some help pcn challenge

eddy1

Hi All


just looking to submit skeleton defence in response to MCOL court claim


any comments would be greatly appreciated


Re SIP versus Defendant


The defendant denies that they are indebted to the claimant in any way

• The amount requested does not represent a genuine pre-estimate of loss
• SIP Parking limited have no proprietary interest in the land as they do not own it, and are therefore not entitled to pursue parking charges
• no contract was entered into with the driver of the vehicle
• The keeper was not the driver
• insufficient signage in so much as SIP failed to identify themselves as the creditor according to the IPC code of practice
• Notice to keeper sent was not POFA (2012) compliant in so much as the claimant did not clearly identify themselves as the creditor

Dear all these are the main bullet points, and will expand on each point to court, but I just wanted to ask that in this particular case the keeper mistakenly identified themselves as the driver in response to the NTK, as they believed the driver had already identified themselves and the PPC ignored this, also through ignorance of this system,
we have witness statements to states that they were not the driver, just wondering how we could tackle this at this stage


we also have witness statements to state that when the parking ticket was purchased and placed in the vehicle, there was no pcn on the car. SIP are stating that if ticket was purchased at this time, then driver would have seen parking attendant placing pcn on car and taking photographs. driver and witness did not see this


any comments or suggestions gratefully received


eddy

Coupon-mad

Notice to keeper sent was not POFA (2012) compliant in so much as the claimant did not clearly identify themselves as the creditor

Are there no other flaws? Surely that have not achieved everything else spelt out in paragraph 8 of Schedule 4?

eddy1

Hi coupon


not sure if these will stand up or not


there was no discount offered
nor any evidence provided,
they say the parking contravention "no ticket displayed" took place at 21.13 hours, however ticket was purchased at 21.26 hrs, . they say in further rejection letters that pcn was place on car at 21.27, with photographs taken at 21.33


would these represent further flaws


eddy

eddy1

does anyone think it worthwhile to put information in a court claim the a parking operator has threatened legal action to be taken by a debt collection company that is questionable and not regulated with the FCA.


the website of this debt collection firm is riddled with spelling mistakes, and states that they have teamed up with SIP car parks as they represent an "honest and fair operator" how ironic as at the bottom right hand corner of the home page is information if you highlight it that the debt collection firm is the trading name of SIP car parks. the information in the blurb suggests that they are totally separate companies, "honest and fair"???????


eddy

Coupon-mad

I think that it's comparable to the Wonga issue where they were sending out fake threats on headed notepaper which in act came from another desk within Wonga. I would say that these issues breach parts of the Consumer Protection from Unfair Trading Regulations. Yes that would be a defence point which could simply say, at this stage, The Claimant has failed to comply with current consumer protection laws and Regulations.

As for flaws in the NTK, from what you have said here:

''they say the parking contravention "no ticket displayed" took place at 21.13 hours, however ticket was purchased at 21.26 hrs, . they say in further rejection letters that pcn was place on car at 21.27, with photographs taken at 21.33''

...it sounds like they have failed to specify the period of parking on the NTK. Other typical flaws of a NTK could be like those shown here (maybe different ones):

https://forums.moneysavingexpert.com/discussion/comment/67044439#Comment_67044439

and things like not saying 'the creditor' somewhere on it to ID themselves as such. And do they state that 'the driver was liable', do they state a NTD or PCN was given? Look at every single point of paragraph 8, it's easy to miss some omissions.

eddy1

Hi coupon
Many thanks for the reply
Just wondering about the issue of keeper mistakenly identifying by he selves as driver as well, any suggestions anyone about how to tackle this in court claim

Many thanks
Eddy

Coupon-mad

Just say if asked in any hearing:

'No admissions have been made about who was driving and it's far too long ago to be certain. There are several drivers of my car so an assumption would be unsafe - that's partly why the Government introduced the POFA 2012 Schedule 4. It was also the will of Parliament when that Bill was heard in 2011/12 that keeper were spared the onerous obligation of being ordered to name the driver, despite lobbying from the BPA at the time. Shame, from the point of view of this Claimant, that they did not simply send a compliant NTK, and have failed to meet the second condition for keeper liability under Schedule 4 of the POFA.'

And otherwise in all defence evidence just say things like 'It is my contention that the driver would not have been able to read any signs because {they are gobbledegook/too high/not lit/not clear...or whatever...}' or words like 'the vehicle was apparently parked...'

