Claim Form - urgent help needed please!

[EL12345]

I have received a Claim Form (one for each of the two tickets) from BW Legal, issued 26th Feb 2019. It says I have a limited time (14 days) to respond. However, I am still waiting to hear back from a SAR I submitted to Britannia Parking. I was wondering if someone could possibly advise me on how to proceed?

Secondly, if I reply as 'disagreeing to the claim', are BW Legal able to issue an immediate CCJ? As far as I am aware, that will only happen IF I get taken to court, IF I lose, and IF I don't pay what the court orders me to pay. However, I am far from knowledgable here so I just want to be sure.

Additionally, a SAR I submitted to BW Legal has been returned. The only data they hold on me are two addresses - the one I lived at when the PCN was issued, and the one I have since moved to. Does this benefit or hinder me in any way?

Thank you so much

[BakedBeans]

You say that you have received two "Claim Forms".

Does it say "In The County Court Business Centre" at the top right, and have a claim number and issue date?

If so, that has been sent to you by the court and absolutely must be acknowledged within 14 days of service, so you need to follow the instructions and acknowledge online (or by email) immediately. There is some extra advice here - https://legalbeagles.info/library/gu...ledge-a-claim/

Select that you will be defending the whole claim, but do not dispute jurisdiction.

You may want to consider posting this issue at pepipoo.com in this forum (which specialises in parking) - http://forums.pepipoo.com/index.php?showforum=60

[EL12345]

Hi,

Yes, it has all those things. Thank you very much for the helpful links!

If you don't mind, I have another question. I never submitted a POPLA appeal as I never received a NTK, and the letters didn't arrive until 2 1/2 years after the windscreen tickets. Would this affect my defence in court?

Many thanks

[BakedBeans]

The fact that you didn't submit a POPLA appeal won't weaken your defence, the fact that they may not have followed the correct procedure may help your defence and may even stop their claim dead.

But you must acknowledge service regardless, if you don't you will lose by default.

As mentioned before, the best bet is to post on Pepipoo. Just make sure that any post does not identify the driver. Refer to the driver as "the driver" and don't say anything else which might give it away.

You do not have a huge amount of time to get a defence in, so I would get all of the paperwork you have scanned and posted at Pepipoo, along with a timeline so far. Their guidelines for posting images are here - http://forums.pepipoo.com/index.php?showtopic=36858

It's worth repeating that you should remove any identifying info from the paperwork (name, claim numbers, reg numbers etc)

[EL12345]

Amazing, thank you so much!

[charitynjw]

EL12345

As BakedBeans says, acknowledge the claim.
That will give you some breathing space to get your ducks in a row.

How old are the contraventions? (parking incidents).....Brit/BWL seem to be digging way back.

[EL12345]

charitynjw thanks for your advice! The driver got the tickets back in May 2016, so getting chased up now was a bit of a surprise!

[ostell]

So as no NTK has been received then there can be no keeper liability. And BWL have your current address. So you moved house. How does that tie in with the dates of the alleged breaches and your notification of the new address for the V5 document to the DVLA?

[EL12345]

I never received a NTK, however I am worried Britannia will try and claim they sent one. The parking charges were issued in May 2016, and I moved in December 2016, so I shouldn't think that would affect anything as it it outside of the NTK period

[ostell]

OK so they did not send one, that is your defence, and therefore no liability.

So request to the DVLA about who requested the registered Keeper details from, say 20 days after the alleged parking till 60 days after the parking, SubjectAccess.Requests@dvla.gov.uk It may just show that they did not request keepers details and therefore no NTK

[EL12345]

Hi, little update - I've written a defence. Ive posted it on a pepipoo forum, but I thought I'd post it here too - hope thats okay!

IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BRITANNIA PARKING LTD (Claimant)

-and-

XXXX XXXX (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant (Miss XXXXX, DOB XX.XX.XXXX, residing at XXXXXXXXX) is the registered keeper of the vehicle in question (XXXX XXX). The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXXXXXXX car park on XX.XX.XXXX. The Defendant denies that The Claimant is entitled to relief in the sum claimed, or at all.

2. The date of the alleged incident is XX.XX.XXXX which is nearly 3 years ago. It is extremely unreasonable for The Claimant to store DVLA data for 3 years then serve a claim with no due diligence nor evidence, in the hope that The Defendant has no paperwork relating to this alleged debt. By delaying serving a claim, The Claimant has generated interest of £20.46.

3. The Claimant’s solicitors, BW Legal, are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details, nor even checking for a true cause of action. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to The Defendant’s significant detriment.

4. If the driver happened to see the signage on each occasion, signs are located at a distance, unlit, and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. Upon further inspection of the cark park, signage stating terms and conditions were not visible, obvious or readable from any location when inside a vehicle. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.
4.1 The terms on The Claimant's signage are displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. That anyone attempting to read the tiny font would be unable to do so easily.
4.2 It is denied that The Claimant's sign sets out the terms in a sufficiently clear or visible 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.
4.3 The Defendant requests strict proof of where the car was parked and from photos taken how the signage appeared on the material date, at that time, from the angle of the driver's perspective. The Defendant requires how the signage appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this

5. This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as it can be ascertained, based upon the vague particulars of claim, it seems reasonable to assume the driver of the vehicle did not see the signage as signage displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. The defendant believes this distinguishes this case from Parking Eye vs Beavis [2015] none of this applies in this material case.

