County Court Claim Form received : Claimant is SIP

SpaceCowboy55

I have received a Claim Form which I have checked is genuine as I have acknowledged it online and spoken to the court.

Backgound : I am the registered keeper of a car which received a Parking Charge Notice . I have received advice from pepipoo and cag on the way through and I think I missed a trick in not using a POPLA code when I had one ( I did submit a 2nd appeal which I thought would stop SIP but it didn't ( in fact it was totally not acknowledged ) and then POPLA code was outdated ). I have put together a response ( created from feedback received - some public and some via PM ) in denial that I would like a view on from this forum please , which as it's got a combination of inputs I really would value an "expert" opinion on having made one mistake so far.

As I know SIP monitor the forums ( it's mentioned in the Particular of Claim ) I am loathe to put up the full letter here but will PM it to any volunteers. The main question I have with it is I start with a request to go to POPLA : is that valid given that I've been given a code and not used it? I did receive 2 letters the same prior to the claim form - they are not valid Letter Before Action or Letter Before Claim ( if they are one and the same ) .

Regarding the actual claim the Notice to Owner was sent on 10/05/13 for an alleged parking contravention on 09/02/2103 - so it was sent too late : does this still help me in court?

What other info do you require to assist me please? I can easily add the links to the other 2 forum posts if appropriate and sanitised copies of documents received.

One other question : Am I correct in thinking that POFA is the legislation that will be used in court if we get there?

kirkbyinfurnesslad_2

What did they say in the poc about forum stuff? Don't worry you won't loose any ground by saying.

I think the is no point asking to go to popla now given you had chance but didn't use it.

So the lba/lbc are defective then?

SpaceCowboy55

"Evidence consists of 6 photos taken of the vehicle as well as online forum evidence which can be connected via the PCN number" - if true they spotted it in the hour it was online before I was advised to remove it.

re LBA/LBC - there is only 1 letter ( sent twice exactly the same )

Extract from my defence "
[FONT=&quot]1. [/FONT][FONT=&quot]Reference in the POC to a final letter before court application on 04/09/2013 : ( Letter sent by SIP before the Court Claim included as file SIP LBA 04092013.pdf ) . This is non-compliant as a Letter Before Claim as it does not refer to the “Pre-Action Direction “ :as prescribed in “ Annex A Section [/FONT][FONT=&quot]2.3[/FONT][FONT=&quot]Unless the defendant is known to be legally represented the letter should –[/FONT]
[FONT=&quot]1. [/FONT][FONT=&quot](1) refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; “[/FONT]

[FONT=&quot]Furthermore some comments against what the letter should contain from Section 2.1 of the Practice Direction:[/FONT]

[FONT=&quot]2.1[/FONT][FONT=&quot] The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –[/FONT]
[FONT=&quot](1) the claimant’s full name and address; Name spelt incorrectly[/FONT]
[FONT=&quot](2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable); [/FONT]
[FONT=&quot] This is not stated[/FONT]
[FONT=&quot](3) a clear summary of the facts on which the claim is based; This is not stated[/FONT]
[FONT=&quot](4) what the claimant wants from the defendant; and Other than a payment of £100 this is not stated[/FONT]
[FONT=&quot](5) if financial loss is claimed, an explanation of how the amount has been calculated. This is not stated "
[/FONT]


[FONT=&quot]You have responded on one of the other forums btw - thank you
[/FONT]

spacey2012

Who has signed the papers and have they listed themselves as a solicitor.

SpaceCowboy55

Natasha Sarwar and the way it's written i.e. xxxxxxxx under Claimant's Solicitor my guess is that the person is a Claimant ( given that the name appears below the line of signed : my supposition is that the xxxxx's are to block out Claimant's Solicitor words

spacey2012

And does it mention who Natasha Sarwar is or which firm she is representing ?
I can not find a solicitor named Natasha Sarwar ? she may be new, but if she is not a solicitor, they are in a lot of trouble if you pull this at court, a lot of trouble indeed.

Coupon-mad

Here's your pepipoo thread as well which shows their apology for a Letter before Action:

http://forums.pepipoo.com/index.php?showtopic=79614&st=20&p=873520&#entry873520

Did you notice their late Notice to Keeper was misleadingly called a Notice to Owner (mimics a Council document which is against the BPA CoP)?

Was it compliant in wording? Compare it here, along with the original windscreen ticket (a compliant Notice to Driver or not?):

http://www.parkingcowboys.co.uk/keeper-liability/

Make sure you question not just the status of SIP to issue parking charges and make contracts with drivers, on this land they do not own, but also question who this 'SIP' are due to the two different names (different legal entities, only one is an AOS member?).

