Issued with a County Court Claim Form

SpaceCowboy55

GermanKeeper wrote: »

I complete the links in the quote:

The notice to owner (registered keeper) was sent on 21/06/13, but this is out of time:

If there was a notice to driver on the windscreen of the car at 03/03/13 the NTO has to be sent between day 28 and day 56 after the parking event (roughly speaking in April).

If there was no notice to driver on the windscreen, then the notice to keeper has to arrive within 14 days after the parking event.

This means that there is no keeper liability in this case. So it will be easy to defend the claim.

But the experts will tell you if it is better to name the driver in your defence or if it just sufficient to write that you have not been the driver.

On the claim form is Natasha Sarwar a solicitor? - question aimed at anyone used to seeing Court forms. It was suggested in my thread that if she was a solicitor SIP are in trouble - but to me the form is not clear - depends on what the xxxxx's mean

BlueMan

anniecave wrote: »

A few questions for starters

I assume it's your car (or was at the time)?

You say you weren't the driver. However is it somone in your family or a named driver or whatever, or was in fact the car stolen at the time (for example)?

If you know the circumstances of the incident, was the car was actually parked in the car park without a ticket at the time?

Yes, it is my car.

No the car was not stolen. Yes, it was someone I know who was driving the car.

Yes, the car was parked without a ticket.

BlueMan

Coupon-mad wrote: »

Good shout.

The OP should also IMMEDIATELY (as well as acknowledging the court paperwork) send an email complaint today (written as the REGISTERED KEEPER ONLY, NOT STATING WHO MIGHT HAVE BEEN THE DRIVER!) to the BPA:

[EMAIL="david.m@britishparking.co.uk"]david.m@britishparking.co.uk[/EMAIL]

... saying that this rogue AOS member is sending out court papers and before that, a 'final notice' which actually said 'served under the POFA 2012' when they have failed to establish rk liability. You were not the driver and you are not liable at all. Some of the many failures you have noticed already in the attached documents are:

- The Notice to Owner was wholly non-compliant with POFA as it was sent too late after an alleged 'PCN' and failed to inform the keeper about POPLA and give the keeper the information that POFA requires in a NTK.

- The 'Final Notice' breaches the CPUTR 2008 as it claims to have been served under a law that doesn't give the said 'notice' any such authority at all. It misstates the legal position, especially as SIP have failed to establish registered keeper liability due to the multiple NTO failures and omissions.

- state that you expect the BPA to investigate ALL such instances from SIP because it is in the public domain that they are litigious and yet routinely fail to comply with POFA nor do they inform registered keepers about POPLA. This is an apparent rogue PPC marauding through the private parking notices and court processes with no regard given to the BPA CoP or to POFA 2012. As such, this surely requires sanction points; ask the BPA what the investigation outcome is because time if of the essence and you are now defending this rubbish, having got court papers. Ask if this is an example of how the BPA have been 'driving up standards'?

As far as defending is concerned you will find a lot of links & info on SpaceCowboy55's thread. DO NOT rely on the BPA to cancel this, once you have reported SIP.

YOU STILL HAVE TO GET A DEFENCE IN TO THE COURT IN TIME.

These threads, links and advice already given should help as well:


Your defence must rebut every point they have made in their claim form and on any of their notices, so you would say 'It is denied that the defendant parked...blah blah...as the defendant was not the driver'. 'It is denied that the defendant is liable because SIP have failed to follow the strict requirements for registered keeper liability...blah blah' and stuff like 'It is denied that SIP sent a 'valid Notice to Owner' because it was wholly invalid (wording not compliant with POFA 2012) and sent too late, should have been called a Notice to Keeper and had multiple omissions which have been officially reported to the BPA in a complaint.' And more, in the bullet point style sown in SpaceCowboy55's thread; you should debunk their signage and everything about this claim.

If this ends up in a hearing you will win I suspect but I can't see SIP pushing it that far. Many PPCs drop out and this is a cheap shot to try to make you scared and pay. Beware that they read these forums, we know that. It's good that you were not the driver so make that clear as well because without rk liability they are stuffed (no requirement on you to name the driver).

Here are some cases to read where people have won when a PPC takes this rubbish to a hearing; you can cite these in defence too:

Should I copy SIP in as well to show them I am going to fight this all the way?

