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BW Legal county court claim
hyperr
post Fri, 2 Nov 2018 - 21:03
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I received the below letter today regarding a parking ticket received in April this year. I cant remember exactly who would have been driving, 3 Family members and 2 friends Would have had access to the Car.

Ive acknowledged the Ticket, and srm kindly pointed me to this defense:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

National Car Parks Limited (Claimant)

-and-

<NAME> (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The facts are that the vehicle, registration <REG>, of which the Defendant is the registered keeper, was parked on the material date in the car park at <LOCATION>.

3. The Particulars of Claim state do not specify if the claimant is pursuing the Defendant as the registered keeper or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action. 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. 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.

6. 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 anyone attempting to read the tiny font would be unable to do so easily. Even if the writing on the sign was readable, the signage is in such a position that any driver must look away from where they are going in order to even see the sign itself. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The British Parking Association ("BPA") Code of Practice sets the requirements for entrance signs. The following requirements are mandatory:
(a) The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.


8. 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.

9. 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.

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

11. 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.

12.‘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 and, further, that the signs failed to provide ‘adequate notice’ of any charge. Any non-compliance voids any right to ‘keeper liability

I believe the facts contained in this Defence are true.

Name
Signature
Date

Would this defense be suitable and also what is the criteria on whether it goes to court or not? Will it be the strength of the defense or just pot luck, on the newbie thread it does say it is a low chance, but quite a few threads i have read have had their case go to court. I really hope i don't have to go to court.

This post has been edited by hyperr: Fri, 2 Nov 2018 - 23:40
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post Fri, 2 Nov 2018 - 21:03
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ostell
post Fri, 2 Nov 2018 - 21:58
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Para 13 and 14 are only if this was a hire car, is this true?

There is nothing to go on to give help. Where is the original PCN, where are the photos of the signs, was there a windscreen ticket?
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hyperr
post Fri, 2 Nov 2018 - 23:20
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it isnt a hire car, ill amend that,

there was a windscreen ticket, ill post photos of the signs again, I made 2 posts by accident and I got rid of the post with the photo's on, ill reupload the pictures in a sec:

https://www.dropbox.com/s/t5l1hmhbd0amfki/2....57.57.jpg?dl=0 Main SIgn Next to Entrance
https://www.dropbox.com/s/dlrxm4h2o6zqb40/2....58.07.jpg?dl=0 View from the entrance into the car park

https://www.dropbox.com/s/260vbxmox0an705/2....58.21.jpg?dl=0 Sign along the right wall

https://www.dropbox.com/s/9xv3df6418r47lj/2....58.43.jpg?dl=0 Lots of signs by the pay Machine

https://www.dropbox.com/s/dfr1tve8lb374m0/2....58.54.jpg?dl=0 Close up of sign by Pay machine 1

https://www.dropbox.com/s/f5gfewxrfdrl8t4/2....58.56.jpg?dl=0 Close up of sign by Pay machine 2

https://www.dropbox.com/s/1yws75uwu04whme/2....58.58.jpg?dl=0 Close up of sign by Pay machine 3

https://www.dropbox.com/s/5s5wueanh0v0nuq/2....59.01.jpg?dl=0 Close up of sign by Pay machine 4


https://www.dropbox.com/s/nq2t5wg37d837k2/2....59.22.jpg?dl=0 veiw deeper into car park

https://www.dropbox.com/s/kz6is0z055133nu/2....59.41.jpg?dl=0 Private part of Public car park i think

https://www.dropbox.com/s/42wlv7f26wekabx/2....59.57.jpg?dl=0 Sign In private car park

This is the veiw from google maps:

https://www.google.co.uk/maps/@53.2299968,-...3312!8i6656

The Car Park has 1 entrance/exit, and the main sign is next to the entrance I guess you can argue, that the sign is poorly positioned as you have to focus on the cars going into and out of the car park as you enter it?

This post has been edited by hyperr: Sun, 4 Nov 2018 - 19:33
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ostell
post Sat, 3 Nov 2018 - 08:00
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Pretty pictures of a car park and signs, it would help if you labelled the entries.,

Where is the original PCN?

You haven't answered the question about a hire car.

There seem to be two companies operating on the site, which could cause confusion.

What exactly is the driver accused of doing/not doing

Is there actually another sign stating terms and conditions?
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hyperr
post Sun, 4 Nov 2018 - 19:08
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Pretty pictures of a car park and signs, it would help if you labelled the entries.,

Ive labelled the links so they are clearer

Where is the original PCN?
The Driver have lost this

You haven't answered the question about a hire car.
It is not a hire car i have amended this.

There seem to be two companies operating on the site, which could cause confusion.
So with their being 2 companies, this can cause ambiguity to what is needed to be paid for and to which area?

What exactly is the driver accused of doing/not doing
Parking without a ticket

Is there actually another sign stating terms and conditions?
There is a sign i missed below the main sign next to the entrance, ill have to take a picture of this again, you cxan see it in the google pic, it has very timy font/quote]

This post has been edited by hyperr: Sun, 4 Nov 2018 - 19:42
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ostell
post Sun, 4 Nov 2018 - 22:41
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If there is ambiguity then the most advantageous interpretation to the consumer can be used.

Having lost the PCN isn't much help as this is used to prepare any appeal

Get on to BW Legal and demand a copy of all the documentation that they intend to use in court in order to reduce any issues between you. As they must have this paperwork hand to perform due diligence then you require that they be delivered within 7 days in order for you to prepare a defence.
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hyperr
post Sun, 4 Nov 2018 - 23:02
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QUOTE (ostell @ Sun, 4 Nov 2018 - 22:41) *
If there is ambiguity then the most advantageous interpretation to the consumer can be used.

