Appeal via Email not accepted

GreenSheep

Fruitcake wrote: »

Just as a matter if interest, did you re-submit your appeal online, and di you get a rejection, or have they gone straight to court? There seems to be a gap in the timeline of events.

Hi Fruitcake


Sorry about the gaps. Here's the basic timeline:


Early April 2018:
I sent the email to NTC and they said they didn't accept appeals by email and to use the online portal.
Mid April 2018:
I resubmitted the email using the online portal.
Mid April 2018:
I received a reply rejecting the appeal. It included this line; "Your Internet template based appeal is deficient and does not constitute a valid S10 DPA notice. and will not be processed."
Email detailed how I should pay.
I didn't reply.


Long gap with nothing then...


Late November 2018:
Letter arrives in the post.
"As you have failed to pay your account Balance, it has now been sent to BW Legal, who are our approved legal service provider."
I didn't reply.
Early December 2018:
I receive an email from BW Legal along the lines of "Please contact us about your account. We are here to help..."
I ignored these.
Mid December/Late December 2018/Early January/Mid March 2019:
Same-ish emails from BW Legal. "We want to help you sort this out. Contact us..."
I ignored these emails.
Early April 2019:
Claim Form arrives from Northampton County Court dated 27th March 2019.
I immediately completed an AoS online as I'm about to go on holiday.
22nd April 2019:
I submit my SAR to NTC.


This is all the communications I've had documented and all the actions I've completed.


Thank you for your interest.

GreenSheep

Syteanric wrote: »

I have beaten NTC.


Make sure that when you correspond with them you make it clear you WILL ONLY accept a written and hand signed letter from them as correspondence, not email.


They can't be bothered...


Secondly, ask to see photographs of their signage from the start of the working day and the end of the working day from which you got the fine... They have to be able to provide this...



Do they also have any photographic proof that you parked? Entering a car park and leaving a few minutes later is not "Parking". Something I pointed out to them when I won my case.



Tin pot organisation who have no authority to do what they do, contact some of their bigger local clients and let them know what NTC are up to as well.

Really useful information. Thank you so much for sharing.
Maybe you could take a look at my defence when I post it up here tomorrow or Wednesday?


Cheers, GreenSheep

BrownTrout

Syteanric wrote: »

I have beaten NTC.


Make sure that when you correspond with them you make it clear you WILL ONLY accept a written and hand signed letter from them as correspondence, not email.


They can't be bothered...


Secondly, ask to see photographs of their signage from the start of the working day and the end of the working day from which you got the fine... They have to be able to provide this...



Do they also have any photographic proof that you parked? Entering a car park and leaving a few minutes later is not "Parking". Something I pointed out to them when I won my case.



Tin pot organisation who have no authority to do what they do, contact some of their bigger local clients and let them know what NTC are up to as well.

Sorry but most of that is complete and utter rubbish.......

Coupon-mad

BrownTrout wrote: »

Sorry but most of that is complete and utter rubbish.......

I agree.

Really useful information.

No, it wasn't at all relevant to a defence.

Maybe that newbie with 22 posts did beat NTC, but not with those arguments in court.

GreenSheep

Hi.

Here is by draft. I suspect you've all seen a lot of it before.

Main sections that I've adjusted are 4 and 8. But there are tweaks throughout.

Any input would be really appreciated?

Thank you for all of your help.

Cheers, GreenSheep

COUNTY COURT Claim No.:

Between:

Norwich Traffic Control Limited (Claimant)
and
-NAME- (Defendant)

