NCP Court Claim defence

adam1308

Hi all,
Back in August 2017 the keeper (me) received a parking fine (via post) of £100 from NCP, for non payment. I believe that they had just set up ANPR recognition in the car park around that time. It is pay and display. The driver missed the appeal time so he chose to ignore it, after reading on the forum and coming to the conclusion that NCP 'don't do court'.
I then received letters from Trace Debt Recovery and then Gladstones across the months, which I stupidly chose to ignore because he thought they would stop eventually and I have done this before with success.
Yesterday I received a court claim from Gladstones demanding £243 including court and legal representative fees. I have acknowledged this online and I am in the process of putting together a defence. I'm looking through other threads on the forum but I am struggling what points to use. Any help would be appreciated.

Many thanks

KeithP

Hello Adam. Welcome.

Have you read post #2 of the NEWBIES FAQ sticky thread yet?

There are several sample Defences linked from that post and I am sure they will be of some help.

What is the date of issue on your Claim Form?

adam1308

Thanks for the reply.
Yes I have started to look through them and I'm getting an idea of what's needed.
The claim form was issued on the 24th May 2018.

Umkomaas

Very unusual move by NCP, especially over a one-off £100 ticket.

http://www.parkingappeals.info/companydata/National_Car_Parks.html

I think you ignoring past correspondence might have given Gladstones the idea that you've changed address, and assuming this, now was the time to strike with a court claim in the hope of a no-defence, with the tasty prospect for them and NCP of a judgment against you in default.

It will be interesting to see their reaction to having 'awoken the giant'!

adam1308

Here is the defence that I have come up with so far, after looking across different threads and the Internet. I have looked at photos of the actual car park and added where necessary. The NCP car park in question is Cox Lane in Ipswich if that helps.
Also looking at the signage, there is a sign right at the entrance which in my opinion is easy to miss as the entrance is on a sharp bend. I'm not sure where to add this in the defence.

It is admitted that the Defendant is the registered keeper of the vehicle XXXXXXX, however it is denied that the Claimant has authority to bring the claim on the following grounds:

1) The Claim Form issued on the 24th May 2018 by Gladstones Solicitors Limited was not
correctly filed under The Practice Direction as it was not signed by a legal person but signed by a Legal Representative acting on behalf of National Car Parks Limited.

2) Schedule 4 of the Protection of Freedom Act 2012 has not been complied with. The registered keeper has not been proven as the driver of the vehicle at the time, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements. Schedule 4 also states that the only sum a keeper can be pursued for, is the sum on the Notice to Keeper. They cannot recover any additional charges when neither the signs, nor the NTK mentioned a possible £243.78 for outstanding debt and damages. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver. If Ms XXXXXXX (claimants legal representative) is an employee then the Defendant suggests she is remunerated and the particulars of claim are templates, so it is not credible that £50 legal costs were incurred. The defendant denies the Claimant is entitled to any interest whatsoever.

3) The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the owner to National Car Parks Limited. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
Without a contract from 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 right to bring action regarding this claim.

4) No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

5) 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.

6) The signage on the site in question was unclear, poorly placed and not prominent on site/around the areas in question. No contract has been formed with driver(s) to pay £100, or any additional fee charged if unpaid in 28 days - this distinguishes this case from the Beavis case:
(i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
(ii) Failure to prominently and clearly inform the driver the purpose of the ANPR system and how the data captured would be used.
(iii) It is believed the signage and any terms were not transparent or legible from any vehicle upon parking; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
(iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
(v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

7) In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
c) The Defendant relies upon the Beavis case as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

8) 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.

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 24th May 2018.
(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

9) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

10) If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss, identified as completely different from the complex 'free parking licence' arrangement in Beavis.
Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.
At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons.The court is invited to strike out the claim under CPR Rule 3.4 as having no merit and no reasonable prospects of success.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

KeithP

There is another recent thread here that mentions Cox Lane Ipswich:

forums.moneysavingexpert.com/showthread.php?t=5741312

It didn't get as far as court, but you might find something useful in there.

Coupon-mad

Schedule 4 of the Protection of Freedom Act 2012 has not been complied with.

I think it may have, you know. NCP use fairly compliant NTK wording when issuing a notice by post, unless it was served later than day 15?

Was there no payment made at all? Why not? How long was the car there?

adam1308

It had been parked for just under an hour. They had just set up ANPR in the area around that time (if I remember correctly) and the driver had no idea at all (signage is not clear). They also set up a system that requires you to enter your reg number upon purchasing a ticket. Admittedly the driver was in a big rush that day and paying stupidly went out of his head (not really a great excuse to be fair). The driver remembered as he was on his way back to the car. He saw no fine on the windscreen so he thought they hadn't noticed (this has happened before many times with others), as this is how the car park worked before. It was only a few days later when the fine came through the post and the keeper saw that they had taken pictures of the car he realized they had started to use ANPR :mad:
Also the NTK was sent four days after, so well within the 15 day period

Redx

the POFA2012 NTK issues are irrelevant if people blab about who was driving


what happened on the day happened to the DRIVER


what happened SINCE that day happened to the KEEPER


there is no reason to use "ME , MYSELF & I" on this forum



so edit your posts accordingly (hint)


either they did follow POFA2012 , or they didnt


but in a statement of truth (your defence) , you should be checking your facts

adam1308

Sorry about that; I have edited my posts accordingly.
Looking at my point about the POFA 2012, I think now they have followed the keeper liability requirements, however I am unsure whether the second point in that paragraph about the total sum was actually followed. The signage does not say anything about the extra charges on top of the £100, however the NTK says "additional charges may be required from the liable party if debt recovery action and court proceedings become necessary"
I am unsure whether they have actually followed the POFA 2012 here as they have not specified the maximum additional costs they wish to recover in the NTK.

Coupon-mad

Ah so that's why they are using your case, because you ignored them and because they can show some simple evidence to prove no payment was made.

Still, these cases are ALWAYS worth fighting and you can use the BPA CoP about 'new restrictions' not being clearly communicated with additional signs so that people would know that ANPR was being used alongside PDT machines. Lord Denning's 'Red Hand Rule' applies.

You could also try adding the DPA stuff from this one, the fact that one set of data (the data from the PDT machine keypad) significantly conflicts with the other data processing system (ANPR) etc:

https://forums.moneysavingexpert.com/discussion/comment/74254129#Comment_74254129

Paragraph 2 from your draft, is standard and doesn't trouble us at all. They should be put to strict proof (especially in your case) that Matalan actually authorised them on that day.

But I reckon you need more which is why I am showing you that one above, that I wrote recently that deals with a data misuse argument/breach of the ICO rules for ANPR. Adapt the points there, they suit your case too because two data processing sets are being used detrimentally against drivers, and that breaches the ICO CoP for ANPR Surveillance Cameras, as well as the CPUTRs and the Consumer Rights Act.