County Court Claim Form received : Claimant is SIP

SpaceCowboy55

zzzLazyDaisy wrote: »

This is a great defence, I am impressed.

Re the application to strike out:

The court cannot simply strike out the claim as it must see / hear the evidence on this point. But at the same time you do not want to have to prepare for a full hearing, if you could win on the POFA point (as you should).

So instead of asking the court to strike out the claim you need to say something like this (put it in your own words by all means).

"It is the defendant's case that the claimant has no cause of action against the the defendant as it has failed to meet the legal requirements under POFA 2012. 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."

You must also be aware that the judge is unlikely to be familiar with POFA 2012, so you will need to talk him/her through it on a step by step basis, explaining what the claimant needs to do to aqcuire the right to pursue the keeper under POFA and why they have not complied with the POFA requirements (you should win on the out of time point, as that is the strongest point).

Also I can't remember if you have complained about this to Steve Clark at BPA? He seems to be quite hot on out of time PCNs and has got them cancelled in the past, so keep the pressure up there too.

One final point (and again apologies if you have already told us this) who is the solicitor named on the court form?

Daisy

Does the below mean there is still a court hearing or is it the pre-hearing you mention?
Grounds for summary judgment

24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.
(Rule 3.4 makes provision for the court to strike out(GL) a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)

SpaceCowboy55

[FONT=&quot]Point 2 is muddled and needs sorting as it is a combination of 2 paras : my question to Daisy may resolve : I am confused as to whether a claim can be cancelled by a judge without a pre-hearing ( and have to admit I don't know what a pre-hearing involves )
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[FONT=&quot]1. The Defendant denies he is indebted to the Claimant in any way. [/FONT]
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[FONT=&quot]I was not the driver and have a witness statement to support this. SIP [/FONT] have not complied with POFA as described below and cannot pursue me as the keeper. Should I continue to be pursued [FONT=&quot]I will be making an application for costs under section 27.14 [/FONT]
[FONT=&quot]Quote:[/FONT]
[FONT=&quot](g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably; [/FONT]
[FONT=&quot]http://www.justice.gov.uk/courts/pro...l/rules/part27[/FONT][FONT=&quot][/FONT]
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The claimant is pursuing a Penalty and not a genuine loss . After this time a claimant has no pre-estimate of a loss, they either have accounted it as a loss or they have not.
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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 10 May 2013 relating to the alleged incident on 9 Feb 2013. 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. If PCN placed on car valid then Notice to Owner should have been sent between 09th March and 6th April ( If not valid as I have documented in File 2 it should have been sent before 23rd February).
The PCN has therefore been served out of time and is invalid and I request that the court strike the claim out as the claimant has no real prospect of succeeding on the claim ( CPR Part 24.2 ).
It is the defendant's case that the claimant has no cause of action against the defendant as it has failed to meet the legal requirements under POFA 2012. 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 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
· The discount for payment within 14 days was not 40%

4. The letter sent on 04 September 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 [FONT=&quot](i.e. why the claimant says the defendant is liable); [/FONT]
· 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”.
5. 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.
6. 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
7. [FONT=&quot]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 [/FONT]. [FONT=&quot]whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.[/FONT][FONT=&quot][/FONT]

8. Signage :
[FONT=&quot]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:[/FONT][FONT=&quot][/FONT]
[FONT=&quot]“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.”[/FONT][FONT=&quot][/FONT]
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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[/FONT][FONT=&quot] [/FONT][FONT=&quot]contract[/FONT][FONT=&quot] [/FONT][FONT=&quot]have not been met[/FONT][FONT=&quot].[/FONT][FONT=&quot] Any alleged[/FONT][FONT=&quot] [/FONT][FONT=&quot]contract would[/FONT][FONT=&quot] [/FONT][FONT=&quot]be formed at the entrance to the premises, prior to parking.[/FONT][FONT=&quot] [/FONT][FONT=&quot]It is not formed after the[/FONT][FONT=&quot] [/FONT][FONT=&quot]vehicle has already been parked, as this is too late[/FONT]
[FONT=&quot]SIP do[/FONT][FONT=&quot] [/FONT][FONT=&quot]not provide signage of sufficient written text size or at a suitable height to be read from the vehicle[/FONT][FONT=&quot] [/FONT][FONT=&quot]at the entrance or at any location on the[/FONT][FONT=&quot] [/FONT][FONT=&quot]premises.[/FONT][FONT=&quot] [/FONT][FONT=&quot]They may claim that generic signage is displayed around the car park[/FONT][FONT=&quot] [/FONT][FONT=&quot]on poles[/FONT][FONT=&quot] [/FONT][FONT=&quot]but this does[/FONT][FONT=&quot] [/FONT][FONT=&quot]not meet the requirements for consideration when forming the alleged contract[/FONT][FONT=&quot]. [/FONT][FONT=&quot]I suggest[/FONT][FONT=&quot] [/FONT][FONT=&quot]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.

