Excel PCN NTK

Coupon-mad

Remove #6 completely, including 6.1. It means nothing much to a Judge.

Change the UTCCRs to the Consumer Rights Act 2015, which superseded it:

4.1 The Unfair Terms in Consumer Contract Relations 1999 states 5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

poundofcarrots

I've still got a couple of weeks until it's due but trying to get ahead of schedule. Here's the defence after the recommended points have been changed and removed.

Further comments very much appreciated:


1 The Defendant is the registered keeper but was not the driver of the car at the time of the alleged infringement and denies any liability in this claim.

1.1 The Claimant has been informed that the Defendant was not the driver.

1.2 The Defendant cannot be held liable under any applicable law. The 'Notice to Keeper' sent by the claimant does not establish keeper liability, but incorrectly presumes the keeper as being the driver.

1.3 ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. The Claimant has written to the Defendant stating that they have not cited POFA or that the Defendant is liable for the Charge as the vehicle Keeper. This is in breach of the IPC Code of Practice to which the Claimant subscribes.

1.4 Liability can not be transferred to the Registered Keeper and the Claimant can only pursue the driver. As the driver has not been identified there should be no grounds to pursue the Defendant as the Registered Keeper.

1.5 The claimant has no right to assert that the defendant is
liable based on ‘reasonable assumption’. PATAS and POPLA Lead
Adjudicator and barrister, Henry Michael Greenslade, clarified
that with regards to keeper liability, 'There is no ‘reasonable
presumption’ in law that the registered keeper of a vehicle is the
driver and operators should never suggest anything of the sort'
(2015).

1.6 The SAR provided by the Claimant shows that the Defendant’s partner’s car registration was paid for during the time of the alleged contravention but there is no evidence that this car had ever entered the car park. It is requested that this be considered as evidence that the Defendant was not the driver at this time.

2. Any alleged breach of contract was de minimis. Parking was paid for for the entire duration of the stay. The Claimant has been made aware of this and evidence has been provided but the Claimant has chosen to ignore it to pursue an unnecessary and inflated claim

2.1 A member of the Defendant’s family paid for parking but entered her own registration number in error, instead of the registration number of the Defendant's car which she was driving.

2.2. The PCN stated that the contravention as 'Parked without payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it has been shown in the SAR that the correct parking charge (tariff) had already been paid.

2.3 In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.

2.4 In the absence of the original paid parking ticket as evidence, a SAR request provided by the Claimant shows that payment was made for the vehicle owned by the partner of the Defendant. However, there is no evidence that her vehicle entered or left the car park.

2.5 Excel Parking has issued another PCN to the Defendant for an identical circumstance to this case for which a ticket was produced as evidence that parking was paid for. This ticket was missed from their records requested in a SAR demonstrating that the Claimants record keeping cannot be relied upon. This has been deliberately ignored by the Claimant in order to pursue an inflated claim. In this case, the SAR acts as proof in the absence of a ticket.

3. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. 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.

3.1 The Claimant has added £60 to the original Parking Charge Notice for ‘debt collection costs’. No communication has been sent or received about debt collection. Considering the parking charge was fully paid for in the first place, this attempt to inflate the claim further is cynical and has no legal justification.

3.2 The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

4 As the Defendant was not the driver of the vehicle, it cannot be accepted that any contract was entered into with the Claimant.

4.1 The Consumer Rights Act 2015 states 5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

4.2 The amount claimed by the Claimant is unfair. It is unfair because the parking charge has already been paid but the Claimant is requiring the Defendant to fulfil an obligation to pay a disproportionately high sum in compensation.


5 In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

6. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

7. The Defendant wishes the Court to take note of the serious distress and alarm caused to the Defendant and their family, as a direct result of the unwarranted and aggressive harassment by letter after letter from different collection agencies, despite the fact there can be no 'keeper liability' out with the POFA 2012, and the Claimant is already aware from the appeal that the Defendant keeper was not the driver.

8. The Court is invited to dismiss the Claim

poundofcarrots

My defence is due by 26th March. As I will be emailing it as a pdf (as advised by Keith P), should I leave it until 26th March to email or is there no harm in sending it early (like today for example)?

Thanks in advance.

poundofcarrots

Good Evening. I am going to send my defence in the morning. I haven't had much feedback so I hope that means the evidence I have compiled reads ok?!

To save anybody having to read over the whole case again, here is a summary of the situation:

My wife borrowed my car and input her registration number in error into the PDT machine incurring a PCN on two separate occasions. For one of these PCNs, we have a ticket as proof of this. No claim has been received for that one as yet.

The claim (for which the defence is below) is for the occasion for which we, unfortunately, have no ticket as proof. However, a SAR showed that a ticket had been purchased for my wife's vehicle (now sold).