6. No evidence has been provided that a valid permit was not on display. Photographs of the keeper’s vehicle in the car park does not constitute a proven contravention of the parking conditions.
6.1. The Claimant has failed to provide any evidence that a valid permit was not on display.

7. 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.

8. 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 the amount unknown as the Notice to Keeper was never served/delivered. The claim includes an additional £60, for estimated legal costs, which appears to be an attempt at double recovery. This is because The Claimant later adds more legal costs to the claim.

9. The provision is a penalty and not a genuine pre-estimate of loss.
9.1. as the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking on the site in question.
9.2. the amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
9.3. the clause is specifically expressed to be a parking charge on the Claimant's signs.

10. In addition to the original parking charge, for which liability is denied, The Claimant has artificially inflated the value of the Claim by adding purported additional costs. The added costs are an artificially invented figure, which represents an attempt to circumvent the small claims costs rules.

11. 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.

12. 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.

The Defendant believe the facts contained in this Defence are true.


Name XXXX
Signature XXXX
Date XXXX


With regards to the 'Xft high' parts, I have yet to measure the exact heigh of the sign. However, I stand at 5 foot 7 inches, and had to extend my arm up to be able to take a picture of the sign, in order to be able to read it off my phone.

At the end of section 4, before 4.1, I have written what I believe is right about the wording f the signage. I am attempting to use what I have been helped in here, however I am unsure if I have got it right.

Section 6 will be removed if the SAR request a) does not come back in time for me to submit my defence, and b) if this is indeed what it shows.

I am unsure about section 9, as while I never received a Notice to Keeper for either ticket, I am yet to hear back from Britannia about whether they supposedly sent on, and the DVLA as to what date Britannia accessed my details.

Many thanks to anyone who can give me some guidance!

[charitynjw]

Contra preferendum, while sounding very grand, has pretty well been replaced (in consumer contracts) by the Consumer Rights Act 2015 s69.

http://www.legislation.gov.uk/ukpga/...ion/69/enacted

If they 'ditch' PoFA & try to action via common law contract breach, they must identify the driver, as there is no transferrance of liability in this type of claim. (Common law.)

[EL12345]

Contra preferendum, while sounding very grand, has pretty well been replaced (in consumer contracts) by the Consumer Rights Act 2015 s69.

http://www.legislation.gov.uk/ukpga/...ion/69/enacted

If they 'ditch' PoFA & try to action via common law contract breach, they must identify the driver, as there is no transferrance of liability in this type of claim. (Common law.)

Thank you so much for reading over it, and helping me! Does the 'ditching PoFA' part mean that they didn't send a NTK?

[charitynjw]

Thank you so much for reading over it, and helping me! Does the 'ditching PoFA' part mean that they didn't send a NTK?

No, it means that they can either use the Protection of Freedoms Act 2012 route or claim via common law breach of contract.
They can't do both!

[EL12345]

Thank you very much for the help! I hope my second draft is a bit more up-to-scratch



IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BRITANNIA PARKING LTD (Claimant)

-and-

XXXX XXXX (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant (Miss XXXX XXXX, DOB XX.XX.XXXX, residing at XXXXXXXXXX) is the registered keeper of the vehicle in question (XXXX XXX). The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at Bournemouth Uni Executive Business Centre car park on 03.05.2016. The Defendant denies that The Claimant is entitled to relief in the sum claimed, or at all.

2. The signage in the car park is of a ‘forbidding’ nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

3. Signs are located at a distance, unlit, and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. Upon further inspection of the cark park, signage stating terms and conditions were not visible, obvious or readable from any location when inside a vehicle. The Consumer Rights Act 2015 (s69) applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.
3.1 The terms on The Claimant's signage are displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. That anyone attempting to read the tiny font would be unable to do so easily.
3.2 It is denied that The Claimant's sign sets out the terms in a sufficiently clear or visible 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.
3.3 The Defendant requests strict proof of where the car was parked and from photos taken how the signage appeared on the material date, at that time, from the angle of the driver's perspective. The Defendant requires how the signage appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

4. This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as it can be ascertained, based upon the vague particulars of claim, it seems reasonable to assume the driver of the vehicle did not see the signage as signage displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. The defendant believes this distinguishes this case from Parking Eye vs Beavis [2015] none of this applies in this material case.

5. The Claimant has failed to comply with the Protection of Freedoms Act 2012, Schedule 4, at Section 4 in the following ways:
5.1. No Notice to Keeper was delivered.
5.2. The maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case the amount unknown as the Notice to Keeper was never served/delivered. The claim includes an additional £60, for estimated legal costs, which appears to be an attempt at double recovery. This is because The Claimant later adds more legal costs to the claim.

6. In addition to the original parking charge, for which liability is denied, The Claimant has artificially inflated the value of the Claim by adding purported additional costs. The added costs are an artificially invented figure, which represents an attempt to circumvent the small claims costs rules.

7. 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.

8. 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.

9. Please let it be noted that The Defendant has not received the Subject Access Request (SAR) back at the time of forming this defence. As the full particulars are not known at this time, the defence may need to be amended.

10. 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.

The Defendant believe the facts contained in this Defence are true.


Name
Signature
Date


Thank you for having a read over it. One part I'm not sure about is section 9, as I'm not sure if this is acceptable in a defence.