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  • FIRST POST
    • pipnigs
    • By pipnigs 24th Jun 17, 11:29 AM
    • 11Posts
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    pipnigs
    Claim form - napier parking
    • #1
    • 24th Jun 17, 11:29 AM
    Claim form - napier parking 24th Jun 17 at 11:29 AM
    Please can someone help me as to what I should do now! I have 14 days to respond to the claim form.

    I was too late to appeal apparently but did write to Napier parking challenging the Final Notice (final notice was dated 20 December 2016; I challenged it on 28th December 2016). I can attach a copy of that letter if that helps but it basically challenged the notice on 2 grounds, firstly that on finding I didn't have change I went to move vehicle and therefore they didn't allow me the "grace period" under the IPC Code of Practice and secondly, the charge (was £144, is now £224) is disproportionate, excessive and not commercially justifiable. I referred to the Halsey v Milton Keynes case on the basis that they should still consider the challenge outside of their normal deadlines. I asked for the validation code to refer to POPLA and I asked them to produce the contract that demonstrates their claim has resulted in a payment of £144 to the landowner.

    They responded on 6 Jan 2017 to say BW Legal are responding on their behalf, that they've served their documents in accordance with POFA 2012 (not sure what this means). that they have evidence that the driver didn't go for change, but went to a number of shops and a cafe and bought goods(not sure how they know who driver is and I have not declared driver). They have confirmed that they're members of IPC but don't offer POPLA and that the opportunity to appeal has passed. They confirmed that their charge is justifiable and lawful and they will evidence it in Court if required and that if I don't make payment they'd issue legal proceedings, which they've clearly now done.

    What do I do, what are my rights, should I just pay it. Please help asap!!
Page 1
    • MothballsWallet
    • By MothballsWallet 24th Jun 17, 11:33 AM
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    MothballsWallet
    • #2
    • 24th Jun 17, 11:33 AM
    • #2
    • 24th Jun 17, 11:33 AM
    First thing to do is to go to the MCOL website and using the details on the form issue your Acknowledgement of Service - this gives you 28 days instead of the default 14 days to actually lodge your initial defence.

    Second thing to do is to read the NEWBIES thread if you haven't already done so, there's a post on there by bargepole specifically about this.

    Third thing to do is to have a cup of tea and search this board for recent (I'd say no older than 6 months) posts: use the location and "claim" as your keywords to find something to use in your defence.

    Research it as much as you can, make sure it applies to your case (you'll most likely have to change things as not every defence is the same) and post it up here for others to review.

    You need to put in a lot of research work yourself, but come back to this thread and ask any questions you may have.

    Good luck - forum-assisted defences have a 99%+ chance of success, and iirc, BW Legal are one of the worst solicitors firms used by the PPC industry.

    (It's like asking the PPCs hiring Forest Gump to defend them in The Hague.)
    Always ask yourself one question: What would Gibbs do?
    Married to an immigrant.
    • pipnigs
    • By pipnigs 24th Jun 17, 11:39 AM
    • 11 Posts
    • 3 Thanks
    pipnigs
    • #3
    • 24th Jun 17, 11:39 AM
    • #3
    • 24th Jun 17, 11:39 AM
    thanks - I just find the newbies thread v confusing and difficult to work out what relevant to my defence and not - I will try !
    • MothballsWallet
    • By MothballsWallet 24th Jun 17, 12:50 PM
    • 10,972 Posts
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    MothballsWallet
    • #4
    • 24th Jun 17, 12:50 PM
    • #4
    • 24th Jun 17, 12:50 PM
    thanks - I just find the newbies thread v confusing and difficult to work out what relevant to my defence and not - I will try !
    Originally posted by pipnigs
    Take your time and don't rush - but please go and do the AoS on the MCOL website first to buy yourself more time (if you haven't already done so).
    Always ask yourself one question: What would Gibbs do?
    Married to an immigrant.
    • Coupon-mad
    • By Coupon-mad 24th Jun 17, 3:22 PM
    • 48,395 Posts
    • 61,839 Thanks
    Coupon-mad
    • #5
    • 24th Jun 17, 3:22 PM
    • #5
    • 24th Jun 17, 3:22 PM
    thanks - I just find the newbies thread v confusing and difficult to work out what relevant to my defence and not - I will try !
    Originally posted by pipnigs
    It's at/near the top of the forum with the other stickies. My signature tells you where to click.

    Post #2 of the NEWBIES thread is all about court stage, and walks you through acknowledging service on MCOL. It also shows links to example defence wording, what not to put in a defence, what boxes to tick at each stage and even down to the font size/type, and line spacing to use in a defence to make it read that you mean business.

    Also, hundreds of other threads here (you must have seen some when you cast your eye down the forum threads, there are loads every week, every day...) show you how to defend a case, and we win. BW Legal are a joke - search 'BW Legal claim' - we have never lost one.

