Qdr court claim received help!!!

Lawabiding_2

Hi everyone

I have just joined but have found the posts on this forum very helpful.

I have received pcn for 100 reduced to 60 if paid by 14 days in August 2017. After reading up I found out that pcn must be received within 14 days for keeper liability to apply. They do not know the identity of the driver and send the keeper the pcn. Pcn received on day 22 or 23.

Company is bank park management ltd. Letters from them, then zzps and then qdr solicitors.
Ignored all letters until LBC received to which I responded disputing liability and pointing out that keeper liability doesn't apply, charge disputed as parking was paid, unclear signage, landowner authority etc and offered ADR. They wrote back saying if you have proof of parking then send it and not acknowledging any of the points I made.

I wrote back repeating myself and said as i was not driver and thus don't have proof of parking! Who keeps them after 4 weeks after the event. The car company has failed pofa and icp code of practice.

They have now issued court claim in Northampton court. I am furious. I have two little children and don't have time for this.

I have filed a AOS online and need help to submit defence.

I regularly appear in bham court and was going to ask the matter to be allocated there.

I have been advised to opt for paper hearing but have read posts not to.

The costs now pursued are
Charge 100
Admin 60
Court fee 25
Legal rep costs 50
Total 235

I was thinking of offering them a without prejudice offer as I'm really fed up with the stress.

I know parking was paid thsf day so asked them during Lbc stage to clarify what the charge relates to ( not paying for any parking or part of it). Asked them to give me that info and I will consider further without need of court proceedings but they went ahead and issued!

I need to know what my chances are of winning at court. I know how to prepare the defence but bit terrified of prospect of being bullied by them and then adding on costs.

Has anyone had experience of that car company turning up to court?
Thank you all

Your urgent response will be appreciated.

Umkomaas

https://padi.zendesk.com/hc/en-us/articles/207421439-Bank-Park-Management-Ltd

http://www.parkingappeals.info/companydata/Bank_Park_Management.html

The NEWBIES FAQ sticky, post #2 gives guidance on developing your defence. Pay particular attention to guidance given by legally qualified poster bargepole in keeping it brief, but very much to the point. He has provided an example to act as a framework.

Within the sticky there will be links to other successful defences, so use those for ideas in building up your own. Let the court experts (very, very few) on here have the opportunity to comment on your draft.

I was thinking of offering them a without prejudice offer as I'm really fed up with the stress.

There is very little evidence of any PPC prepared to settle at such an early stage. Making that offer will not only tell them that they have you rattled and on the ropes, but they will likely see it as a tacit acceptance by you that there may be some culpability - encouraging them to press even harder. They don't really want to take you to court, they just want your money!

Further down the line, if you've put together a really solid defence and witness statement, they may feel less confident of winning in court, it's at that stage when a WP offer might have more traction.

Quentin

According to the stats at parking appeals info you are only their 3rd ever court hearing

So unlikely anyone here has experience of them in court

But a hearing is still a long way off

Now read up on this in the newbies FAQ thread #2 which covers the process from receipt of the claim to the hearing

Construct your defence and post it here for comments before sending it

Lawabiding_2

Thank you

I will prepare the defence and post it for comments.

Any comments about court allocation.

I appear in bham court alot and was thinking to ask claim to be allocated there as i may know some of the judges in professional capacity. Or does it not matter.

Thank you

Lawabiding_2

Thank you both. I really really appreciate this

onlyfoolsandparking

As far as I know and with my very limited knowledge you can as defendant get any court you choose allocated so no problem with that part.


As regards knowing some of the circuit judges well it cannot do you any harm to use anything you have in your locker to help.


As others have said, follow the advice in newbies section, prepare a good defence, WS etc and let it take it's course, I think the maximum you could be ordered to pay is around £175-£200 and that's ONLY if you lose, definitely worth fighting imo.

beamerguy

Lawabiding wrote: »

Thank you

I will prepare the defence and post it for comments.

Any comments about court allocation.

I appear in bham court alot and was thinking to ask claim to be allocated there as i may know some of the judges in professional capacity. Or does it not matter.

Thank you

I knew a freemason who went to court over a speeding
offence, he knew the magistrate was a mason and used
words that only freemasons know

The magistrate came down very hard on him.

