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  • FIRST POST
    • MUBS54321
    • By MUBS54321 12th Sep 17, 10:57 PM
    • 14Posts
    • 1Thanks
    MUBS54321
    Defence Letter
    • #1
    • 12th Sep 17, 10:57 PM
    Defence Letter 12th Sep 17 at 10:57 PM
    Hi

    I've had a county order and i have till tomorrow to respond with my defense.

    I'm going to put the defense letter together but i don't know which law cases to cite as the driver was parked in a car park which required a permit.

    The weather was really bad and we were attending a class. I don't believe i was given 30 mins notice by the attendant who slapped on a ticket there and there but i don't have any way of proving this.

    I've read the newbie thread but wanted guidance as to which court cases to sight and examples of defense letters which may be relevant to me.

    Any help or pointing in the right direct would be really great.

    Thanks
    Mubs54321
    Last edited by MUBS54321; 12-09-2017 at 11:35 PM.
Page 1
    • Quentin
    • By Quentin 12th Sep 17, 11:25 PM
    • 33,303 Posts
    • 17,230 Thanks
    Quentin
    • #2
    • 12th Sep 17, 11:25 PM
    • #2
    • 12th Sep 17, 11:25 PM
    The ppcs monitor this forum and can use your posts against you

    Edit your post to remove details of who was driving
    • MUBS54321
    • By MUBS54321 12th Sep 17, 11:36 PM
    • 14 Posts
    • 1 Thanks
    MUBS54321
    • #3
    • 12th Sep 17, 11:36 PM
    • #3
    • 12th Sep 17, 11:36 PM
    Done... Thanks for the advice.

    Do you know which case i can cite for my defense?
    • nosferatu1001
    • By nosferatu1001 13th Sep 17, 12:36 AM
    • 887 Posts
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    nosferatu1001
    • #4
    • 13th Sep 17, 12:36 AM
    • #4
    • 13th Sep 17, 12:36 AM
    Defence. U.K. English.

    What was the date of issue? Did you acknowledge the claim to get 14 extra days? Showing us your current defence would also have been sensible, so we can see how near or far away you are.
    • MUBS54321
    • By MUBS54321 13th Sep 17, 6:43 AM
    • 14 Posts
    • 1 Thanks
    MUBS54321
    • #5
    • 13th Sep 17, 6:43 AM
    • #5
    • 13th Sep 17, 6:43 AM
    Date of Issue was 27/08 and i have requested an extension outside the 14 days.

    Is it even worth preparing a defense here. I know i should have been more on the ball here.

    The car park was permit only and there's lots of signs but they are quite high up.

    The weather was really bad and i genuinely didn't realize it was permit only but i don't think i was given the required 30 mins by the parking company.

    Is there a standard defense i can put through?

    My defense was going to be in plain english explaining that the signs were too high and the weather maid the issue worse. We were also with a baby who wasn't feeling too great so we were quite keen to get inside the building to attend the class.

    I hope its not too late and someone can help here otherwise i fear i'll just have to pay up.
    Last edited by MUBS54321; 13-09-2017 at 7:11 AM.
    • nosferatu1001
    • By nosferatu1001 13th Sep 17, 10:45 AM
    • 887 Posts
    • 987 Thanks
    nosferatu1001
    • #6
    • 13th Sep 17, 10:45 AM
    • #6
    • 13th Sep 17, 10:45 AM
    Have you called the court to see if your acknowledgement was Accepted? Just call them! Or check on MCOL, as it shoudl tell you. You cant just wait here to be told, be ACTIVE!

    Yes, its worth showing us your defenCe for damned obvious reasons!

