County court claim for PCN

OMG_HowMuch??

Just been looking at various other posts re: CEL one posting mentions BMPA this isn't a website I'm familiar with.

It mentions that I should be making a part 18 request, but also warns of the disadvantages, as I don't remember seeing any signage should I be asking them to confirm what signage existed on the date of the incident?

OMG_HowMuch??

Ok realised that I've got my date calculations wrong. I didn't take into account working days for the PCN issue time limit, if the incident happened on a (Saturday) 14th March 2015 and the issue date on the PCN is 4th March 2015, are they within time limits? thus blowing my keeper liability defence?

Don't they have to allow a couple of days for the post as well?

pappa_golf

a NTK should be delivered to the keeper WITHIN 14 DAYS , not 14 days + a bank holiday weekend , or have a week off for xmas , 14 DAYS if it was a ANPR ticket and they are going to rely on POFa


I am confused as to how a company can send out a NTK on the 4th of march , but yet the incident was not until 14th march


if you mean the 4th april , then 14th of march + 14 days does not equal 4th april

OMG_HowMuch??

sorry typo, incident date was 14th Feb 2015 issued on 4th March 2015 (losing the plot here)

OMG_HowMuch??

this is what I've got the duration down as...

From and including: Saturday, 14 February 2015
To and including: Wednesday, 4 March 2015

19 calendar days – 6 days skipped:
Excluded 3 Saturdays
Excluded 3 Sundays

So therefore 13 days.

Can I assume that the first day would be the Monday?

I found this whilst doing a bit of research into the 14 day rule,apparently this is what POFA says:

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. (6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

So if the posting date was the issue date(which seems like a reasonable assumption) , and they can only assume delivery on the second working day then makes 15, so they have timed out for keeper liability.

Is my understanding of this correct?

The_Slithy_Tove

OMG_HowMuch?? wrote: »

Is my understanding of this correct?

No. Didn't you read Pappa Golf's post above? Days means calendar days, full stop. So, in your case that's 19, which when I last looked was more than 14. ("Working" days is only referred to when determining how long something should spend "in the post", but that doesn't stop the 14 calendar day clock from ticking.)

OMG_HowMuch??

yeah I mustn't have read it properly, think I was more concerned with the fact that he was questioning the dates because I had typed them in wrong.

Thanks for confirming that for me though, feel a bit better now about one possible defence now.

Coupon-mad

The suggested defence on other threads already covers the fact that CEL do not hold keepers liable anyway (they do not use a POFA version of a Notice to Keeper, regardless of when it was posted). Non-compliant is non-compliant, never mind adding up when it was served, that's just icing on the cake.

It's all part of the same defence point 'no keeper liability under the POFA' already covered on other CEL/Schwartz claim threads. You have more than one possible point of defence...already set out on other threads showing a typical CEL defence (well my version).

OMG_HowMuch??

Ok here is my defence statement, I've put this together with lots of help from the people at BMPA, but thought I would get peoples thoughts about it, before sending it off.

The paragraphs refererred to in the defence relate to the particulars of the claim.

This is the particulars I received

---

1.At all material times, the claimant managed the car park the address of which is stated on the attached schedule of information. The car park is private property

2.By way of background, the claimant uses automatic number plate recognition (“ANPR”) cameras at the entrance and the exit of the Car Park, which identify the viehicles time or arrival and departure from the car park.

3.There are many clear and visible signs in the car park avising drivers of the terms and conditions of using the car park. Drivers are permitted to park in accordance with the terms displayed on the signage, and these signs constitute an offer by the claimant to enter into a contract with drivers.

4.The key terms of the terms are summarised in the attached schedule of information.

5.When the defendant parked thier vehicle(on the date and time set out in the attached schedule of information) in the car park they accepted, by thier conduct the terms and conditions of parking. See Vine v Waltham Forest London borough council [2000] All ER 169

6.The defendant breached the terms and condiotions of the site and as such is liable to pay the claimaint the amount as set out in the attached schedule of information.

7.The supreme court judgement in the case of parking eye v Beavis has established that it is both legal and commercially justifiable for car park operators to implement a disincentive, such as the above, so as to efficiently manage the car park for the benefit of it users. Our charge is neither extravagant nor unconscionable, and falls within the british parking authority’s guidelines as stated in their code of practice

8.The claimant (directly/through it’s agents) was left with no alternative but to escalate the matter as a result of thier non-payment of the debt, which further increased the amount owed, in accordance with the terms of parking be any additional £40.00

9.The claimant claims the amounts owed plus the court and legal fees plus interest pursuant to section 69 of the county courts act 1984 on the amount found to be due to the claimant at such a rate and for such a period as the court sees fit.

---

IN THE XXXX COUNTY COURT CASE No. XXXXXX
BETWEEN
CIVIL ENFORCEMENT LTD Claimant
AND
XXXXXXXXX Defendant

DEFENCE

1. The Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.

2. I am the Defendant, XXXXXXX

3. I am the registered keeper of vehicle, registration number XXXXXXXX

4. The Claimant failed to meet the strict requirements of the Protection of Freedoms Act 9 (4) and 9(5) which is to ensure a Notice to Keeper is with the Keeper within 14 days. As such the Defendant cannot be held liable under these provisions.

