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

chadlebowski

DRAFT SKELETON ARGUMENT - if anyone could chip in, please. I'm going to work on this over the weekend, but would like to know if it's going in the right direction. (paragraph numbering will follow).

The Claimant has not provided enough details in the Particulars of Claim to file a full defence.

The Claimant failed to include a copy of the contract or any reason for this claim.

The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached.

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.

A letter dated 26/11/2018 sets out the Claimant’s position and states: “On 23/11/2017 (Contravention Date), we are instructed that you were the driver”.

The letter goes on to say that “After compared (sic) the data from your vehicle’s entry and exit times against the data extracted from the parking machine payment, our client’s record showed that you were in breach…”.

The ‘data extracted from the parking machine payment’ has not been made available to the Defendant, despite multiple requests.

Further mention of the terms and conditions states these are “accepted upon entering the Car Park”.

The Claimant has submitted no evidence regarding a grace period. A contract to park by conduct cannot be formed unless there is a grace period to discover, read, understand and accept the contract.

Coupon-mad

Bump - for people to see on Saturday.

chadlebowski

UPDATE - Claimant's WS received.

I'll try and summarise as best as possible.

1. The client won't attend, and will be represented by an advocate (CPR 27.9)

2. BACKGROUND: ATA, BPA, AOS membership.

3. SITE DETAILS: clear and legitimate interest. Land registry included.

4. FORMATION OF CONTRACT: unilateral offer, accepted through the performance of parking. VCS ltd v Crutchley (2017)

5. BREACH: Overstay of 59 minutes. PCN issued.
***proof of parking payment attached. This is the first I have seen of this. This indicates parking was paid for at 17h55, meaning the night rate was not in effect. I do not remember this being the time, and assumed a grace period would extend at least 5 minutes.

6. APPEALS PROCESS.

7. FINAL REMINDER

8. PRE/POST LEGAL CORRESPONDENCE: notice issued that claim was transferred to solicitors. LBC. Defendant's nonchalance.


9. THE DEFENCE: sparseness of particulars due to limited characters online.
Regarding my request for details, 'the defendant's argument lacks veracity... defendant was issued with photographs".

10. GENERAL SUBMISSIONS OF DEFENCE: no denial of being registered keeper, no denial of ignoring letters.

11. COST OF RECOVERY: debt recovery costs of £60. Chaplair ltd. v Kumari (2015)

12. CONCLUSION: defence is entirely w/o merit. claim for principal balance of £100 plus Claimant's costs.

chadlebowski

Furthermore - the initial PoC, quoted in full, reads:

The Claimant's Claim is for the sum of £248.08 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) for a parking contravention which occurred on 23/11/2017 in the private car park/land located at XXXX in relation to vehicle XXXX.
The Defendant was allowed 28 days from the date of the PCN Date to pay the PCN, but failed to do so.
Despite demand having been made, the Defendant has failed to settle their outstanding liability.
The Claim also includes Statutory Interest....."

This is what the defence was based on. A later clarification of the claim was sent, but after the defence submission deadline. This clarification included the two PCNs, with entry exit photographs but no proof of parking purchase. There was no copy or the T&Cs, or photographs of the signage.

The remaining evidence arrived today. The court hearing is two-weeks on Tuesday.

Coupon-mad

These WS are templates. Same as all the other useless BW Legal cases and they will likely send a legal rep who may not have Rights of Audience to speak, at all.

Read the other threads talking about Chaplair and Crutchley (search the forum) and make sure you tear into their evidence in your own WS & evidence and take yours in person to your local court on Monday (and just email the solicitors the Claimant's copy of everything).

chadlebowski

I am an unrepresented consumer, not a trained legal representative, 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.
I attended an event at the Connaught Theatre on the 23/11/2017 and used the car park in question as it is adjacent to the theatre. The event began at 18:00, and I arrived shortly before this time.

The event in question was a film screening, followed by a question and answer discussion with the filmmaker. I expected the event to last at least two hours, but probably no more than three.

There are multiple signs (EXHIBIT A) 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 (EXHIBIT . 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.

I could not immediately find a parking space – I noticed that certain spaces were delineated with blue lines, and that these were not for general use. I drove to the back of the car park, which was nearly empty, parked the car, and walked to the payment machines.

There was a queue at the payment machines. I suspect the majority of customers waiting to pay were also attending the theatre’s event. I noticed other members of the public being confused by the payment machines.
While waiting, I read the tariff board. The signage (EXHIBIT C) indicates a night rate tariff applies 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.
I returned to my vehicle to display the ticket, in accordance with the terms and conditions. After the event, at approximately 20:45, I returned to my vehicle, and left the car park. I believed this to conclude the contract.

Approximately two weeks later, I received a parking charge (EXHIBIT D) 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 E) 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 appears to be 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 D).

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 contacted three different email addresses at BW Legal, all of which responded with excessive data harvesting requests to confirm my identity, to which I complied. After I had met with their numerous requests, there was no further response. (EXHIBIT E)

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.

Furthermore, the preparation of this Defence has relied on a sparsely particular claim. I did not receive clarification of the Claimant’s position until 26/11/2018 (EXHIBIT F), by which time I had already submitted the Defence. In fact, this letter was sent from the Claimant in response to the submitted.

chadlebowski

This skeleton argument is to assist the Court in the above matter for the hearing dated 14/05/2019

The Claimant’s witness statement is not credible. It contains invalid, false and vexatious statements which will be shown in this skeleton argument

In a letter from the claimant (EXHIBIT F), paragraph 6, it is said that “the terms and conditions (referred to in paragraph 3 above), which you accepted upon entering the car park). This is a breach of Schedule 2(i) of the Unfair Terms in Consumer Contracts Regulations 1999:

irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract

A contract by conduct to park cannot be formed unless there is a grace period to discover, read, understand and accept the contract. Paragraph 6 of the Claimant’s witness statement confirms that “at the time of the contravention, the Claimant was a member of the British Parking Association”. Paragraph 28.4 of the British Parking Association Code of Practice states:

If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you.

