert on POFA and contracts (and somewhat of a Night Owl like myself).  You could then quickly add anything LFI suggests before e-mailing the document off.  Onto the rest ...

 

Frustration of Contract

 

The driver made prolonged and repeated attempts to pay but the machine did not work.  So even if a contract was formed it was frustrated.  Point out that this is a habit of the company and include your mate's statement or if they haven't prepared it at least quote their name, the car park, the date.  Add that perhaps the claimant has little motivation to ensure machines are working as to do so would cut down on their chances to send out money-making PCNs.

 

(Here always refer to the driver in the third person person, not "I" or "the defendant").

 

 

 

 

Double Recovery

 

Already stated above.  Alaska101's paras 18, 20-27.

 

I'll be up to 1am UK time, others later.

 

When you can, post up what you've prepared.  Given the rush, probably best to do so in a post rather as an attachment, so others can immediately correct any bits that need to be corrected.

 

 

One thing I missed out in ILLEGAL SIGNAGE.  Lack of PP is a crime under the Town and Country Planning Act 1990.

[brassnecked]

Looks like most is covered looks good, .

[FTMDave]

Just waiting for the OP to flesh it out in a WS.

[brassnecked]

Will be able to be tweaked then once its up.

[hamadryad]

am the defendant in this claim.  I am a litigant in person, with no formal legal training. Everything in the following statement is true to the best of my knowledge and belief.

2. In my statement I shall refer to exhibits in the evidence section.

3. I was the registered keeper of the vehicle in question in this case.

4. SEQUENCE OF EVENTS

4.1.  As detailed on page 17 of the evidence, I arrived at the car park at 17:47 on 17/08/2021 and found a parking space for my car.

4.2. I went to the pay station to enter my car details, but could not get the keypad to accept the full details of the car.

4.3. There seemed to be some fault with the machine, whereby the keys would to operate properly.

4.4. Realising that the machine was faulty, I did not put my card into it.

4.5. On looking around the car park for another machine, I noted that others were having issues, and on speaking to them I was informed that it was proving impossible to enter a complete registration into the machines, (Exhibit 1,  reviews of Britannia Parking issues at A for relevant info from other areas)

4.6. realising that there were issues about paying for the parking, I left the car there, returning at 20:18 on 17/08/2021.

4.7. Britannia Parking issued a PCN against me at my old address, (34 Bluebell Rise, Chalford, Glos), because DVLA had that address as my home address, (I had lived there for 4 years with my mother, nursing her through her Alzheimers prior to her going into care), and I had forgotten to amend my address.

4.8. when Britannia Parking got no response, they passed the matter onto BWLegal, and they used Transunion to find where I had moved to, 104a Alexandra Road, Poole, Dorset.

DEFINITION OF ‘RELEVANT CONTRACT’

From PoFA 2 (1) means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is:-

a.       The owner or occupier of the land: or

b.       Authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land.

According to https://www.legislation.gov.uk/ukpga/2006/46/section/44, for a contract to be valid requires a director from each company to sign, signatures to be confirmed by 2 independent witnesses.  The fact that no signatures or witnesses were present means the deed has not been validly executed.  Therefore there can be no contract between Britannia parking and R Thornewill.

 

Britannia Parking operate parking facilities in various locations around the country, and therefore must have signed numerous contracts, which raises 2 points:

The first is that by issuing many PCNs, Britannia Parking did so knowingly not having a valid contract is bordering on fraudulent.

Second, VCS in order to gain access to DVLA data VCS have averred that they have complied in their CoP that they have complied with all the legal necessities, which appears patently untrue.

As Lord Neuberger said in the famous Parking Eye v Beavis at the Supreme Court [2015] UKSC 67-"And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced". The Noble Lord is correct and should call into question the right of Britannia Parking to obtain information from the DVLA.

5. PARKING CHARGE NOTICE

5.1. The PCN was issued to my old address.  Had Britannia parking bothered to contact any of the credit reference agencies, they would have quickly discovered my error in not changing my address details.  There would have been no need to involve BWLegal, and incur their grossly inflated charges for a simple mistake that anyone could make.

5.2. At no point have I tried to avoid contact with Britannia parking, rather I have been at pain to ensure that appropriate information is made available.