    BW Legal are responding on their behalf, that they've served their documents in accordance with POFA 2012 (not sure what this means).
    You need to read the NEWBIES thread. The POFA 2012 Schedule 4 if the law that allows them to hold a keeper liable under certain circs.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • pipnigs
    • By pipnigs 27th Jun 17, 3:24 PM
    • 11 Posts
    • 3 Thanks
    pipnigs
    • #6
    • 27th Jun 17, 3:24 PM
    • #6
    • 27th Jun 17, 3:24 PM
    Thanks all - I have read the newbies thread and have issued my acknowledgement of service through the MCOL.
    However I'm struggling with the defence angle slightly – please can you assist. This is what I’ve pulled together so far-
    My points of defence are:-

    1. In order to enforce a parking ticket a landholder first has to be able to show that a contract to park existed between the driver and the landholder, and that the terms and conditions of that contract have been broken by the driver (see POFA 2012, Section 7 “How is a parking contract formed?”). In this case the driver, as I understand it, having left the vehicle to go to the ticket machine, and then decided not to park, which is allowed under the grace period allowed for under the IPC Code of Practice 15, means that no contract was legally formed and therefore any parking ticket is not enforceable. Napier state in their letter to me (the keeper) of 6 Jan 2017 that they are members of the IPC so why wouldn’t they follow the IPC code of practice? Surely they are required to do so? Napier have produced photographic evidence of the car being parked there for 1 minute on 3.9.2016 (11.29 to 11.30), which also doesn’t allow long enough for a person to get to the parking machine and back and remove the car from the car park, so even if they were honouring the IPC Code of Practice, they haven’t allowed time for a true grace period to be put in place. This is substantially unfair especially given the level of fine being applied.
    2. After my dispute letter of 28.12, they then purport to claim that they have photo evidence that the driver actually stayed longer - they state that "the driver did not go for change they went to a number of shops and a cafe and bought goods. In any event our signs state that you should not enter the car park unless you have the correct change to purchase a ticket"; The statement is untrue and presumably I can request this proof in advance of any court case? It is for the claimant to prove their case, not the defendant.
    3. Even if the argument is upheld that a contract was formed, the Protection of Freedoms Act 2012 does not permit the Claimant to recover a sum greater than is specified in the Notice to Keeper (less any payments made towards the unpaid parking Charges). The claimant cannot therefore recover additional charges. My understanding therefore is that any liability would be for £90 only. I need to understand therefore how the original charge of £90 has escalated to £144 and then £149.80 when it seems that it is unlawful to do this under the POFA 2012.
    4. The charge (that has risen from £50 to £149.80 over 10 months) is disproportionate, excessive and not commercially justifiable or reasonable. According to the Unfair Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. In my case the early escalated charge of £144 (which was £50 if paid within 14 days, or £90 charge if paid within 28 days) for a minute’s worth of parking far exceeds any cost to the landowner. A detailed breakdown of how the amount of the charge was calculated and the loss that has been suffered by the landowner for parking there is required if payment is expected from the vehicle keeper. Likewise it states in the DFT POFA 2012 that charges for breaking a parking contract “must be reasonable and genuine pre-estimate of loss and that “Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver”.
    5. Furthermore, if Napier are going to continue to pursue this claim in court, I would like to see the following documentation prior to any court hearing:-
    a. As BW legal are acting on behalf of Napier, I would like to see the contract confirming they have the right to take people to court and how the partnership operates.
    b. I would also like sight of the legal documentation that confirms that Napier have been appointed the agent to manage and operate the land, including charging drivers for breaking parking conditions. [ the BMPA states that Napier Parking is run and owned by James and Nicholas De Savary and that the company actually owns most of the car parks it runs and issue tickets as “revenue protection “ – is there any mileage in this in terms of how much they can charge someone for “revenue protection”].

    6. Lastly, their appeal procedure seems flawed. It is unreasonable not to accept a challenge to the notice outside of the normal deadline (reinforced by the Civil Procedure Rules) and Halsey vs Milton Keynes. Challenge was made in my letter dated 28.12.16 [ this is 4 months from date of fixed charge notice which was 7.9.2016) yet I was told clearly that “the opportunity to appeal independently has passed” in their letter of 6 Jan 2017. Had they been reasonable and allowed the appeal, we may not be in this situation which would be better for all parties concerned. Surely the point of using the IAS as an appeal body is to allow people to appeal, even if it is after the deadline? It also makes NO sense that they reference the IAS in their appeal section of their Fixed Charge Notice, yet then say later down the line in their letter to me that they are a member of the IPC yet “ do not offer POPLA”. I thought POPLA was the IAS (as referenced in the Department for Transport Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges 15.8”?


    Am I on the right track - what should i remove/add?
    • Coupon-mad
    • By Coupon-mad 9th Jul 17, 5:58 PM
    • 48,395 Posts
    • 61,839 Thanks
    Coupon-mad
    • #7
    • 9th Jul 17, 5:58 PM
    • #7
    • 9th Jul 17, 5:58 PM
    Has this been filed as the defence or do you still need comments?
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • pipnigs
    • By pipnigs 9th Jul 17, 7:09 PM
    • 11 Posts
    • 3 Thanks
    pipnigs
    • #8
    • 9th Jul 17, 7:09 PM
    comments for napier parking
    • #8
    • 9th Jul 17, 7:09 PM
    Hi - no I haven't filed this yet - but I think I need to get on with it as the deadline must be v close - would love comments from you as these were the points that I came up with for the defence.....

    Thanks
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