Excel PCN NTK

poundofcarrots

It looks like the same instructions as for the single (uncombined) case, so nothing specific:

https://imgur.com/uVmSCoI

Le_Kirk

I would send mine again - even if it the same - just change the claim reference number, particularly in light of point 5 on that court order. If the claimant fails to send theirs, then the judge may refuse to consider the document, which he would find difficult to do if it isn't sent.

poundofcarrots

I didn't originally send one but they did! The order to combine the cases came before the 14 days was up so I was poised to send it but didn't have to. Fingers crossed that they might even forget to send a revised WS for the new case.

poundofcarrots

Can I just clarify something?

Excel has stated it does not intend to rely on POFA 212 (they are using law of agency).

I've scanned through their NTKs and am struggling to see how they don't comply with POFA other than it doesn't seem to specify the parking charges that are unpaid (POFA 2012 Schedule 4, 9d).

They are also claiming more than the amount specified in the NTK.

Is there anything else I've missed?

nosferatu1001

If theyre using law of agency, they have tpo PROVE THIS EXISTS for a private car driver this law exists. They cannot do so

Does it invite the keeper to name the driver? Warn them giving the correct "given" date?

Claiming more than the amount doesnt mean they havent met POFA, it just means theyre claiming an amount theyre not entitled to which is an Abuse of Process.

poundofcarrots

Yes it does give the option to name the driver and correctly gives 28 days from the date of the NTK issue date to make payment. It also has the spiel about "if, after the period of 28 days beginning with the day after the issue date of the is Notice..."etc.

They have stated in the WS that they are not using POFA; it's just that I was struggling to see how it didn't comply other than the points above.

nosferatu1001

No, thats nothte period i am talking about

They have to give 28 days starting with teh day after the notice is GIVEN ie served ie drops through the letterbox, befofre they can claim from the keeper.

SO that spiel is wrong
GIVEN is a really, really key word.

You dont say it doesnt comply then! Just state theyre not bothering to use it as they have confirmed, meanin gthey are limited to claiming from the driver and the driver alone.

poundofcarrots

Wow, that's very subtle but yes I see it; they have stated 28 days after the issue of the NTK rather than when it is given (drops through the letterbox as you say).

Is there any legal case you know of where the word has 'given' has made the difference between a POFA compliant and non-compliant NTK?

I won't be saying it doesn't comply however, as they've hung themselves on that front but it's good to know if they do any last minute trickery.

poundofcarrots

The court bundle is due on Monday so I'd be grateful if any wise (wo)men would peruse my WS and give final thoughts. To think you can only claim 6 hours for all this! :sad:


1. I am ************* of ****************. In this matter I will say as follows:

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. The basic points of my statement which I will describe in further detail below are that:

• I was not the driver of the vehicle; there is evidence to support that I was not the driver and the Claimant cannot transfer liability to me under any applicable law
• The full and correct parking fee was paid to park on both occasions in any case, for which there is evidence and as such any alleged breach of contract was de minimis
• The claimant has no landowner authority to pursue unpaid charges through litigation and cannot supply proof of such.

4. I am the registered keeper of the vehicle concerned but was not the driver at the time of the alleged contraventions. I have responded promptly and truthfully to all correspondence from the Claimant. The Claimant has been informed repeatedly from the outset that my wife was driving the vehicle and has been given evidence that the parking charge was paid at the times the PCNs were issued. There is one legal route (using POFA 2012 Schedule 4) in order to pursue the vehicle keeper in court but the Claimant has chosen not to do this.

5. At the time of the alleged contraventions, my wife was the keeper of the vehicle VRM ********* (Evidence: Proof of Vehicle Ownership). She was insured to drive my vehicle (Evidence: Insurance Certificate). Every week at approximately this time, she parked in ************* Car Park in order to take our two children to swimming lessons.

6. The included Statement (Evidence: Parking Receipts from RingGo) of parking receipts shows that her vehicle had parked there on 43 previous occasions over the preceding 19 months at similar times (for the same purpose). However, my vehicle had never previously used this car park. As soon as this PCN was received, she stopped using this car park and has not used it since.

7. On 30thth July, two days before the first PCN was incurred, my wife’s car broke down and she therefore had to borrow my car to take our children to swimming lessons (Evidence: Proof of Breakdown Email from Recovery Company). Having used the car park in her own vehicle so many times previously, she automatically but incorrectly input her own VRM (********) into the PDT machine instead of my vehicle’s (*******). She did this a second time on 6/8/2018.