Having lost the PCN isn't much help as this is used to prepare any appeal

Get on to BW Legal and demand a copy of all the documentation that they intend to use in court in order to reduce any issues between you. As they must have this paperwork hand to perform due diligence then you require that they be delivered within 7 days in order for you to prepare a defence.



thanks for the advice! I will get on this right away, do I just literally request all the documentation they intend to use on claim number xxx? Is it best to call them and speak to a person or email them?
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SchoolRunMum
post Mon, 5 Nov 2018 - 01:15
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Send a SAR to the parking firm (by email to their Data Protection Officer email address that's in their PRIVACY PAGE).

...and a SAR to BW Legal

asking for all data held, all photos and letters sent. No asking what a SAR is, you will find out from the parking firm's Privacy page anyway.
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ostell
post Mon, 5 Nov 2018 - 08:12
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Here's detail of a SAR template.

The trouble is that they are only required to respond within 30 days, which is fine for the witness statement but not the defence. WHich is why I suggested a letter demanding 7 days to BW, with a lack of response noted in your defence.
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hyperr
post Mon, 5 Nov 2018 - 13:23
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Hi

Ok thank you both, I got a similiar template sent that off, now just awaiting a reply, from looking at some cases just now it doesnt look like they are the quickest to responding. I'll add this to the argument as suggested.

Also I went back to the Car Park and took some of the t&C signs that i missed:

https://www.dropbox.com/s/4mqt3stnhf5krqq/4...7904_n.jpg?dl=0 Main T&C board This has been moved from the front of the car park and placed parallel with the entrance

https://www.dropbox.com/s/34ad4u2vq9c0pa9/4...2896_n.jpg?dl=0Left side of T&C super small font!

https://www.dropbox.com/s/lfsk7zmzhr44e04/4...7776_n.jpg?dl=0 Right side of T&C

This post has been edited by hyperr: Mon, 5 Nov 2018 - 13:29
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hyperr
post Tue, 6 Nov 2018 - 19:53
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Ok is this defense ok?

Ill add the sar request next week if they havn't sent me anything.

I also got a call from BW Legal asking me what my intentions are, I answered that I will challenge it, I kind of felt stupid answering, Will this come back to bite me later?


IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

National Car Parks Limited (Claimant)

-and-

<NAME> (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The facts are that the vehicle, registration <REG>, of which the Defendant is the registered keeper, was parked on the material date in the car park at <LOCATION>.

3. The Particulars of Claim state do not specify if the claimant is pursuing the Defendant as the registered keeper or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action. 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. 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.

6. 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 anyone attempting to read the tiny font would be unable to do so easily. Even if the writing on the sign was readable, the signage is in such a position that any driver must look away from where they are going in order to even see the sign itself. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The British Parking Association ("BPA") Code of Practice sets the requirements for entrance signs. The following requirements are mandatory:
(a) The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.


8. 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.

9. 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.

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

11. 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.

12.‘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 and, further, that the signs failed to provide ‘adequate notice’ of any charge. Any non-compliance voids any right to ‘keeper liability

I believe the facts contained in this Defence are true.

Name
Signature
Date
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nosferatu1001
post Wed, 7 Nov 2018 - 11:17
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Why is 12 so low down?

Think of it logically.
It would appear at the top.
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Redivi
post Thu, 8 Nov 2018 - 08:37
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I would keep the deficient particulars of claim at the top

Next I'd put #8 legal capacity
Failure of POFA under this

The defence then follows a logical order :

No cause of action
Even if cause of action, no capacity to issue the claim
Even if has capacity, can't issue claim against this defendant
Even if met POFA, signs defective
Don't believe legal costs incurred
Even if incurred, can't be recovered in Small Claims
Even if could be recovered, they can't be recovered from keeper
The court could do everyone a kindness by putting this pathetic claim out of its misery
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hyperr
post Sun, 11 Nov 2018 - 19:51
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ok everything is set, just to confirm from the newbies post i shouldnt email to mcol, but i should send to: ccbc@justice.gov.uk right?
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Redivi
post Sun, 11 Nov 2018 - 20:46
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That is correct

Don't forget to include a scanned signature at the bottom of the defence
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SchoolRunMum
post Sun, 11 Nov 2018 - 21:06
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I thought you were going to wait to see if the SAR comes straight back next week...I would not be firing this off now and then find the PCN an NTK & photos arrive on Weds...
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hyperr
post Sun, 11 Nov 2018 - 21:46
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Even though, the info was requested to be sent in 7 days, they actually have a month so i didnt have high hopes on receiving it soon, but your right I may as well wait right up to the deadline, The claim was sent on the 18th and i acknowledged it on the same day, so thats 24 days +5 which is the 20th Novas the latest date i think?

also quick question, so to confirm im emailing the actual defence, and also a scanned printout of the defence with my signature in the attachments?
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SchoolRunMum
post Sun, 11 Nov 2018 - 22:09
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I've never seen a PPC take a month to reply to a simple SAR sent online. Yes they have a month, but the photos are to hand and are easy for them to supply, often within the week IMHO.

You cannot have acknowledged the claim on the same date it was sent, so can we have exact dates please? You certainly should wait a good week, if you are safe to do so.

No you are not emailing two versions of the defence.
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ostell
post Sun, 11 Nov 2018 - 23:02
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You have 33 days from the date of issue to get the defence to the court.

This post has been edited by ostell: Yesterday, 08:58
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nosferatu1001
post Yesterday, 08:40
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OStell -= NO!

you have 33 days fom DATE OF ISSUE
Date of SERVICE is 5 days (usually) after DATE OF ISSUE and you have 28 days from DATE OF SERVICE for the court to receive the defence

Tell us the precise dates, no guessing.
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