Northampton Court Claim arrived (MCOL)

DollyDee_2

POFA received Royal Assent in May 2012 but came into effect on 1st October 2012. As the "contravention" occurred in July 2012 (before POFA) they can only pursue the driver.

That's my understanding anyway.

Redx

you did not expect the details to be accurate , did you ?

GLADSTONES dont get paid to check details so they issue roboclaims with many inaccuracies, thought you would have learned that by reading other threads and pranksters blogs

its your chance to put those issues to the court , especially inaccuracies on signage and the above details too

and POFA2012 came into force on 01 OCT 2012

bear in mind many companies dont rely on it SINCE it came in , plus its not retrospective, its up to you to point these issues out , especially if it was not in force and if they dont conform to it either (which they probably still dont)

some of these claims are being thrown out for exactly these types of inaccuracies

Coupon-mad

Helen Cook who signed that - what can we say, it is an embarrassment!

They've thrown this together, so tear it apart following the format they have, blow by blow. You just need to use their paragraph numbering and deny/refute what they say, setting it out in Times New Roman 12 font size, 1.5 line spaced (copy their format):

e.g:

In the County Court at Port Talbot Justice Centre

Claim Number

Claimant:

Defendant:




I am 'Jack Basta' and I am the defendant in this matter and it is confirmed that I was registered keeper of this vehicle at the material time. I will deal with the Particulars finally provided by this Claimant's Solicitors (paragraph numbering matches the Claimant's Particulars):

1. This is the first time the location has been stated; the claim form being a jumble of incoherent information with a postcode.

2. At no time has this Claimant provided any evidence who was driving the vehicle over five years ago. As registered keeper, I can confirm that more than one family member had access to this vehicle on the balance of probabilities alone, it was not me driving (or say it wasn't if you are certain)

3. Laugh about the signs and how unreadable they are; not capable of forming a contract. And the only photo provided is dated 2015.

4. It is denied that the driver entered into any contract but in any event (the driver was not me OR there is no evidence of the identity of the driver)

5. Laugh about their rookie error pretending they can use an Act that had not even been enacted!

6. £100 was never an agreed 'core price' for a BPA member in 2012; these sums are plucked from thin air. It can never be a 'core price term' for allowing parking with no permit, on land where the signs - if they were even there in 2012 - only make an offer (of sorts) to two groups:

'permit holders only'

and

only 'authorised drivers' must adhere to a set list of regulations. No consideration is offered to any other parties and after five years it is vexatious and unreasonable to resurrect the matter on the back of the Beavis case (such firms, encouraged by Gladstones who also run the parking Trade Body the IPC, currently appear to be seeking default CCJs) and impossible to expect a registered keeper to know anything about the situation.


7. Suddenly it's not a 'core price term' as claimed in #6 but is an alleged breach of contract instead. It can't be both - and there is no contract offered to non-permit holders from that sign.


8. Laughable...OMG...'£50 damages as a pre-determined and nominal contribution to its actual losses'. Who writes this drivel?! What on earth is the £100 parking charge then? Not enough? In the Beavis case ParkingEye only pursued the £85 charge (no added costs) which was discussed at the Supreme Court as a sum set high enough to MORE THAN cover the generic, repetitive business operating costs of issuing template parking charge notices, leaving the operator a (dirty money, many would say) profit.



9. So now they have changed the basis of the charge again - they are now calling it a 'loss' but with no figures setting it out to justify it. In the Beavis case, it was established that ParkingEye could not have claimed for loss, nor could they have claimed for trespass, since they were not in possession of the land. It seems the Claimant has no idea of the basis of the sum of money they are attempting to claim from a registered keeper.



10. So Gladstones think it is fair for their IPC members (seeing as the same controlling minds run Gladstones as run the IPC, can sit on a pre-POFA PCN for 5 years then pursue the keeper under a law that didn't exist in July 2012, then to add insult to injury, then charge interest going back over the 5 years...the delay having given a keeper no chance to identify now who might have been driving and certainly no liability for interest spanning all of the ensuing years; a delay squarely caused by the claimant's own inaction.


11. Now they are also trying to add 'costs on an indemnity basis' - another sum plucked out of thin air.



12. Here they now describe the £100 sum in yet another way, this time it is a 'debt'. And now the randomly added £50 is 'damages for breach'...wait...I thought that was what the £100 'parking charge' was for...or was it a core price term...oh no, don't tell me...I know...it was a loss...oh wait...


etc...you will need to write the later bits in a more formal way than my flippant comments!