Your defence is nothing about 'what happened' anyway, it's about why you are not liable - and it can be steered back round to their failures all the way.

eddy1

Thanks coupon

Will endeavour to post fuller skeleton defence shortly

Thanks gain for your consideration

Eddy

eddy1

hi all
any comments on defence below would be greatly appreciated




I am the registered keeper of this vehicle. This is my statement of truth and my defence which relies on the following points:

• The Charge is not a genuine pre-estimate of loss.
• SIP Parking limited have no proprietary interest in the land as they do not own it
• No contract was entered into with the driver of the vehicle, and misleading signs
• Notice to keeper sent by SIP Parking Limited was not POFA (2012) compliant
• Keeper was not the driver
• Claimant has failed to comply with current consumer protection laws and Regulations.

I will expand on the above points in order;
1. The charge is not a genuine pre-estimate of loss- it is a disguised penalty / breach
The Charge is not a genuine pre-estimate of loss. Their claim is based on damages for alleged parking contravention. It is a fundamental principle of UK Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the driver’s part. Any losses are due to the landholder, not the Claimant. I further submit that the loss to the landholder is zero or negligible as there was no loss of potential income as a ticket was purchased by the driver.


The parking charge must be an estimate of likely loss from the alleged contravention in order to be enforceable. The initial loss is a fundamental aspect of a parking charge, without it costs incurred from issuing the charge cannot be proven to have been caused by the driver’s alleged breach. SIP Parking Limited operational costs, tax deductible office functions, debt collection and other operations cannot flow as a direct consequence of this parking contravention. SIP Parking Limited would have been in the same position had the parking charge notice not been issued, along with the same business overheads even if no vehicles breached terms and conditions. I therefore do not admit any loss by the Claimant and put it to strict proof of the loss that SIP Parking Limited has suffered.
I believe SIP Parking Limited 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(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...
Furthermore 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 …..


2. SIP Parking limited have no proprietary interest in the land as they do not own it
SIP Parking Limited does not own the land and are assumed to be merely agents for the owner or legal occupier. In their NTK and in the rejection letter, SIP Parking Limited has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment for the title of the land in question. This means that the Claimant, as a matter of law, has no locus standi to litigate in their own name. Any consideration is provide by the landowner, only they can sue for damages or trespass.


3. No contract was entered into with the driver of the vehicle
The case is based on a purported, but denied contract between the driver and claimant, the contract being brought by way of the signage on site. Nowhere on this signage is SIP Parking Limited held out as the contracting party and consequently there is no contract with the Claimant. Any contract must have offer, acceptance and consideration both ways.


The sign at the location where the car was parked does not create a valid contract between the driver of the vehicle and the landowner whereby the driver agrees to pay £100 consideration for the privilege to park the car. Any charges that arise from the wording should be treated as a penalty. To attempt to levy a charge of £100 in those circumstances is nothing more than an attempt to ‘fine’ the driver for parking on private land. The signage goes on to state that “By parking or remaining on the site otherwise than in accordance with the above you, the driver, are agreeing to follow the contractual terms”. Moreover, this involves agreeing to pay £100 consideration.
However, the wording does not suggest that a contract is being entered into by the driver, instead it is worded clearly as a threat that if a driver parks in that location other than I accordance with the terms and conditions they will be subject to a parking charge of £100. The wording is clearly intended as a deterrent and therefore any charges that flow from that wording should be treated as penalty irrespective of the attempt in the signage to disguise this as ‘consideration’ for the right to park. This interpretation of the signage is supporting the disproportionate and punitive size of the ‘charge’. To charge £100 in those circumstances is clearly not a reasonable charge for the privilege to park.


4. Notice to Keeper (NTK) sent by SIP Parking Limited was not POFA (2012) compliant.
The NTK supplied by SIP Parking Limited does not comply with Schedule 4, Section 56 of the Protection of Freedoms Act 2012 (POFA), on a number of points.

• The NTK does not clearly identify the creditor in accordance with paragraph 8(2)(h). There are a number of differently named parking companies on the NTK and as such the creditor has not clearly been identified.
• The claimant has failed to specifically identify the period of parking in accordance with paragraph 7(2)(a). The specified period on the NTK states that the time is 21.13hrs, on the parking ticket time is given as 21.27 when ticket was issued, additionally in further correspondence with DVLA re the request for keeper details SIP Parking also identified that pictures were taken at 21.33. Additionally SIP, Parking Limited provided an NTK that had a totally different time period on it. A copy of these documents will be supplied when the evidence bundle is sent to the court.
• The NTK also does not include any evidence in accordance with paragraph 8(7). SIP Parking state they have taken photographs, yet have not supplied the defendant with any such evidence.