6. DOUBLE RECOVERY

6.1. The claimant’s particulars of Claim include the following:

a. The parking Charge - £100

b. Debt Recovery costs - £60

c. Court fee – Issuing the claim - £35

d. Hearing fee - £27

e. Solicitors costs on issue (CPR 45.2) - £50

f. Interest as the court deems fit – £4.80

6. 2. Over and above the parking charge of £100, which is extremely excessive, the claimant is seeking to recover the items at b, c, d, e, and f.  There is no justification or breakdown provided without any real breakdown as required under Civil Procedure Rule 16.4.

6. 3. PoFA Schedule 4, paragraph 4 states that “The maximum sum which may be recovered from the keeper ... is the amount specified in the notice to keeper” which in this case is £100.

6. 4. Unless the Claimant can clearly demonstrate how these alleged additional costs have been incurred this would appear to be an attempt at double recovery.

6. 5. The Claimant employs a paralegal, Kimberley Kaddra as shown in paragraph 1 of the Claimant's Witness Statement. It is presumably the normal daily work of this employee to deal with legal matters.

6. 6. Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum(£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters.

6.7. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out abinitio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 (page 129, Exhibit 16) on 4th September 2019, District Judge Jones-Evans stated ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued, he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.

6.8.  In fact, in Claim numbers F0DP806M and F0DP201T, Britannia Parking vs Crosby, the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton- Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998.

6.9. The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

6.10. It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4)

6.11. The Defendant is of the view that the Claimant knew, or should have known that to claim in excess of £100 for a parking charge on private lands is disallowed under the CPRs, the Beavis case, the PoFA and the CRA 2015, and that relief from sanctions should be refused.

6.12. I invite the Court to dismiss this Claim in its entirety, and to award my costs of preparation for this hearing, such as are allowable pursuant to CPR 27.14 (see Section 04 – Schedule of Costs)

7. STATEMENT OF TRUTH

7.1. I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[FTMDave]

Good grief, there is loads wrong.  Why have you left out the No Locus Standi & Illegal Signage & No Keeper Liability & Frustration of Contract sections?

 

OK, two of them were weak, but No Locus Standi and Frustration of Contract are two of your aces.

[hamadryad]

Ive been typing it up while youve been commenting, so missed the sections.

 

I'll amend it as per your input

[FTMDave]

OK, I'll suggest changes now to what you've written.

 

I am the defendant in this claim.  I am a litigant in person, with no formal legal training. Everything in the following statement is true to the best of my knowledge and belief.

2. In my statement I shall refer to exhibits in the evidence section.

3. I was the registered keeper of the vehicle in question in this case.

4. SEQUENCE OF EVENTS

4.1.  As detailed on page 17 of the evidence, the driver arrived at the car park at 17:47 on 17/08/2021 and found a parking space for their car.

4.2. They went to the pay station to enter their car details, but could not get the keypad to accept the full details of the car.

4.3. There seemed to be some fault with the machine, whereby the keys would not operate properly.

4.4. Realising that the machine was faulty, I did not put my card into it.

4.5. On looking around the car park for another machine, they noted that others were having issues, and on speaking to them they were informed that it was proving impossible to enter a complete registration into the machines, (Exhibit 1,  reviews of Britannia Parking issues at A for relevant info from other areas)

4.6. realising that there were issues about paying for the parking, they left the car there, returning at 20:18 on 17/08/2021.

4.7. Britannia Parking issued a PCN against me at my old address, (34 Bluebell Rise, Chalford, Glos), because DVLA had that address as my home address, (I had lived there for 4 years with my mother, nursing her through her Alzheimers prior to her going into care), and I had forgotten to amend my address.

4.8. when Britannia Parking got no response, they passed the matter onto BWLegal, and they used Transunion to find where I had moved to, XXX XXXXXXXX xxxxxxx

 

INSERT AT LEAST NO LOCUS STANDI HERE

 

DEFINITION OF ‘RELEVANT CONTRACT’

From PoFA 2 (1) means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is:-

a.       The owner or occupier of the land: or

b.       Authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land.

According to https://www.legislation.gov.uk/ukpga/2006/46/section/44, for a contract to be valid requires a director from each company to sign, signatures to be confirmed by 2 independent witnesses.  The fact that no signatures or witnesses were present means the deed has not been validly executed.  Therefore there can be no contract between Britannia parking and R Thornewill.

 

Britannia Parking operate parking facilities in various locations around the country, and therefore must have signed numerous contracts, which raises 2 points:

The first is that by issuing many PCNs, Britannia Parking did so knowingly not having a valid contract is bordering on fraudulent.

Second, Britannia in order to gain access to DVLA data VCS have averred that they have complied in their CoP that they have complied with all the legal necessities, which appears patently untrue.