    What "required" 30 minutes? If its a BPA member then 10 min before and 10 min after is the usual grace period, but we dont even know that.
    • nosferatu1001
    • By nosferatu1001 13th Sep 17, 10:47 AM
    • 887 Posts
    • 987 Thanks
    nosferatu1001
    • #7
    • 13th Sep 17, 10:47 AM
    • #7
    • 13th Sep 17, 10:47 AM
    Go on the NEWBIES thread - main page of this parking forum - go to post 2. LOADS of defences linked there.
    • MUBS54321
    • By MUBS54321 24th Sep 17, 3:40 PM
    • 14 Posts
    • 1 Thanks
    MUBS54321
    • #8
    • 24th Sep 17, 3:40 PM
    • #8
    • 24th Sep 17, 3:40 PM
    Hi

    I've come back from holiday and called up the helpline to ask for advice and they said i still have 3 days for a defense.

    I though i had run out of time so maybe there is some hope here.

    The site where the parking incident took place had clear signs and it was permit only. Due to the bad weather and rush to get inside the building for a scheduled appointment we failed to read the notices properly and i had assumed it was ok to park as its free parking at the weekend when i regularly used the site and this was the first time i used the site during the week.

    I'm not sure if i have any defense here so what can i say?

    I was going to argue that we had a young child, weather was bad and the signs were too highly displayed but this may be a weak defense so wanted advice on what grounds i could potentially use to contest the order.

    Hope someone can help!
    • Eljayjay
    • By Eljayjay 24th Sep 17, 4:13 PM
    • 3 Posts
    • 5 Thanks
    Eljayjay
    • #9
    • 24th Sep 17, 4:13 PM
    • #9
    • 24th Sep 17, 4:13 PM
    What have you actually drafted as your defence (which, as you have already been told, has a “c”, not an “s” in it)?
    • Coupon-mad
    • By Coupon-mad 24th Sep 17, 8:57 PM
    • 51,575 Posts
    • 65,193 Thanks
    Coupon-mad
    I'm not sure if I have any defense here so what can i say?

    I was going to argue that we had a young child, weather was bad and the signs were too highly displayed but this may be a weak defense so wanted advice on what grounds I could potentially use to contest the order.
    Originally posted by MUBS54321
    It's a weak defence.

    But no-one here submits a defence like that, which you will know when you read the examples already here for you in post #2 of 'NEWBIES PLEASE READ THESE FAQS FIRST'.
    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.

    • MUBS54321
    • By MUBS54321 24th Sep 17, 11:27 PM
    • 14 Posts
    • 1 Thanks
    MUBS54321
    Hi so far i've managed to look at a few defences and have come up with the following:

    1) It is admitted that the defendant, Mr XXXXXX XXXXX, DOB XXXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle, though the claimant cannot provide evidence that the defendant was the actual driver on the dates in question.

    2) It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner, XXXXXXXX, PCN (NW) LTD cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from XXXXXXXXX to PCN (NW) LTD

    3) PCN (NW) LTD are not the lawful occupier of the land.
    (i) a contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standing to bring this case

    4) The provision is a penalty and not a genuine pre-estimate of loss.
    (i) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking on the site in question;
    (ii) the amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;
    (iii) the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and
    (iiii) the clause is specifically expressed to be a parking charge on the Claimant's signs.

    5) If the driver happened to see the signage (if any were present) on each occasion, signs are so high creating an illegible condition to read the terms and conditions required to enter a contract. 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.

    6) The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper is unaware of the PCN and was not the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time/with mandatory wording.

    7) The POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100 which at the time, made it a condition that any charge issued must be based upon a GPEOL, the amounts claimed are excessive and unconscionable. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60 to each PCN and that those sums formed part of the contract in the first instance.

    8) The claimant’s charges are unlawful addressing the imbalance of power leaving the driver/s at a disadvantage thus the defendant denies entering a contract. If a breach of contract is identified by the court then the implications are marginal, as the driver followed majority of instruction.


    9) This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and PCN (NW) LTD have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

    10) The legal costs are not justified additionally it would have been factored within the additional £60 charge thus claiming again would be considered double charging creating financial gain.

    The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

    Statement of Truth:
    I confirm that the contents


    Myself, my wife and our baby were visiting the leisure centre and it was very wet and windy.... do i need to mention this?