SpaceCowboy55

BlueMan wrote: »

Should I copy SIP in as well to show them I am going to fight this all the way?

I think they get sent a copy of your defence from the court - after submitting your defence you will get a form N180 to complete from the court ( as will SIP ) - on that it implies SIP have been sent the defence. ( I am 3 weeks ahead of you so keep an eye on my thread for updates as I am updating it with progress)
https://forums.moneysavingexpert.com/discussion/4784029

also

https://forums.moneysavingexpert.com/discussion/4782232 is slightly ahead of you

BlueMan

Does the following message to BPA look OK? Would you change or add anything else?

David,

I would like to make you aware that SIP (Stop Illegal Parking) AOS member is sending out court papers and before that, a 'final notice' which said 'served under the POFA 2012' when they have failed to establish RK liability. I was not the driver and I am therefore not liable at all.

The Notice to Owner was wholly non-compliant with POFA as it was sent too late after an alleged 'PCN' and failed to inform the keeper about POPLA and give the keeper the information that POFA requires in a NTK.

The 'Final Notice' breaches the CPUTR 2008 as it claims to have been served under a law that doesn't give the said 'notice' any such authority at all. It misstates the legal position, especially as SIP have failed to establish registered keeper liability due to the multiple NTO failures and omissions.

I expect the BPA to investigate ALL such instances from SIP because it is in the public domain that they are litigious and yet routinely fail to comply with POFA nor do they inform registered keepers about POPLA. This is an apparent rogue PPC marauding through the private parking notices and court processes with no regard given to the BPA CoP or to POFA 2012. As such, this surely requires sanction points.

Could you please make sure that I am made aware of the investigation outcome because time is of the essence and I am now defending this claim, having got court papers.

Is this an example of how the BPA have been 'driving up standards'?

Coupon-mad

Can't argue with that seeing as I wrote it and I think there's nothing there that isn't true.

BlueMan

Ok I have my skeleton defence ready. Any suggested changes/additions?


Claim Number xxxxx

Defence:

It is the defendant's case that the claimant has no cause of action against the defendant. SIP have the wrong defendant and should have identified the driver at the time if they wanted to allege a contract existed.

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 representations of the land owner in court by the claimant .

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.

The case for defence is expanded further below.

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

2. I was not the driver and have a witness statement to support this. SIP have not complied with Protection of Freedoms Act 2012 as described below and cannot pursue me as the keeper. Should I continue to be pursued I will be making an application for costs under section 27.14

justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.14 Quote

(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;

3. 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 14 June 2013 relating to the alleged incident on 3 March 2013. This far exceeds the requirement under Schedule 4 para 8.5 of the Protection of Freedoms Act 2012 to send the notice no later than 56 days after the incident and is in breach of the British Parking Association 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).

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 the Protection of Freedoms Act 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.

4. The Notice to keeper was itself defective in that it:

· Failed to explicitly and clearly identify the “creditor” (para 9(2)(h) Protection of Freedoms Act 2012)·

Did not specify the maximum additional costs that they may seek to recover

· The discount for payment within 14 days was not 40%

5. The letter sent on 04/09/2013 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”.

6. 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.

The original PCN shows four different levels of charge if payment is made within different time periods, as follows:

Within 24 Hours - £50
Within 14 days - £70
Within 15-28 days - £90
After 28 days - £100

As any loss incurred would not have changed irrespective of the length of time within which payment is made, this shows that the charge was in fact a penalty.

7. 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 6 and 7 above.

8. 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.

9. 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.

10. 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.

Response to Particulars of Claim:

1. Defendant parked in contravention … : I was not the driver : See point 3 of Defence above.

2. PCN (Parking Charge Notice) received on 03/03/2013 : I was not the driver. : See point 3 of Defence above

3. A valid NTO was sent on 21/06/2013 ... : I did not receive a valid NTO … : See point 4 of Defence above and File 1.

4. Final sum fee of £100 : See Points 6 and 7 of Defence.

5. Evidence consists of .. : There are photos of the car but there is no evidence of when and where they were taken.

I will be writing to SIP to request information to support point 8 of the Defence.

The information that will be requested and required within 14 days of receipt of the letter 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

May I respectfully request that if the decision is made to progress with a Court hearing that this is transferred to Stockport.

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
This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946."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 9
At the Parking Eye v Smith (Manchester County Court December 2011) 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.