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9. [FONT=&quot]BREACH OF UTCCR 1999[/FONT]
[FONT=&quot]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.
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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.
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Response to Particulars of Claim:
1. Defendant parked in contravention … : See point 2 of Defence above
2. PCN received on 09/02 : I was not the driver and did not receive a valid NTO … : See point 3 of Defence above and File 2
3. The appeal letter on 04/06 stated I had not been served with a valid NTO and challenged the charge.
4. Appeal letter stated as being received on 16/06 , yet the “evidence” provided by SIP has a handwritten date of 12/06 ( it was sent by Royal Mail on 4th June )
5. Decision letter to uphold with POPLA code sent 20/06 : what is sent is a 3 sheet document with Request for Case Review ICR on one side and a POPLA appeal form on the reverse : the most confusing 3 pages I have ever seen.
6. We have had no further correspondence …( since 20/06 ) : My letter of 29 June 2013 ( supplied as File 2 , referred to earlier ) was sent to 2 different SIP addresses : so denied .
7. Final sum fee of £100 : See Points 5 and 6 of Defence.
8. Evidence consists of .. : There are photos of the car but there is no evidence of when and where they were taken
9. Online forum evidence : I wasn’t aware I had left the PCN number on any documents visible to the public , however I am unsure of why this is submitted as evidence as I know of no reason why an online forum cannot be used to seek advice from others ; this forum thread a identifies point 2 of the Defence which states why the claim is invalid : so if SIP are reading this online forum I fail to understand why the matter is being brought to court when it stands no real prospect of succeeding.
10. I will provide… within 14 days after service .. : This date would be 9th October and I received on 18th October ( posted on 16th October ).
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I have written to SIP to request information to support point 7 of the Defence. ( ref FILE 3 )
The information requested and required within 14 days is this and that it is required for the defence:
· 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

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[FONT=&quot]May I respectfully request that if the decision is made to progress with a Court hearing that this is transferred to Manchester.[/FONT]
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Appendix 1 : Court References
Ref 1
In Aintree University Hospitals NHS Foundation Trust v. Paul Helmn (20th August 2010) the claimant tried to claim £50 from Mr Helmn for parking in a disabled bay in the hospital car park without displaying a blue badge. The judge found that the sum was a contractual penalty was not a genuine pre-estimate of loss; therefore unenforceable.
Ref 2
In Aintree University Hospitals NHS Foundation Trust v. William Forshaw (6th June 2011) the judge stated: “Only the police and local councils can issue parking tickets in the normal sense of the word; landowners, on the other hand, rely on contract law. Therefore, some landowners put up signage when you enter their property, saying that you have entered into a contract with them, and that you must park in a certain way or in certain places. If you do not, the contract you have entered into states that you have to pay a sum, as per that stated in the contract. This is where it gets interesting. Case law dating back 100 years or more stating that if the sum of money demanded is more than the losses that the landowner has suffered, then it is considered a contractual penalty, and is therefore unenforceable. In other words the landowner can claim for genuine pre-liquidated losses, not demand a penalty on event of a contractual breach. For example, if the cost of parking is £2, which a motorist does not pay, then the landowner can make a claim for that £2, not for a £50 ‘charge’, even if this is on the signage, as £50 would constitute a penalty, which then becomes unenforceable”.

Ref 3
Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd Lord Dunedin offered as tests which might prove "helpful, or even conclusive":

"(A) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach..….

(B) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ….. This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable ….. is probably more interesting than material.

( C) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

Ref 4
- Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G,
discussing Dunlop:
"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."
Ref 5

- Excel Parking Services v Hetherington-Jakeman, Mansfield County Court, March 2008.
“I have already decided that the charges are not recoverable anyway, but it is important I think for me to say whether I think it is a penalty, and I think it is a penalty. It seems to me that it is not a pre-estimate of damages. It is a payment of a sum of money that is intended to effectively frighten or intimidate someone into making a payment promptly. It is a figure that is far beyond any costs that could realistically or reasonably be incurred by the claimants in trying to run this system.”
Ref 6

- In OBServices Parking Consultancy Ltd vs Thirlow 10th February 2011 (on appeal) the Circuit Judge ruled:
- the sum amounted to an unenforceable penalty clause
- no loss caused by breach of contract
- common discount reinforced lack of pre-estimate of loss


Ref 7

- In UKCPS Ltd v Murphy (10th April 2012) it was found that the sum claimed for failing to display a blue badge whilst parking in a disabled bay in Deepdale Retail Park in Preston was in fact a contractual penalty and that UKCPS suffered no loss from the alleged breach of contract.


Ref 8
[FONT=&quot]This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946.[/FONT]
[FONT=&quot]"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."[/FONT]
[FONT=&quot]Ref 9[/FONT]
[FONT=&quot]At the Parking Eye v Smith (Manchester County Court December 2011)[/FONT][FONT=&quot] hearing the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.[/FONT]
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SpaceCowboy55

Nearly there ...

( This is point 2 of the defence in post above )

Trying to apply content of Post #59 from zzzLazyDaisy :

Is any part of this :
" The PCN has therefore been served out of time and is invalid and I request that the court strike the claim out as the claimant has no real prospect of succeeding on the claim ( CPR Part 24.2 ).



