Court Claim - UKPC / SCS LAW - DEFENCE PENDING IMMEDIATE SUBMISSION

namiku

Am I being totally daft and completely missing it or does the contract not say that its a rolling contract and it was signed in 2014 ending in 2015?

namiku

So this is kind of my skeleton points which are not a skeleton but pretty much full statements :eek: I'm due in court today!

1. On page 9 of exhibit XXX the Claimant has shown a contract which is one of the things they rely on to be able to bring forward this claim. The contract has no start date, it is very clearly blank and in fact it has no dates whatsoever therefore making it null and void.

2. On page 10 of exhibit XXX there is another contract which the Claimant describes as an amended contract. This contract very clearly states that the Claimant will provide services only until 31st March 2015. This was the contract end date. Therefore as they have not shown evidence of a valid contract to cover the period when these PCNs were issued, between XXX/2016 and XXX/2016 The Claimant has no standing to bring this claim.

3. The Claimant stresses in their witness statement that it is irrelevant that the Defendant was not the driver as this claim is brought forward against the Defendant as the registered keeper of the vehicle pursuant to the strict provisions set out under Protection of Freedoms Act 2012 however this claim is not compliant with paragraph 4(2) of the Schedule 4 of the Protections of Freedoms Act 2012 (see exhibit AD3 note 1) which states that “The right under this paragraph applies only if (a) the conditions specified in paragraphs 5, 6 11 and 12 are met”. Paragraph 4(5) of this schedule states “The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper” (see exhibit AD3 note 2). On page 37 it quite clearly states that the total due from the keeper in very large font is £60. As the claimant is in fact seeking £120 this is not compliant with Schedule 4 of PoFA therefore keeper liability has not passed and the claim would have no standing. This is also against the BPA Code of Practice which states that charges should not be more than £100.

4. Furthermore on failure to comply with Schedule 4 of PoFA 2012

(a) the Claimant has failed to serve compliant Notice to Keeper letters within the statutory deadline, and/or with the prescribed wording, as set out in Schedule 4 of the POFA 2012, including but not limited to the omission of any 'warning'; about keeper liability as per para 9(2)f of the Schedule, which states that the creditor will if all the applicable conditions under this Schedule are met have the right to recover from the keeper so much of that amount as remains unpaid; for the avoidance of doubt the amount unpaid would be £60.

(b) there was also no 'adequate notice' (i.e. prominent signs, not hidden/high terms up on posts) about the parking charge, contrary to Schedule 4, and

(c) there was no 'relevant contract or relevant obligation' upon the driver, contrary to the main pre-requisites for keeper liability as set out in Schedule 4.

5. The Claimant has included copies of the signage which may seem clear on paper however all the pictures of the signs taken by their agents show the signs to be high up, in very small writing and not illuminated as is required by BPA code of Practice when there is enforcement being actioned at the hours of dusk or darkness. The defendant stresses that she was driven to the hospital at around 2AM. The Claimant has also not evidenced signage at the entrance of the car park which are a strict requirement by the BPA code of practice telling the driver that this is a controlled zone. The defendant would also like to stress that clear and adequate signage is of extreme importance at the maternity ward where the majority of people would visit in a state of shock or genuine emergency.

6. Point 8 of the witness statement is a lie by the Claimant and an attempt to mislead the court. Their attempt to add a further £60 as costs for passing the case to Debt Recovery Plus limited is just another tactic to further inflate the claim. Debt Recoery Plus Limited provides a no collection no fee service for PCN collections. They in fact pride themselves in being able to grow not by fees but by collections as this quote from their brochure states “We offer a ‘no collection, no fee service’, therefore our growth has been achieved by making successful collections, not by charging upfront fees.”. I invite that the Claimant be put to strict proof on the existence of these costs.

7. Furthermore it is the Defendants belief that the Claimants tactics are to inflate the claim as much as possible and then offer fictitious discounts to the Defendants to settle out of court. The statement of costs sent by the Claimant is another example of this where they have claimed using some clever wording “fixed fees” of their own despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court and the only fixed fees recoverable would be those of issuing the claim and the hearing fee. They have also attempted to double charge within their own inflated costs to further inflate the claim, charging a fee of £195 for instructing an advocate and another £105 fee for attendance which are not permitable under CPR 27.14.

