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  • FIRST POST
    • foofcat
    • By foofcat 18th Aug 17, 4:14 PM
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    foofcat
    Court proceedings for auto repair visit
    • #1
    • 18th Aug 17, 4:14 PM
    Court proceedings for auto repair visit 18th Aug 17 at 4:14 PM
    Update: The lovely forum regulars helped me craft my defence statement, which can be found in a link on page four (post #69) if you'd like to see it.

    Hello, I've read through the sticky and feel increasingly downhearted because I think I've done everything wrong so far. I've never posted on a forum before so please go easy on me - I'm happy to be corrected and edit this post as needed.

    Essentially the help I need is I'm not sure which basis would be the most effective in mounting my defence.

    Background:
    Earlier this year, someone knocked my wing mirror clean off while I was in Sainsburys. I sucked it up and took it to a garage but that ended up being difficult as I had to keep bringing and taking it back several times only for a solution that didn't last.

    One one such visit, the garage asked me to leave the car with them and told me they'd call me to pick it up when it was ready. I dropped it off around noon, hung out with my mum all day, and picked it up in the evening. I now know that PCM photographed it parked directly outside the garage's entrance - the PPC in question has one time of incident on their "pay my pcn" website, but the time on the original NTK is about 30 minutes later. I picked it up around two hours later.

    Several weeks later I received an NTK advising that I'd contravened their terms (date they posted it was three days after the alleged contravention). When I confronted the garage they showed me a binder full of similar such noticed received for their own vehicles and other customers and told me that if I didn't ignore it they would only get more insistent. This was my first mistake - I should have immediately researched it then but circumstances at the time left me feeling too depressed and tired to deal with it. Not an excuse I know!

    However when I received a letter from their debt collection agents, I caved and contacted them in writing advising that I wasn't the driver and that it was at the garage all day on the day in question. They told me due to PoFA 2012 (Schedule 4) it was too late for me to report the driver and that I was liable as the registered keeper. I didn't know what to do with that so I left it.

    I then received a letter from the solicitors stating that they intend to take it to court - again I ignored it (feeling very stupid as I type this). I have now received a County Court Business Centre claim form and I want to (finally) be proactive about this - I also don't have a choice now given what I've read on the sticky thread.

    Court Claim Form:

    I've filed an AOS online but didn't see this forum in time and ticked the "intend to contest the jurisdiction" box thinking I'd otherwise have to go to Northampton.

    I've now done some more research (including going to the site and taking pictures). It looks like the entire road is owned by Network Rail and therefore may not be enforceable by PCN, or at the very least I think PoFA 2012 might not apply in my case?

    I can provide all documentation and photographs if this helps but at the moment I'm overwhelmed and have some basic questions:

    1. Should I correct the jurisdiction issue on the AOS - if so, is it even possible now that I've submitted it?

    2. Should my defence be focused on the fact that I was unequivocally not even in possession of the car at the time of the contravention because it was with the mechanic (as is shown by their own photographs because it's parked right outside their entrance).

    3. OR should I instead focus on the fact that the entire road is owned by Network Rail and bylaw 14 applies (according to the Network Rail sign). I'm worried that it will undermine me in pointing out I wasn't driving.

    4. Is there any point in me writing to Gladstones directly to see if I can get them to drop it on the basis of bylaw 14? I genuinely wasn't driving at the time and this is all very stressful.

    5. If I'm correct in the above point 3, I'm considering counterclaiming a breach of DPA but I'm not clear on whether this is a separate process or if I can include it in the defence process. I don't like the idea of them holding my personal information based on a contravention that wasn't valid and that I wasn't even aware of.

    There is a lot of information available on these threads but I've got a case of information overload. If someone could at least nudge me in the right direction, I'd be extremely grateful. Thank you and sorry if this is too much information!
    Last edited by foofcat; 16-10-2017 at 12:14 PM. Reason: Renaming the title to be more descriptive
Page 3
    • Lamilad
    • By Lamilad 20th Aug 17, 5:35 PM
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    Lamilad
    The Defendant had no knowledge whatsoever of which individual at the garage was driving at the time of the alleged contravention and therefore could not supply the name of any individual – only that of the garage itself. The Defendant was of the view that the name of the business in question and the fact that it is the only garage on the road where the alleged contravention took place would be sufficient for the Claimant and their tracing agents to pursue the correct party. The Defendant was of the understanding that she had discharged any liability.
    Remove all of this
    • foofcat
    • By foofcat 20th Aug 17, 5:50 PM
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    foofcat
    Done, thanks!
    • foofcat
    • By foofcat 20th Aug 17, 6:04 PM
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    foofcat
    Another thought: I've taken another look at the "evidence" on PCM's website of the alleged contravention. All the photos are time stamped between 16.36 and 16.37. The original NTK also says 16.36. But on "PCN details" section of their site it says the contravention time was 17.11.

    Should I include this discrepancy in my defence - or is it not really a discrepancy?