The particulars of the claim on the Claim Form are:
'The Claimant's claim is for the sum of £160 being monies due from the Defendant to the Claimant in respect of a Charge Notice (CN) for a contravention on .... (date) at....(location of car park). The Contravention relates to a...... (make of vehicle) under ......(registration number) The terms of the CN allowed the Defendant 28 days from the Issue Date to pay the CN, but the Defendant failed to do so. Despite demand having been made the Defendant has failed to settle their outstanding liability. The Claimant seeks the recovery of the CN and interest under section 69 of the County Courts Act 1984 at the rate of 8% at the same rate up to the date of Judgement or earlier payment.

So it doesn't say what the particular contravention is.

I have amended my evidence to have it has numbered paragraphs rather than sub paragraphs. My wife has been referred to as 'Defendant's relative' or 'member of Defendant's family' in the defence.

Please have a read and let me know if anything should be changed. Many thanks for your input to this stage; it is very much appreciated.




1. The Defendant is the registered keeper but was not the driver of the car at the time of the alleged infringement and denies any liability in this claim.

2. The Claimant has been informed that the Defendant was not the driver.

3. The Defendant cannot be held liable under any applicable law. The 'Notice to Keeper' sent by the claimant does not establish keeper liability, but incorrectly presumes the keeper as being the driver.

4. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. The Claimant has written to the Defendant stating that they have not cited POFA or that the Defendant is liable for the Charge as the vehicle Keeper. This is in breach of the IPC Code of Practice to which the Claimant subscribes.

5. Liability can not be transferred to the Registered Keeper and the Claimant can only pursue the driver. As the driver has not been identified there should be no grounds to pursue the Defendant as the Registered Keeper.

6. The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, 'There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort' (2015).

7. A member of the Defendant’s family paid for parking but entered her own registration number in error, instead of the registration number of the Defendant's car which she was driving.

8. The SAR provided by the Claimant shows that the Defendant’s relative’s car registration was paid for during the time of the alleged contravention but there is no evidence that this car had ever entered the car park. It is requested that this be considered as evidence that the Defendant was not the driver at this time.

9. Any alleged breach of contract was de minimis. Parking was paid for for the entire duration of the stay by the defendant’s relative. The Claimant has been made aware of this and evidence has been provided but the Claimant has chosen to ignore it to pursue an unnecessary and inflated claim.

10. The PCN stated that the contravention as 'Parked without payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it has been shown in the SAR that the correct parking charge (tariff) had already been paid.

11. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.

12. In the absence of the original paid parking ticket as evidence, a SAR request provided by the Claimant shows that payment was made for the vehicle owned by the relative of the Defendant. However, there is no evidence that her vehicle entered or left the car park.

13. The Claimant (Excel Parking) has issued another PCN to the Defendant for an identical circumstance to this case for which a ticket was produced as evidence that parking was paid for. This ticket was missed from their records requested in a SAR demonstrating that the Claimants record keeping cannot be relied upon. This has been deliberately ignored by the Claimant in order to pursue an inflated claim. In this case, the SAR acts as proof in the absence of a ticket.

14. The Protection of Freedoms Act Para 4(5) does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. 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.

15. The Claimant has added £60 to the original Parking Charge Notice for ‘debt collection costs’. No communication has been sent or received about debt collection. Considering the parking charge was fully paid for in the first place, this attempt to inflate the claim further is cynical and has no legal justification.

16. As the Defendant was not the driver of the vehicle, it cannot be accepted that any contract was entered into with the Claimant. The Consumer Rights Act 2015 states 5.—
(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

18. The amount claimed by the Claimant is unfair. It is unfair because the parking charge has already been paid but the Claimant is requiring the Defendant to fulfil an obligation to pay a disproportionately high sum in compensation.

19. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

20. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

21. The Defendant wishes the Court to take note of the serious distress and alarm caused to the Defendant and their family, as a direct result of the unwarranted and aggressive harassment by letter after letter from Excel Parking, despite the fact there can be no 'keeper liability' out with the POFA 2012, and the Claimant is already aware from the appeal that the Defendant keeper was not the driver.

22. The Court is invited to dismiss the Claim

Redx

the only comments I will make are that it should have a header and a footer like in the concise defence by BARGEPOLE , so DEFENCE at the top plus the header, and the footer is the statement of truth


and it MUST be signed and dated as well , when complete and ready for emailing

poundofcarrots

Yes thanks Red X, my Word file does have this on but I left it off here as I thought it already long enough!

Does the fact that the particulars of the claim only mention a 'Contravention' (Post #75) but not what it is need some inclusion in the defence? I'm not sure what their particulars should include.

Le_Kirk

Particulars (POC) should include the details of the contravention and the PROOF that the claimant is going to rely on in court. Your points 8 & 12 appear to be duplicating each other, at least in part.

Coupon-mad

The Claimant has written to the Defendant stating that they have not cited POFA or that the Defendant is liable for the Charge as the vehicle Keeper. This is in breach of the IPC Code of Practice to which the Claimant subscribes.

Not sure that makes grammatical sense.

I would quote Excel's exact words.

poundofcarrots

Thanks for your replies. I have added a paragraph (no.2) to say that the particulars of the claim have not stated what contravention has occurred. I have amalgamated paragraphs 8 & 12 as per Le_Kirk's point and put Excel's words in quotation marks as per Coupon's. I have highlighted these parts in bold


1. The Defendant is the registered keeper but was not the driver of the car at the time of the alleged infringement and denies any liability in this claim.

