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    • jjay33
    • By jjay33 16th Mar 17, 7:33 PM
    • 14Posts
    • 10Thanks
    Not parked, on a car park that no longer exists
    • #1
    • 16th Mar 17, 7:33 PM
    Not parked, on a car park that no longer exists 16th Mar 17 at 7:33 PM
    Hi - I have received the notorious court claim from E/cel Parking, through BWL, for an alleged parking offence in December 2014.

    I received an initial NTK in January 2015, for an alleged offence that was sent to me based on an ANPR identification. It informed me that my car had apparently parked on a car park in my local town centre and not paid the required fee, etc etc…you know the drill. From what I recall of the NTK, the car was only on the car park for around 10-15 minutes, so I can only assume a space wasn’t available and the driver moved on to find another car park with space nearby.

    Being mid-winter, visibility would have been poor - the driver may not have realised that this car park was monitored by ANPR, as most other car parks in the town are manned or council run, with penalties issued by wardens.

    The car park in question no longer exists. The building to which it was adjacent, was demolished during 2016 and in its place is a brand new, shiny council run car park, so there’s no way for me to revisit and assess whether the signage was sufficient that the driver should have realised they would be charged whilst waiting for a space to become free.

    When I got the NTK in Jan 2015, I did some research, found this forum and decided, perhaps misguidedly, to ignore the notice.

    I heard nothing more until 3 weeks ago when I got a Letter of Claim, which has the vastly inflated demand for £246.58, based on added interest of the initial penalty, court fees, etc etc. I no longer have the original NTK and hadn’t given it a thought for the two years that have passed since.

    I have now duly submitted my AoS on MCOL, and will being putting together my defence over the next couple of weeks or so.

    Questions for the forum:

    Is is relevant to raise the point that the car only entered the car park to unsuccessfully locate a space, or should I just stick with the POFA compliance argument, as the only evidence is ANPR?

    Are there any examples of cases where the car park no longer exists meaning evidence of poor signage can’t be gathered?

    I’d like to glean what information I can from these specific circumstances, to help with my defence. Cheers!
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    • Guys Dad
    • By Guys Dad 20th Mar 17, 5:21 PM
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    Guys Dad
    I think where you have a good defence anyway then there is no point hiding behind "you can't prove I was the driver". Many judges will ask you directly if you were driving and (if you were) bang goes that whole aspect of your defence, and you start off on the back foot. Or a judge can assume, on the balance of probabilities, that you were driving and again, bang goes that whole aspect of things.

    So if you have three good defences of rubbish signage so no contract, didn't park anyway so cannot have accepted any contractual terms which may have been offered, grace periods apply, then focus on those rather than getting sidetracked by the driver thing. It might be different if you could genuinely say that several people used your car, produce insurance to back that up, and say that you genuinely can't remember or evidence that it can't have been you.
    Originally posted by Loadsofchildren123
    Could not agree more. The template is great for appeals where the motorist has no real stand-out reasons, but if there is something like POFA out of time or Grace periods or double-dipping, then that should be the main challenge.
    • jjay33
    • By jjay33 22nd Mar 17, 10:05 PM
    • 14 Posts
    • 10 Thanks
    I'm gradually pulling together my defence, and will post on here in the next couple of days.

    In the meantime, I'm keen to get hold of a copy of the NTK, which I no longer have given it was over 2 years ago, as I want to check the times they have logged on the ANPR pictures. I'm planning to make a point about this being unreliable evidence due to inaccurate time stamps when connected to remote servers etc.

    Having searched I found this example, as a way to request a copy of the original NTK. I know I may not get a reply, but I'm willing to give it a shot:

    Dear Sir

    Ref (Claim number)

    I have received the above claim regarding your client, [the claimant]

    Please send me a copy of the original parking notice that I need to write my defence
    The request is not disproportionate to the disputed sum and the document should already be in your possession

    Although the claim should be allocated to the small claims track, this has not yet occurred.
    The provisions of CPR 27(2) are therefore of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

    Thank You

    Yours Faithfully

    This is slightly different from a Part 18 I believe, but an equally valid way to request information.

    Is the wording OK, or should I use the Part 18 format? There's nothing else I want to ask for, as I don't really want to show my hand before they see my defence.
    • Coupon-mad
    • By Coupon-mad 24th Mar 17, 12:18 AM
    • 44,143 Posts
    • 56,875 Thanks
    Doesn't have to be part 18 format. Email it or post with a free certificate of posting (keep it).

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • Loadsofchildren123
    • By Loadsofchildren123 24th Mar 17, 6:46 AM
    • 376 Posts
    • 554 Thanks
    A couple of points:

    1. Lamilad pointed out to me recently that Part 18 doesn't apply to small claims. However, there is provision for a judge to order a party to provide information. I posted chapter and verse on it, I'll have to find the post.

