Late NTK, Unreadable Signage and False PCN

KeithP

BTailor wrote: »

Yes it is from Northampton CCBC and is dated 07 Oct 2019

With a Claim Issue Date of 7th October, you have until Monday 28th October to do the Acknowledgement of Service. If possible, do not do the AoS before 12th October, but otherwise there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 11th November 2019 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

BTailor

Thank you KeithP. That's great clarity.

No panic here, I know I am in good hands and surrounded by very experienced people. I'll do a good job of researching the previous defences and build something that hopefully ticks the boxes.

When I've come up with a defence, I'll post it up here and get people's thoughts.

BTailor

What do we think abut this please? I've tried to keep it concise as recommended so not much deviation from what's gone before, just a couple of things specific to this situation...

I am XX, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all for the following reasons.

1. The identity of the driver of the vehicle on the date in question has not been ascertained.

2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of ‘The Vehicle’. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is ‘roboclaims’ and as such is against the public interest.

3. Due to the sparseness and state of the particulars on the date specified, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. Signs ‘9’ & ‘10’ (XXXXXXX-XX) referenced on the claimant’s own site plan have been introduced since the date of the PCN (Picture evidence dated 24/1/12), therefore nullifying the claimant’s statement that sufficient signage is provided.

4. It is also denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

5. The terms on the Claimant's signage are not only displayed in a font which is too small to be read from a passing vehicle, but have been clearly eroded and displayed no terms, charges or penalties at all; anyone attempting to read the signs would find it impossible. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. Further to this, the claimant’s signage (referenced X & X on their own site plan) has conflicting information regarding permit holders and pay & display which makes it very difficult for the driver of any vehicle to understand which terms they are being ‘bound’ to. The signs also name a different company than their own for drivers to refer to in order to view the terms/management of the site.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

7. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.

8. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

KeithP

There is no such thing as an 'authorised registered keeper'.

Drop the word 'authorised'.

Coupon-mad

Try this version I put together from what you told us about this case:

1. [STRIKE]I am XX, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident. [/STRIKE] The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

[STRIKE]2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of ‘The Vehicle’. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is ‘roboclaims’ and as such is against the public interest.[/STRIKE]

2. Due to the sparseness and state of the particulars on the date specified, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in Schedule 4 of the Protection of Freedoms Act 2012 ("the POFA").

3.1. It is not admitted that the Claimant has complied with the relevant statutory requirements. Before seeking to rely on the keeper liability provisions of the POFA, the Claimant must demonstrate that:
3.1.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
3.1.2. that 'adequate notice of the parking charge' was given to the driver at the time of the parking event; and
3.1.3. that it followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is a fact that the Claimant's Parking Charge Notice ('PCN') was altered after the event - as confirmed in a Subject Access Request, the Claimant's notes state that the PCN was 'edited' - and subsequently, the Notice to Keeper failed on the strict date of service. It arrived too late to be deemed compliant with the POFA, which is sufficient in itself to rule out 'keeper liability'.

3.2. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of the POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988 which continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

4. The Claimant has attempted to mislead the Court an the Defendant as regards the signage. In fact when the Defendant received the late 'Notice to Keeper' and went to investigate the location, it was noted that at least one sign is so sun-bleached that no terms are legible. Some signs [STRIKE]‘9’ & ‘10’ (XXXXXXX-XX) referenced on[/STRIKE] referenced within the Claimant’s own site plan have been introduced since the date of the PCN. [STRIKE](Picture evidence dated 24/1/12), therefore nullifying the claimant’s statement that sufficient signage is provided.[/STRIKE]
Further to this, the Claimant’s signage (referenced X & X on their own site plan) has conflicting information regarding permit holders and pay & display which makes it very difficult for the driver of any vehicle to understand which terms they are being ‘bound’ to. The signs also name a different company [STRIKE]than their own[/STRIKE] for drivers to refer to in order to view the terms/management of the site.

[STRIKE]4.[/STRIKE] 5. It is [STRIKE]also[/STRIKE] therefore denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The terms on the Claimant's signage are not only displayed in a font which is too small to be read from a passing vehicle, but have been clearly eroded and displayed no terms, charges or penalties at all. Anyone attempting to read the signs would find it impossible, especially as this parking event occurred during hours of darkness and the sparse signs are not lit. [STRIKE]It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. [/STRIKE]

6. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

[STRIKE]7. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.[/STRIKE]

Inflation of the charge - double recovery - abuse of process

7. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

8. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. The Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third-party debt collector during the process.

9. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself.

10. ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this charging model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

11. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact and binding precedent, that the PCN already covers the costs of the letters.

11.1. At para 98 it was said, regarding the desirability of running a parking scheme to generate a profit: ''...it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...”

11.2. At para 193: ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and further, at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

12. The suggested 'legal fees' are also made up out of thin air. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

13. In addition, the POFA makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute and it is submitted the Claimant has failed on all counts and that they are well aware their artificially inflated claim, as pleaded, constitutes double recovery.

14. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

15. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

16. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's conduct from the outset has been intimidating, vexatious and without merit, in terms of the misleading signage evidence, the altered/edited PCN, the claim being aimed at the keeper despite not complying with the POFA and the false added costs.

17. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.


STATEMENT OF TRUTH

I confirm that the contents of this Defence are true.

......................... (signature)

......................... (date)

BTailor

Wow. Coupon-mad it's really astounding how much time and effort you have put in to re-writing the defence. It has not gone unappreciated.

KeithP thank you also.

I will put this in to an email now and send it off.

KeithP

BTailor wrote: »

I will put this in to an email now and send it off.

Hopefully you mean as a signed PDF - as mentioned in post #52 above.

BTailor

Yes I did. Don't worry, it wasn't just a copy & paste

BTailor

"We act for the Claimant and have notified the court of the intention to proceed with the Claim.

Please find enclosed a copy of the Claimant's completed Directions Questionnaire, which has also been filed with the Court.

You will note the Claimant has elected to mediate in an exempt to settle this matter amicably, without the need for further Court intervention. Should you agree to mediation, please inform the Court who will contact both parties to arrange a mediation appointment."

This looks to me that it is a similar letter outlined in the "LOC123" thread. No local Court date has been issued yet, all I have had is a confirmation of my defence being received by the Court. Shall I wait until a date is received before drafting a reply such as with "LOC123"?

Thanks

Le_Kirk

Forum advice is NOT to agree to mediation. If you have not received your copy of the DQ, you can either wait a bit longer or download one (KeithP tells you how to do it in post # 52) and submit that to CCBC. Might be worth checking with MCOL as they sometimes update to say DQ sent/received.