2. The particulars of the claim supplied by the Claimant state that they are claiming “monies due from the Defendant in respect of a Charge Notice for a contravention on 1/8//2018” but they have not stated what the contravention is, making it difficult to defend accurately. Court Practice Directions state that a statement of facts should be made on which the Claimant relies.

3. The Claimant has been informed that the Defendant was not the driver.

4. The Defendant cannot be held liable under any applicable law. The 'Notice to Keeper' sent by the claimant does not establish keeper liability, but incorrectly presumes the keeper as being the driver.

5. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. The Claimant has written to the Defendant stating, “we have not cited POFA2012 nor stated that you are liable for the charge as the vehicle keeper”. This is in breach of the IPC Code of Practice to which the Claimant subscribes.

6. Liability can not be transferred to the Registered Keeper and the Claimant can only pursue the driver. As the driver has not been identified there should be no grounds to pursue the Defendant as the Registered Keeper.

7. The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, 'There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort' (2015).

8. A member of the Defendant’s family paid for parking but entered her own registration number in error, instead of the registration number of the Defendant's car which she was driving. In the absence of the original paid parking ticket as evidence, a SAR request provided by the Claimant shows that payment was made for the vehicle owned by the relative of the Defendant. However, there is no evidence that her vehicle entered or left the car park.

9. The SAR provided by the Claimant shows that the Defendant’s relative’s car registration was paid for during the time of the alleged contravention but there is no evidence that this car had ever entered the car park. It is requested that this be considered as evidence that the Defendant was not the driver at this time.

10. Any alleged breach of contract was de minimis. Parking was paid for for the entire duration of the stay by the defendant’s relative. The Claimant has been made aware of this and evidence has been provided but the Claimant has chosen to ignore it to pursue an unnecessary and inflated claim.

11. The PCN stated that the contravention as 'Parked without payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it has been shown in the SAR that the correct parking charge (tariff) had already been paid.

12. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.


13. The Claimant (Excel Parking) has issued another PCN to the Defendant for an identical circumstance to this case for which a ticket was produced as evidence that parking was paid for. This ticket was missed from their records requested in a SAR demonstrating that the Claimants record keeping cannot be relied upon. This has been deliberately ignored by the Claimant in order to pursue an inflated claim. In this case, the SAR acts as proof in the absence of a ticket.

14. The Protection of Freedoms Act Para 4(5) does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. 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.

15. The Claimant has added £60 to the original Parking Charge Notice for ‘debt collection costs’. No communication has been sent or received about debt collection. Considering the parking charge was fully paid for in the first place, this attempt to inflate the claim further is cynical and has no legal justification.

16. As the Defendant was not the driver of the vehicle, it cannot be accepted that any contract was entered into with the Claimant. The Consumer Rights Act 2015 states 5.—
(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

18. The amount claimed by the Claimant is unfair. It is unfair because the parking charge has already been paid but the Claimant is requiring the Defendant to fulfil an obligation to pay a disproportionately high sum in compensation.

19. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

20. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

21. The Defendant wishes the Court to take note of the serious distress and alarm caused to the Defendant and their family, as a direct result of the unwarranted and aggressive harassment by letter after letter from Excel Parking, despite the fact there can be no 'keeper liability' out with the POFA 2012, and the Claimant is already aware from the appeal that the Defendant keeper was not the driver.

22. The Court is invited to dismiss the Claim

Coupon-mad

Remove this as it isn't true. A PPC does NOT have to use or rely on the POFA:

This is in breach of the IPC Code of Practice to which the Claimant subscribes.

Replace it with:

5.1. Given that the Defendant was not the driver, this confirms that this Claimant is knowingly pursuing the wrong party, who cannot be liable under any applicable rule of law, for the actions of another driver on private land. Excel already know that without the POFA to rely upon, this is a meritless claim. This matter has been tested by HHJ Smith in the Manchester Court, on appeal, in Excel v Anthony Smith C0DP9C4E* as well as in the County Courts far too many times (Excel v Lamoureux at Skipton being another case already decided that was on all fours with this case).

5.2. It is submitted that this Claimant is wasting the court's time again and the Defendant is being put to unjustified cost in terms of time and money, causing severe distress and curtailing normal enjoyment of free/family time, over the many months this has threatened the Defendant's peace of mind. The matter of keeper liability is already dealt with in the POFA 2012 Schedule 4, and was within their gift, had the Claimant bothered to use it.

5.3. This claim can only be viewed as an abuse of process by the Claimant, whose conduct throughout has crossed the threshold of CPR 27.14(2)(g) and when it comes to the matter of costs the Defendant will seek these on the indemnity basis, based on the hours of time wasted at 2/3rds of a solicitor’s rate (CPR 46.5) as well as the full costs of attending a hearing.





*found here, use this among your exhibits at WS stage:

http://nebula.wsimg.com/87cdd1ece93beeb2f058693b81e4d057?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1