Not parked, on a car park that no longer exists

jjay33

I'm gradually pulling together my defence, and will post on here in the next couple of days.

In the meantime, I'm keen to get hold of a copy of the NTK, which I no longer have given it was over 2 years ago, as I want to check the times they have logged on the ANPR pictures. I'm planning to make a point about this being unreliable evidence due to inaccurate time stamps when connected to remote servers etc.

Having searched I found this example, as a way to request a copy of the original NTK. I know I may not get a reply, but I'm willing to give it a shot:

Dear Sir

Ref (Claim number)

I have received the above claim regarding your client, [the claimant]

Please send me a copy of the original parking notice that I need to write my defence
The request is not disproportionate to the disputed sum and the document should already be in your possession

Although the claim should be allocated to the small claims track, this has not yet occurred.
The provisions of CPR 27(2) are therefore of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

Thank You

Yours Faithfully

This is slightly different from a Part 18 I believe, but an equally valid way to request information.

Is the wording OK, or should I use the Part 18 format? There's nothing else I want to ask for, as I don't really want to show my hand before they see my defence.

Coupon-mad

Doesn't have to be part 18 format. Email it or post with a free certificate of posting (keep it).

Loadsofchildren123

A couple of points:

1. Lamilad pointed out to me recently that Part 18 doesn't apply to small claims. However, there is provision for a judge to order a party to provide information. I posted chapter and verse on it, I'll have to find the post.

2. A Part 18 Request doesn't have to be in the formal court format, but I think it's better if it is. I will post a link to a precedent here when I get to work.

3. I think given 1 above, when I've posted the relevant rule, in addition to sending the Request to the Claimant, you should also write to the court with a copy of the Claim Form, the LBC and the Request. Say you are unable to understand the claim because of the Claimant's failure to particularise it properly (see attached POC) and its failure to provide basic documentation to evidence its claim in the pre-action phase of the proceedings (in breach of paras 3(a) ,3(c) and 6 of the Practice Direction - Pre-action Conduct and Protocols, and you have therefore prepared a Request. Draw attention to the rule and ask the court to make an order that the Request is answered and the proceedings are stayed until it does (para ?15 of the Practice Direction). Otherwise natural justice is not served because you are denied the right to know what the claim is and to properly defend it.

I'll post a draft Pt 18 Request, the relevant rules and some suggested letter for the wording to court later this morning.

Loadsofchildren123

Rule 27.2(1)(f) says that Rule 18 doesn't apply in small claims, but this is subject to paragraph 27.2(3) which says that the court can order a party to provide information if it is appropriate.

Rule 18 itself doesn't say that Part 18 Requests have to be answered. It says the court can order a party to do so. It is of course usual for parties to answer Requests to avoid an application being made. The Practice Direction to Rule 18 says you can ask questions, and provides the procedure for asking the court to order a party to answer them. It provides that any request must be "concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet."

There is a subtle difference between the small claims and the procedure for other claims - in other types of claims you'd put in a Part 18 Request and if the other side don't answer it you'd make a formal application to the court for it to be answered. In small claims you can ask questions, but there is no provision for you to make a formal application, only provision for the court to make an order "of its own volition" under 27.2(3).

So if you want to ask questions, I'd put them into a formal Part 18 document and if the other side refuses to answer them I'd write to the court asking it to make an order under Rule 27.2(3) - in your letter to the court you must explain why the questions are necessary, how they are proportionate, that the other side has refused to answer them and how this prejudices you (eg you are unable to prepare a proper defence without the information because.....)

Here is my anonymised Part 18 Request - some of my questions will be irrelevant to your case, but I've left them in so you can see how to set it all out. You can adapt this draft to include questions you want to ask. I put mine in after the witness statements were exchanged, and my "Of......." questions refer to their statement - if you haven't reached that stage your "Of...." questions would refer to the Particulars of Claim.

https://www.dropbox.com/s/trb6u5yjtke4ypc/PART%2018%20REQUEST%2027.01.17anonymised.docx?dl=0


I think you should send this to the solicitors and also write to the court to ask it to make an order and to stay the proceedings until the information is provided. I'll do a suggested letter for you now I'm thinking about it.

