Another PCN (NW)Ltd County Court Claim

kirkbyinfurnesslad_2

zzzLazyDaisy wrote: »

Yes it should be. But you can't bank on the judge on the day being up to speed on POFA so be very prepared to explain your argument step by step, refering to the relevant law.

But don't rely only on that point - file a fully pleaded defence requiring them to substantiate their claim that the sum is a 'genuine pre-estimate of loss' (and be prepared to present the law on this); Put them to strict proof that they have 'locus' legal standing to bring proceedings as agent on behalf of the landowner and require them to adduce evidence of this in the form of the contract or contracts showing authority from the landlord to do so (and all the other points that go into a defence)

A lot of judges overlook at "faults" with invoices/tickets and rule on other matters

spacey2012

They do not have to follow the Law at this point of an hearing and they often are not very up to speed with what the law is, that is the clerk of the courts job, which do not sit in small claims.
If you feel the district judge has overlooked points of law, you are entitled to appeal on that basis, it is then re-heard and a court clerk is brought in to advise on points of law that have been raised and a new judge hears the appeal under advice of the clerk.
Often small claims hearing and called the bear pit as judges can use the freedom to award to the best fighter on the day, or the solicitor with a wink and hoots to the law.
Always be prepared to appeal, or stay away in the first place.

zzzLazyDaisy

spacey2012 wrote: »

They do not have to follow the Law at this point of an hearing and they often are not very up to speed with what the law is, that is the clerk of the courts job, which do not sit in small claims.

Always be prepared to appeal, or stay away in the first place.

Will you please stop giving this incorrect advice. County court judges (including those who sit in the SCC) are qualified barristers and solicitors of at least 5 years post qualification experience as advocates in all courts.

Magistrates ( also called District Judges) on the other hand are unqualified members of the public who decide on issues of facts and DO have a legally qualified Court Adviser who advises them on the law (Court Advisers have not been called 'Clerk of Court' for donkeys years).

As for appealing - do you seriously think any ordinary motorist is willing to spend thousands of pounds appealing a decision of the SCC to the higher courts - if they were willing to shell out that sort of money, they would have instructed a solicitor experienced in parking cases to represent them in the SCC, in the first place.

kirkbyinfurnesslad_2

spacey2012 wrote: »

They do not have to follow the Law at this point of an hearing and they often are not very up to speed with what the law is, that is the clerk of the courts job, which do not sit in small claims.
If you feel the district judge has overlooked points of law, you are entitled to appeal on that basis, it is then re-heard and a court clerk is brought in to advise on points of law that have been raised and a new judge hears the appeal under advice of the clerk.
Often small claims hearing and called the bear pit as judges can use the freedom to award to the best fighter on the day, or the solicitor with a wink and hoots to the law.
Always be prepared to appeal, or stay away in the first place.

Sorry but the bit in bold is complete and utter rubbish for the county court!!!!

It is heard by a circuit judge,

As daisy as said please don't give advice on the court system when you obviously don't know what you are talking about, it can be most confusing

spacey2012

Who is saying they are unqualified ?
Of course they are qualified, often many many moons ago, that is the trouble.
What I am saying is they do not have to follow the law at CCJ hearings and if they do not, which they are not doing at the moment, you have to appeal.
Please OH please stop going off on emotional tangents and put words in to peoples mouths.

Are you that employment one who threw a huge paddy, cannot think of the name,Sal Earl ? that was it but they were also prone to bouts of emotional outbursts.
We have had district circuit judges brushing off case law in parking cases and it does need to be appealed to put things back on a level footing again.
A contractual penalty is a contractual penalty, this is what these are, none of the operators costs are influenced by the visit of one parker and would exist exactly the same had they not visited.
People have appealed CCJ district judges decisions on points of law in parking matters and have won and more than once.

Jimmy_Shand

zzzLazyDaisy wrote: »

Edit - apologies if you have already done this, but you need to make a formal complaint to steve clark at BPA about the PPC serving a NtK out of time - see this thread for examples of letters - tell him you need him to investigate this as a matter of urgency as the PPC has already issued court proceedings, and enclose the NtK

zzzLazyDaisy, yes I emailed a formal complaint to Steve Clark but have not yet had a reply.

zzzLazyDaisy

Jimmy_Shand wrote: »

zzzLazyDaisy, yes I emailed a formal complaint to Steve Clark but have not yet had a reply.