Then you also need your own evidence numbered, so you can refer to it by number in the WS (e.g. evidence might include: a print out proving the POFA Schedule 4 was only enacted in October 2012; any case law you want to rely upon; photos if you even had them from then, etc.).

Show us how this all looks.

JackBasta

That's brilliant - will do. I went back to the insurance company I was with back in 2012, and they sent me out a copy of my insurance certificate from that period that shows multiple people insured to drive the car.

So basically, they don't know who the driver is, so they're just relying on the Judge allowing them to go after the registered keeper using legislation that wasn't in force at the time.

Ridiculous.

Coupon-mad

And the sign 'evidence' is date-stamped 2015. Tear it all apart, this is a house of cards you can blow over. I've added some extra comments about every paragraph. This is an absolute joke.

JackBasta

Cheers CM. I'll get on this tomorrow.

JackBasta

I'm just formulating my defence heavily based on CM's response above. I have a question egarding the supporting evidence I wish to produce, such as the insurance document I have detailing multiple insured drivers at the time, evidence that POFA was not in force at the time, and I also have some street view images of the poor signage.

Am I correct is saying that I can mention that in my defence, but it does not get submitted with my defence? Instead it would get submitted with a witness statement that will be requested off me sometime between the submission of my defence and the court date?

JackBasta

Here is the first go at the new defence - With the amazing help of CM's earlier response, I have defended the 12 points from the new POCs. However I still feel there is a defence outside of those 12 points that could help my case, so I have included those at the bottom. Please let me know if would be considered unacceptable to a judge, or if I'm maybe "overcooking" it.

Thanks

Jack

---

It is acknowledged that I, the defendant, xxxx residing at xxxx is the registered keeper of the vehicle. I will deal with the Particulars finally provided by this Claimant’s solicitors (paragraph numbering matches the Claimant’s particulars).

1. This is the first time since the claim form was issued that the location of the parking “event” has been stated; the original claim form particulars being a jumble of incoherent information with a postcode.

2. At no time has this claimant provided any evidence who was driving the vehicle nearly 5 years ago. As the registered keeper I can confirm that more than one person had full access to the vehicle at that time. I have the insurance certificate covering the time period in question as proof of this. On the balance of probabilities alone, I was not the driver at the time of the parking event.

3. The Claimant has finally provided details of the claim, i.e. they seem to be claiming breach of contract. The claimant has also finally supplied a picture of the installed sign they claim forms that contract (document 1 in the newly supplied Particulars of Claim). I find it remarkable that the picture of the sign supplied in document 1 is dated 05/04/2015, which is nearly 3 years after the alleged parking event, and that the amount claimed by the claimant before supposed charges and interest in the original claim form (£125) is different to the amount displayed on the sign (£100)! Due to the amount of time elapsed between the parking event and the taking of this picture, and the difference in the charge amount, I feel it is my duty to question whether this is actually a picture of the correct sign (if there actually was one) at the time of the parking event, and if so, why the charge amount on the court claim is different to the amount on the sign?

4. In any event, it is denied that the sign used by this claimant can have created a fair or transparent contract with a driver. The sign is insufficient in terms of its distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the ParkingEye vs Beavis case:
I. Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
II. The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
III. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
IV. Absent the elements of a contract, there can be no breach of contract.

5. I am amazed to see that the Claimant is attempting to pursue the defendant as the driver or the registered keeper of the vehicle pursuant to Schedule 4 of the Protection of Freedoms Act 2012 (PoFA 2012). This legislation which came into force on 01/10/2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. It can be seen the date of the alleged incident is xx/07/2012 which predates the enactment of PoFA 2012. This being the case, surely the Claimant cannot hold the registered keeper liable, only the driver, of which no evidence has been produced. This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the driver’s identity. Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).

6. Neither the £100 “fee” mentioned in the sign or the £125 mentioned in the claim form was ever an agreed “core price” for a BPA member in 2012. These sums are plucked from thin air. It can never be a 'core price term' for allowing parking with no permit, on land where the signs - if they were even there in 2012 - only make an offer (of sorts) to two groups:
'permit holders only'
and
only 'authorised drivers' must adhere to a set list of regulations.
No consideration is offered to any other parties and after nearly five years it is vexatious and unreasonable to resurrect the matter on the back of the ParkingEye vs Beavis case and impossible to expect a registered keeper to know anything about the situation. Such firms, encouraged by the claimant’s solicitors, Gladstone’s, who also run the parking Trade Body the IPC, currently appear to be seeking default CCJs.