Loadsofchildren123

Suggested letter - I've shoved in a request for strikeout at the end, you might as well try. You might mark the letter as urgent, given that your Defence is due. Assume no order will be made and get on with your defence and if you've heard nothing, file it anyway:

Dear Sirs,

Case number [ ]

I am the Defendant in this matter.

The purpose of this letter is to ask the court to make an order that the Claimant must answer a Request for Information and that, in the meantime, the proceedings should be stayed. Since the purpose of the Request is to establish the basis for, and facts of, the Claim, I also ask that I am given [14] days following the answer to the Request to file my Defence. I enclose a copy of the Letter Before Claim, the Particulars of Claim, and a Request for Information which I have served on the Claimant. I am due to file my Defence by [date].

The court has the power to order the Claimant to answer the Request under CPR Part 27.2(3) and to stay the proceedings under the Practice Direction – Pre-Action Conduct and Protocols paragraph 15(b). It also has the power to make orders pursuant to its inherent case management powers contained in CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1.

The reasons for this request are as follows:

1. The Claimant has failed to comply with the Practice Direction – Pre-Action Conduct and Protocols. The requirements of the Practice Direction are neither voluntary, nor simply a guide as to best practice. They are part of the CPR and binding on parties to litigation. Paragraphs 13-16 make it clear that parties are expected to comply with the obligations and that the court will punish those who do not. This is supported by case law, and I rely on the cases set out in paragraph 8 below.


2. The purpose of the Practice Direction is set out in paragraphs 3 and 12 (so that the parties can understand each other’s positions, make decisions about how to proceed, try to agree a settlement, consider ADR, support the “efficient management” of any ensuing proceedings and to reduce costs – as per paragraph 8 “litigation should be a last resort”). In paragraph 12 it states under the heading “Stocktake” that the parties should, after following the Practice Direction, review their positions, consider whether proceedings are necessary and at least seek to narrow the issues.


3. The pre-action obligations of a Claimant are clearly set out in paragraphs 6(a) and (c) and 12 of the Practice Direction. In the initial Letter Before Claim, they must explain their case in sufficient detail for the Defendant to understand it and to respond to it, and they must then answer any reasonable questions asked by the Defendant. In addition to information, the Claimant is obliged to produce the core documents on which they intend to rely to prove their case (6(c)).


4. In this case, the LBC (copy enclosed) contained no explanation of what the cause of action was (eg breach of contract, trespass and so on), any reference to the relevant legislation (POFA 2012) and not even basic documentation was identified, offered or provided.


5. The Claimant’s failure to observe the Practice Direction has denied the parties any opportunity to exchange information, engage in any debate about the basis for the claim or the defence to it, and to “take stock”. Not even the issues have been narrowed, because I have no idea of the cause of action being pursued against me. This means that I am unable to defend the Claim in any meaningful way, which must be contrary to the laws of natural justice.


6. Even now that proceedings have been started, the Particulars of Claim (copy enclosed) contain no cause of action and do not properly particularise the Claim in any way. This leaves me in a very unfortunate position because I am unable to understand the basis of the Claim, nor the facts or documentation on which the Claimant relies to prove its Claim – all of which means that I am unable to consider my position and submit a proper Defence.


7. Paragraph 15(b) of the Practice Direction specifically provides that the court may stay a Claim while steps are taken (retrospectively) to comply with it. This is a case where a stay should be ordered.


8. I rely on the following case law:
Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 (in paragraph 46 the court said that the purpose of the Practice Direction was so that the required “exchange of information” should take place “in the lower-cost atmosphere of pre-action protocol procedure” rather than “in the higher-cost atmosphere of court proceedings”);
Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch) (in which the court reiterated the aim of the pre-action requirements and emphasized that litigation is a last resort, and should not be pursued as a matter of course as the Claimant clearly does in this case);
Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872 (in which the court said at paragraph 14: “the object of the protocol is… to get people to put their cards on the table and to honestly and rationally discuss matters. … the protocol provides the framework for a sensible discussion, or the chance for a sensible discussion so that the option is available to a party to avoid the need for litigation.”

