Northampton CCBC Claim Form

Ed666_2

Actually looking at it again, the name I mentioned is just in the signed box at the bottom. It's misaligned, so there's a row of x's which would cover "claimant's solicitor", that name is apparently the claimant.

There's no mention of solicitors at all.

I also noticed in the particulars of claim, it states an incorrect date for the sending of the NTO, (4 months later, on the date they sent me a charge notice) as well as the sending of the final notice. Apparently they're also seeking to claim the final sum fee of "#100". Not sure if that's how they normally write it or if it's another mistake.

Star999

Hi LazyDaisy,
Would you be kind enough to give me some advice if I PM you?

Coupon-mad

zzzLazyDaisy wrote: »

BINGO!

Re the solicitor - what address does it give for her? Is it the same as the PPC's address, or is a separate firm of solicitors? If so which one?

I have PMs deliberately full atm as I am away from home for personal reasons, but I will be checking in when I have internet access.

D

You can't send a pm to Daisy nor to me as I keep my inbox full as well atm due to a recent bereavement (too much on my plate, like Daisy has).

Have you acknowledged the claim?

Have you emailed the BPA for the CoP that applied at the time (archive version)?

Have you complained to the landowner or retail Manager/CEO? Do it!

https://forums.moneysavingexpert.com/discussion/4766249

...and I hope you took on board Daisy's post where she explained that your 28 days clock ticks from the date of service of the small claim papers, as long as you acknowledge the claim by day 14. You DO NOT get 28 days from 'acknowledgement day'.

Ed666_2

Hi, sorry to hear that.

Not yet, issue date was 27th Sept, so day of service was only yesterday.

Yes I've had a response back, and sent a copy of one of the letters. They are looking into the fact that the letter quotes POFA, even though the ticket was from before this came into effect.

It was for a private car park run by the parking company who issued the ticket. Not sure if I could find this out without paying the land registry for the info?

Yes thanks, will make sure I do it before the 16th, and the defence will be due by 30th.

Ed666_2

I've completed the AOS, so have until the 30th to submit my defence.

Is anyone available to help with suggestions for this now, and what I should do next?

Thanks

SpaceCowboy55

I have a thread on MSE ,https://forums.moneysavingexpert.com/discussion/4784029

We are at a similar stage with the same PPC : my thread has my proposed defence and my betting is that my comments on LBA/LBC non compliance apply to you.
( Update 18/10 : If you read the thread it is suggested my proposed defence as displayed needs a re-think : which is this weekend's job )

See also for more pointers the advice I have been given on Pepipoo http://forums.pepipoo.com/index.php?showtopic=79614

SpaceCowboy55

Coupon-mad wrote: »

You can't send a pm to Daisy nor to me as I keep my inbox full as well atm due to a recent bereavement (too much on my plate, like Daisy has).

Have you acknowledged the claim?

Have you emailed the BPA for the CoP that applied at the time (archive version)?

Have you complained to the landowner or retail Manager/CEO? Do it!

https://forums.moneysavingexpert.com/discussion/4766249

...and I hope you took on board Daisy's post where she explained that your 28 days clock ticks from the date of service of the small claim papers, as long as you acknowledge the claim by day 14. You DO NOT get 28 days from 'acknowledgement day'.

I have COP v1 Oct 2012 if that is of any help - PM with email address and I will send ( or tell me how to attach documents on here )

Ed666_2

Hi everyone, thanks for the previous suggestions, I thought I would ask if someone could look over a couple of points in my defence statement. Most of it is the same as Spacecowboy's, as the details and examples are pretty much identical, other than mine does not come under POFA as it was before it started. I will include all the same court precedents and such as well.

With that in mind, could someone look over point 2 in the expanded defence, to see if it's ok, please? I don't think there's anything in there that doesn't apply to me as pre-POFA but if anyone spots anything I shouldn't have in, I can take it out.

I also have the following questions about how to complete the rebuttal to the claim particulars:

1) They state they sent an NTO, and then a final notice only 19 days later. That date is wrong, but I believe they can't just change that later, it's set because it's in the claim? Also, should I make a separate point about this not being enough time to reply to the NTO?

2) As to the amount, previous letters they sent me, and the PCN state that the charge is higher than the £100 they are now claiming. Should I mention this in a point, given that there were 4 different levels of charge depending on how quickly I paid (thus showing it's not a loss, as their loss wouldn't change), and they have dropped it from £132 to £100 with no explanation?