7. In #6, the claimant states the sum of £100 is an agreed “core price term”. In #7, the Claimant is alleging breach of contract. Which is it to be? It can’t be both. And there is no contract offered to non-permit holders from the sign pictured in document 1.

8. If the claimant is claiming “£50 damages as a pre-determined and nominal contribution to its actual losses”, then what is the actual £100 parking “charge” for? In ParkingEye vs Beavis, the claimant only pursued the £85 charge (no added costs) which was discussed at the Supreme Court as a sum set high enough to MORE THAN cover the generic, repetitive business operating costs of issuing template parking charge notices, leaving the operator a profit.
It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

9. Under a section entitled “partculars of loss (sic)”, the Claimant now changes the basis of the charge once again. They are now calling it a “loss”, but with no figures setting it out to justify it. In ParkingEye vs Beavis, it was established that ParkingEye could not have claimed for loss, nor could they have claimed for trespass, since they were not in possession of the land. It seems the Claimant has no idea of the basis of the sum of money they are attempting to claim from a registered keeper.

10. I am amazed to see that the Claimant feels that it is reasonable behaviour to wait nearly FIVE years before pursuing the registered keeper of a pre-POFA 2012 PCN, using a law that didn’t even exist at the time of the parking event, and then to add insult to injury, charge interest going back over the five years! The five-year delay having given the registered keeper no chance to identify now who may have been driving at the time and certainly no liability for interest spanning all the ensuing years. The delay has squarely been caused by the Claimant’s own inaction and is grossly unfair.

11. The claimant is now trying to add “costs on contractual (indemnity) basis”, yet another term for a sum plucked out of thin air.

And the Claimant Claims:
Yet another term for the £100 sum – it is now apparently a “debt”. And the £50 is for “damages for the Defendant’s breach of contract”. Throughout these particulars, there has been no clarity on whether the £100 and £50 “charges” actually are. Are they loss, debt, breach of contract, costs on contractual indemnity, or a core price term?

I would like to add further items to my defence that are outside strict defence of the numbered particulars of claim.

12. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action.
Her Majesty's Courts and Tribunals Service have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.

13. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the Claimant's solicitors on 21/11/2016. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to the Claimant, and no such proof has been provided.

14. In the pre-court stage the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt. They did not send me a Letter before Claim that complied with the Practice direction on pre-action conduct. The Letter before Claim can be seen to miss the following information
I. A clear summary of facts on which the claim is based.
II. A list of the relevant documents on which your client intends to rely.
III. How the “charge amount” of £125 was calculated and justified.
IV. Any form of possible negotiation or ADR offered.

15. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

16. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye v Beavis.

17. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This Claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

18. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter, and in the event that the claim is struck out, I will ask the court for recompense from the Claimant.


STATEMENT OF TRUTH I believe the facts stated within this witness statement are true.

Coupon-mad

Looks very good indeed.

Just to add, have you been shown a copy of the original PCN? I'm just helping someone with a Millennium set-aside and when asked for a copy of the PCN they 'reprinted' it in 2016, effectively a mock-up, and forgot to put in the contravention! Left it blank. Not a copy of the PCN at all then...I seem to recall Millennium always have this problem, it rang a bell.

So, somewhere in there, put them to strict proof that a PCN was ever served and require a copy of that PCN as well as any letters that they allege followed. No doubt you will also get a mock-up fresh copy straight off their system. Unless you already have? Seems like another defence point to me, if a PPC hasn't bothered to keep a true copy of the PCN and has to insert details manually five years later to 're-print' a pretend version, this is no proof that any actual PCN ever existed or what it said. Fundamental evidence.

JackBasta

Thanks CM - I haven't seen the original PCN, no. I sent Millenium a SAR back in November asking for everything they have. They sent me a letter last week dated November (but the Envelope has a January 26 postmark, which I've kept) saying that it was all in the hands of Gladstones now so I would need to contact them. I'll add the PCN in to my defence.

Once I submit my new defence, can anyone tell me what the next step is? I believe I'll need to send in a witness statement, and that is where I attach my evidence? Will I get asked for the WS by the courts?