Ignored NCP 'fine'; now have County Court Business Centre letter

KeithP

chadlebowski wrote: »

I have been sent a copy of the claimant's directions questionnaire, although I have yet to receive mine. Is this normal?

Yes, perfectly normal.

They are simply applying pressure upon you.

You can either wait for your own DQ from the CCBC or download one - google court form finder.

Coupon-mad

Oh not again - KeithP did you add that to your usual post? Please say yes, before I keel over.

_pale_

KeithP

Coupon-mad wrote: »

Oh not again - KeithP did you add that to your usual post? Please say yes, before I keel over.

I will before I post it again.

That was why I felt somewhat obliged to post my message above - to save you the trouble.

chadlebowski

I am busy preparing the court bundle.
If a case was not specifically listed in my defence, can I now rely on it in court?

Coupon-mad

Yes.

In fact, a defence is not meant to include cases, so says Southpaw on pepipoo.

chadlebowski

WITNESS STATEMENT

I am an unrepresented consumer who has never attended the county court before.

I would also like to point out that my defence incorrectly stated that the vehicle was at the site until 10pm – this should have been stated as 9pm.

It is admitted that the vehicle XXXX was parked at the site in question at XXXX, between the times specified on the PCN. It is admitted that I was the registered keeper of the vehicle in question at the material time. The signage indicates a night rate tariff, and to the best of my knowledge, this was bought and paid for.

On the xxxx I received a parking charge notice xxxx asking for payment of £100 for ‘parking longer than the time paid for’. This was 14 days after the vehicle was at the location, and the proof of purchase had since been thrown away.

There are multiple signs at the entrance to the carpark, which are confusing and cause ambiguity. The terms on the claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee, clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.” As can be seen from the attached photographic evidence this is not the case.

The terms signage is also so lengthy that any person would not be reasonably expected to read it all. The defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. It is, therefore, denied that the claimant's signage is capable of creating a legally binding contract.

Additional signage notifies that ANPR will ‘record your number plate on entry and exit’. The sign fails because it must state what the ANPR data will be used for. This is an ICO breach.

I have no liability, as I am the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold me responsible for the driver’s alleged breach. A letter from the Claimant dated XXXX states ‘we are instructed that you were the driver’.

I also point out to the presiding judge that the claimant has not supplied any evidence at all that the alleged contravention ever occurred. The PCN shows two almost identical images of both the rear and front licence plate. There is no evidence that proves an overstay, i.e. that parking was paid for, but that it was insufficient.

On the xxxx I wrote to the claimant asking for further details. The Claimant responded to my request under the guise of Data Protection. I supplied the requested information to verify my identity, and then I heard nothing back.

Withholding any relevant photos of the car, and the signage terms, despite being asked for by the myself at the outset, is against the SRA code.

The Defendant submits that the letters were not from an authority such as a local council or the police. It is submitted that the Defendant did not appeal the PCN and was under no obligation to do so as the keeper.

On the xxx I received a Claim Form from CCBC.

The Claimant has not provided enough details in the particulars of claim to file a full
defence. In particular, the full details of the contract which it is alleged was broken
have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. The Claimant has given no indication of the nature of the alleged charge in the
Particulars of Claim.
The Claimant has therefore disclosed no cause of action.

The Particulars of Claim contains no details and fails to establish a cause of action which would enable me to prepare a specific defence. It just states ‘parking contravention’, which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.

The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable.

The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).

The Particulars of Claim are incompetent in disclosing no cause of action.

In a letter addressed to the Defendant, dated 26/11/2018, the Claimant states ‘that you were the driver indicating a failure to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5

The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

The charge is an unenforceable penalty with no basis in costs incurred by the alleged contravention.

If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in ParkingEye vs Beavis [2015].

Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

The Claimant alleges that the Defendant’s vehicle ‘over stayed’ in the Car Park. The Defendant paid the night rate tariff of £3.20. The times on the ANPR images show that the vehicle was on-site for just under three hours, and the tariff for this length of stay is £3.60. The payment machines accepted the payment of the night rate tariff, as the Defendant believed the time to be after 6pm. If the night rate was not in effect, the payment machine would’ve issued two-hours of parking, costing £2.70. If the ‘over stay’ period was unpaid, then the sum 'owed' is a quantifiable figure: according to the tariff schedules at the particular car park, this would amount to £1.

