Ticket for a space I already pay for Options

[Phaedra]

So I have received now two tickets for a space that I pay for in advance. It is a private carpark belonging to a flat block and I pay every quarter in full in advance and have receipts. There is a private parking company (part of the BPA) that requires permits visible. I got these tickets when my permit was on the armrest between the driver and passenger seats, it was very visible, I don't have tinted windows. When it's on the dashboard, it runs the risk of slipping into the large gap between the glass and the dash, or flying out the window in the wind.
My question is: is this enforceable? I have already paid for the space so the permit should not even be necessary. Even so - it *was* visible. I think I have a good argument if this goes to court - there is no cost to the landowner whatsoever as it is my permenant rented space.

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[Croupe]

And should I CC in PP when I send the letter?

[Redivi]

And should I CC in PP when I send the letter?

No

All correspondence (except an SAR request) is only sent to the solicitor when one has been employed

[Croupe]

Sending this today, let me know your thoughts!:

Dear Sir/Madam

Ref XXXXXX

Thank You for your letter dated XXXXXXX following my response to your Letter Before Claim.

I strongly dispute your statement that the driver's “only right to enter the land in question is on the terms and conditions that apply”. This is simply not the case. I had an existing rental agreement directly with the freeholder for the car parking space I was parked in.

I take issue with the following assertion: "It is unnecessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance." At the date in question, I was the landholder. I entered into a contract with the freeholder for parking, which was duly paid. Your client has nothing to offer as they are not the freeholder nor the landholder. They are, in fact, a trespasser on my land on the date in question.

I have attached a copy of the relevant invoice and confirmation from the freeholder that this invoice was paid in full.

I also dispute a number of further points in your letter. They are, however, irrelevant to the central issue that I have never willingly entered into any contract with your client and have no liability in regards to it. At time of parking, a direct agreement was in place with the freeholder. The fact that your client evidently does not operate a white-list for the landowners on this site is considerably unreasonable and should this proceed further I will invite the court to recognise this.

For the avoidance of doubt, I will not make any payment. Payment for this space was made in full in advance of parking.

Continued harassment from your company will be considered both vexatious and unreasonable. Should your client continue to legal action, I will very seriously consider a counter claim for their trespass on the land that I had rented as land-owner.

Yours Faithfully

[nosferatu1001]

Land holder
You are never the owner of the land unless you buy it from them.
You are the land-holder
Dont "very seriously" consider. STate you WILL counterclaim for trespass, using the value of their PCN as the basis for your counterclaim - given they have valued the land as being worth X per day, that is how much you are charging them.

[Redivi]

Or I reserve my rights regarding a counter-claim for trespass against your client

[Croupe]

Thanks both. As has been mentioned before by The Slithy Tove - BWL are "almost guaranteed to take it to court". Therefore I need to start thinking about defence. My main points will be of course the above points - I had paid already and was the land-holder.
Is there further clout I can add? Apologies I am not familair with POFA so not sure if this has been breached...

[nosferatu1001]

Well POFA only matters if the drivers identity is unknown. Is it?

If you are "Not sure" then you know what you need to do - find out

[Croupe]

Thanks Nosferatu, I will look at the correspondance. I do not believe the driver identity was divulged.

Here is the revised letter to be sent today. Does anyone have any experience of what the next step is?


Thank You for your letter dated XXXXXXXXX following my response to your Letter Before Claim.

I strongly dispute your statement that the driver's “only right…to enter the land in question are on the terms and conditions which apply”. This is simply not the case. I had an existing rental agreement directly with the freeholder for the car parking space the car was was parked in. I have repeatedly asserted this and provided proof.

I take issue with the following assertion: "It is unnecessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance." At the date in question, I was the landholder. I entered into a contract with the freeholder for the parking space, which was duly paid. Your client has nothing to offer as they are not the freeholder nor the landholder. They are, in fact, a trespasser on my land on the date in question.

I have again attached a copy of the relevant invoice and confirmation from the freeholder that this invoice was paid in full.

I also dispute a number of further points in your letter. They are, however, irrelevant to the central issue that this space was rented and the right to enter the land and park in this space was expressly sanctioned by the freeholder who had a commercial interest in the rental of the parking space. Your client is currently interfering with this commercial interest and thus jeopardizing it. The fact that your client evidently does not operate a white-list for the landholders on this site is considerably unreasonable and should this proceed further I will invite the court to recognise this.

For the avoidance of doubt, I will not make any payment. Payment for this space was made in full.

Continued harassment from your company will be considered both vexatious and unreasonable. Should your client continue to legal action, I will counter claim for their trespass on the land that I had rented as landholder, using the value of their PCN as the basis for the counterclaim.

