Letter Before Claim - UKPPO

Elmo111

Evening all,

This is hopefully the final draft, hoping to get it emailed this evening, so I'd love some final critique and feedback!


**********
IN THE COUNTY COURT
Claim No.: XXXXXXXX

Between

UK PARKING PATROL OFFICE LTD
(Claimant)

-and-


XXXXX
(Defendant)

__________________________________________________ _________________________

DEFENCE
__________________________________________________ _________________________

Preliminary

1. The Defendant denies receiving correspondence from the Claimant regarding any of the alleged parking contraventions. In pre-action communication, UKPPO Ltd states that 24 letters were sent to the Defendant's address acquired from the DVLA for strictly limited purpose of !!!8216;enquiring who was driving!!!8217;.

2. It is with distress that I note that the Claimants amount of letters sent, is approximately twice as many demands than the unwarranted demands which bombarded the consumer victim in the case of Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, where the company's course of conduct amounted to unlawful harassment contrary to the Protection from Harassment Act 1997 and they were liable to pay the defendant over £10,000 in compensation.

Background

3. It is neither admitted nor denied that on the material dates, the Defendant's vehicle was parked at the location. It is impossible to be sure now, almost a year after the supposed contraventions, whether the car was there on four unremarkable dates, or indeed, who parked it at the purported times.

3.1. The Defendant has seen the Claimant's photographs but suggests the court should treat those images with scepticism, given the following facts which are expanded upon later in my defence:
(a) they purport to show the vehicle with windscreen PCNs attached that never materialised in reality, and
(b) parking firms (including IPC members) have in recent years been caught issuing PCNs, taking a photo, then removing them, and
(c) parking firms who are supposedly 'legitimate' AOS members have been caught and investigated for altering times and/or dates on their handheld cameras, showing how easy it is to falsify such photo evidence, and
(d) this Claimant is known to use 'self-ticketing' where the person with the camera has an incentive to issue predatory PCNs for personal monetary gain (a 'bounty' per paid PCN) and is not an employee. Such a person is unlikely to have training and knowledge of the Trade Body Code of Practice or any applicable law, including but not limited to: the Data Protection Act, the Consumer Rights Act 2015, the Equality Act 2010, the Protection of Freedoms Act 2012 (Schedule 4) and the Consumer Protection from Unfair Trading Regulations 2008, and
(e) The Defendant avers there was a lack of due diligence and there were insufficient checks and balances by the Claimant at this location, and that any PCNs were not properly issued. The Trade Body (IPC) Code of Practice from 2017 states:
''4.2 Self-ticketing practices are considered the same as sub-contractors, so if you enforce parking charges issued by a self-ticketing site, you are responsible for ensuring they keep to the Code in its entirety.
17. Incentive Schemes
17.1 You may use incentive schemes to motivate your staff and improve productivity. However, you may not use an incentive scheme which focuses solely on the volume of parking charges issued without introducing sufficient checks and balances so as to ensure that operatives do not issue Parking Charges where they should not.
17.2 To avoid simply encouraging the issue of a high volume of parking charges notices, operators should employ schemes which encourage a high standard of work.
17.3 Where incentive schemes are employed, Operators should keep in mind that it if they that are ultimately responsible for improperly issued Parking Charges and that there may be ramifications should members of their staff (or self-ticketers) issue parking charges fraudulently''.

4. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings.

5. The Defendant has sufficient evidence which shows the continued disdain and negligent attitude of the landlord, UrbanBubble, who merely appointed the Claimant to act on behalf of the landowner.
5.1. The Claimant has failed to supply a copy of the contract demonstrating their ability to issue charges on this land.
5.2. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge.
5.3. The Defendant put the Claimant to strict proof for full disclosure of the contract with UrbanBubble, and what steps were taken in advance of enforcement to take account of the primacy of contract of existing residents and to avoid unconscionable ticketing of genuine residents/their visitors, rather than a genuine aim to deter trespassers.

6. No driver of the vehicle reported finding a windscreen PCN. After correspondence from the landowner regarding CCTV footage, this is unavailable due to only 4 weeks footage being on file at any one time.
6.1. The Defendant researched online about a phenomenon known as !!!8216;ghost ticketing!!!8217;, in which a private car park attendant would remove an affixed PCN before the driver has returned to the vehicle. One missing PCN could be seen as a prank, but for four parking charge notices to have never been seen by the driver, suggests something different.

7. The Claimant failed to issue a Notice to Keeper (NTK) for the alleged infringement. This is not in accordance with the requirements of The Protection of Freedom Act 2012 (POFA). Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met as stated in paragraphs 5, 6, 11 & 12. UK Parking Patrol have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-
The notice must be given by; (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) Sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

7.1. Paragraph 5.2 of the October 2017 pre-action protocol, which UK Parking Patrol Office Ltd, states that in our pre-action communications:-
If the debtor requests a document or information, the creditor must:- (a) provide the document or information; or (b) explain why the document or information is unavailable, within 30 days of receipt of the request.

7.2. UK Parking Patrol Office Ltd could not supply the defendant with a copy of a compliant NTK and (b) did not explain why the requested NTK is unavailable. Instead, UK Parking Patrol Ltd decided to continually evade providing the defendant with a copy of the required documents, vital to their case.