At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

Furthermore, assuming the contract was binding, which is denied, there has been no ‘grace period’

“15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site”

1. In the persuasive case of Excel v Mr Cutts [2011] 1SE02795, Deputy District Judge Lateef agrees with the principle argument:

“…it is, in my view, not enough for him to merely physically enter the site. Instead the Defendant has to see the offer so he can choose whether or not to accept it, and thereby enter a contractual relationship.”

2. Additionally, binding a motorist to a contractual agreement without a grace period would constitute a breach of Schedule 2(i), The Unfair Terms in Consumer Contracts Regulations 1999:

“(i) irrevocably binding the consumer to terms in which he had no real opportunity of becoming acquainted before the conclusion of the contract;”

The Protection of Freedoms Act 2012, Schedule 4, at Section 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. The claim includes an additional £60, for which no calculation or explanation is given. The Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant and which appears to be an attempt at double recovery.

These have been variously described as a 'BW Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £248.08. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. BW Legal boasted in Bagri v BWLegal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste robo-claims at all, on the balance of probabilities.

Further, 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 Claimant described the charge of £50 as ‘legal fees’ not ‘contractual costs’ CPR 31.14 does not permit these to be recoverable in the Small Claims Court.

The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

I assert that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:
“Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”

It was held in the Supreme Court in Parkingeye v Beavis [2015] UKSC 67 (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters.

It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

Coupon-mad

As NCP are in the BPA, why have you got this and not an excerpt from the BPA CoP?

Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee, clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

Remove this and put it into a skeleton argument instead:

The Claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim.
The Claimant has therefore disclosed no cause of action.

The Particulars of Claim contains no details and fails to establish a cause of action which would enable me to prepare a specific defence. It just states ‘parking contravention’, which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.

The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable.

The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).

The Particulars of Claim are incompetent in disclosing no cause of action.

In a letter addressed to the Defendant, dated 26/11/2018, the Claimant states ‘that you were the driver indicating a failure to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5

The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

The charge is an unenforceable penalty with no basis in costs incurred by the alleged contravention.

If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in ParkingEye vs Beavis [2015].

Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

The Claimant alleges that the Defendant’s vehicle ‘over stayed’ in the Car Park. The Defendant paid the night rate tariff of £3.20. The times on the ANPR images show that the vehicle was on-site for just under three hours, and the tariff for this length of stay is £3.60. The payment machines accepted the payment of the night rate tariff, as the Defendant believed the time to be after 6pm. If the night rate was not in effect, the payment machine would’ve issued two-hours of parking, costing £2.70. If the ‘over stay’ period was unpaid, then the sum 'owed' is a quantifiable figure: according to the tariff schedules at the particular car park, this would amount to £1.

At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

Furthermore, assuming the contract was binding, which is denied, there has been no ‘grace period’

“15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site”

1. In the persuasive case of Excel v Mr Cutts [2011] 1SE02795, Deputy District Judge Lateef agrees with the principle argument:

“…it is, in my view, not enough for him to merely physically enter the site. Instead the Defendant has to see the offer so he can choose whether or not to accept it, and thereby enter a contractual relationship.”

2. Additionally, binding a motorist to a contractual agreement without a grace period would constitute a breach of Schedule 2(i), The Unfair Terms in Consumer Contracts Regulations 1999:

“(i) irrevocably binding the consumer to terms in which he had no real opportunity of becoming acquainted before the conclusion of the contract;”

The Protection of Freedoms Act 2012, Schedule 4, at Section 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. The claim includes an additional £60, for which no calculation or explanation is given. The Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant and which appears to be an attempt at double recovery.

These have been variously described as a 'BW Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £248.08. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. BW Legal boasted in Bagri v BWLegal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste robo-claims at all, on the balance of probabilities.

Further, 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 Claimant described the charge of £50 as ‘legal fees’ not ‘contractual costs’ CPR 31.14 does not permit these to be recoverable in the Small Claims Court.

and I have literally no idea which 5 year old case you found this in!

Get rid and never breathe anything about 'no genuine pre-estimate of loss' or you lose!:

The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

I assert that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:
“Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”

What evidence are you adducing as attached exhibits, as per the NEWBIES thread tips about WS and evidence?

Your paras all need numbering.

chadlebowski

Thank you.