DEFENCE

1. I am -NAME-, defendant in this matter. It is admitted that the Defendant was the day-to-day keeper of the vehicle in question at the time of the alleged incident. The claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when allegedly parking at -CARPARK NAME AND TOWN- on -DATE-.
1.1 The Claimant has no cause of action and has filed this claim whilst providing minimal information to the Defendant.
1.2. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's 'Parking Charge Notice ('PCN')'.
2. Due to the sparseness of the Particulars, 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 breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
2.1 Despite a Subject Access Requests to Norwich Traffic Control under GDPR, the defendant has not been provided with any further information that may elaborate on the inadequacies of the Particulars. The defendant is therefore left with very little basis to build a defence upon.
3. This Claimant has not complied with pre-court protocol. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction and the Defendant has no idea what the claim is about - why the charge arose, what the original charge was, what the alleged contract was; nothing that could be considered a fair exchange of information.
4. The Protection of Freedoms Act 2012 Schedule 4 (the POFA) has not been complied with. The day-to-day keeper does not admit to being a driver of the vehicle in question on the date in question, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of charge and prescribed Notice to Keeper letters in time/with mandatory wording.
4.1. Myself, as the day-to-day keeper, does not have ownership of the vehicle nor the ultimate ability to grant permission for drivers to use the vehicle. The agreement that I, as day-to-day keeper, have with the vehicle's owner is that they will and must grant permission for drivers to use the vehicle and therefore I cannot be held responsible for naming the driver under POFA.
4.2. Norwich Traffic Control have failed to make contact with the vehicles registered owner and has absolutely no basis for pursuing myself for the alleged infringement.
5. The Claimant was a member of the BPA at the time and committed to follow its requirements, and the Defendant puts the Claimant to strict proof of compliance with the applicable Code of Practice.
6. Had any contravention apparently taken place (and this is not confirmed), it can only have been that 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 (CoP).
6.1. Further and in the alternative, it is 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.
6.2. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
7. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-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 license to park free. From research of similar cases and given the woeful POC and lack of any previous information, the Defendant doubts that any legitimate interest or clear signage applies in this case.
8. The Claimant is put to strict proof that it had sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation in its own name on the material date. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs and collect monies from the machines, and no doubt, to issue PCNs - but 'on behalf of' the landowner, which would give them no authority or standing.
8.1. It can be clearly seen from the evidence picture below that the car was not parked in a -ABC COMPANY- space photo below but an -XYZ COMPANY- space. This photo was provided by Norwich Traffic Control as evidence of an alleged incidence. I have spoken to -CONTACT NAME- who is the Facilities Manager for -XYZ COMPANY- (Tel.: -PHONE NUMBER-). He has informed me that the spaces are rented by -XYZ COMPANY- from -ABC COMPANY-. They have full and exclusive use of the spaces but do not have an agreement for parking enforcement to be carried out with Norwich Traffic Control on behalf in the name of -ABC COMPANY-.
8.1.1. Norwich Traffic Control have failed to provide me with a evidence of interest in the land, or that is had the necessary authorisation from the land owner. Norwich Traffic Control should also need to provide evidence that their agreement with -ABC COMPANY- or -ABC COMPANY-'s agreement with -XYZ COMPANY- covers the particulars of these parking arrangements.
8.1.2. The driver of the vehicle at that time had permission from -XYZ COMPANY- to be parked in that space.
8.1.3. The Facilitates Manager of -XYZ COMPANY-, -CONTACT NAME-, does not believe there to be an agreement in place with -ABC COMPANY- with regards to parking other than -XYZ COMPANY- having full and exclusive use of the spaces.
8.1.4. All of the correspondence from Norwich Traffic Control makes reference to -ABC COMPANY- and not once is -XYZ COMPANY- mentioned. I suggest that the vehicle was not parked in an -ABC COMPANY- space but a -XYZ COMPANY- space and therefore the claim holds no merit. This can clearly be seen from the photo provided below from Norwich Traffic Control as so called evidence of a contravention that has clearly not happened.

-PICTURE OF CAR IN XYZ COMPANY SIGNED SPACE-

9. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant.
9.1. These have been variously described as ‘NTC’s initial legal costs’ and/or a ‘contractual costs pursuant to PCN terms and conditions'. There is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to -TOTAL SUM-. The Claimant is put to strict proof to show how any alleged costs/damages have been incurred and that it formed a prominent, legible part of any terms on signage, and that it was, in fact, expended. To add vague damages plus alleged 'legal costs' on top is a wholly disingenuous attempt at double recovery, and the Defendant is alarmed by this gross abuse of process.
9.1.1. The Protection of Freedoms Act 2012, Schedule 4, at Section 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 £70. The claim includes an additional £60, for which no calculation or explanation is given, and a further £50 for ‘legal representative’s costs’. This appears to be an attempt at double recovery.
9.1.2. In any event, the Beavis case confirmed that a parking firm not in possession cannot plead their case in damages and could only collect the already inflated parking charge (in that case, £85) which more than covered the very minimal costs of running an automated/template letter parking regime.
9.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.
9.2.1. 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.
10. It is denied that the Claimant is entitled to the relief claimed or any relief at all. In summary, it is the Defendant's position that the poorly pleaded claim discloses no cause of action, is without merit, and has no real prospect of success.