    My husband also tried writing to the college/university who own/rent the land and they said they couldn't intervene as we were in the wrong however after a few weeks my husband (who was the driver) started getting text messages asking him to call a number regarding a PCN. He got a few of these and the way i can image this happened is because the college/university passed details onto PCN (NW) Ltd. Do you think this is worth a mention?

    I just feel that as i was fined in a permit only area which has numerous signs i have very little defence.

    Appreciate any advice on extra points to add to the defence. I'm sorry that the draft isn't great but its all quite technical and above my head so would appreciate help from people if you can offer it please. If someone can point me in the right direction of which case laws are relevant and then maybe i can search and look at other relevant defences and amend accordingly.

    I also have a picture of the sign but don't have much else.

    Hopefully someone can give me some direction on this.
    Last edited by MUBS54321; 24-09-2017 at 11:43 PM.
    • Coupon-mad
    • By Coupon-mad 25th Sep 17, 12:19 AM
    • 51,575 Posts
    • 65,193 Thanks
    Coupon-mad
    Remove #4, ''no loss'' is not arguable since the Beavis case as regards this sort of car park because they can easily show a legitimate interest in a permit area.

    I would also remove #9

    For the same reason, remove this sentence from #7:
    and the BPA Code of Practice has a ceiling of £100 which at the time, made it a condition that any charge issued must be based upon a GPEOL, the amounts claimed are excessive and unconscionable.
    And I would remove this from #8 because it doesn't help a defence:
    If a breach of contract is identified by the court then the implications are marginal, as the driver followed majority of instruction.
    Your defence will hinge more on unclear signs/unlit in bad weather, not prominent enough to form a contract, and the driver was authorised to park by the onsite facility visited (if the driver was expecting to be licensed to park, being a patron).

    And your defence can also concentrate on 'no keeper liability' as the PPC has not complied with the POFA (probably) in their Notice to Keeper wording.

    This bit in #2 makes no sense for a permit car park where you are not residents with a lease:
    PCN (NW) LTD cannot overrule the elements of the lease
    This is a bit muddled, and contra proferentem doesn't match the argument that the driver didn't see any signs - and you need to be much clearer about that, not 'if they did see...':
    5) If the driver happened to see the signage (if any were present) on each occasion, signs are so high creating an illegible condition to read the terms and conditions required to enter a contract. 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.
    Clearly the driver did not see any terms as the signs were high & unlit and it was foul weather, and the burden remains with the parking operator to ensure signs are prominent and terms/the parking charge £sum must be in the largest lettering. No driver would agree to pay £100 to park, and there was no contract agreed.

    Myself, my wife and our baby were visiting the leisure centre and it was very wet and windy.... do I need to mention this?
    Yes, the keeper Defendant should state the facts of the matter near the start, but not name the driver.

    My husband also tried writing to the college/university who own/rent the land and they said they couldn't intervene as we were in the wrong however after a few weeks my husband (who was the driver) started getting text messages asking him to call a number regarding a PCN. He got a few of these and the way i can image this happened is because the college/university passed details onto PCN (NW) Ltd. Do you think this is worth a mention?
    Yes, I would state that the Claimant appears to have obtained the phone number of the Defendant in a way contrary to the Data Protection principles, because it is known that telephone numbers are never passed on by the DVLA. Yet the Claimant pursued a practice of unwarranted harassment of the family over a period of weeks, by text message to a phone used to complain to the landowner about the unfair parking charge. The Claimant had no right to use the phone number to demand money, the number appears to have been passed around between the landowner and the operator, and this constituted harassment and caused significant distress.

    If the keeper was NOT the driver, so so clearly at the start.
    Last edited by Coupon-mad; 25-09-2017 at 3:45 PM.
    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.

    • MUBS54321
    • By MUBS54321 25th Sep 17, 2:17 PM
    • 14 Posts
    • 1 Thanks
    MUBS54321
    Hi Coupon-mad,

    Really appreciate your help here.

    I've read a few more Defences and have amended as follows:


    1) It is admitted that the defendant, Mr XXXXXX XXXXX, DOB XXXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle, though the claimant cannot provide evidence that the defendant was the actual driver on the dates in question. I as the defendant deny liability for the entirety of the claim.


