Claim received, AOS sent today, now stressing

Umkomaas

You could ask for it now, or you could wait to see what evidence they produce in their Witness Statement.

ParkingStressie

Hello again all, desperately trying to find deadline for submission of evidence on the CC website and just can't. Several posts mention 28 days to do this but also mention the 'considered served 5 days after date issued' but that makes me really nervous as it's not actually written down/stated in black and white anywhere that looks official and I'm now very close to 28 days from issue (which was 29 August). Defence currently in draft but not particularly close to completion, and I've very little time now so it'll be a burning the midnight (OK, more like 3am ) oil situation if I need it done by the end of today/tomorrow.

nosferatu1001

OK you really need to not mix up terminology!

You are not submitting EVIDENCE, you are filing your DEFENCE!
You defninitively have 28 days plus 5 days for service to file your defence, BY EMAIL, before 4 pm on the day youve just calculated.

ParkingStressie

Yup, thanks, I meant defence, no idea why it came out as evidence. Probably just rushing.

Great, that's really helpful thank you. And by email, not in the box which loses all formatting etc etc. I promise I've been paying attention otherwise! :-)

Umkomaas

Claim is 'deemed served' on the fifth day following the 'ssue date' of the claim form. See para 5.7 of link below:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07e

Then you have 14 days from date of 'deemed service' to file your defence. 28 days if you Acknowledged Service (AOS) within the first 14 (19) days. See below:

https://www.smallclaimscourtgenie.co.uk/help-ive-been-sued/

Redx

its as Umkomaas says above , but if you put your DATE OF ISSUE in a reply below and usually KeithP will tell you EXACTLY what to do and by when, he is an expert on this and has done so on here dozens of times before, like in this thread here in post #11


https://forums.moneysavingexpert.com/discussion/5899307/claim-form-received-from-county-court-business-centre-for-private-parking-charge-notice

stop panicing, and get your terminology right too , lol

and your DEFENCE should look similar to the BARGEPOLE one in here

https://forums.moneysavingexpert.com/discussion/5899844/ukcps-county-court-claim-mcol

short and sweet with no waffle

the layout should be the same too , including the header (which you adapt) and footer (statement of truth)

KeithP

Post #16 tells us the Claim Issue Date is 29th August. Is that correct?

Did you do the Acknowledgement of Service before 17th September?

If you have done the AoS, then with a Claim Issue Date of 29th August, you have until 4pm on Monday 1st October 2018 to file your Defence.

A little longer that you thought, but please don't leave it until the very last minute.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here


If you haven't done the AoS, then do it immediately.

ParkingStressie

Thanks for ongoing help.

Defence pasted below. I've gone for a hybrid of Bargepole and others, while still trying to stay short and sweet. I'm braced for the feedback.

A couple of things I'm unsure about how much to say/what to use:

- I'm concerned that I don't have much kickback on signage, particularly as they've changed since the date of the incident. I've had a look at the IPC's code and the new ones seem OK by that measure. Except for the obvious issue of not really being able to read a sign as you drive past it, and then because of where they were parked, the driver would not have seen another one between there and the building they were headed for, but presumably should have checked.

- I think the bit about the change in T&C not having been properly advertised is dubious at best. We have no idea when the length of stay was changed and have no evidence that they didn't display appropriate signs at the time. Both insured drivers are regular but infrequent users of this car park, and their stay is usually only for 10-15 minutes so they don't even think about it. (And I have asked the two businesses that now adjoin the car park but one is quite a new tenant and the other changed hands and when I visited no staff knew anything).

- the 'didn't get a NTK or LBC claim bit: no idea if it should be in here at all, just aware that it's part of usual chain of events. Does it make a difference to legitimacy of claim?

- Is it worth posting my pics of the new signs?

- I'm presuming it's pointless to even mention the 'any reasonable person would expect to be able to park in a car park adjoining a business they were visiting, when there were about 3 cars there and about 70 empty spaces, without it costing £100'? I already know the answer to this, it just feels better to say it occasionally.