Not replaced by this:



It is the defendant's case that the claimant has no cause of action against the defendant as it has failed to meet the legal requirements under POFA 2012. 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. "


I really want to get this sent off today as deadline is tomorrow. Can anyone who understands these 2 points please resolve for me .

bod1467

I agree with Daisy's edit.

spacey2012

Judges expect a short summary of what the defence will make as it's main points.
I would alter the opening statement to :
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 neen 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 neccasary right of audience exists in relation to the contract and representation's of the land owner in court by the claimant .
The defendant also makes the case that several areas of the POFA has not been correctly followed establishing keeper liability.

The case for defence is expanded further below.

SpaceCowboy55

**** A Huge Thanks to ALL who have helped so far : without your help what would have gone in but have been lacking in what's needed to win I fear ****
I made the changes as per previous 2 posts . I had sent off yesterday as when I spoke to the court they advised not leaving it to the last dayand I couldn't access teh forum yesterday afternoon , but as I am still before the deadline I sent a replacement file.
I have seen a debate about whether I complain to BPA re out of date NTO - should I or shouldn't I . I have got the details of what to say and where to send.

I will update this thread with whatever happens next

zzzLazyDaisy

SpaceCowboy55 wrote: »

I have seen a debate about whether I complain to BPA re out of date NTO -

Yes, your next move should definitely be a formal complaint to Steve Clark at BPA about the conduct of this BPA Member and the fact that they have started court action against you, as the registered keeper when they are clearly in breach of POFA 2012 having failed to comply with the time scales set down in POFA, and have no right whatsoever to pursue you as the registered keeper. I'd also confirm that you were not the driver and can produce witness evidence to this effect. Enclose a copy of the defective PCN and ask himto investigate AS A MATTER OF URGENCY as they have already issued court proceedings.

Steve Clark has a good track record for getting out of time NtKs cancelled (he will say that he has no authority to instruct a PPC to cancel the charge, but as far as I know the result of every one of his investigations into these complaints that we know about is that the charge has been cancelled).

Obviously if the charge is cancelled they must also formally withdraw the court action.

Daisy

SpaceCowboy55

SpaceCowboy55 wrote: »

**** A Huge Thanks to ALL who have helped so far : without your help what would have gone in but have been lacking in what's needed to win I fear ****
I made the changes as per previous 2 posts . I had sent off yesterday as when I spoke to the court they advised not leaving it to the last day and I couldn't access the forum yesterday afternoon , but as I am still before the deadline I sent a replacement file.
I have seen a debate about whether I complain to BPA re out of date NTO - should I or shouldn't I . I have got the details of what to say and where to send.

I will update this thread with whatever happens next

Although I got a confirmation by email that my updated defence letter had been forwarded I was told by the help desk that only the first one would be accepted, so it appears it won't be until I get to court that I can use the updated one.
Email sent off to BPA as per post above ... now wait ...

SpaceCowboy55

SpaceCowboy55 wrote: »

Here is letter to PPC: main point to request info I need for defence , though I understand I get this opportunity at the next stage when I get the court forms ( currently I have MCOL Court Claim to respond to - within 2 days )

Dear Sirs
I have received the claim; I am defending it robustly.
I was not the driver and your claim cannot succeed: should you proceed knowing this I will be seeking appropriate costs.
I include a copy of my letter of 29/06/2103 which was sent to you twice to 2 different SIP addresses which you have not responded to which quite clearly states why your NTO is invalid. Even if the PCN was valid ( which as stated in the letter it isn’t ) your NTO should have been sent between 09/03/2013 and 06/04/2013 in order to comply with the law. The date of 10/05/2013 is after this therefore the NTO is invalid and there is no valid claim against the keeper.

I require you to provide the following information within 14 days and I will be advising the court that I am requesting this and that it is required for the defence:
· 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

I got a reply to this :

"We acknowledge receipt of your letter, dated ...

Unfortunately as court proceedings are currently commencing , we unable to enter into any further correspondence with yourself regarding the points made.

Any additional questions you may have will be addressed in County Court."

Coupon-mad

I would reply and say:

'Not only have you failed to send a compliant NTK in time - so have failed to establish registered keeper liability under Schedule 4 of POFA 2012 - but you have failed to reply to previous letters and are now refusing to enter into correspondence when a defendant asks you simple questions. Your particulars of claim, your breakdown of alleged 'loss' and your entire legal status to enter into contracts or pursue charges regarding this land, are so far unclear so I am perfectly entitled to ask the questions I did, and have solid grounds for asking, so you should respond in a timely manner. I would point out that a small claim by a private parking company was lost today on the very point that only the landowner can bring such a claim (Claim No. 3QT62646 in the Brentford County Court, 23/10/2013 - before District Judge Jenkins, Claimant: ParkingEye Ltd).

For your information I have made an official complaint about your conduct to the BPA Ltd (AOS Compliance Manager) and can of course ask the court to make an order for you to respond to my questions, if you still refuse to co-operate with an unrepresented defendant who simply needs to establish some information. I invite you now to reconsider your position, and either cancel this claim as it has no prospects of success, or respond properly to my previous questions in a professional manner, within seven days, because time is of the essence.'

Daisy might well see this and suggest better phraseology!