5. I have no knowledge of paragraph 1 in so far as Civil Enforcement Limited and the landowners are concerned and the claimant is put to strict proof that Civil Enforcement Limited have a valid contract with the landowners. If they do not have a proprietary interest in the land they have no basis to demand money and no right to assign a debt to another party. In any event if the assignment is legal it was not for the full amount. The claimant is attempting to recover sums that they are not entitled to should they be entitled to anything, which is denied. I believe the claimant's claim for £XXXXX is an attempt to be unjustly enriched.

6. Paragraph 2 is outside my knowledge and is neither admitted nor denied. The claimant is put to strict proof.

7. Paragraphs 3 & 4 are denied. As the event was over 12 months ago the defendant has no specific memory of a typical shopping event and as there are multiple possible users the claimant is put to strict proof of who was driving and notes that keeper liability was introduced after this event and is not retrospective. The claimant is put to strict proof they are entitled to enter into a contract. Any contract must have offer, acceptance and consideration both ways. There is no consideration from Civil Enforcement Ltd to the motorist; The gift of parking is the landowner’s, not Civil Enforcement Ltd’s. There is no consideration from motorist to Civil Enforcement Ltd. There is no evidence of signs, site plans, Notice to Driver, Notice to Keeper or any evidence of authority to be on that site, to issue tickets or to take action in their own name. As such the Claimant is put to strict proof.

8. Paragraph 5 is denied as the claimant was not entitled to demand money from the defendant as none was owed. In any event, even if it was, the sum demanded was not as the full amount of the penalty was not assigned. The claimant is put to strict proof of how the balance was accrued.

9. Paragraph 6 is denied. Interest is not due as there is no base debt on which interest should be charged.

10. The claimants claim fails to meet CPR 16.2 (1) (a). It does not include a concise statement of the nature of the claim. It's either a contractual charge, damages for breach of contract or damages for trespass. Neither does it explain how the charge has reached £XXXX

11. The claimants claim is also denied for the following reasons :-

A. A charge of £XXXXX is above and beyond that which the British Parking Association expects `and is a trade association of which Civil Enforcement Ltd are a member. 19.5/6 of the trades code of practice states "If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.

19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by The Office of Fair Trading."

Case Law Relied Upon:

a) With regard to point 4 & 6, there are two Court of Appeal judgments of note, ParkingEye v Somerfield [2012 EWCA Civ 1338] and HMRC v VCS [2013 EWCA Civ 186]. In the first, the court ruled that the parking company could not take legal action in their own name. In the second the court ruled they could. The nature of the relationship between landowner and car park operator, and the wording of the contract between them, is key to distinguishing these two cases. It is instructive therefore to compare the current relationship between ParkingEye and landowner, and the wording of the contract, to see whether this more closely resembles ParkingEye v Somerfield or HMRC v VCS. The defendant submits that it is obvious the relationship is more like the ParkingEye v Somerfield case. In 3JD04329 ParkingEye v Martin (12/05/2014 St Albans) District Judge Cross found ParkingEye’s contract to be more like the Somerfield case than VCS v HMRC, and dismissed the claim. No transcript is currently available.

Appendix B contains the minutes of the British Parking Association where parking charge levels were decided, showing that there was no consideration whatsoever given to pre-estimate of loss, and that at least one factor was to set the charges the same as council penalties. The minutes also show there is no financial basis for the 40% discount but that it is needed to ‘prevent frivolous appeals. Any charge set to deter is a penalty. A charge set to the level of a penalty is a penalty.

Conclusion I deny that I am liable to the Claimant for the sums claimed, or any amount at all. I invite the Court to strike out the claim as being without merit, and with no realistic prospect of success.

Statement of Truth
I believe that the facts stated in this Defence are true.
Dated this 29th day of June 2016.
To the court and to the Claimant


..........................
XXXXXXX
Defendant of XXXXXXXXX
at which address he/she will accept service of proceedings.

Umkomaas

It is instructive therefore to compare the current relationship between ParkingEye and landowner, and the wording of the contract, to see whether this more closely resembles ParkingEye v Somerfield or HMRC v VCS. The defendant submits that it is obvious the relationship is more like the ParkingEye v Somerfield case. In 3JD04329 ParkingEye v Martin (12/05/2014 St Albans) District Judge Cross found ParkingEye’s contract to be more like the Somerfield case than VCS v HMRC, and dismissed the claim. No transcript is currently available.

Should the emboldened 'ParkingEye' in the above paragraph not read Civil Enforcement Ltd as surely you're asking the court to compare the CEL/Landowner relationship with those previously of PE and VCS in their respective landowner relationships?

If this does get to court, you will need to have a copy of the appropriate BPA CoP with you to back up the following part of your defence:

A. A charge of £XXXXX is above and beyond that which the British Parking Association expects `and is a trade association of which Civil Enforcement Ltd are a member. 19.5/6 of the trades code of practice states "If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.

The BPA CoP was changed last year to move away from GPEOL to 'commercially justified' in para 19.5, so taking a copy of the most recent CoP won't help you in this regard. The BPA website does have links to back issues of the CoP, so download the right one!

HTH