Yours Faithfully

[nosferatu1001]

YEs, the next ste is, unless they actually bother to read, is they will issue a claim

You will be able to find dozens of threads here talking about it

Go and read the MSE Forums NEWBIES thread, POST TWO ONLY, which deals with the court claim process. You MUST use this as a resource for a court claim because it details every step of the formal legal process. You cannot step outside of process.

[Lynnzer]

.

Continued harassment from your company will be considered both vexatious and unreasonable. Should your client continue to legal action, I will counter claim for vexatious and unreasonable behaviour for the stress, worry and problems you have brought to me and my family, and for pursuing business interests on land for which I am the landholder and without any authority from me to do so.
Your alleged rights to make me pay for something I already have right of use of, cannot constitute a contract. You can offer me nothing and have no right to lay a claim of trespass as only the landholder can take that action. I am the landholder.
Please take note that a continuance of this fraudulent claim will be resisted and will be presented for what it is: FRAUD
Yours Faithfully

amended.
There's another topic on forum of the victim of one of these sort of scams laying a private prosecution for harassment.
I think you have a solid reason to make a similar prosecution for fraud in this situation. Let them eat $hit in a magistrates court eh?

Also this
http://www.mccue-law.com/wp-content/upload...rosecution1.pdf

This post has been edited by Lynnzer: Wed, 19 Jun 2019 - 10:48

[Croupe]

Thanks Nosferatu.
I note that it says:

"If you get court claim, do not panic, we assist people & some 99% of cases here, win!

ALMOST NO-ONE REPORTS A LOSS - YOU DON'T NEED TO WASTE MONEY ON A SOLICITOR OR ANY COMPANY - WE KNOW WHAT WE ARE DOING, WE HAVE A HIGHER SUCCESS RATE THAN ANYWHERE, AND WE HELP FOR FREE."

Should I start a thread on there if it goes to a formal court claim? I am heartened by the above opimism!

[nosferatu1001]

If you do open a thread there, LINK HERE so people can see the history.

You can also keep posting here.

[Croupe]

Thanks, I will wait to see if the court papers arrive, and then start a thread over there regarding the Defence.

[Croupe]

So I have now received a County Court Claim Form. I am sending the AOS today.
Firstly I should say that I have read the Newbies thread on MSE three times over and also spent since 7am this morning reading many of the other threads on cases and example defences – but none of them (that I can find so far) seem to be applicable to my situation/case. the closest ones are about flat-block residents' allocated spaces. My situation differs as it was the Estate Agent I worked for that paid the freeholder in advance for the space. I, as an employee, had authority to park there.

I am suddenly determined to fight it till the end more than ever, I haven't come this far to give in to them now, but need some advice on what defence points to focus on.

Is this a lost cause now? Is it very likely the judge will simply rule that the permit should have been displayed on the windscreen - end of story?

Should anyone want a recap on this all to prevent reading back through the case - I am happy to post one.

Again - I thank all of you in advance for any help that can be given!

[Croupe]

The court case was yesterday - I won!
Thank you all SO MUCH.
I simply would not have come close to the confidence in these proceedings if it wasn’t for the members of this forum and MSE.

The ruling however is potentially a worry in its ramifications: Abuse of Process was not the reason for the rejection of PP and BW Legal’s claim.

TL/DR: It was ALL about the Claimants witness statement. The judge rejected their claim on the basis that the witness statement was invalid because it was written by paralegal based in Leeds and included no actual witnessing of the events. She supported this with case precedent and law as linked below. She did not touch on abuse of process at all or make any comment when I tried to argue it.

Read on for full report…

I arrived (incidentally on the last day that cases are being heard - tomorrow they are reportedly not hearing anything that is not totally urgent) and signed in. I had my court bundle and all correspondence from PP and BW Legal over the 5 years of this issue. The claimants representation was a barrister, not a lay person, and he seemed to imply during our discussion before court that he knew exactly how it would go. He said we were "on the same page shall we say" and then "I’m not sure how long they will be able to continue bringing cases like this before the courts.".

The Judge started straight away by reading the paragraph in my skeleton argument pertaining to the Claimant's Witness Statement being invalid on the grounds that it was the statement of a paralegal in Leeds, on behalf of a legal entity in Dorset (PP), in turn on behalf of a PPO. She stated that this was simply not sufficient or compliant in anyway and clearly did not satisfy the regulations pertaining to Witness Statement. She therefore rejected the validity of the witness statement and said to the barrister “And I haven’t even got to the stage that we hear from the defendant”. She supported her reasoning with a recent case from February 2020: Punjab National Bank vs. Techtrek India Ltd 2020 EWHC 539 (Transcript here: https://www.bailii.org/ew/cases/EWHC/Ch/2020/539.html). She quoted paras 17 and 18 from this case. She then produced the Civil Procedure Rules 1998 and quoted Practice Direction 32, para 18.2:

18.2 A witness statement must indicate:

(1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and

(2) the source for any matters of information or belief.