BlueMan

I had an Email from BPA the other day. Looks like they are looking into my complaint.

BlueMan

I have made a few changes to my defence does it look ok to send? I would like to get this sent off asap, so any suggestions would be great. Thanks.


[FONT=Times New Roman, serif]Claim Number xxxxx[/FONT]

[FONT=Times New Roman, serif]Defence:[/FONT]

[FONT=Times New Roman, serif]It is the defendant's case that the claimant has no cause of action against the defendant. SIP have the wrong defendant and should have identified the driver at the time if they wanted to allege a contract existed.[/FONT]

[FONT=Times New Roman, serif]The defendant believes that the claimant is pursuing what amounts to a Penalty and not a genuine accounted loss for damages or trespass.[/FONT]

[FONT=Times New Roman, serif]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.[/FONT]

[FONT=Times New Roman, serif]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 representations of the land owner in court by the claimant .[/FONT]

[FONT=Times New Roman, serif]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.[/FONT]

[FONT=Times New Roman, serif]T[/FONT][FONT=Times New Roman, serif]he case for defence is expanded further below.[/FONT]

[FONT=Times New Roman, serif]1. The Defendant denies she is indebted to the Claimant in any way.[/FONT]

[FONT=Times New Roman, serif]2. I was not the driver. SIP have not complied with Protection of Freedoms Act 2012 as described below and cannot pursue me as the keeper. Should I continue to be pursued I will be making an application for costs under section 27.14 [/FONT][FONT=Times New Roman, serif][/FONT]
[FONT=Times New Roman, serif][/FONT]
[FONT=Times New Roman, serif]http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.14 [/FONT][FONT=Times New Roman, serif][/FONT]
[FONT=Times New Roman, serif][/FONT]
[FONT=Times New Roman, serif]Quote:[/FONT]

[FONT=Times New Roman, serif](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=Times New Roman, serif]3. 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 14 June 2013 relating to the alleged incident on 3 March 2013. This far exceeds the requirement under Schedule 4 para 8.5 of the Protection of Freedoms Act 2012 to send the notice no later than 56 days after the incident and is in breach of the British Parking Association Code of Practice. If PCN placed on car is valid then Notice to Owner should have been sent between 30th March and 27th April.[/FONT]

[FONT=Times New Roman, serif]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 the Protection of Freedoms Act 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.[/FONT]

[FONT=Times New Roman, serif]4. The Notice to keeper was itself defective in that it:[/FONT]

[FONT=Times New Roman, serif]· Failed to explicitly and clearly identify the “creditor” (para 9(2)(h) Protection of Freedoms Act 2012)[/FONT]

[FONT=Times New Roman, serif]· Did not specify the maximum additional costs that they may seek to recover[/FONT]

[FONT=Times New Roman, serif]· The discount for payment within 14 days was not 40%[/FONT]

[FONT=Times New Roman, serif]The defective notice to keeper is currently the subject of an investigation by the British Parking Association.[/FONT]

[FONT=Times New Roman, serif]5. The letter sent on 04/09/2013 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:[/FONT]

[FONT=Times New Roman, serif]· Failure to mention the Practice Direction itself and draw attention to para 4 concerning sanctions for failure to comply with the Practice Direction[/FONT]

[FONT=Times New Roman, serif]· Failure to give the Claimant’s full name and address[/FONT]

[FONT=Times New Roman, serif]· Failure to state clearly the basis on which the claim is made (i.e. why the claimant says the defendant is liable);[/FONT]

[FONT=Times New Roman, serif]· Failure to explain how if financial loss is claimed the amount claimed has been calculated[/FONT]
[FONT=Times New Roman, serif][/FONT]
[FONT=Times New Roman, serif]· Failure to list the essential documents on which the Claimant intends to rely[/FONT]
[FONT=Times New Roman, serif][/FONT]
[FONT=Times New Roman, serif]· Failure to set out the form of Alternative Dispute Resolution that the Claimant considers most suitable and invite me as defendant to agree to[/FONT]

[FONT=Times New Roman, serif]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”. This letter is also currently the subject of an investigation by the British Parking Association.[/FONT]

[FONT=Times New Roman, serif]6. 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. [/FONT]

[FONT=Times New Roman, serif]The original PCN shows four different levels of charge if payment is made within different time periods, as follows:[/FONT]