3) What should I write to them and ask for as evidence I wish to see so as to build my case?

4) Steve Clark from the BPA said it would be wrong for them to quote POFA, and I sent him a letter for him to investigate it, but I've not heard back from him for a few weeks, should I make a point abut the BPA investigating the misuse of the POFA?

This should link to the sign pic, it's been reduced on the site, I have a better quality one, but it's not good enough to read the small writing, but if it does say I'm forming a contract I can't see any fees listed, and it wouldn't have been visible as I entered the car park from my car, as it's on the passenger side as you turn in.



Thanks, here it is:

Claim Number XXXXXXXX

Defence :

The defendant believes that the claimant is pursuing what amounts to a Penalty and not a genuine accounted loss for damages or trespass.
That any alleged losses or costs they may account for would not have been altered, diminished or increased by the presence of the vehicle as they are operation running costs associated directly with a businesses.

The Claimant has also failed to demonstrate they have contractual authority with the actual owner of the land in question to bring legal proceedings and I ask the court to explore if the necessary right of audience exists in relation to the contract and representation's of the land owner in court by the claimant .


The case for defence is expanded further below.

1. The Defendant denies he is indebted to the Claimant in any way.

2. The Claimant has not identified the driver of the vehicle and has made reference to pursuing me under the Protection of Freedoms Act 2012. As the PCN was issued before the Protection of Freedoms Act 2012 entered into law, it would not be subject to this Act, and is therefore a misrepresentation. The British Parking association Code of Conduct which applied at the time says in Clause 13.1a that the Notice to Owner (NTO) must be sent out no later than 28 days after receiving the vehicle data from the DVLA. This is in addition to the time allowed to pay before action is taken (seven days according to the Parking Charge Notice) plus time to receive the vehicle data. As the NTO was sent on xx/3/13, this is almost seven months after the PCN was issued, and therefore exceeds the time allowed to take action.

It is the defendant's case that the claimant has no cause of action against the defendant. Accordingly the defendant respectfully requests the court to list this case for a Preliminary Hearing to consider the defendant's application for an Order striking out the claimant's claim.

3. The letter sent on xxxxxx 2103 by the Claimant was defective and did not comply with Annex A Section 2 of the Practice Direction on Pre-Action Conduct in a number of ways, as a “Letter Before Action” 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 (i.e. why the claimant says the defendant is liable);
•Failure to explain how if financial loss is claimed 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, in particular as I could not identify it as a “Letter Before Action”.
4. If the charge is supposed to be a penalty for “breach of contract” the penalty of £100 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.
5. The initial charge of £100 is a penalty, not a genuine pre-estimate of loss since the Claimant is not the landowner and has suffered no loss.
See References 1 – 9 in Appendix 1 : Court References in support of Points 5 and 6 above
6. British Parking Association Ltd. code of practice v3 section 7.1 requires the Claimant to have a contract with the landowner : The Claimant has not provided any evidence and more specifically in section. 7.2 f . whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.

7. Signage :
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late
SIP do not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract. I suggest SIP need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.

9. BREACH OF UTCCR 1999
Finally, I believe SIP are in breach of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.


And from the Office of Fair Trading, Unfair Contract Terms Guidance:

''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Group 18(a): Allowing the supplier to impose unfair financial burdens
18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract...

Group 18(h): Unreasonable ancillary obligations and restrictions
18.8.1 There is a clear risk of unfairness where terms put consumers at risk of incurring contractual penalties that are more severe than is necessary to protect the real interest of the supplier. This form of unfairness most obviously arises where a term provides for an excessive penalty...

Group 19: Regulation 7 – plain and intelligible language
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.

Ed666_2

Also, the Final Letter and the PCN has an address as "Stop Illegal Parking" without any company name, the Charge Notices say "SIP Car Parks Limited" and the final notice and the Court Claim form both say "SIP Parking Limited". Should I raise this as a point too?

The address on the final letter and the PCN are different to the address on the claim form.

Stroma

Sip Car Parks Ltd doesn't exist, and I'm sure they cannot trade as that name. But I'm not sure if it has any bearing on the claim. The stop illegal parking garbage is worthy of a complaint to the bpa and dvla, even though they have changed that now, they still had a claim of authority on their site and paperwork