The late NTK is indeed a defence point, as well as the links & info here:

http://forums.pepipoo.com/index.php?showtopic=82744&st=0&gopid=862298

Finally, is there a landowner (or customer outlet on site) who you can complain assertively to and get this cancelled like all the successful cases at the top of the forum in the sticky thread? SIP have a client in the car park, whoever contracted them - so target them with a very assertive complaint.

SpaceCowboy55

spacey2012 wrote: »

And does it mention who Natasha Sarwar is or which firm she is representing ?
I can not find a solicitor named Natasha Sarwar ? she may be new, but if she is not a solicitor, they are in a lot of trouble if you pull this at court, a lot of trouble indeed.

The way it's written I think she is the Claimant , not a solicitor.
Why do you say they are in trouble?

SpaceCowboy55

@ Coupon Mad : re post #7 : I can't quote this as it has links in ; re the Notice to Owner : The errors in this are documented here : This is a letter I sent to SIP as a 2nd appeal which they ignored / didn't respond to

"I would first refer to your ‘Parking Charge Notice’ (copy attached) dated 9th February 2013.
I would wish to draw your attention to the following statement contained within your ‘Parking Charge Notice’:-
“The Protection of Freedoms Act 2012, s.56”
This statement makes it clear that your company, Stop Illegal Parking (SIP) is dealing with its claim in accordance with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). The document that you have (incorrectly) titled as a ‘Parking Charge Notice’ is prescribed under PoFA as a ‘Notice to Driver’
The requirements of Schedule 4 are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.
Your Notice further states that:-
“If the parking charge is not paid on or before the end of 28 day period as specified on this notice or successfully challenged, SIP may serve a Notice to Owner (NTO) on the owner of vehicle requiring payment of the parking charge. The owner can then make representation to SIP and may appeal to an independent adjudicator if these representations are rejected” (my emphasis and underline.)
Schedule 4 PoFA only concerns the potential ‘rights’ of a parking company to pursue the registered keeper for the drivers debt. It does not provide any legal framework for the parking company to recover the debt of the driver from the owner of the vehicle. Your statement is therefore a fraudulent misrepresentation of the ‘rights’ under Sch 4 PoFA .
The BPA Code of Practice supports the need for strict compliance with PoFA (para 21.5 refers).
In addition to unlawfully threatening to recover payment from the wrong person SIP have also failed to comply in regards to paragraph 7[FONT=&quot](2)(e) of Schedule 4, PoFA 2012.[/FONT]
[FONT=&quot]Whilst the ‘Notice to Driver’ indicates ‘you’ require a payment to be made to Stop Illegal Parking, there is no specific identification of the “Creditor”, who may, in law, be Stop Illegal Parking or some other party. [/FONT]
[FONT=&quot]PoFA requires a ‘Notice to Driver’ to have words to the effect that “The Creditor is….” [/FONT]
[FONT=&quot]The wording of Paragraph 7(2)(e) of Schedule 4 of PoFA does not indicate that the “Creditor” must be named, but “identified”. [/FONT]To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.
This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Driver’ but also what evidence should be provided. He says:-
“[FONT=&quot]The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”[/FONT]
So, in addition to SIP’s failure to threaten recovery from the wrong person and failure identify the “Creditor”, you have failed to provide any evidence that you, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.
[FONT=&quot]This brings us now to the implications of your failure to serve a PoFA complaint Notice to Driver. The Protection of Freedoms Act, indicates that to exercise the "right" in the Act, to recover from the Registered Keeper, the alleged debt of the driver, the parking company must comply with paragraph 6. That indicates an "either or" scenario. Either the service of a Notice to Driver which meets the requirements of paragraph 7 or the service of a Notice to Keeper in accordance with paragraph 9.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] The issue of a non compliant Notice to Driver under PoFA has the same effect as the Notice not having been served and thus SIP has not met the first or "either" option. Accordingly, if SIP was to serve a Notice to Keeper it could only do so provided that it has applied to the DVLA for the registered keeper data and served the Notice to Keeper within 14 days of the date of the alleged infringement. [/FONT]
The 14 days from the date of the alleged contravention have now expired and no valid Notice to Driver or Notice to Keeper has been served in accordance with the statutory requirements of PoFA. There is therefore no legal basis for SIP to recover or try to recover the parking charge from the registered keeper.
I therefore expect you to immediately cancel the ‘parking charge’ and inform me, in writing that you have done so.
If however, you reject this challenge, then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer this matter (and any further issues that I may subsequently raise) for their adjudication on the matter.
I do not expect to receive a ‘generic’ template response and which fails to address the specific issues that I have raised with you. No further correspondence will be entered into. "