Here goes:

In The County Court
Claim No: XXXXXXX
Between
Vehicle Control Services (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The vehicle was insured with two named drivers permitted to use it. The Defendant has no recollection of the material day which is not a memorable event or date, and as such, the driver's identity is unknown unless the Claimant has that evidence. The Claimant is put to strict proof.

2. The Defendant did not receive a Notice To Keeper. As such the Claimant cannot enforce keeper liability (POFA) and has not provided evidence that a NTK was issued.

3. The Defendant did not receive a Letter Before Claim as required in the Practice Direction on pre-action conduct.

4. The Particulars of Claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant has sent a Subject Access Request to the Claimant in order to see the evidence on which this claim is based but no reply has yet been received. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

5. The Defendant asserts that the parking signage in this matter was, at the time of the material event, deficient in wording and lighting to reasonably convey a contractual obligation;
5.1 The signage at the entrance to the car park is poorly lit and impossible to read while passing in a vehicle.
5.2 Both insured drivers of the vehicle in question are regular but infrequent users of this car park. The terms and conditions of parking at this site, specifically permitted length of stay, had been reduced by the Claimant without either driver becoming aware. The IPC Code of Practice states that; “Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.” There is no evidence that the Claimant adequately communicated this change.

6. The Claimant is put to strict 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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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 £100, assuming the Claimant can provide evidence that a Notice to Keeper was issued in the appropriate timeframe.

8. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

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

Name
Signature
Date

Coupon-mad

I'm concerned that I don't have much kickback on signage, particularly as they've changed since the date of the incident.

The fact they've been changed can be argued to be an indication that the signage was inadequate on the material date. And that will then be for the PPC to prove with dated photos (not your burden, you just place those banana skins for them to slip up on!).

We have no idea when the length of stay was changed and have no evidence that they didn't display appropriate signs at the time.

Again, it's the Claimant's claim to prove, on the balance of probabilities, and if the restrictions changed then the Code of Practice requires them to put up additional signs to draw changed terms to the clear and obvious attention of drivers who would otherwise be familiar with the car park and not seek out new terms.

It is a key point, as IamEmanresu said:

you knew it was a controlled space and (we assume) you left within the 2 hours that you understood to be the limit. If so the key point is whether it was made clear about the changes and when those changes occurred.

It is not dubious for you to state things like that in defence, it's perfectly reasonable.

the 'didn't get a NTK or LBC claim bit: no idea if it should be in here at all, just aware that it's part of usual chain of events. Does it make a difference to legitimacy of claim?

Did you not get a NTK/postal PCN to the keeper (whatever they called it? formal demand?). Did you not get a Letter before Claim? I suspect you DID.

- Is it worth posting my pics of the new signs?

No, and don't use them in the case at all, as they were not the signs on the day.

PPC is Vehicle Control Services Ltd (VCS)

So I suspect you got a thing in a yellow envelope, emblazoned 'THIS IS NOT A PARKING CHARGE NOTICE'? I reckon it was a 'myparkingcharge' hybrid thing, followed by a NTK a week or two later? NOT the 'CN' they say it was in the POC (they've lied in the POC then...).

If so, I wrote a defence about that hybrid note - you can add some extra points, or simply us my words about the hybrid 'not a PCN' to replace your #2 and #3 (as I suspect you DID get a NTK and a LBC!):

https://forums.moneysavingexpert.com/discussion/comment/74816302#Comment_74816302

Your defence looks a good base to me. Maybe just add a version of the linked points 2.1, 2.2, 6.1, 6.2, and 7.

And add a point stating this, and call it 8 (move the final one down):

8. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (the POFA). Under paragraph 8, any windscreen Notice to Driver (whether it was a 'CN' or not) must not be followed by a Notice to Keeper (NTK) until day 29 at the earliest. It is believed the Claimant sent the keeper a premature NTK, having obtained the DVLA data too early, which is a serious data protection concern, as well as a breach of the KADOE rules of the DVLA.