    2. A Part 18 Request doesn't have to be in the formal court format, but I think it's better if it is. I will post a link to a precedent here when I get to work.

    3. I think given 1 above, when I've posted the relevant rule, in addition to sending the Request to the Claimant, you should also write to the court with a copy of the Claim Form, the LBC and the Request. Say you are unable to understand the claim because of the Claimant's failure to particularise it properly (see attached POC) and its failure to provide basic documentation to evidence its claim in the pre-action phase of the proceedings (in breach of paras 3(a) ,3(c) and 6 of the Practice Direction - Pre-action Conduct and Protocols, and you have therefore prepared a Request. Draw attention to the rule and ask the court to make an order that the Request is answered and the proceedings are stayed until it does (para ?15 of the Practice Direction). Otherwise natural justice is not served because you are denied the right to know what the claim is and to properly defend it.

    I'll post a draft Pt 18 Request, the relevant rules and some suggested letter for the wording to court later this morning.
    • Loadsofchildren123
    • By Loadsofchildren123 24th Mar 17, 8:20 AM
    • 376 Posts
    • 554 Thanks
    Rule 27.2(1)(f) says that Rule 18 doesn't apply in small claims, but this is subject to paragraph 27.2(3) which says that the court can order a party to provide information if it is appropriate.

    Rule 18 itself doesn't say that Part 18 Requests have to be answered. It says the court can order a party to do so. It is of course usual for parties to answer Requests to avoid an application being made. The Practice Direction to Rule 18 says you can ask questions, and provides the procedure for asking the court to order a party to answer them. It provides that any request must be "concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet."

    There is a subtle difference between the small claims and the procedure for other claims - in other types of claims you'd put in a Part 18 Request and if the other side don't answer it you'd make a formal application to the court for it to be answered. In small claims you can ask questions, but there is no provision for you to make a formal application, only provision for the court to make an order "of its own volition" under 27.2(3).

    So if you want to ask questions, I'd put them into a formal Part 18 document and if the other side refuses to answer them I'd write to the court asking it to make an order under Rule 27.2(3) - in your letter to the court you must explain why the questions are necessary, how they are proportionate, that the other side has refused to answer them and how this prejudices you (eg you are unable to prepare a proper defence without the information because.....)

    Here is my anonymised Part 18 Request - some of my questions will be irrelevant to your case, but I've left them in so you can see how to set it all out. You can adapt this draft to include questions you want to ask. I put mine in after the witness statements were exchanged, and my "Of......." questions refer to their statement - if you haven't reached that stage your "Of...." questions would refer to the Particulars of Claim.

    I think you should send this to the solicitors and also write to the court to ask it to make an order and to stay the proceedings until the information is provided. I'll do a suggested letter for you now I'm thinking about it.
    • Loadsofchildren123
    • By Loadsofchildren123 24th Mar 17, 9:08 AM
    • 376 Posts
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    Suggested letter - I've shoved in a request for strikeout at the end, you might as well try. You might mark the letter as urgent, given that your Defence is due. Assume no order will be made and get on with your defence and if you've heard nothing, file it anyway:

    Dear Sirs,

    Case number [ ]

    I am the Defendant in this matter.

    The purpose of this letter is to ask the court to make an order that the Claimant must answer a Request for Information and that, in the meantime, the proceedings should be stayed. Since the purpose of the Request is to establish the basis for, and facts of, the Claim, I also ask that I am given [14] days following the answer to the Request to file my Defence. I enclose a copy of the Letter Before Claim, the Particulars of Claim, and a Request for Information which I have served on the Claimant. I am due to file my Defence by [date].

    The court has the power to order the Claimant to answer the Request under CPR Part 27.2(3) and to stay the proceedings under the Practice Direction – Pre-Action Conduct and Protocols paragraph 15(b). It also has the power to make orders pursuant to its inherent case management powers contained in CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1.

    The reasons for this request are as follows:

    1. The Claimant has failed to comply with the Practice Direction – Pre-Action Conduct and Protocols. The requirements of the Practice Direction are neither voluntary, nor simply a guide as to best practice. They are part of the CPR and binding on parties to litigation. Paragraphs 13-16 make it clear that parties are expected to comply with the obligations and that the court will punish those who do not. This is supported by case law, and I rely on the cases set out in paragraph 8 below.

    2. The purpose of the Practice Direction is set out in paragraphs 3 and 12 (so that the parties can understand each other’s positions, make decisions about how to proceed, try to agree a settlement, consider ADR, support the “efficient management” of any ensuing proceedings and to reduce costs – as per paragraph 8 “litigation should be a last resort”). In paragraph 12 it states under the heading “Stocktake” that the parties should, after following the Practice Direction, review their positions, consider whether proceedings are necessary and at least seek to narrow the issues.