    I have screenshots from the PCM site.
    • Coupon-mad
    • By Coupon-mad 20th Aug 17, 6:15 PM
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    Coupon-mad
    I would contend that it is a discrepancy and put the Claimant to strict proof of the timings and to explain the discrepancy.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • foofcat
    • By foofcat 20th Aug 17, 6:30 PM
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    foofcat
    Thanks Coupon-mad. I'll see if I can work that in to the first section. I also noticed that they didn't put the duration of the contravention on the NTK so might include that as I think (from memory) that PoFA says they should?
    • Lamilad
    • By Lamilad 20th Aug 17, 7:12 PM
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    Lamilad
    Para 2. Is too long you don't need that level of detail. Suffice to say

    "2. Failure to comply with the conditions of Schedule 4 of the Protection of Freedoms Act 2012.

    a) Proceedings to recover the 'unpaid parking charge' were issued by the claimant on [DATE OF ISSUE ON CLAIM FORM]

    b) In a letter/email dated xxxx - 3 months(?) before the claimant had begun proceedings - the defendant informed the claimant's agent who the driver of the vehicle was at the time of the parking event. This removed any right the claimant had to pursue the RK under the provisions of PoFA (para 5).

    c) In their reply dated xxxx, the claimant's agent gave false information to defendant stating it was 'too late' to name the driver and they could still be pursued under PoFA.

    d) This deliberate misrepresentation of the Act can only be viewed can only be viewed as a devious and mischievous attempt by the claimant to intimidate the defendant into paying their baseless charge.

    e) Such conduct by a professional parking company and serial litigant with full knowledge of the relevant laws, is clearly vexatious and crosses the threshold for unreasonable behaviour, pursuant to CPR 27.14(2)(g)


    .... I would then go on to make para 3 an extension of 2 as it also falls under the header "PoFA non compliance"
    • Lamilad
    • By Lamilad 20th Aug 17, 7:15 PM
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    Lamilad
    i. When the Defendant discharged liability, she provided the name of the garage – the serviceable address for which was already known to the Clamant through their own photographs (which showed the vehicle parked directly in front of the garage) – and the fact it was located on the land they alleged the “contravention” had taken place.
    Despite my messing around with this passage I would now remove it based on my previous edit
    • foofcat
    • By foofcat 20th Aug 17, 7:35 PM
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    foofcat
    b) In a letter/email dated xxxx - 3 months(?) before the claimant had begun proceedings - the defendant informed the claimant's agent who the driver of the vehicle was at the time of the parking event. This removed any right the claimant had to pursue the RK under the provisions of PoFA (para 5).
    This is maybe a quibble - but all my email said was I wasn't driving because the car was in the possession of XXX garage at the time of the incident.

    Should I change your version so it says who the "keeper" was at the time? (As opposed to "registered keeper")
    • Lamilad
    • By Lamilad 20th Aug 17, 7:47 PM
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    Lamilad
    Although the garage is a company it is still an 'individual entity' for the purposes of PoFA.

    So you're saying 'the garage was the driver'..... Specifically 'who' at the garage parked the car is irrelevant as the garage has vicarious liability for its employees.

    For the purposes of PoFA P5 it's important you say 'driver' rather than 'keeper'
    • Lamilad
    • By Lamilad 20th Aug 17, 7:53 PM
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    Lamilad
    Bear in mind that a lot of the stuff we're cutting out can still be used further down the line when you're creating your WS and skeleton argument.

    That's when you go into detail and adduce evidence
    • foofcat
    • By foofcat 20th Aug 17, 7:54 PM
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    foofcat
    Ah okay, thanks Lamilad. I've made your edits, but I've kept paras 2 and 3 distinct because I thought it was starting to get muddy when I combined them.

    Basically I've done:

    2) Non-compliance in pursuing me even after I discharged liability and named the driver

    3) Non-compliance because the location was not relevant land and they had no authority on said land - Network Rail does.

    Does that make sense? Happy to defer to your expertise but was also thinking of the readability of it (which you've drastically improved in the matter of a few hours!)

    (I've edited post #36 on this thread so you can see what it looks like now)
    • Lamilad
    • By Lamilad 20th Aug 17, 8:23 PM
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    Lamilad
    Yes that's fine your defence should be well laid out and easy to read. But it needs to be more concise.

    Para 3 def needs trimming down.

    4 can be made into one para by removing 'a)' and merging 'b)'

    In 5 don't restate the PoC and make 'a)' more concise

    6. Is largely irrelevant as you are just repeating previous statements. Suffice to have 1 para saying 'for all the reasons stated above the court is invited to strike out the claim as being utterly without merit, disclosing no cause of action and having no prospect of success... Or words to that effect.
    • foofcat
    • By foofcat 20th Aug 17, 8:27 PM
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    foofcat
    Brilliant suggestions (and in line with what I was thinking especially re: the long paragraphs you've listed). I'm going to take another stab at this tomorrow after work and post a comment here when I've updated / shortened it. I know I keep saying this but thank you!
    • foofcat
    • By foofcat 21st Aug 17, 8:58 PM
    • 68 Posts
    • 28 Thanks
    foofcat
    Hello Lamilad and everyone,

    I've shortened it by nearly 600 (!) words, but I think it's still a bit long. Hopefully it helps that I've tightened up and reordered the points so they make more sense and are easier to follow (I think).

