3 years between PCN and Court presence demanded

WhoDunnitDevil

Below is the Defence Report which I filed

I am xxxxx, the defendant in this matter and at the date of the alleged offence, the registered keeper of vehicle in question: xxxxxxxxxx, under registration xxxx xxx.

I deny I am liable for the entirety of the claim on the following grounds:


1. No signature of an individual on the Claim Form
The Claim Form issued on the 27 March 2018 by BW Legal Services Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by BW Legal Services Ltd as the Claimants Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

2. Preliminary matter - failure to comply with pre-action protocol
This Claimant has not complied with pre-court protocol (as outlined in the new Pre-Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a. There was no compliant Letter before County Court Claim under the Practice Direction.

b. This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

c. The Schedule of Information is sparse of detailed information.

d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about; why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the Letter before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and

iv. support the efficient management of proceedings that cannot be avoided.

e. The Defendant therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted

3. Failure to comply with POFA 2012
The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012). Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict keeper liability provisions:

The Claimant did not comply with POFA 2012. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012. This would exclude the registered keeper being liable for any charges.

Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that however keeper information is obtained, 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. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £333.81 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.

4. Unjustified inflation to the claim value
The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 legal representative’s costs were incurred. The Defendant believes that BW Legal Services Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £251.34 If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

5. This case is fully distinguished from ParkingEye Ltd v Beavis

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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage, none of this applies in this material case.
a. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

b. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim as far as the Defendant is able to tell from the limited information provided by the Claimant.

6. Unreasonable length of time between alleged incident and claim form

Due to the length of time, the Defendant has little to no recollection of the day in question. It is not reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car 36 months after the alleged incident. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

7. Summary
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 27 March 2018.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.

WhoDunnitDevil

Quentin wrote: »

Your OP refers to the claim form you received


That is where to look for the POC! (Asked for in #48 - people are trying to help you not annoy you!)

POC? Particulars of Case?

Quentin

Yes ! (Actually "Claim" not case, but surely you got it now??)

Coupon-mad

WhoDunnitDevil wrote: »

Unless you have seen the letter (which you haven't) how you can tell me what is incorrect about my description of said letter?
I will post a picture of it tonight to show you; there is absolutely no call to action, no timeframe, or no right to appeal stated in the letter. Note: This point is what is stated in the letter, not what my default legal position is.

Wow.

IamEmanresu was helping you and even told you where in the original claim form, the Particulars of Claim section is. He wasn't talking about the latest letter.

But we would like to see it and your days are counting down, so can you host it in Dropbox?

WhoDunnitDevil

Coupon-mad wrote: »

Wow.

IamEmanresu was helping you and even told you where in the original claim form, the Particulars of Claim section is. He wasn't talking about the latest letter.

But we would like to see it and your days are counting down, so can you host it in Dropbox?

Thanks - I really do appreciate the help.I didn't mean to come across rude, I felt my tone was reciprocal. Apologies but it really looked like (and still does when I read back) that we were still talking about the latest letter.

When I am home this evening I will post it either by re-typing it all word for word or hosting in Dropbox. It is so small it will take 2 mins to retype.

WhoDunnitDevil

Quentin wrote: »

Yes ! (Actually "Claim" not case, but surely you got it now??)

Thanks, I am not familiar with all these abbreviations. Sorry.

Coupon-mad

So, what does the POC on the claim form say?

WhoDunnitDevil

Coupon-mad wrote: »

So, what does the POC on the claim form say?

I don't have that information to hand at work.
When I get home this evening and post the information about the latest letter I will also check the POC and upload that. Got to earn the money to pay this Court fee haven't I!:rotfl:

Quentin

WhoDunnitDevil wrote: »

Thanks, I am not familiar with all these abbreviations. Sorry.

You are not expected to be

You are expected to clue up on all this by studying the newbies FAQ thread

#5 covers acronyms regularly used here including poc

WhoDunnitDevil

POC:

The Claimant's Claim is for the sum of £100 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) issued on 06/03/18 (Issue Date) ast 21:01:06 at Mount Street Nottingham Forman Hardy Holding

The PCN relates to [CAR].
The terms of the PCN allowed the Defendant 28 days from the Issue Date to pay the PCN, but the defendant failed to do so. Despite demand having been made, the Defendant has failed to settle their outstanding liability.
The claim also includes Statutory Interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum a daily rate of 0.02 from 06/03/18 to 26/03/18 being £22.34.
The Claimant also claims £54 contractual costs pursuant to PCN T&C's.