Due to being non-compliant with the Schedule 4 of the POFA 2012, SIP Parking Limited are not able to establish driver liability of the vehicle for the alleged parking charge. Therefore, any action against the driver should be withdrawn.


5. Keeper was not the driver
The keeper was scared by the threatening and formal nature of the approach by SIP Parking and identified themselves as the driver mistakenly, yet did not think that the identity of the driver mattered, but in fact the driver was another person. Witness statements corroborate this as fact and this will be reiterated in a signed witness statement from the defendant, when the evidence bundle is supplied to the court.


6. Claimant has failed to comply with current Consumer Protection Regulations from Unfair Trading.
SIP Parking Limited in a FINAL NOTICE issued on 26/08/2014 (copy to be provided in full defence pack) stated that should payment not be made of a parking charge of £100 within 14 days of the date of the letter that the matter will be passed to Morgan Knightley and Co to commence legal proceedings.


Regulation 5 of the Consumer Protection from unfair trading prohibits giving false information to, or deceiving consumers. This statement by SIP Parking Limited is designed to frighten and intimidate a consumer in so much that the matter will be passed to what appears to be a firm of solicitors to commence such legal proceedings.
Furthermore this statement gives the impression that Morgan Knightley and Co are a separate company, a tactic that is reinforced on Morgan Knightley’s website when they say that they have teamed up with SIP Parking to help them recover unpaid debts.

Morgan Knightley are in fact a debt collection company according to their website, and a trade name of SIP Parking Limited, therefore they are SIP Parking Limited, and not a separate entity that the letter or indeed the website of Morgan Knightley gives the impression that they are.


This practice is clearly designed to deceive consumers that they are going to be referring the matter to a legal firm with the intention of commencing legal proceedings, and that these companies are two distinct companies, in doing so SIP Parking Limited has in my opinion engaged in misleading practices according to the Unfair Trading Regulations 2008.


any comments as I say would be helpful
need to submit within 7 days


eddy

Coupon-mad

At this stage it doesn't need to be that long - much of the detail can be saved to form part of your evidence bundle if it goes to a hearing.

The only mistake was you said 'driver liability' when you mean 'keeper liability'. So you could have:



I am the registered keeper of this vehicle. This is my statement of truth and my defence which relies on the following points:

• The Charge is not a genuine pre-estimate of loss.
• SIP Parking limited have no proprietary interest in the land as they do not own it
• No contract was entered into with the driver of the vehicle, and misleading signs
• Notice to keeper sent by SIP Parking Limited was not POFA (2012) compliant
• Keeper was not the driver
• Claimant has failed to comply with current consumer protection laws and Regulations.

I will expand on the above points in order;

The Charge is not a genuine pre-estimate of loss - the loss to the landholder is zero or negligible as there was no loss of potential income as a ticket was purchased by the driver.

SIP Parking limited have no proprietary interest in the land as they do not own it - the Claimant, as a matter of law, has no locus standi to litigate in their own name. Any consideration is provide by the landowner, only they can sue for damages or trespass.

No contract was entered into with the driver of the vehicle, and misleading signs -the wording does not suggest that a contract is being entered into by the driver, instead it is worded as a deterrent. Nowhere on this signage is SIP Parking Limited held out as the contracting party and consequently there is no contract with the Claimant. Any contract must have offer, acceptance and consideration both ways. Therefore, any charges that flow from that wording should be treated as an unrecoverable penalty.

Notice to Keeper was not POFA compliant, so no keeper liability is possible - due to being non-compliant with paragraph 8 of Schedule 4 of the Protection of Freedoms Act 2012, SIP Parking are not able to establish keeper liability for this charge.

Keeper was not the driver
The keeper was scared by the threatening and formal nature of the approach by SIP Parking and identified themselves as the driver mistakenly, yet did not think that the identity of the driver mattered, but in fact the driver was another person. Witness statements from others corroborate this as fact and this will be reiterated by me as Defendant, in a signed witness statement when the evidence bundle is supplied to the court and to the Claimant.

Claimant has failed to comply with current Consumer Protection Regulations - the information required under the Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013 was not provided so the contract is not enforceable. The identity of Morgan Knightley on letters sent to me has been misleading and an unfair business practice. Any contract is denied but for the avoidance of doubt, I hereby exercise my right within 12 months of the incident, to cancel the alleged contract which was wholly unfair and not properly made.

Denial of the entire claim
I deny that I am liable to the Claimant for the sums claimed, or any amount at all.
This is the wrong claimant pursuing a registered keeper who cannot be liable.

I invite the Court to strike out the claim as having no realistic prospects of success.


Full name/date