Claim received, AOS sent today, now stressing

ParkingStressie

Oh, and just to clarify, no didn't get anything on the windscreen, this is an ANPR only situation. But that's why I don't have any photographic evidence or similar, I think because I didn't get (or don't have) a NTK. I would imagine images would accompany a PCN at this point?

Coupon-mad

Send VCS a SAR (see if they give a contact email or form for this in a Privacy page on their website).

You want to send a SAR direct to VCS, so that by Witness Statement stage, you will have all letters and all photos they hold (all data) in front of you and can then expand on your defence.

Don't say there was no NTK or a LBC; I suspect there was a version of both.

ParkingStressie

OK, read all links etc now. And not sure whether to add any of these points or not, because I can't actually say they *didn't* issue those letters, only that I didn't get/don't have them. And because I don't have them I don't know if I got a hybrid one or not.

If they respond to my SAR (deadline for them to do so is 11 October) I will only then see the copies and dates of whatever they sent out. Which of course is too late for my defence.

ParkingStressie

X-post.

Yes, already sent an SAR.

Does this mean I shouldn't use any of your beautifully and helpfully pasted clause 8? Is there still any place for the points about the liability (or not) of the registered keeper?

Coupon-mad

Is there still any place for the points about the liability (or not) of the registered keeper?

Of course. Unless you've blabbed about who was driving at any point?

I don't have them I don't know if I got a hybrid one or not.

It was VCS' style at the time, and highly likely.

Even if it was not one that said 'THIS IS NOT A PARKING CHARGE NOTICE' then the NTK was a non-POFA one anyway (because VCS have never managed a fully-compliantly worded POFA version) so either way, the keeper can't be held liable.

Please leave it all IN. Better to have the point in defence, than not.

You can always focus your arguments better at WS and evidence stage later on.

ParkingStressie

OK, great, on it, thanks.

Have to submit tomorrow.

Coupon-mad

OK and if that's cutting it to the wire in terms of time (day 33?!), please:

- mark the email

CLAIM XXXXXXX - DEFENCE ATTACHED, DUE TODAY, PLEASE HANDLE URGENTLY


- ring CCBC in the afternoon, or the next morning, and urge them to update MCOL right then and there, to stop the C going for a default CCJ. Stay on the phone till you know it's been done.


2 or 3 people on this forum defended in time by email but due to CCBC having a backlog, got an Order saying they'd lost by default.

It can be unpicked, but don't be that person.

ParkingStressie

OK, new one just in case anyone is up and available. I've picked out (with some tweaks so it's not exactly word for word) the paras I think are still important given that there was no windscreen notice of any kind.

Thanks again.

--

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.

8. The Claimant is unable to hold the Defendant liable under the strict keeper liability provisions, nor can they make any assumption that a keeper was the driver. Henry Greenslade, 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.''

8.1. Should the Claimant attempt to rely 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 skewed 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.

8.2. It is worth noting that the Claimant firm is owned by Simon Renshaw Smith, who also owns Excel Parking Services Ltd. Both companies are well acquainted with the outcome of a compelling 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

9. 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

ParkingStressie

D'oh, except I'm removing the bits about the NTK and LBC because likely to get info from the SAR.

System

the Defendant points out that that there can be no agent/principal relationship between individual drivers and keepers in a family.

Not strictly true but the judge should get the jist. Family members can contract if there is a commercial purpose.