8. On both occasions, my wife purchased a ticket and paid the full amount required to park. When I received the PCNs, I checked with my wife to see whether she had retained a ticket as proof of payment. For the occasion on 6/8/18, she had retained the ticket showing the incorrect VRM input but full amount paid just three minutes after my vehicle was recorded as entering the car park (Proof of Retained Parking Ticket). Although she did not have the ticket as proof from the 1/8/18, I made a Subject Access Request to Excel Parking which shows (and from the Claimant’s PDT log) that the full fee required to park was paid n this car park 2 minutes after the Claimaint’s ANPR records my vehicle entering the car park the PCN records my vehicle as entering this car park (Evidence: SAR PDT Print Out and Claimant’s WS p.64).

9. The evidence clearly shows that correct payment was paid in good faith on both occasions at exactly the same time that the Claimant alleges no payment was made. The claimant can easily verify from this evidence that the parking fees have been correctly paid.

10. My wife’s vehicle was not present in this car park because she was driving mine instead.
The claimant could easily disprove this account by showing a photograph of the vehicle ******** entering the car park at these times, but they can’t as it was not there.

11. There is no legitimate interest in penalising a paying driver for a keying error. The driver made reasonable endeavours to comply with the T&Cs by inputting her full registration details and paying the fee to park in the car park.

12. In order to transfer the liability to the keeper of the vehicle in law, the Claimant must use the POFA 2012 Schedule 4 (Evidence: POFA 2012 Schedule 4 Print Out). The Claimant has not done this, and have said they are not citing POFA 2012 on multiple occasions, including their witness statement (para.41)

13. Instead the Claimant is relying on the Law of Agency.

14. An appeal at Manchester County Court on Thursday 8th June 2017 (Smith V Excel Parking Services) before His Honour Judge Smith, no. C0DP9C4E/M17X062 (Evidence: Smith V Excel Case) stated that POFA 2012 is precisely where in law, an operator can hold a keeper liable for unpaid parking charges. The Claimant had chosen instead to use the general law of agency, quoting Combined Parking Solutions v AJH Films. HHJ Smith found that this was not relevant to that case, and allowed the appeal.

15. The Claimant has in his Witness Statement suggested that the law of agency is relevant here, with any driver being the agent of myself as registered keeper and principal, thus allowing the driver to bind me to a contract. This is not supported in law hence HHJ Smith allowing the appeal in the previous case involving the very same Claimant as this one – Excel Parking Services.

16. My family arrangements are not commercial and are not intended to be, and as such there can be no agency arrangements.

17. If the driver of a vehicle is the agent of the registered keeper, who is therefore liable for the parking charges, why did Parliament find it necessary to introduce legislation that a parking company could recover payment from the registered keeper only if it met certain conditions?

18. In my Legal Defence, I put the Claimant to strict proof that it has a contract from the Landowner to pursue charges and take enforcement action in court for parking charges. The claimant has not been able to provide this. They have merely produced a statement signed by their Commercial Director stating that they have this right. There is therefore no evidence that they have this legal right. The fact that it has not produced this evidence that would significantly help its case suggests, on the balance of probabilities, that this contract does not exist.

19. The claimant’s costs have no legal basis for the inflated sum claimed and constitute a gross abuse of process. CPR 44.3 (2) states that claimed costs are to be proportionate. POFA 2012 states that the maximum sum that can be claimed must be no more than given in the NTK.

20. Many informed County Court Judges have refused all added parking firm 'costs' in County courts, such as these cases, struck out in recent months without a hearing:

a) In Claim number F0DP163T on 11th July 2019, District Judge Grand sitting at the County Court at Southampton, struck out a overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason.

b) In Claim number F0DP201T on 10th June 2019, District Judge Taylor echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. The Order was identical in striking out all such claims without a hearing. - The judgment for these three example cases stated:

''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...''

21. I believe that this claim is entirely unreasonable, unnecessary and unwarranted. The Claimant could, with minimum effort, see that the parking fee was paid at the time that they have issued a PCN to me as keeper. They have a legal route through which they can transfer liability to a vehicle’s keeper, but have chosen not to. They are unable to prove they have any authority to act in court as tenants of the landowner of this car park. Instead, they have relentlessly pursued and harried me, attempting to intimidate me into paying an unlawful and inflated penalty charge. I have spent countless hours reading in order to defend myself against this vexatious claim. My costs in defending this are therefore submitted.

22. I believe that the facts stated in this witness statement are true.

1505grandad

I believe that there is now a further para re Abuse of Process:-

"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 Distract 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.''

Perhaps number this as para 21 and then renumber the remaining ones.