Help with N244 for CCJ from NWCP

nosferatu1001

2.5.2 - where did you drag up no loss from?

set asides from 2017, or defences from 2017

Umkomaas

SD200 wrote: »

For anyone following this thread, I have spent the evening reading POFA 2012, specifically the Notice to Keeper section. NWCP do not follow POFA or didn’t at the time this PCN was issued. I was emailed from NWCP today all correspondence relating to this PCN and the wording of their NtK omits:

If you are dealing with NWCP, why are you quoting from Civil Enforcement Limited?

2.5.4. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to Civil Enforcement Ltd.

And, if as it seems likely you have used an old CEL case to copy and paste from and have done seemingly only scant proof reading, are you sure that other points you make - like the non-compliance of their NtK - are factually correct?

SD200

I have taken on board what posters have said and rewritten my supporting statement. I'm due to file it on Monday so would appreciate any further comments.

Claim Number xxxxxx


Supporting Statement


I am xxxxx and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 29/11/17 to:

· Set aside the Default Judgement xxxx dated xxxxx as it was not properly served at my current address;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
· Order for the original claim to be dismissed.


Default Judgement


1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in xxx 2017. I became aware of this matter on 24th Novemberr 2017 when undertaking a routine credit report check. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until November 2017 when I was doing a routine check on my credit file. I understand that this Claim was served at previous address xxxxxxx. However, I moved to a new address, xxxx in April 2017. In support of this I can provide confirmation from xxxxxx County Council showing my updated details for the purposes of paying Council tax. The Claimant did not show reasonable diligence in finding a current address when applying to the courts and thus I did not receive any correspondence regarding this matter. It would have been reasonable to expect the Claimant when, having received no reply to any correspondence they sent to assume I no longer resided there, and to spend a matter of minutes in obtaining the correct address for me. The constant failure by companies to use correct and current addresses results is an unnecessary anxiety and grievance for many people in the U.K. Justice Minister Sir Oliver Heald pointed this out in December 2016 when stated:

"It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

1.2 From my recent email to NWCP LTD I note from the evidence they have supplied me that a check was made to DVLA on xxxx. I have attached a copy of this please refer to ‘evidence 1’ Subsequent correspondence was sent to my previous address, but I have not received any of this. The Claimant has not shown reasonable diligence in trying to contact me at a correct address when the claim to court was some 4 months after this original contact with the DVLA.



1.3 The Vehicle this parking charge notice refers to was advertised for sale during the time of my move of address, and as I didn’t want to be without the logbook while waiting for the DVLA, which can take up to 6 weeks to reissue with my new address I did not change it. The vehicle wasn’t being driven and was parked on my drive as it was valeted and ready for sale. The vehicle eventually sold in July 2017 and I have an email from ebay in support of this. I can also provide information to support this from the DVLA.

1.4 I have also never received any previous documentation from the Claimant in this matter and I thus was never able to challenge the Claimant’s claim. The reason the PCN was issued was for an overstay on the car park of some 14 minutes. The Driver of the vehicle had bought and paid for a parking ticket for several hours but due to unforeseen circumstances was unable to return to the vehicle in the time paid for. Had I have received the original Notice To Keeper I, as registered keeper of the vehicle would have appealed at that time.

1.5. On the 24/11/2017 I contacted Northampton County Court to request information regarding the Default Judgement. I immediately, also on 24/11/207 contacted NWCP for further information. As the registered keeper of the vehicle I have taken steps to revolve this matter as soon as I became aware.

2. Order dismissing the Claim

2.1. It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

2.1.1 I, xxxxxxx was not the driver of the vehicle on the date in question.

2.1.2 There is more than one person named on the insurance policy of the vehicle this relates to, and in any case anyone with comprehensive insurance could have driven this vehicle.

2.2. I believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.3. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

2.4. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant must comply with Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant does not provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

2.5. The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper is unaware of the PCN and was not the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time/with mandatory wording. NWCP does not in their wording strictly comply with the Protection of Freedom Act 2012, and I quote directly from the POFA 2012:

f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available.

May I refer you to ‘evidence 2’ showing the Notice to Keeper NWCP emailed to me on 24/11/2017.

This is the position on private land according to the applicable law, as confirmed by the experienced PATAS and POPLA Lead Adjudicator and barrister Henry Michael Greenslade who confirmed in 2015:

''Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver...If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

2.6 The signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

2.7.. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to North West Car Parks Ltd.
a) North West Car Parks 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 locus standi to bring this case.

2.7. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied 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.

2.8. Therefore I respectfully ask the Court to set aside the judgement and strike out the claim in its entirety.

SD200

Just a quick update, the ccj was set aside in court, however I was not able to claim back the £255 set aside fee. The Judge was having none of it, he was satisfied the paperwork, even though sent to an old address for a car I no longer owned was correctly served as that was the address the dvla had provided. He requested I submit a defense statement to the court so the matter can be defended.

The witness was Lisa Matthew, whom according to BMPA insight and this forum had only 4 cases heard in the courts last year. She lost 2 which are documented on here, won 1 by default - my case for which has been set aside and is going back to court, and 1 other that she may or may not have lost. She is a business development manager but seems to want try her hand at legal services. She tried to strike a deal outside the court and that I pay £100, I said I would be happy for them to drop the case as her NTK doesn’t comply with POFA and I would pay nothing. No deal was agreed so back to court to see what happens.

nosferatu1001

I would appeal that - it is disgraceful to fail to serve papers successfully and not have to pay for their error.


Post your defence here. Not a statement, its a defence.


What is your deadline for the court to get this.