    3. The pre-action obligations of a Claimant are clearly set out in paragraphs 6(a) and (c) and 12 of the Practice Direction. In the initial Letter Before Claim, they must explain their case in sufficient detail for the Defendant to understand it and to respond to it, and they must then answer any reasonable questions asked by the Defendant. In addition to information, the Claimant is obliged to produce the core documents on which they intend to rely to prove their case (6(c)).

    4. In this case, the LBC (copy enclosed) contained no explanation of what the cause of action was (eg breach of contract, trespass and so on), any reference to the relevant legislation (POFA 2012) and not even basic documentation was identified, offered or provided.

    5. The Claimant’s failure to observe the Practice Direction has denied the parties any opportunity to exchange information, engage in any debate about the basis for the claim or the defence to it, and to “take stock”. Not even the issues have been narrowed, because I have no idea of the cause of action being pursued against me. This means that I am unable to defend the Claim in any meaningful way, which must be contrary to the laws of natural justice.

    6. Even now that proceedings have been started, the Particulars of Claim (copy enclosed) contain no cause of action and do not properly particularise the Claim in any way. This leaves me in a very unfortunate position because I am unable to understand the basis of the Claim, nor the facts or documentation on which the Claimant relies to prove its Claim – all of which means that I am unable to consider my position and submit a proper Defence.

    7. Paragraph 15(b) of the Practice Direction specifically provides that the court may stay a Claim while steps are taken (retrospectively) to comply with it. This is a case where a stay should be ordered.

    8. I rely on the following case law:
    Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 (in paragraph 46 the court said that the purpose of the Practice Direction was so that the required “exchange of information” should take place “in the lower-cost atmosphere of pre-action protocol procedure” rather than “in the higher-cost atmosphere of court proceedings”);
    Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch) (in which the court reiterated the aim of the pre-action requirements and emphasized that litigation is a last resort, and should not be pursued as a matter of course as the Claimant clearly does in this case);
    Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872 (in which the court said at paragraph 14: “the object of the protocol is… to get people to put their cards on the table and to honestly and rationally discuss matters. … the protocol provides the framework for a sensible discussion, or the chance for a sensible discussion so that the option is available to a party to avoid the need for litigation.

    9. The Request for Information is confined to matters which are relevant and proportionate to the claim [expand on this]. All of the information is necessary for me to have a proper understanding of how the Claim is brought and how it will be proven, all of which I need to consider my position and prepare my Defence.

    10. It follows that if the court orders that the Claimant must answer the Request, and that the proceedings should be stayed, I will require extra time in which to file my Defence. I ask for [14?] days following receipt of the answer.

    11. Alternatively, I invite the court to strike out the Claim pursuant to CPR Rule 3.4 because its incoherent Particulars make it an abuse of process. The court has the power to do so by exercising its inherent case management powers under CPR1.4(2)(c) and Practice Direction 26, paragraph 5.1.

    Yours faithfully etc.

    • Loadsofchildren123
    • By Loadsofchildren123 24th Mar 17, 10:34 AM
    • 376 Posts
    • 554 Thanks
    I'm keen to get hold of a copy of the NTK, which I no longer have given it was over 2 years ago, as I want to check the times they have logged on the ANPR pictures. I'm planning to make a point about this being unreliable evidence due to inaccurate time stamps when connected to remote servers etc.
    Originally posted by jjay33

    Just something to bear in mind. I wouldn't put it past some PPCs to doctor NtKs to make them POFA compliant if they realise the Defendant has lost their copy.

    I did not have the NtK in my case. I didn't ask for it and it wasn't produced until the witness statement stage. The date on it shows that it was served well out of the POFA time limit. If the keeper had confessed that they no longer had it, I was concerned that the PPC may have realised it was out of time and changed the date to make it look as if it was POFA compliant.

    Perhaps I was being over suspicious though....

    On balance, I'd request a copy of it.
    • jjay33
    • By jjay33 24th Mar 17, 9:32 PM
    • 14 Posts
    • 10 Thanks
    Thanks Loadsofchildren123 - this is awesome. I'll get this sent off this weekend. I've got the bones of my defence done so will post up here too before next week. I'm also now on the hunt for a new job (contract) so I'm going to be staring at a screen most of the weekend by the looks of it!

    I'm guessing when I post the letter to the court I go to the Nottingham address, with all the relevant reference numbers? I'm so used to electronic correspondence these days, it seems alien to rely on snail mail, but at least I can send it signed for.

    Thanks again for the help
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