Okay, well if it is at least 14 days with no reply (ie give him time to reply without rattling his cage) then I would copy the correspondence to

David Metcalf
Operations Manager
British Parking Association
Tel: 01444 447 302
Fax: 01444 454 105
Email: david.m@britishparking.co.uk

hth

Daisy

Jimmy_Shand

I've prepared a first draft defence to submit to MCOL. I'd be very grateful for any suggestions for additions or deletions. Thanks.

Draft PCN Claim defence

(Please note that my ability to prepare a defence has been restricted by the failure of the Claimant’s solicitors to supply me with information requested under the Practice Direction on Pre-Action Conduct).

1. The Claimant has not provided any evidence that a parking offence has taken place.
2. The Claimant has not identified the driver and is therefore pursuing me under the Protection of Freedoms Act 2012. However their Parking Charge Notice to Registered Keeper was sent on 4 March 2013 relating to the alleged incident on 2 Nov 2012. This far exceeds the requirement under Schedule 4 para 8.5 of PoFA 2012 to send the notice no later than 56 days after the incident and is in breach of the BPA Code of Practice. The PCN has therefore been served out of time and is invalid and I request that the claim be struck out.
3. The Notice to keeper was itself defective in that it:
· Failed to explicitly and clearly identify the “creditor” (para 9(2)(h) PoFA 2012)
· Did not specify the maximum additional costs that they may seek to recover
· Did not give details of any discount for payment within 14 days
4. The Claimant’s solicitors sent a “Letter of Claim” to my address on 29 July 2013. As I was away on holiday at the time as I was unable to reply within the required 14 days. I did however reply on 30 August 2013. This letter was signed for on 2 Sept by “Roxburghe” a debt collection agency used by the Claimant.
5. The “Letter of Claim” was defective and did not comply with Annex A Section 2 of the Practice Direction on Pre-Action Conduct in a number of ways, including:
· Failure to mention the Practice Direction itself and draw attention to para 4 concerning sanctions for failure to comply with the Practice Direction
· Failure to give the Claimant’s full name and address
· Failure to state clearly the basis on which the claim is made
· Failure to explain how the amount claimed has been calculated
· Failure to list the essential documents on which the Claimant intends to rely
· Failure to set out the form of Alternative Dispute Resolution that the Claimant considers most suitable and invite me as defendant to agree to
This letter was obviously sent to intimidate me into paying a speculative charge and not sent with a view to reaching an agreement
6. In my reply of 30 August I requested certain information so that I could comply with the Practice Direction, namely:
· Name and address of the party contracting with Claimant for the provision of car park management services
· Name and address of landowner if different from above
· Copy of the contract the claimant has with the landowner entitling them to bring these proceedings
· A breakdown of the charges and how calculated, showing how any loss by the Claimant has been incurred to justify the amount claimed
None of the above information has been supplied to date.
7. The car park is used by a College during the day but in the evening is used as a free car park by a cinema. The Claimant cannot have suffered any financial loss.
8. The Claimant has stated that there were signs in place identifying the consequences for alleged parking offences. I have seen no evidence that such signs were in place on the date of the alleged incident.
9. If the charge is supposed to be a penalty for “breach of contract” the penalty of £160 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915], clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss.
10. The initial charge of £160 is a penalty, not a genuine pre-estimate of loss since the Claimant is not the landowner and has suffered no loss. The demand for £160 is therefore punitive and unreasonable in breach of the BPA Code of Practice (para 19.5)
11. The additional charges and costs claimed are excessive. Letters sent to me are obviously mass produced from a mailing list and would have taken no time to prepare.
12. Having visited the car park I noticed that the disabled spaces are situated close to the College. The cinema complex is at the far end of the car park from these spaces. It is unlikely that these spaces would be used by disabled drivers in the evening as there are suitable spaces nearer to the cinema.

Jimmy_Shand

Is it worthwhile, as part of my defence submission, to say that I will accept POPLA arbitration, or has it already gone too far for that?

kirkbyinfurnesslad_2

Now dealing with this off the forum x