    2. The incident occurred during a visit to the onsite Leisure Centre by the defendant, partner and baby and the Defendant was not the driver of the vehicle on the dates in question.

    3. The Protection of Freedom Act 2012 Schedule 4 has not being complied with.
    a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.
    b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording
    c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).


    4. The claimant has yet to respond to part 18 Request written and sent by the defendant and delivered to PC (NW) LTD Legal on the 14/03/2017.
    a) A request to identify the party who contracted the claimant as they are not the landowner or occupier
    b) A request to provide the full legal identity of the landowner or occupier
    c) A request to provide a full unredacted copy of the contract with the landowner which demonstrates the claimants authority from the landowner to issue parking charges and litigate in their own name
    d) A request for a copy of the original notice to keeper
    e) A request to provide original and unedited photographic evidence of the purported contravention
    f) A request to provide a breakdown and explanation of how the charge for the purported contravention has risen to £165.31

    g) A request to provide a detailed and itemised breakdown of the losses and or damages suffered by the claimant

    5. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to PCN (NW) LTD.

    6. PCN (NW) LTD are not the lawful occupier of the land.
    (i) a contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standing to bring this case

    7. If the driver happened to see the signage (if any were present) on each occasion, signs and unlit and it was foul weather creating an illegible condition to read the terms and conditions required to enter a contract. 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. T
    he burden remains with the parking operator to ensure signs are prominent and terms/the parking charge of £60 must be in the largest lettering. No driver would agree to pay £100 to park, and there was no contract agreed.
    8. The Claimant appears to have obtained the phone number of the Driver in a way contrary to the Data Protection principles, because it is known that telephone numbers are never passed on by the DVLA. Yet the Claimant pursued a practice of unwarranted harassment of the family over a period of weeks, by text message to a phone used to complain to the landowner about the unfair parking charge. The Claimant had no right to use the phone number to demand money, the number appears to have been passed around between the landowner and the operator, and this constituted harassment and caused significant distress.

    9. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper is unaware of the PCN and was not the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time/with mandatory wording.

    10. The POFA restricts liability to the sum of the parking charge itself. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60 to each PCN and that those sums formed part of the contract in the first instance.

    11. The claimant’s charges are unlawful addressing the imbalance of power leaving the driver/s at a disadvantage thus the defendant denies entering a contract.

    12. The legal costs are not justified additionally it would have been factored within the additional £60 charge thus claiming again would be considered double charging creating financial gain.

    The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

    Statement of Truth:
    I confirm that the contents





    Do I need to add anything further to strengthen my case? Please note that PC (NW) Ltd have replied to me at the address of my parents which I have used as my correspondence address when I appealed within the first 14 days so they have not approached the DVLA for the registered keepers address as I have not received anything from them at my home address.


    Also at no pint in the appeal or in my husbands correspondence with the landowner has the drivers identity been disclosed.


    Finally, is it true that the defence needs to be uploaded to PDF, emailed across to the court and this must be done before 4pm on the deadline day?


    Thank you all for your continued assistance.


    • Coupon-mad
    • By Coupon-mad 25th Sep 17, 3:44 PM
    • 51,575 Posts
    • 65,193 Thanks
    Coupon-mad
    Finally, is it true that the defence needs to be uploaded to PDF, emailed across to the court and this must be done before 4pm on the deadline day?
    Not *must* but yes, email to the ccbcaq email, for best results unless there is time to post it.

    Don't use MCOL, it de-formats defences and loses the paragraphing, not pretty when the defence is long.

    I would change this bit:

    7. If the driver happened to see the signage (if any were present) on each occasion, signs and unlit and it was foul weather
    to this:

    7. If any signs were present, they were scarce, non-prominent and unlit and it was foul weather
    Last edited by Coupon-mad; 25-09-2017 at 3:47 PM.
    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.

    • MUBS54321
    • By MUBS54321 25th Sep 17, 8:44 PM
    • 14 Posts
    • 1 Thanks
    MUBS54321
    Thanks coupon_mad

    I'll get the PDF sorted and email across to the court email address tomorrow.