9. The Request for Information is confined to matters which are relevant and proportionate to the claim [expand on this]. All of the information is necessary for me to have a proper understanding of how the Claim is brought and how it will be proven, all of which I need to consider my position and prepare my Defence.


10. It follows that if the court orders that the Claimant must answer the Request, and that the proceedings should be stayed, I will require extra time in which to file my Defence. I ask for [14?] days following receipt of the answer.


11. Alternatively, I invite the court to strike out the Claim pursuant to CPR Rule 3.4 because its incoherent Particulars make it an abuse of process. The court has the power to do so by exercising its inherent case management powers under CPR1.4(2)(c) and Practice Direction 26, paragraph 5.1.

Yours faithfully etc.

Loadsofchildren123

jjay33 wrote: »

I'm keen to get hold of a copy of the NTK, which I no longer have given it was over 2 years ago, as I want to check the times they have logged on the ANPR pictures. I'm planning to make a point about this being unreliable evidence due to inaccurate time stamps when connected to remote servers etc.

Just something to bear in mind. I wouldn't put it past some PPCs to doctor NtKs to make them POFA compliant if they realise the Defendant has lost their copy.


I did not have the NtK in my case. I didn't ask for it and it wasn't produced until the witness statement stage. The date on it shows that it was served well out of the POFA time limit. If the keeper had confessed that they no longer had it, I was concerned that the PPC may have realised it was out of time and changed the date to make it look as if it was POFA compliant.


Perhaps I was being over suspicious though....


On balance, I'd request a copy of it.

jjay33

Thanks Loadsofchildren123 - this is awesome. I'll get this sent off this weekend. I've got the bones of my defence done so will post up here too before next week. I'm also now on the hunt for a new job (contract) so I'm going to be staring at a screen most of the weekend by the looks of it!

I'm guessing when I post the letter to the court I go to the Nottingham address, with all the relevant reference numbers? I'm so used to electronic correspondence these days, it seems alien to rely on snail mail, but at least I can send it signed for.

Thanks again for the help

jjay33

So - I have posted out my request for a copy of NTK evidence, from BWL today, and sent the excellent court letter suggested by Loadsofchildren123, along with copies of the correspondence and my request for the NTK.

I'm also feeliing pretty chuffed that a Google search has returned a PDF proving that the land was definitely not owned by the claimant at the time of the alleged incident.

So here's the first draft of my defence - all feedback gratefully received, as I still think I have some homework to do. In particular point 7c - I didn't 'park' although I entered the car park. Should I be more specific to my personal circumstance?

In the County Court Business Centre
Claim Number ****
Between:
[The Claimant] v ****
Defence Statement

I am *** the defendant in this matter and previous registered keeper of vehicle ***. I currently reside at *****

The Claim Form issued on the XX March 2017 by [The Claimant] was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “[The Claimant].

I deny I am liable for the entirety of the claim of either £246.58 or £245.50, whichever is the correct amount, for each and every one of the following reasons:

This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (which [The claimant] have chosen to quote in the Letter of Claim) which was dependent upon a denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

1. This Claimant has not complied with pre-court protocol:
(a) The ‘Letter before County Court Claim’ arrived 2 days after the County Court Claim Form, contravening Practice Direction.
(b) A Letter before Claim was received in February 2017, over 2 years after the alleged contravention and referred to several prior notifications, none of which were received. The badly mail-merged documents contain very little information, employ over the top ‘scare tactics’, each contains a different financial breakdown of the costs the claimant is seeking to recover, and the bulk of the LBC & LBCCC both give more page real estate to their payment methods than any legal justification of the charges. All paperwork was posted without requiring proof of receipt (signed for).
c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has little information to deduce what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.