8. The claimant failed to include a copy of their written contract with any correspondence as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the !!!8216;Creditor!!!8217;; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner!!!8217;s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions;

8.1. The claimant provided an example !!!8216;contractual notice!!!8217;, that was not a picture directly from the event of each parking offence, but instead an out-of-date PDF, titled !!!8216;Parking Patrol july2013!!!8217;, which states at the bottom of the document, !!!8220;Non-payment will result in additional charges which will be added to the value of the charge and for which the driver will be liable on an indemnity basis.!!!8221;
8.2. During pre-action communication, the Claimant sent digital variants of 4 PCN's, of which are not directly scanned copies of each physical PCN.

9. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).

10. The claimant has not provided enough details in the particulars of claim to file a full defence; no dates, the reason for each PCN or whether the vehicle was parked on the roadway or car park.
10.1. The Claimant has stated that 4 !!!8216;parking charges!!!8217; were incurred.
10.2. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
10.3. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It simply states !!!8216;parking charges!!!8217;; which does not give any indication of on what basis the claim is brought.
10.4. It was only during pre-action communication that information regarding why the charge arose, what the initial charge was, what the alleged contract was and anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.
10.5. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

11. 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 keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

11.1. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
11.1.1. There was a !!!8216;relevant obligation!!!8217;; either by way of a breach of contract, trespass or other tort; and
11.1.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.
11.2. 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.

12. For the Claimant to utilise The Interpretations Act of 1978, proof of postings must be given to the Defendant. UKPPO were unable to supply proof of postings for the NTK(s), nor even true copies showing the address utilised for the NTK. In pre-action communications, proof of a !!!8216;reminder notice!!!8217; was seen, but as such, this is not a compliant NTK variant.
12.1. The !!!8216;reminder notice!!!8217; received was a !!!8216;digital!!!8217; document, not a scanned copy of the document supposedly duly sent, leading to a possibility of the contents of the document being altered in an attempt to thwart the chance of the Defendant holding a strong case, before being supplied as evidence.

13. It is denied that the Claimant has any entitlement to the sums sought and it is denied that interest is applicable on the total sums claimed by the Claimant, which bear no relation to the maximum sum potentially able to be recovered from a registered keeper, as set out in the POFA, namely the sum stated in the Notice to Keeper.

14. The Court is invited to dismiss the Claim, and to allow such Defendant!!!8217;s costs as are permissible under Civil Procedure Rule 27.14.

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


(Defendant) (Date)

**********

Coupon-mad

Put the IPC CoP quote in italics in the real version you print out and sign, and maybe indent it as well, otherwise the CoP numbers look odd (a sudden point #17!).

Also the quoted words in 7.1 and 8 both need italics and speech marks.

And put this right (below!). Barry Beavis didn't sue PE (maybe he should have struck first, seeing as he was held up in Staples by a broken printer and did nothing wrong, they should have been ashamed of what they did - and what they do - but hey, it's all about money in this country now...):

the Beavis vs ParkingEye (2015) [2015] UKSC 67

No such case.

Apart from that, it looks good to me.

Elmo111

Thanks for that Coupon-Mad, I'd posted the final draft as just a copy and paste from the other post so it didn't bring over any of the formatting.

Printed, signed, scanned and sent!

Thanks to everybody for their assistance and support this far. I'll keep you all posted

Elmo111

Morning all,

Thought I'd give you all a quick update of where I'm at with this.

I'd had the directions questionnaire come through the post on the 4th of June - got it filled in and sent back before the 21st June as stated on the letter. Also sent a copy to UKPPO.

It's now been almost 2 weeks since their receipt of the N180 form and I've yet to hear anything - is this normal?

Thanks!

Coupon-mad

Yes this stage can take weeks/months, and certainly the speed of the courts will lull and be even slower, IMHO, over July/August holiday period, so don't expect a swift next letter from the court. It will come but your hearing will not be until the Autumn, IMHO.

Spend the time reading up on Witness Statement stage (and enjoying the sun!).

System

It's in the court's hands now and you may not hear anything for a couple of months. The next paperwork is allocation to a local court with instructions on preparing a Witness Statement.

Use the time to get the evidence together that you need.

Castle

Elmo111
If you haven't already done so, I'd suggest that you send UKPPO Ltd a SAR.

Elmo111

Hi everyone,

It's almost been 6 months since I've had any response of any sorts from the courts/UKPPO.

Is there any way I can chase up the status of this?

Thanks!

Umkomaas

Elmo111 wrote: »

Hi everyone,

It's almost been 6 months since I've had any response of any sorts from the courts/UKPPO.

Is there any way I can chase up the status of this?

Thanks!

Check the MCOL website or telephone the CCBC to get a status update.

Elmo111

Umkomaas wrote: »

Check the MCOL website or telephone the CCBC to get a status update.

Hi Umkomaas,

Just rang MCOL and they the gentleman on the phone sounded surprised that it's not progressed further... "I'll get this raised with a manager and we'll get a court date arranged..."

Is it not for UKPPO to progress the claim further?

Thanks again for your time.