    Do i then just wait for the claimant to respond and then get a court date?

    Really appreciate your help as i was tempted to pay and throw the towel in.

    Sorry to ask this again but is my defence letter good to submit in the form shown?
    • KeithP
    • By KeithP 25th Sep 17, 8:53 PM
    • 4,517 Posts
    • 2,853 Thanks
    KeithP
    As said in post#2 of the NEWBIES thread:
    ...numbered, double line-spaced in Times New Roman font 12.

    From the same place, a sample layout:
    .
    • MUBS54321
    • By MUBS54321 25th Sep 17, 9:46 PM
    • 14 Posts
    • 1 Thanks
    MUBS54321
    Thanks Keith,

    I'll amend accordingly and submit.

    I guess then its waiting for the court date and moving on to the next step.
    • MUBS54321
    • By MUBS54321 25th Sep 17, 10:49 PM
    • 14 Posts
    • 1 Thanks
    MUBS54321
    Ooops....

    Just realised something.

    In my first appeal to the PPC, i used the template and asked the following:

    1. Who is the party that contracted with your company and are they the landowner?
    2. Is your charge based on damages for breach of contract? Answer yes or no.
    3. Please provide photos of the signs that you say were on site, which you contend formed a contract with the driver.
    4. Please provide proof that the timing of any camera or timer used was synchronised with all other cameras and/or systems & machines.

    I think i have confused myself here and due to the above, i added the following to the defence letter:

    4. The claimant has yet to respond to part 18 Request written and sent by the defendant and delivered to PC (NW) LTD Legal on the 14/03/2017.
    a) A request to identify the party who contracted the claimant as they are not the landowner or occupier
    b) A request to provide the full legal identity of the landowner or occupier
    c) A request to provide a full unredacted copy of the contract with the landowner which demonstrates the claimants authority from the landowner to issue parking charges and litigate in their own name
    d) A request for a copy of the original notice to keeper
    e) A request to provide original and unedited photographic evidence of the purported contravention
    f) A request to provide a breakdown and explanation of how the charge for the purported contravention has risen to £165.31
    g) A request to provide a detailed and itemised breakdown of the losses and or damages suffered by the claimant

    These are two different requests and i don't want to add paragraph 4 if i am later asked to produce the letter which was sent to the claimant.

    For this reason should i omit paragraph 4? I though i was adding weight to the defence by including it but i could end up weakening my arguments.

    If someone can please advise on this then i can send my final draft to PDF and then submit.
    • Coupon-mad
    • By Coupon-mad 25th Sep 17, 11:42 PM
    • 51,575 Posts
    • 65,193 Thanks
    Coupon-mad
    Just change it to say that you appealed on xx.xx.17 and asked for evidence (say what you asked for) and the claimant has never provided so much as a copy of the alleged contract (if true - if they've never showed you a picture of the signs).

    Do i then just wait for the claimant to respond and then get a court date?
    No, far from it, you need to know what happens when, so please re-read bargepole's summary in the NEWBIES thread post #2, the link about what happens when and how to complete the DQ (the next form) and who to send that to.

    When we say over 99% of defended cases here win, it is true of assisted/coached cases - hundreds of them by now, but I don't include people who just grab a defence, run, miss half the court directions then come back saying it's their hearing this week! So stay with us and refer to the 'what happens when' post, to be ready and know which boxes to tick, and be ready for your Witness Statement and evidence stage before the hearing. These steps are vital.
    Last edited by Coupon-mad; 25-09-2017 at 11:55 PM.
    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.

    • MUBS54321
    • By MUBS54321 26th Sep 17, 8:54 AM
    • 14 Posts
    • 1 Thanks
    MUBS54321
    Morning and thanks, its submission day so will get this across today.


    Noticed when checking through that Paragraph 12 implies multiple PCN's so can I remove or can I edit this paragraph:


    12. The legal costs are not justified additionally it would have been factored within the additional £60 charge thus claiming again would be considered double charging creating financial gain.





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