2. I submit that the Claimant is a well-funded company with a dedicated legal staff, and is a serial litigator with no desire to negotiate to a reasonable conclusion, and so reduce the burden on the court system. Despite being given the opportunity to engage in a dialogue in December 2014, with the Defendant, who contacted them via email as detailed on their website, they ignored an appeal against the alleged contravention. The Defendant only received two identical automated replies in response to the email, and then received no further correspondence until February 2017, when over-inflated costs were demanded with threatening overtones.

3. The signage on the site in question was unclear and not prominent as per Excel Parking Services Ltd v Martin Cutts, 2011. The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. Therefore, no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days. There can therefore be no contract through performance. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the British Parking Association code of practice as hard to read.

4. The Claimant's evidence relies solely on an entry and exit photograph. There is no photograph of the vehicle without a ticket being displayed. I assume they are asserting that no ticket was purchased and displayed in the prescribed manner. This is denied and the claimant has offered no evidence that any action by the driver at the time has led to a breach of this purported condition. In order to demonstrate that the driver failed to pay & display, the Claimant has the burden to have evidenced that, with photos and readings from that day from the machines, which are known to be unreliable.

5. The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd.
a) Excel Parking Services Ltd is not the lawful occupier of the land.
b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

6. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court. I deny the Claimant is entitled to any interest whatsoever.

7. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. The Defendant invites the court to strike out the claim as disclosing no cause of action and having no prospect of success. In the alternative, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and to have regard to the Claimant's contact when it disposes of the costs of the case.

Loadsofchildren123

3. The signage on the site in question was unclear and not prominent as per Excel Parking Services Ltd v Martin Cutts, 2011. The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. Therefore, no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days. There can therefore be no contract through performance. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the British Parking Association code of practice as hard to read.
You mentioned before that the entrance sign was badly positioned/worded - you need to say something about this.
What AOS is your PPC a member of, IPC or BPA? Just refer to the relevant CoP. You might also state that compliance with the CoP is mandatory (the BPA CoP certainly says this) and refer to the relevant paragraphs numbers of the CoP.
Was the wording forbidding? If so, add this before saying no contract can have been formed because no terms were being offered.


4. The Claimant's evidence relies solely on an entry and exit photograph. There is no photograph of the vehicle parked, without a ticket being displayed. I assume they are asserting that no ticket was purchased and displayed in the prescribed manner. This is denied and the claimant has offered no evidence that any action by the driver at the time has led to a breach of this purported condition. In order to demonstrate that the driver parked and/or failed to pay & display, the Claimant has the burden to have evidenced that, with photos and readings from that day from the machines, which are known to be unreliable.
You need to add something about the length of time it is alleged the driver was parked:
It is alleged that the driver was parked for a period of x minutes. In fact, all the Claimant has shown is that the driver entered and exited the carpark and the time that passed between the entrance and exit was [x] minutes. This indicates that the driver did not "park" at all and cannot have accepted any terms purportedly offered. x minutes would indicate that the driver either could not find a parking space, or decided against parking, for whatever reason, and then left the site. it is for this very reason that the [BPA/IPC] Code of Practice requires the Claimant to provide for a grace period

5. The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd.
a) Excel Parking Services Ltd is not the lawful occupier of the land.
b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land. I have the reasonable belief that they do not has not shown that it has have the authority to issue charges on this land in its their own name and that they have no right to bring action regarding this claim.



6. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. not quite true - see below The Claimant cannot recover additional charges......
Schedule 4 doesn't actually say this. Para 4(5) actually says "The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d)" - I think in your case it's 9(2)(d) because this was ANPR. There's no reference to only recovering the amount due the day before. If you are referring to additional admin charges that have been bunged on, add that there is no contractual basis upon which to add charges of £x.


At the start you've also referred to Beavis and the contract being denied - I thought the whole point of Beavis was it was conceded that a contract had been entered into by the driver???

DoaM

Point 3 ... what matters is which AOS the PPC was a member of at the time of the alleged incident. I'm not sure when Excel moved from BPA to IPC. It's the CoP in effect at that time too that matters, not the current CoP (of whichever AOS scheme is relevant).