    Any thoughts?

    On another note, I had a really weird email exchange with the court today. I couldn't reach them by phone (it kept ringing indefinitely) so I emailed and explained I made a mistake in ticking "I want to contest the jurisdiction" when I filed the AOS online. I got a reply that basically explained how long I had to contest jurisdiction. So I replied to say no no, I want to correct my AOS so that I'm not contesting jurisdiction because it was a mistake. The next reply said "Good morning" (at 3pm haha) "It is not possible to correct please be advised to submit the defence within the required timescale"

    However before I got that reply I'd tried again and managed to reach the MCOL phone help desk who said that I should just hand fill out the paper AOS I received and email it to them. I've now done that but 'm not sure what to make of the email exchange.

    It seems the help desk for the court and the MCOL are both really tricky to get hold of by phone, and seems like they have to deal with a lot of these ridiculous PPC claims....
    Last edited by foofcat; 21-08-2017 at 9:14 PM.
    • foofcat
    • By foofcat 21st Aug 17, 9:04 PM
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    foofcat
    Also - let me know if I should be posting new versions of the defence in new comments on here instead of just updating comment #36 on page 2 - I'm doing it that way to keep things tidy / efficient for anyone else in a similar position but I don't mind either way.
    • foofcat
    • By foofcat 23rd Aug 17, 11:22 AM
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    foofcat
    Hello,

    I've done some more work on my defence and uploaded a redacted version here:

    Also photos / scans here in case it helps.

    If anyone could share any feedback I'd really appreciate it.

    In other worrying news, I'd emailed the DVLA on the dsp email address to ask when the PPC requested my details, and got a response from someone in the Casework and Enforcement Group asking for my current address vs the registered addres, rather than anyone from the Data Sharing or Strategy and Policy team. Is this normal?

    Thank you!
    Last edited by foofcat; 23-08-2017 at 11:58 AM.
    • Lamilad
    • By Lamilad 23rd Aug 17, 1:36 PM
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    Lamilad
    I'd emailed the DVLA on the dsp email address to ask when the PPC requested my details, and got a response from someone in the Casework and Enforcement Group asking for my current address vs the registered addres,!
    Not sure what you mean. Can you post what the reply said.
    • foofcat
    • By foofcat 23rd Aug 17, 1:59 PM
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    foofcat
    Good afternoon

    Thank you for your email.

    Before we are able to consider your request further, please confirm the address at which the vehicle was registered and your current address if this is different.

    Kind regards

    XXX XXXX
    First Line Manager
    Casework and Enforcement Group
    My question is if I asked for them to let me know when they shared my data with PCM by emailing the data team, why would I be getting a reply from the Casework and Enforcement Group?

    My original request sent to dsp@dvla was as follows:

    Dear Sir or Madam,

    As DVLA records will confirm, I am the registered keeper of a motor vehicle registration number XXXX XXX.

    I have received a postal demand for a payment from a debt collection agency engaged by a private parking company, who cite PoFA as their reason for pursuing me rather than the company who had possession of the car on the date of the contravention.

    The Notice makes reference to Sch 4 of the Protection of Freedoms Act 2012 (‘PoFA’) and/or ‘keeper liability’.

    I understand that Paragraph 11 of PoFA makes it a statutory requirement for the creditor (or a person acting for or on behalf of the creditor) to have made an application for the keeper’s details to the Secretary of State.

    I therefore require the DfT, acting on behalf of the SoS, to provide the following information:-

    1) Confirmation (or otherwise) that my data was requested and supplied in accordance with that statutory requirement.

    2) The full details of the name and address of the requestor

    3) The date of the request, I believe this will have been between XXX and XXX

    4) The date that my personal details were given


    Many thanks in advance for you assistance,
    I'll PM you as I don't want to publicly share personal circs / details.

    Thanks
    Last edited by foofcat; 23-08-2017 at 2:42 PM.
    • foofcat
    • By foofcat 11th Sep 17, 9:45 PM
    • 68 Posts
    • 28 Thanks
    foofcat
    Hello all, I hope you're well.

    I'm planning to email my defence statement to the court tomorrow (I have until 16th Sep because of the AOS), and wondered if anyone would be up for looking over it?

    Thanks!
    Last edited by foofcat; 12-09-2017 at 12:16 AM.
    • Lamilad
    • By Lamilad 11th Sep 17, 10:53 PM
    • 1,178 Posts
    • 2,339 Thanks
    Lamilad
    Hello all, I hope you're well.

    I'm planning to email my defence statementt to the court tomorrow (I have until 16th Sep because of the AOS), and wondered if anyone would be up for looking over it?

    Thanks!
    Let's see it.
    Last edited by Lamilad; 16-10-2017 at 11:47 PM.
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