No Loss argument will go in the bin. To clarify - Paying £3.20 for the night rate, while the claimant maintains that the correct tariff was £3.80 is still liable to the £60 penalty, despite the difference in tariff being 60p?

I will replace the CoP with the BPA version.

I will separate the above into witness statement and skeleton argument. It was pieced together (butchered) from many different sources - I will trim it down and polish it (and number paragraphs and add headings).

I have various photographs of the signage/site. There are also emails and replies, requesting information relating to the particulars of claim. The other point I may rely on is the clarification of claim letter sent from the claimant - this states I am being pursued as the driver, and that the client is the landowner (the registry confirms have title absolute and a 35yr lease). I am not sure that this is contestable? Does it show a half-baked claim? The majority of the same letter includes an offer of reduction in the amount, and advice on how to manage the outstanding liability.

Further more, the revised PoC includes the first and final notice from NCP as evidence, they did not include a letter before claim. Nor did they evidence that parking was paid for, albeit (as they claim) insufficient. There is also no mention that liability has transferred from driver to keeper.

And I will include the documents suggested on the newbies thread

Coupon-mad

To clarify - Paying £3.20 for the night rate, while the claimant maintains that the correct tariff was £3.80 is still liable to the £60 penalty, despite the difference in tariff being 60p?

So they will say, due to the 'contract' on the signs.

You can of course argue that the facts are completely different from the Beavis case, in a PDT machine car park where the tariff is quantified, and that a penalty in such a car park in unconscionable. This has been argued in lots of PDT machine defences before.

chadlebowski

REVISED WITNESS STATEMENT. Again, any input greatly appreciated.

I am an unrepresented consumer and have never attended the county court before.

I would like to point out that the defence dated 17/11/2018 incorrectly stated that the vehicle was at the site until 10pm – this should have been stated as “from approximately 6pm to 9pm”.

It is admitted that the vehicle XXXX was parked at the site in question at Union Place, BN11 1LG, between the times specified on the PCN. It is admitted that I was the registered keeper of the vehicle in question at the material time.

The signage (EXHIBIT) indicates a night rate tariff that applies to vehicles entering and leaving between 18.00 and 06.00. Mon – Sat. and, believing this tariff was applicable, to the best of my knowledge, the amount of £3.20 was paid.

There are multiple signs at the entrance to the carpark, which are overwhelming and confusing. The terms on the claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and in a position that anyone attempting to read the tiny font would be unable to do so easily. In addition, it is positioned at the entrance to the car park, meaning that to stop and read the terms, would also mean blocking the entrance to the site.

Approximately two weeks later, I received a parking charge (EXHIBIT) notifying of the driver’s liability for a £100 charge for “parking longer than the time paid for”. This was weeks after the vehicle was at the location, and the proof of purchase had since been thrown away, as I had no expectation of having to exhibit proof of purchase.

The Notice to Keeper (EXHIBIT) set out that the charge had been incurred due to “breach of the car park terms and conditions of use: Parked longer than the time paid for…”. This notice did not include a copy of the terms and conditions that were allegedly breached. There was no proof that the incorrect tariff was paid for. The notice purportedly evidenced the vehicle entering and leaving the car park and referred to this evidence ‘Period of Parking’ – the vehicle is not parked but is passing through the entry and exit. I was invited to pay the charge, or to disclose the driver’s identity.

The notice was not issued by an authority such as a local council or the police. There is no legal obligation for the keeper to disclose the driver’s identity for a parking charge on private land. Therefore, I regarded it as spam, and ignored the notice.

On 16/10/2018, BW Legal notified me that legal proceedings had been issued. The notice set out that what I needed to do was to call them immediately and settle the outstanding balance (EXHIBIT).

On 22/10/2018 I requested clarification of the claim and details of the evidence. This was met with requests to confirm my identity. The requested information was sent. The Claimant then requested further information, as they said there was “a small discrepancy” in the information I had supplied. I had made contact with three different email addresses at BW Legal, all of which responded with requests to confirm my identity, to which I complied. After I had met with their numerous requests, there was no further response. (EXHIBIT)

I also made contact with NCP, who said they were unable to supply evidence as the case had been passed to BW Legal.

I would like to point out to the presiding judge that the Claimant has not supplied any evidence at all that the alleged contravention ever occurred. The PCN shows two almost-identical images of both the rear and front licence plate. There is no evidence that proves an overstay, i.e. that parking was paid for, but that it was insufficient.