In addition, Paragraph 12 of the Claimant’s witness statement avers that “parking at the Car Park (confirms) acceptance of the Terms and Conditions”, which contradicts the clarification of the Claimant’s position in EXHIBIT F.

Paragraph 20 of the Claimant’s witness statement avers “the Terms and Conditions are clearly displayed” EXHIBIT X is a photograph taken by the defendant, which shows the positioning of the terms as they are posted at low-level on the perimeter of the site. They are lengthy and very difficult to read from a vehicle.

The same paragraph states that there is “no need for the motorist to communicate their acceptance; the performance of parking (as opposed to leaving) in accordance with the Terms and Conditions is the act of acceptance”. This is a confusing, circular statement, that does not allow a grace period to discover and decide whether to accept the terms.

The Claimant places reliance on Vehicle Control Services v Alfred Charles Crutchley (2017). This same case contradicts the claim that the performance of parking is the communication of acceptance:
It can be translated into offer and acceptance in this way: the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot.

The Claimant draws attention to the case of Vehicle Control Services Limited v Alfred Charles Crutchley (2017), as evidence that it is not unreasonable “although probably inconvenient” to expect someone to not enter private property until the contents of relevant notices have been read. The land registry for this site includes a restrictive covenant “Not to permit or suffer to be carried out… trade or business which would or might be or become a nuisance or annoyance… to the persons patronising or using the adjoining premises”. Clearly, having to remain outside the carpark until the notices have been read is a nuisance and annoyance to patrons.

Further, the Crutchley case, apart from being non-binding, relates to an obstruction of a roadway and a legitimate interest in not impeding the flow of traffic, which is entirely different to the facts around the case at hand

The Claimant relies on the Court of Appeal ruling in Chaplair Limited v Kumari (2015), in relation to debt recovery costs. The aforementioned case involved a signed lease, and an amount which had actually been paid. In this case, there is no signed contract and no payment has been made to a debt collector

The Claimant is relying on the Supreme Court ruling on Parking Eye v Beavis (2015), to suggest that the charge serves a legitimate commercial interest. The Beavis case relates to a car park that offers a period of free parking, and therefore a suitable deterrent is in place to prevent motorists from taking advantage of free parking. The Defendant’s case relates to a car park that charges motorists for parking

The Claimant’s witness statement, paragraph 29, states that “the Defendant… overstayed… without further payment”. I was not aware of any breach of contract at the material time, nor does any signage indicate the option of purchasing additional parking, nor is there any mention of this in the terms and conditions. Moreover, if the claim is that further payment was not made, the additional charge, based on the tariff board, would be 60 pence. If I was aware of this at the material time, I would have settled the shortfall

The car park uses ANPR as well as pay-and-display tickets. The terms and conditions are that consumers must ensure “that the parking ticket is clearly displayed in the windscreen of your vehicle”. This suggests that the terms will be enforced by a visual inspection of parked vehicles. The use of ANPR in tandem with pay-and-display tickets indicates that the system is designed with a view to catch motorists out, rather than being fair to both parties.

The signage regarding ANPR confirm that “Our cameras record your number plate on entry and exit”. EXHIBIT is further breach of the British Parking Association Code of Practice reads, paragraph 30.1:
Your signs must make it clear what you will use the data captured by ANPR cameras for

The Claimant’s witness statement, paragraph 56 states that the “Defendant’s argument lacks veracity as the Defendant was issued with correspondence which included evidence (Photographs). Furthermore, the initial PCN contained details and evidence of the breach”. The photographs here referred to are images of the vehicle entering and exiting the car park, and that the contravention was “Parked longer than the time paid for”. I did not receive any proof of payment until the Claimant’s witness statement arrived on the 27/04/2019

In a letter from the Claimant, dated 12/12/2018, the Claimant offers their view that my defence has little or no prospects of success. This is harassment.

The Claimant’s witness statement includes photographic evidence of signage taken in bright daylight; while the alleged contravention occurred at night. Nevertheless, the photographs are barely legible.

The proof of payment does not indicate the amount of payment made. As the receipt is no longer in my possession, we must rely on my word against a printout from the payment meter. I maintain that I would not have paid for only two hours of parking, knowing that I would be parked there for at least two hours. Moreover, the machine presented a ticket after I deposited £3.20. I am not an electronics expert, but I cannot imagine it too difficult to program a simple machine to prevent the sale of time-dependant tariffs, and to notify the consumer of the same.

Furthermore, paragraphs 35 & 36 are duplicates, Paragraph 37 switches the Defendant’s gender from male to female. Paragraph 56 comes to a halt mid-sentence, suggesting that the statement is from a template

The statement also states the Defendant gave “no substantive explanation… about his nonchalant attitude”. I would ask the Claimant for proof that this claim has caused me no anxiety or worry, or show that my attitude, whatever it may be, needs to be explained.

KeithP

chadlebowski wrote: »

This skeleton argument is to assist the Court in the above matter for the hearing dated 14/04/2019.

Is that date right?

chadlebowski

KeithP wrote: »

Is that date right?

Well spotted, thanks. Corrected

Coupon-mad

I assume the real version of your WS & skelly have paragraph numbers (& signature and statement of truth under the WS?).