[FONT=Times New Roman, serif]Within 24 Hours - £50[/FONT]
[FONT=Times New Roman, serif]Within 14 days - £70[/FONT]
[FONT=Times New Roman, serif]Within 15-28 days - £90[/FONT]
[FONT=Times New Roman, serif]After 28 days - £100[/FONT]

[FONT=Times New Roman, serif]As any loss incurred would not have changed irrespective of the length of time within which payment is made, this shows that the charge was in fact a penalty.[/FONT]

[FONT=Times New Roman, serif]7. 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. [/FONT]

[FONT=Times New Roman, serif]See References 1 – 9 in Appendix 1 : Court References in support of Points 6 and 7 above.[/FONT]

[FONT=Times New Roman, serif]8. 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.[/FONT]

[FONT=Times New Roman, serif]'The Office of Fair Trading, in contact with the BPA last year about private parking charges, expressed the view that the court will need to be satisfied about who the consumer was contracting with and that this is the party bringing proceedings. In this case, the Defendant is not satisfied that the same legal entity has lodged the small claim as:[/FONT]

[FONT=Times New Roman, serif]-was the AOS listed member[/FONT]
[FONT=Times New Roman, serif]-had the contract with the landowner[/FONT]
[FONT=Times New Roman, serif]-was named on signage[/FONT]
[FONT=Times New Roman, serif]-had their name on all letters & documents about this 'charge'.[/FONT] [FONT=Times New Roman, serif][/FONT]
[FONT=Times New Roman, serif][/FONT]
[FONT=Times New Roman, serif]In correspondence the company been identified “Stop Illegal Parking” (NTO & Important Final Notice) and “SIP Parking Limited” (Final Notice).[/FONT]

[FONT=Times New Roman, serif]And in any case the Defendant asserts that the Claimant has no right nor cause to bring proceedings as they are a mere agent of the landowner. Refer to Parking Eye v Sharma 23rd October 2013.[/FONT]

[FONT=Times New Roman, serif]9. Signage :[/FONT]

[FONT=Times New Roman, serif]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=Times New Roman, serif]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=Times New Roman, serif]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.[/FONT]

[FONT=Times New Roman, serif]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.[/FONT]

[FONT=Times New Roman, serif]10. BREACH OF UTCCR 1999[/FONT]

[FONT=Times New Roman, serif]Finally, I believe SIP are in breach of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):[/FONT]

[FONT=Times New Roman, serif]Schedule 2, paragraph 1:[/FONT]
[FONT=Times New Roman, serif]...terms may be unfair if they have the object or effect of:[/FONT]

[FONT=Times New Roman, serif](e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.[/FONT]

[FONT=Times New Roman, serif]Unfair Terms[/FONT]
[FONT=Times New Roman, serif]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.[/FONT]

[FONT=Times New Roman, serif](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.[/FONT]

[FONT=Times New Roman, serif]And from the Office of Fair Trading, Unfair Contract Terms Guidance:[/FONT]

[FONT=Times New Roman, serif]''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...''[/FONT]

[FONT=Times New Roman, serif]Group 18(a): Allowing the supplier to impose unfair financial burdens[/FONT]
[FONT=Times New Roman, serif]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...[/FONT]

[FONT=Times New Roman, serif]Group 18(h): Unreasonable ancillary obligations and restrictions[/FONT] [FONT=Times New Roman, serif]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... [/FONT]

[FONT=Times New Roman, serif]Group 19: Regulation 7 – plain and intelligible language[/FONT]
[FONT=Times New Roman, serif]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.[/FONT]

[FONT=Times New Roman, serif]Response to Particulars of Claim:[/FONT]

[FONT=Times New Roman, serif]1. Defendant parked in contravention … : I was not the driver : See point 3 of Defence above.[/FONT]

[FONT=Times New Roman, serif]2. PCN (Parking Charge Notice) received on 03/03/2013 : I was not the driver. : See point 3 of Defence above[/FONT]

[FONT=Times New Roman, serif]3. A valid NTO was sent on 21/06/2013 ... : I did not receive a valid NTO … : See point 4 of Defence above and File 1.[/FONT]

[FONT=Times New Roman, serif]4. Final sum fee of £100 : See Points 6 and 7 of Defence.[/FONT]