I believe the facts contained in this Defence are true.

Name:

Signature:

Date:

GreenSheep

Does this look okay to anyone?


I'm going to see my mother this weekend and so will need to print/sign/scan/email tomorrow (Friday) at work to be sure to meet the Monday deadline.


Sorry to be a pest.


Cheers, GreenSheep

Coupon-mad

You had a few errors in your version so I've attempted to re-write it but please check the facts are right (e.g. about who can drive the car - employees and family members, I've assumed).

I have also assumed the Defendant is male, in phrases like ''his desk''.

If not, tweak it so all facts are right!

NTC were not in the BPA in 2018 and you don't attach 'the evidence picture below' or anything at all at defence stage. Just the defence is emailed to the CCBC.

And no phone numbers should be in there for the on site company Facilities Manager, albeit you will need written evidence from him/her for the later stage of WS and evidence (before the hearing) to prove that the car was authorised and that they have exclusive unfettered rights to the spaces they rent, and have never agreed to NTC policing their spaces.

IN THE COUNTY COURT

Claim No.:xxxxxxx

Between:

Norwich Traffic Control Limited (Claimant)
and
-NAME- (Defendant)

DEFENCE

1. The claim relates to an alleged debt in damages which are denied in their entirety. The Claimant has no cause of action, any contravention or contract is denied, and the Defendant cannot be held liable in law. It is denied that the Claimant has any entitlement to the sums sought.

2. This Claimant appears to allege that a driver of a shared company car was in contravention of parking terms and has issued this claim against the Defendant, despite having no evidence regarding who was driving on the material date. The Defendant is just one of several employees and insured family members who had use of this company vehicle in 2018, however the Defendant happens to be the person within the relatively small company who dealt with appeals to parking charges. Thus, the Defendant appealed this charge when it was placed on his desk, as part of his normal administrative duties and the Claimant has subsequently misused his data to pursue the Defendant personally.

3. Due to the sparseness of the Particulars, it is unclear as to what legal basis the claim is brought, whether for contractual agreement, breach of contract,or trespass. However, it is denied that any driver of the vehicle breached any clearly signed terms, or entered into any agreed contract at all with the Claimant, whether express, implied, or by conduct.

The Defendant has no liability under the applicable law
4. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') has not been complied with and the Defendant cannot be held liable. The driver of the vehicle in question had not been identified and the Defendant is neither the owner nor registered keeper of this company car and has only become involved due to handling the appeal. Apart from the assertions later in this defence regarding the ownership of the parking space and permission to park, the circumstances are otherwise unknown to the Defendant. The company does receive PCNs on occasion and this event was over a year ago relating to an unremarkable date and location, and there were many months' gap before any correspondence arrived from BW Legal regarding a claim.

5. The Claimant has not identified the Defendant as being either the registered keeper or the driver on the material date. The Defendant denies being the former and on the balance of probabilities, was not the latter, due to the company car having many users. Appealing a PCN when working for a small company does not make the Defendant individually liable for that PCN.

6. The Claimant, Norwich Traffic Control Ltd, have failed to make contact with the vehicle's registered keeper, and has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Claimant cannot assume that the individual appellant responding to a PCN left on a company car was the driver and is therefore limited to utilising the provisions set out by statute in the POFA, if liability is to be transferred.

7. It is not admitted that the Claimant has complied with the relevant statutory requirements of the POFA, nor even that they have the right Defendant. Before seeking to rely on the keeper liability provisions of the POFA the Claimant must demonstrate:

7.1. that there was a 'relevant obligation' either by way of a breach of contract, trespass or other tort; and

7.2. that there was 'adequate notice of the parking charge' on signage, and

7.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from a driver to the registered keeper. The Defendant only handled the initial appeal of a windscreen PCN which was placed on the Defendant's desk for response, and had no obligation to assist the Claimant by naming any specific driver, who in any event remains unknown. Further, the Defendant denies that any Notice to Keeper ('NTK') was served.

8. Even if the Claimant avers that they did issue a NTK to the Defendant as one of the users/keepers of the car, having received the initial PCN appeal with the Defendant's name as the signatory, liability cannot pass to the Defendant. This is because the POFA requires that a NTK is sent to the registered keeper in the first instance, using the address provided by the DVLA, and strictly no other data source. A NTK cannot just be issued using the name of an initial PCN appellant, and it is denied that any such document was received by any relevant party or that the Claimant obtained the DVLA data of the registered keeper company.

9. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that a person who appealed the PCN was the person liable for the charge. This was confirmed in an article by leading POPLA and PATAS/TPT Lead Adjudicator and Barrister, Henry Greenslade, headed: 'Understanding Keeper Liability' in his Annual Report in 2015.

10. Further, the Defendant denies that any 'keeper' of a vehicle 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 POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act 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.

No contravention, no clear signage and the Beavis case is distinguished
11. The Claimant is a member of the International Parking Community and committed to follow that Trade Body's Code of Practice ('the IPC CoP'). The Defendant puts the Claimant to strict proof of full compliance with the IPC CoP in all respects. It is the Defendant's case that this Claimant is known for predatory PCNs, unclear signage and a lack of POFA-compliant notices, as reported many times in the public domain.

12. The Defendant's research has shown that the terms on the Claimant's signage are invariably displayed in a font which is too small to be read from a passing vehicle and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a contract, as it fails to set out the terms in a sufficiently clear manner which would be capable of binding any reasonably circumspect driver.

13. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-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 Trade Body's 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. No 'legitimate interest' or clear signage saves the charge in this case, and (unlike in Beavis) the penalty rule remains engaged.

14. Further and in the alternative, the Claimant is put to strict proof that it had proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue PCNs and to pursue payment by means of litigation in its own name. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs on behalf of a landowner, and any authority they may have does not in fact include the parking space in question.

15. The Claimant's own photographs show that the car was not parked in a -ABC COMPANY- space but an -XYZ COMPANY- space. The Defendant has spoken to -CONTACT NAME- who is the Facilities Manager for -XYZ COMPANY- , who confirmed that the spaces are rented by -XYZ COMPANY- from -ABC COMPANY-. They have full and exclusive use of the spaces but do not have an agreement for parking enforcement to be carried out with Norwich Traffic Control on behalf in the name of -ABC COMPANY-.

16. It will be evidenced that drivers of this company vehicle have permission from -XYZ COMPANY- to be parked in these spaces without any requirement to show any permit or proof of authorisation to a third party parking firm.

17. Correspondence from Norwich Traffic Control only makes reference to -ABC COMPANY- and not once is -XYZ COMPANY- mentioned. Given that the vehicle was not parked in an -ABC COMPANY- space but a -XYZ COMPANY- space, this claim holds no merit even if the Claimant had been able to identify the driver.

Costs on the claim - disproportionate and disingenuous
18. 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.

19. Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. 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 either sent by a third party which offers a 'no collection, no fee' service, or were a standard feature of a low cost business model. The Beavis case is the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

20. The Claimant cannot reasonably recover an additional three figure sum in 'damages' which is more than the alleged parking charge, a sum which is already inflated to more than comfortably cover the cost of any letters. The POFA states that the maximum sum that may be recovered is the charge stated on the NTK and in this case the Claimant failed to contact the DVLA or serve such a document at all.

21. Any purported 'legal costs' are also made up out of thin air. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste robo-claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity. 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.

22. In summary, the Claimant's particulars disclose no legal basis for the sum claimed from this Defendant and it is denied that the Claimant is entitled to the relief claimed, or any relief at all. It is the Defendant's position that the poorly pleaded claim discloses no cause of action, no liability in law and no evidence of any contravention of parking terms. The Claimant's conduct is wholly vexatious and its claim lacks any merit. The Court is invited to dismiss the claim in its entirety due to there being no real prospects of success, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.


Statement of Truth:

I believe that the facts stated in this Defence are true.


Name


Signature


Date

GreenSheep

Wow. Only just seen this.
Coupon-mad... Thank you so much.
You've gone above and beyond.

I'll get this off first thing tomorrow morning.
And I'll check back with updates.

Thank you again.

KeithP

Re-read post #15 above for details on how to file your Defence - before 4pm tomorrow.

GreenSheep

KeithP wrote: »

Re-read post #15 above for details on how to file your Defence - before 4pm tomorrow.

Hi KeithP

Printed, signed, scanned and emailed it yesterday.

Just logged into the MCOL and it has a note there saying 'Defence received' and the buttons that were there to submit a defense have disappeared.
So I'm pretty confident they have it.

Thank you for all your help.

Will keep checking back with updates.

Regards, GreenSheep