8. The claimant has tried to rely on the landmark case in the Supreme Court of Parking Eye Ltd vs Beavis [2015] UKSC 67 to request that the charges be paid, however this case is not supported by any similarity in the circumstances or signage which was of utmost importance in that case. The signs displaying this information were accepted to be large, prominent and legible. The notice stated ‘2 hour max stay… Failure to comply … will result in a Parking Charge of £85.’ The utmost importance of these signs are stressed by the judges on Paragraph 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.” and also on Paragraph 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85” also on Paragraph 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.” For the avoidance of doubt I have included a sign of the Beavis case

9. The Claimant has made an assumption on their witness statement that while the keeper was hospitalised the car was driven by the same driver. This is in fact a wrongful assumption and there’s no evidence to back this up. The only thing that is for certain is that the keeper was not the driver.


10. During the time that the keeper was admitted in hospital their vehicle would have been eligible as per Buckinghamshire Healthcare trust parking policy to park at the site for £20 for 7 consecutive days. As this was an emergency admission beyond the control of the Defendant these terms would still apply as per NHS parking guidelines which state that “Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control (eg when treatment takes longer than planned, or when staff are required to work beyond their scheduled shift).”

11. The NHS trust was approached by the Defendant to waive these charges however they too went against the NHS policy and offered to pay for half of the inflated costs, £370 towards the cost of this claim despite a clause in the contract quite clearly saying that they would be indemnified for any costs incurred and would have never had to make a payment or be reimbursed under contract which I believe is disingenious.

12. The Defendant also disputes the amount of £60 claimed on each Notice to Keeper as actual costs and invites for the Claimant to be put to strict proof to show how each of these £60 costs have been incurred especially since in the alleged contract it is shown that an unidentified amount from each PCN will actually go to the NHS Trust which is not the Claimant in this matter and these cannot constitute pre-determined costs.

13. The Defendant firmly believes that the £20 charge for 7 days parking may be the only costs that may arise and be sought against the Defendant if all provisions set under PoFA to pass the liability to keeper have been met.

14. I therefore invite the Court to dismiss this claim in its entirety, and request that as I have had to take a leave of absence from my job as a pensions officer for XXXX to attend this hearing, that my costs be awarded, such as are allowable pursuant to CPR 27.14.

namiku

Claim was dismissed on the basis that NtK were not compliant with Schedule 4 of PoFA as they did not specify a period of parking as is the requirement but only a specific time therefore keeper liability hadn’t passed! Expenses were awarded to me. I will frame the cheque!!!

Thank you everyone especially Cpupon-Mad your help was invaluable and if I can send you money for a drink I would be honoured!

Any questions people have and a bit more detail on proceedings I will post in the evening.

Coupon-mad

namiku wrote: »

Claim was dismissed on the basis that NtK were not compliant with Schedule 4 of PoFA as they did not specify a period of parking as is the requirement but only a specific time therefore keeper liability hadn’t passed!

Expenses were awarded to me. I will frame the cheque!!!

Hooray - now that's a canny Judge! We almost never hear of a case decided on that level of detail about the POFA. Wow, and well done for arguing that nitty gritty.

Another one bites the dust!

Thank you everyone especially Coupon-Mad your help was invaluable and if I can send you money for a drink I would be honoured!

I stopped taking money for this years ago when I decided I was a better person than people who do that - and of course I never did take money on the forum. Thanks for the offer though! Maybe a small donation to Cancer Research UK but that's your decision.

Any questions people have and a bit more detail on proceedings I will post in the evening.

Yes please, blow by blow, especially:

- which court and Judge's name?

- describe the other side's rep, what were they like, what did they say, and describe their face when they knew they'd lost (chewing a wasp?) and how they threw their toys out the pram when you also went for costs!

:T

AS2

congrats! wife going to court for a similar case against UKPC (hospital). Any pointer much appreciated?