Practice Direction 32 can be found in full here:

https://www.justice.gov.uk/courts/procedure.../pd_part32#18.1

She used this as her concise reasoning that the witness statement was not compliant. She asked for comment form the barrister – he did not have any salient rebuttal (incidentally he told me after the hearing that BW Legals witness statements are notoriously poor). She then asked for me to comment. I pointed out the further points in my own Witness Statement that focused on the errors in their witness statement and the fact that the attached exhibits within it included photographs from totally different dates, none of which included my vehicle. She really went to town on the Claimant for this one. Said that if there was any doubt in her mind that the witness statement was invalid – that very much sealed its fate. I said that I had 5 further defences to put forward and she said “well thankfully Mr…………, I only need to base my decision on one and already have”. I then said that I was particularly keen to attend to their Abuse of Process I said that they must have been fully aware of many similar cases failing and this should have halted their intention to bring the case as far as court proceedings. I pointed out that I had informed them of all the precedents that I had included in my defence and yet they still used the courts as a form of debt collection and I felt this constituted unreasonable behaviour. She disagreed and said she did not feel they had been unreasonable in bringing the case to court.

Worryingly at one stage she said that “if the case was isolated to the concept of breach-of-contract in regards to the permit not being displayed in the windscreen area, then the claim would have succeeded” then went on to say that as the claimant is the party put to strict proof – she did not feel the witness statement sufficiently complied and “falls very short of the requirements as I have set out”, then she again quoted the recent court case mentioned above and Practice Direction 32.

The barrister tried to submit full resolution versions of the photographs in the Witness statement that he had been sent by B W Legal, saying that they were better quality and more accurately show there was no permit. I objected, stating that these versions of the photographs had not been served to me or the court, and their submission in the middle of the hearing constituted and ambush. The Judge agreed and rejected them.

She drew things to a close and asked if there were any further comments. The barrister appealed, and said that in this instance the judge had erred. She raised her eyebrows to the roof and said very curtly “I reject your appeal.” And said something to the effect of ‘I have very easily come to this decision without needing to consider the many further defences submitted by the defendant. Any further hearing on this claim is unlikely to succeed in any way, thus I will not authorise further litigation.” She asked if he would like the form to contest. He said no!! He made it clear that he had appealed under direct instructions from his client and not because he considered there any chance of an appeal being successful.
I then asked for my costs to be awarded. She couldn’t find the cost schedule so I gave her mine. She ednied me costs of £95 for loss of earnings, stating that I was a salaried employee and had taken a day of holiday, thus had not incurred said losses. I submitted the argument that I worked 60% or so on commission and my absence would mean I would likely miss a chance to earn any. She said that without any quantifiable evidence to support this, no amount could be awarded. She awarded mileage and parking. She then asked what further costs were, and read this section of my costs schedule:


Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)
Research, preparation and drafting of documents (6 hours at Litigant in Person rate of £19 per hour) £114.00
Stationery, printing, photocopying and postage: £15.00


She looked impressed at this and had to look up Civil Procedure Rule 27.14(2)(g). After reading it, she asked why I felt they had been unreasonable (this was galling because she clearly hadn’t read the 2 pages in my defence and 4 in my Witness Statement supporting this argument). I paraphrased by saying that I had pointed out on many occasions that they were bringing a case to court that included a clear abuse of process, I also said that I had provided them with the case precedents and yet they still chose to bring it to court, I said: “5 of the cases I reference happened in this very court and two of the cases were ruled by Judges who are currently in the building presiding over family court" (I had noticed this on the boards in the entrance hall). She said “But I have not made my decision on the basis of abuse of process, it was on the basis of the witness statement and its invalidity” and for that reason she did not award me any further costs. So I got about £8.20 – which is still lovely, but I would have liked to have got the full £232.81!


All in all – it’s very clear that a strong weapon against B W Legal is now the witness statement angle, not just abuse of process. I put forward a robust and significantly informed defence regarding abuse of process and that was met with silence and was essentially ignored. This is the second case I have read of it turning out this way, the other case is described in the “Link Parking/BW Legal beaten in court” thread by user: Keypulse.

This does not necessarily mean that the abuse of process argument is not a valid one, because it unequivocally is, however the Witness Statement argument is clearly becoming a strong additional defence against B W Legal cases.

[Jlc]

It was ALL about the Claimants witness statement. The judge rejected their claim on the basis that the witness statement was invalid because it was written by paralegal based in Leeds and included no actual witnessing of the events.

They are skating on very thin ice. Perhaps the witness statements are just copied from claim to claim - I mean it wouldn't be like they forgot to change he to she...?

The court case was yesterday - I won!

Well done.

There's only one parking company that seems to be 'sensible' with claims...

This post has been edited by Jlc: Fri, 20 Mar 2020 - 19:09

[M267]

Great news. Also saw this on MSE. Well done.