[FONT=Times New Roman, serif]5. Evidence consists of .. : There are photos of the car but there is no evidence of when and where they were taken.[/FONT]

[FONT=Times New Roman, serif]M[/FONT][FONT=Times New Roman, serif]ay I respectfully request that if the decision is made to progress with a Court hearing that this is transferred to Stockport.[/FONT]

[FONT=Times New Roman, serif]Appendix 1 : Court References[/FONT]

[FONT=Times New Roman, serif]Ref 1[/FONT]
[FONT=Times New Roman, serif]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.[/FONT]

[FONT=Times New Roman, serif]Ref 2[/FONT]
[FONT=Times New Roman, serif]I[/FONT][FONT=Times New Roman, serif]n 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”.[/FONT]

[FONT=Times New Roman, serif]Ref 3[/FONT]
[FONT=Times New Roman, serif]Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd Lord Dunedin offered as tests which might prove "helpful, or even conclusive": [/FONT]

[FONT=Times New Roman, serif]"(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..….[/FONT]

[FONT=Times New Roman, serif](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.[/FONT]

[FONT=Times New Roman, serif]( 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". [/FONT]

[FONT=Times New Roman, serif]Ref 4[/FONT]
[FONT=Times New Roman, serif]- Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G, [/FONT][FONT=Times New Roman, serif]discussing Dunlop:[/FONT] [FONT=Times New Roman, serif]"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=Times New Roman, serif]Ref 5[/FONT]
[FONT=Times New Roman, serif]- Excel Parking Services v Hetherington-Jakeman, Mansfield County Court, March 2008.[/FONT]“[FONT=Times New Roman, serif]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.”[/FONT]

[FONT=Times New Roman, serif]Ref 6[/FONT]
[FONT=Times New Roman, serif]- In OBServices Parking Consultancy Ltd vs Thirlow 10th February 2011 (on appeal) the Circuit Judge ruled:[/FONT]
[FONT=Times New Roman, serif]- the sum amounted to an unenforceable penalty clause[/FONT]
[FONT=Times New Roman, serif]- no loss caused by breach of contract[/FONT]
[FONT=Times New Roman, serif]- common discount reinforced lack of pre-estimate of loss [/FONT]

[FONT=Times New Roman, serif]Ref 7[/FONT] [FONT=Times New Roman, serif][/FONT]
[FONT=Times New Roman, serif]- 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.[/FONT]

[FONT=Times New Roman, serif]Ref [/FONT][FONT=Times New Roman, serif]8[/FONT]
[FONT=Times New Roman, serif]This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946.[/FONT][FONT=Times New Roman, serif]"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=Times New Roman, serif]Ref 9[/FONT]
[FONT=Times New Roman, serif]At the Parking Eye v Smith (Manchester County Court December 2011) 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]

Coupon-mad

Very strong defence IMHO!

BTW did they call it a NTO rather than a NTK? Misleading impersonation of authority - an NTO is a Council document - which is another BPA CoP breach and arguably a breach of the CPUTR 2008.


I would just suggest these tweaks:

If PCN placed on car [STRIKE]is valid[/STRIKE] then Notice to [STRIKE]Owner[/STRIKE] Keeper should have been sent between 30th March and 27th April.

In correspondence the company been identified “Stop Illegal Parking” (NTO & Important Final Notice) and “SIP Parking Limited” (Final Notice). And yet their website linked to their BPA Ltd AOS membership, which is their gateway to DVLA data, they are called ''Simple Intelligent Parking'' . In fact there is no company called or trading as ''Stop Illegal Parking'' on the BPA Ltd AOS membership list at all so I contend that the party who issued the Notices appears not to be the same entity which obtained my DVLA data as keeper. If they are one and the same company, then the convoluted company names are unfair and confusing to the public.

Which name is on the signage as well? Add that in above!

: I did not receive a valid [STRIKE]NTO[/STRIKE] Notice to Keeper

Take a screen print of the AOS list right now as you can show that ''Stop Illegal Parking'' as on the Notices, are not listed:

Shield Security Services (Yorkshire) Ltdhttp://www.shield-security.net
SIP Parking Limited t/as SIP Car Park (UK), ANPReye, Morgan Knightley & Co, SIP Car Parks & Simple Intelligent Parkinghttp://www.sipparking.co.uk
Smart Parking Limited also trading as Town & City Parkinghttp://www.smartparking.com