There is nothing wrong however in asking for a professonal
opinion from those you know

And forget the £60 admin cost, it's just another way of
adding on fake debt collector charges ... not applicable

QDR are a spin off of the shameful Wright Hassall solicitors

onlyfoolsandparking

beamerguy wrote: »

I knew a freemason who went to court over a speeding
offence, he knew the magistrate was a mason and used
words that only freemasons know

The magistrate came down very hard on him.

There is nothing wrong however in asking for a professonal
opinion from those you know

Maybe he forgot to use the "Special handshake":rotfl:

beamerguy

onlyfoolsandparking wrote: »

Maybe he forgot to use the "Special handshake":rotfl:

I don't think the court would allow him to drop
his trousers with his hand under his knee

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

Lawabiding_2

Hi Everyone


Here is my draft defence for your very kind comments and consideration. I must point out that on the day in question I am aware that parking was paid and therefore I cannot ascertain why the charge was issued. I do not know if they are alleging it was due to an overstay or that no payment was made at all. the reason given on the claim is that parking was not paid. WHICH IS INCORRECT! On the day in question me and other was on way back to car, the kids needed to go toilet (they were both under 6 at the time), went to nearest toilets which were closed in shopping centre and then were directed to the bus station toilets which were further up. The kids got to the toilets on time and then we then made our way back to the car. As far as I am aware we were fine with parking and did not think anything of it.


the car was cleaned out a week before the PCN came through so have nothing!


I have not told them the above as I just don't know why the charge was issued. if they came back saying there was a over stay, I would have put forward the above mitigating circumstances. if there was an overstay I don't know by how much but could not have been any more than 20mins.
I would appreciate your thoughts.


thank you very much


DEFENCE

I am xxx, the defendant in this matter and the registered keeper of vehicle xxx.

I deny I am liable for the entirety of the claim on the following grounds:

1. The Claim Form issued on the 14 September 2018 by BCM ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by BCM ltd but has been signed by the Claimants Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) in that further information and clarification was requested from the Claimant’s solicitors and adequate time provided for that information to be supplied as to the alleged charge and this has not been provided for the defendant’s consideration prior to the issue of court proceedings.
3. There was no compliant Letter before County Court Claim under the Practice Direction.

4. This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

5. The Claim Form Particulars were extremely sparse and does not divulge sufficient detail. The Defendant has no idea why the charge arose when parking was paid. This cannot be considered to be a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the Letter before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and

iv. support the efficient management of proceedings that cannot be avoided.


6. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012). Such a notice was not served within 14 days of the parking event. The Claimant is therefore unable to hold the defendant liable under the strict keeper liability provisions:

In accordance with Schedule 4 of the Protection of Freedoms Act 2012 9 (5) a Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled Parking Charge Notice which was sent outside of the 14 day period. The PCN was deemed to have been received by the keeper on 17th August 2017 and the alleged event being 23 July 2017. This would exclude the registered keeper being liable for any charges.

Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that; 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. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £235.00 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.

Furthermore the BCP ltd is a trade member of ICP and agreed to abide by their terms. Their code of practice for trade members sets out at PART C, 5.1 (m) that the car operator can only enforce a parking charge against the keeper if it has been served on them within 14 days of the alleged event. They have obtained the Defendant’s details from DVLA due to be a trade member of ICP however they have failed to abide their code of practice and thus have misused the defendant’s data and have unnecessarily and viciously pursued the defendant.
7. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 legal representatives costs were incurred. The Defendant believes that BPM ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

8. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage contract, none of this applies in this material case. The Car park in question was is a pay and display car park and thus it is not clear how the Claimant can assert that firstly, parking was not paid and secondly that the keeper is liable for the said charge issued.

9. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case

10. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

11. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant

12. It is believed BPM ltd do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner. If it is alleged that they do have a contract, I cannot see how this is possible as they are registered as not trading.


13. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

14. The Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid.

15. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to disclose cause of action in the incorrectly filed Claim Form issued on 14 September 2018.
b) failed to provide clarification or further information as requested during the pre-court proceeding process (letter before action).
c) failed to negotiate matters via ADR therefore issuing unnecessary court proceedings and alleging that the defendant is liable for the sum now at £235.00 which could have been avoided by the Claimants had they acted reasonably.

(d) Sent a template, well-known to be generic cut and paste 'Particulars' of claim which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

The vague Particulars of Claim disclose no clear cause of action given it is a pay and display car parking and it is unclear therefore as to what and why the claim actually relates to. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.



xxx
Dated…………………