8.1. Even if the Claimant attempts to rely upon paragraph 9 of the POFA, that section - introduced into the POFA Bill during the reading stages, to cater for ANPR postal PCNs where there is no warden on foot at a site - cannot apply. This Claimant and their sister company Excel Parking Services are the only parking firms issuing a hybrid 'note' on cars instead of a compliant PCN, and it is averred that they cannot have it both ways and play fast and loose with clearly stated mandatory timelines within the statute. Either there was an opportunity to apply a windscreen notice (in which case para 8 applies, and the NTK based upon data harvesting from the DVLA was unlawfully premature) or there was no opportunity and a postal NTK was the only option (paragraph 9 - but clearly this was not the case).

8.2. The Claimant is therefore unable to hold the defendant liable under the strict keeper liability provisions, and nor can they make any assumption that a keeper was the driver. Henry Greenslade, eminent barrister and parking law expert in his time as Lead Adjudicator of 'PATAS' (Council PCNs) and then 'POPLA' (Private PCNs), stated in his 2015 Report about parking on private land: ''However keeper information is obtained, there is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.''

8.3. Should the Claimant attempt to rely yet again on the irrelevant case of CPS Ltd v AJH Films Ltd, in an attempt to suggest to a Court that a driver 'acts on behalf of' an individual consumer registered keeper, using their well-documented and twisted interpretation of the law of agency, the Defendant points out that that there can be no agent/principal relationship between individual drivers and keepers in a family.

8.4. It is worth noting that the Claimant firm is owned by Simon Renshaw Smith, who also owns Excel Parking Services Ltd. Both companies are fully conversant with the outcome of a persuasive Appeal hearing before HHJ Smith, sitting at Manchester County Court on 8.6.2017 regarding Claim No. C0DP9C4E/M17X062 (Excel v Smith) where original flawed County Court decision was overturned and Excel's representative was admonished for their 'improper citation' of CPS Ltd v AJH Films Ltd

HHJ Smith reminded Excel: ''There is, of course, a specific regime within the Protection of Freedoms Act 2012, schedule 4, to allow a parking company in precisely these circumstances to take proceedings against a registered keeper of a vehicle in circumstances where the identity of the driver is not known. Excel did not choose to take such proceedings and instead rely today on the general law of agency. [...] In all those circumstances it seems to me that Excel have failed to make out their claim. That, on the face of it, does put a company like Excel in a difficult position because they have to work on an assumption that the registered keeper was the driver unless the registered keeper tells them to the contrary and that enables a registered keeper to prevent the company from taking proceedings against the correct defendant, namely the driver. It may well be that that is precisely why schedule 4 of the Protection of Freedoms Act was enacted to enable companies in those circumstances to have a real remedy. Whether or not that is the case, and I do not know, this judgment does not leave companies like Excel without a remedy, for that reason. Accordingly the appeal is allowed.''

I've put the final quote above, separately as you do not have to use this wording in the defence (it's a bit wordy for a defence). But please keep HHJ Smith's words in readiness to rebut CPS v AJH Films, at WS stage, when you can adduce the Excel v Smith transcript, which is in the Parking Prankster's ''case law'' webpages.

ParkingStressie

Thanks Coupon-Mad, all enormously helpful and I'll get to work updating.

Coupon-mad wrote: »

Did you not get a NTK/postal PCN to the keeper (whatever they called it? formal demand?). Did you not get a Letter before Claim? I suspect you DID.

...

So I suspect you got a thing in a yellow envelope, emblazoned 'THIS IS NOT A PARKING CHARGE NOTICE'? I reckon it was a 'myparkingcharge' hybrid thing, followed by a NTK a week or two later? NOT the 'CN' they say it was in the POC (they've lied in the POC then...).

If so, I wrote a defence about that hybrid note - you can add some extra points, or simply us my words about the hybrid 'not a PCN' to replace your #2 and #3 (as I suspect you DID get a NTK and a LBC!):

https://forums.moneysavingexpert.com/discussion/comment/74816302#Comment_74816302

So, when I say I didn't get a NTK or a LBC what I mean is I have no recollection of receiving either, and I don't have them now. Whereas I do have various other bits of correspondence. But I did ditch most of the early ones because I was still acting on the out of date advice of 'ignore them and they'll go away'. I couldn't swear on a copy of Hitchiker that I didn't receive them, only that I neither remember nor have them now.