As Lord Neuberger said in the famous Parking Eye v Beavis at the Supreme Court [2015] UKSC 67-"And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced". The Noble Lord is correct and should call into question the right of Britannia Parking to obtain information from the DVLA.

5. PARKING CHARGE NOTICE

5.1. The PCN was issued to my old address.  Had Britannia parking bothered to contact any of the credit reference agencies, they would have quickly discovered my error in not changing my address details.  There would have been no need to involve BWLegal, and incur their grossly inflated charges for a simple mistake that anyone could make.

5.2. At no point have I tried to avoid contact with Britannia parking, rather I have been at pain to ensure that appropriate information is made available.

 

INSERT AT LEAST FRUSTRATION OF CONTRACT HERE

 

6. DOUBLE RECOVERY

6.1. The claimant’s particulars of Claim include the following:

a. The parking Charge - £100

b. Debt Recovery costs - £60

c. Court fee – Issuing the claim - £35

d. Hearing fee - £27

e. Solicitors costs on issue (CPR 45.2) - £50

f. Interest as the court deems fit – £4.80

6. 2. Over and above the parking charge of £100, which is extremely excessive, the claimant is seeking to recover the items at b, c, d, e, and f.  an invente dThere is no justification or breakdown provided an invented sum of £60 without any real breakdown as required under Civil Procedure Rule 16.4.

6. 3. PoFA Schedule 4, paragraph 4 states that “The maximum sum which may be recovered from the keeper ... is the amount specified in the notice to keeper” which in this case is £100.

6. 4. Unless the Claimant can clearly demonstrate how these alleged additional costs have been incurred this would appear to be an attempt at double recovery.

6. 5. The Claimant employs a paralegal, Kimberley Kaddra as shown in paragraph 1 of the Claimant's Witness Statement. It is presumably the normal daily work of this employee to deal with legal matters.

6. 6. Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum(£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters.

6.7. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out abinitio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 (page 129, Exhibit 16) on 4th September 2019, District Judge Jones-Evans stated ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued, he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.

6.8.  In fact, in Claim numbers F0DP806M and F0DP201T, Britannia Parking vs Crosby, the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton- Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998.

6.9. The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

6.10. It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4)

6.11. The Defendant is of the view that the Claimant knew, or should have known that to claim in excess of £100 for a parking charge on private lands is disallowed under the CPRs, the Beavis case, the PoFA and the CRA 2015, and that relief from sanctions should be refused.

6.12. I invite the Court to dismiss this Claim in its entirety, and to award my costs of preparation for this hearing, such as are allowable pursuant to CPR 27.14 (see Section 04 – Schedule of Costs)

7. STATEMENT OF TRUTH

7.1. I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

It's too late to explain properly, but it's counter-productive for you to attack them for claiming sums they are perfectly entitled to claim.

 

It's your fault you didn't inform the DVLA of your change of address so again, it's counter-productive to have a go at the fleecers for writing to the wrong address.

 

When you've finished, e-mail the court and CC the fleecers.

 

Make sure in the subject field you put the claim number, and the two parties.

 

Obviously ask for "Return Receipt".  In fact best to send the mail twice, just to be sure.

 

Yes, we normally say not to use e-mail but here you've got no choice, plus we're at the end of the evidence-producing stage so the fleecers can't really trip you up with e-mail.

 

 

[dx100uk]

where are the claimants ws exhibits?

 

dx

[hamadryad]

Last amendments going in now.  Cheers all.

 

If I get away with this........

[hamadryad]

All amended now.

 

Cheers all!

[FTMDave]

OK, send off now or early tomorrow morning with the indications in my last post above.

[hamadryad]

Hi all,

 

It went off last night, amended in line with all the very helpful comments.

Got an acknowledgement receipt from the court too.

 

Silence from BW!

 

Got hard copy from them through the post today.

 

Cheers all!

 

H

[lookinforinfo]

I am sorry I missed their WS.  But the letter of Authority  Brittania sent does not even begin to act as a substitute for a contract.  The letter was sent from 

Britannia to Stanborough asking them to sign the Authority. There is no indication that Stanborough replied or agreed. And even if they did it would not be a replacement for the contract.

All the terms and conditions have to be produced in the form of a contract as specified by PoFA 2012 Schedule 4 S2 [1]. Without that contract they are unable to prove their is a valid contract and if the term you allegedly breached was included in the contract, if any contract actually existed.

Indeed there are serious doubts about its existence when one has not been produced and even the letter of Authority  shows no sign of being signed by Stanborough.