SpaceCowboy55

@ Coupon Mad : re post #7 : I can't quote this as it has links in ; re the Notice to Owner : The errors in this are documented here : This is a letter I sent to SIP as a 2nd appeal which they ignored / didn't respond to

"I would first refer to your ‘Parking Charge Notice’ (copy attached) dated 9th February 2013.
I would wish to draw your attention to the following statement contained within your ‘Parking Charge Notice’:-
“The Protection of Freedoms Act 2012, s.56”
This statement makes it clear that your company, Stop Illegal Parking (SIP) is dealing with its claim in accordance with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). The document that you have (incorrectly) titled as a ‘Parking Charge Notice’ is prescribed under PoFA as a ‘Notice to Driver’
The requirements of Schedule 4 are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.
Your Notice further states that:-
“If the parking charge is not paid on or before the end of 28 day period as specified on this notice or successfully challenged, SIP may serve a Notice to Owner (NTO) on the owner of vehicle requiring payment of the parking charge. The owner can then make representation to SIP and may appeal to an independent adjudicator if these representations are rejected” (my emphasis and underline.)
Schedule 4 PoFA only concerns the potential ‘rights’ of a parking company to pursue the registered keeper for the drivers debt. It does not provide any legal framework for the parking company to recover the debt of the driver from the owner of the vehicle. Your statement is therefore a fraudulent misrepresentation of the ‘rights’ under Sch 4 PoFA .
The BPA Code of Practice supports the need for strict compliance with PoFA (para 21.5 refers).
In addition to unlawfully threatening to recover payment from the wrong person SIP have also failed to comply in regards to paragraph 7[FONT=&quot](2)(e) of Schedule 4, PoFA 2012.[/FONT]
[FONT=&quot]Whilst the ‘Notice to Driver’ indicates ‘you’ require a payment to be made to Stop Illegal Parking, there is no specific identification of the “Creditor”, who may, in law, be Stop Illegal Parking or some other party. [/FONT]
[FONT=&quot]PoFA requires a ‘Notice to Driver’ to have words to the effect that “The Creditor is….” [/FONT]
[FONT=&quot]The wording of Paragraph 7(2)(e) of Schedule 4 of PoFA does not indicate that the “Creditor” must be named, but “identified”. [/FONT]To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.
This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Driver’ but also what evidence should be provided. He says:-
“[FONT=&quot]The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”[/FONT]
So, in addition to SIP’s failure to threaten recovery from the wrong person and failure identify the “Creditor”, you have failed to provide any evidence that you, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.
[FONT=&quot]This brings us now to the implications of your failure to serve a PoFA complaint Notice to Driver. The Protection of Freedoms Act, indicates that to exercise the "right" in the Act, to recover from the Registered Keeper, the alleged debt of the driver, the parking company must comply with paragraph 6. That indicates an "either or" scenario. Either the service of a Notice to Driver which meets the requirements of paragraph 7 or the service of a Notice to Keeper in accordance with paragraph 9.[/FONT]
[FONT=&quot] The issue of a non compliant Notice to Driver under PoFA has the same effect as the Notice not having been served and thus SIP has not met the first or "either" option. Accordingly, if SIP was to serve a Notice to Keeper it could only do so provided that it has applied to the DVLA for the registered keeper data and served the Notice to Keeper within 14 days of the date of the alleged infringement. [/FONT]
The 14 days from the date of the alleged contravention have now expired and no valid Notice to Driver or Notice to Keeper has been served in accordance with the statutory requirements of PoFA. There is therefore no legal basis for SIP to recover or try to recover the parking charge from the registered keeper.
I therefore expect you to immediately cancel the ‘parking charge’ and inform me, in writing that you have done so.
If however, you reject this challenge, then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer this matter (and any further issues that I may subsequently raise) for their adjudication on the matter.
I do not expect to receive a ‘generic’ template response and which fails to address the specific issues that I have raised with you. No further correspondence will be entered into. "

nigelbb

SpaceCowboy55 wrote: »

Schedule 4 PoFA only concerns the potential ‘rights’ of a parking company to pursue the registered keeper for the drivers debt.

Just a little pedantry for clarity. POFA refers throughout to the keeper of the vehicle. The introduction explains that this is normally the registered keeper unless proved otherwise but it is an important distinction e.g. a parent may well be the owner & RK of a car but their child is the actually 'keeper'. Likewise with a works vehicle or a company car that is owned by the company and not leased.