No ticket/wrong address - PCN, debt collectors

Coupon-mad

5. All correspondence was sent to the Defendant’s previous address, therefore the Defendant was unaware of the parking conduct and continued to park at the Worksop Miners Welfare Inst, believing parking was free for customers of adjacent stores.

6. The car park at the Worksop Miners Welfare Inst had no pay and display machine for customers to use, therefore the Defendant was not able to use a pay and display method of parking. In relation to signage once again, the font is not of an adequate size to detail the methods of paying via telephone.

Was the Defendant the driver then?

Why are they admitting that?

Better with CEL, not to admit to driving, and to defend as registered keeper and state that CEL are put to strict proof that they have complied with the strict deadlines, prescribed wording and requirements of Schedule 4 of the POFA 2012 to transfer liability from the driver(s) on each and every occasion, to the registered keeper Defendant.

Daniellep64013

Right I'll change those bits to driver instead of defendant.

State that CEL are put to strict proof that they have complied with the strict deadlines, prescribed wording and requirements of Schedule 4 of the POFA 2012 to transfer liability from the driver(s) on each and every occasion, to the registered keeper Defendant...

Where do I need to state this, just as another separate point? Sorry, I'm getting a little muddled.

Coupon-mad

Put it as two separate points, give these consecutive numbers:

- It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it, as well as family members who have their own insurance including any vehicle. Due to the length of time passed and the unremarkable local site, used often by the family, the driver(s) on each occasion are unknown and the Defendant knew nothing of the PCNs until months later. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver and the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"). Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

(i) there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
(ii) it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

- To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Then you will have to change the points I highlighted to you before, to say that the Defendant has visited the location since getting this claim and notes that there are no Pay & Display Ticket (PDT) machines at all as far as the Defendant can ascertain, so the driver was unable to...etc.

Daniellep64013

Thank you! I think I have added in what you have said, if you wouldn't mind reading what I have to see if that's correct. Thank you, again.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

XXXXXX XXXXXX XXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant was the registered keeper of vehicle registration number XXX XXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration number XXX XXX which is the subject of these proceedings. The vehicle is insured with Esure with one named driver permitted to use it, as well as family members who have their own insurance including any vehicle.

3. Due to the length of time passed and the unremarkable local site, used often by the family, the driver(s) on each occasion are unknown and the Defendant knew nothing of the PCNs until months later. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver and the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"). Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

(i) there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
(ii) it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

4. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought. The particulars of claim state that the Defendant was in breach of the terms and conditions. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. The terms on the Claimant's signage are 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. 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 £93.73, for which no calculation or explanation is given as to the basis of the increase.

8. All correspondence was sent to the Defendant’s previous address; therefore the driver(s) was unaware of the parking conduct and continued to park at the Worksop Miners Welfare Inst, believing parking was free for customers of adjacent stores.

9. The Defendant has visited the Worksop Miners Welfare Inst since receiving this claim and notes that there are no Pay & Display Ticket (PDT) machines as far as the Defendant can ascertain, so the driver(s) would have been unable to purchase a ticket.

10. 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.

11. 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 the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

OK don't say the thing about the insurance if you are the only driver!

The vehicle is [STRIKE]insured with Esure with one named driver permitted to use it, as well as[/STRIKE] sometimes used by family members who have their own insurance including any vehicle, so without any evidence from the Claimant, it is not known which driver was in charge of the car in the day in question.

And I'd remove this now I've seen it, as it read a bit weirdly and looks like you are trying to hide who was driving now, which is not going to please the Judge:

8. All correspondence was sent to the Defendant’s previous address; therefore the driver(s) was unaware of the parking conduct and continued to park at the Worksop Miners Welfare Inst, believing parking was free for customers of adjacent stores.

Daniellep64013

Updated following your advice. If you could look over that would be fab. Thanks again for all your help!!

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

XXXXXX XXXXXX XXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant was the registered keeper of vehicle registration number XXX XXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration number XXX XXX which is the subject of these proceedings. The vehicle is sometimes used by family members who have their own insurance including any vehicle. Therefore, without any evidence from the Claimant, it is not known which driver was in charge of the car on the date in question.

3. Due to the length of time passed and the unremarkable local site, used often by the family, the driver(s) on each occasion are unknown and the Defendant knew nothing of the PCNs until months later. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver and the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"). Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

(i) there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
(ii) it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

4. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.


5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought. The particulars of claim state that the Defendant was in breach of the terms and conditions. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. The terms on the Claimant's signage are 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. 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 £93.73, for which no calculation or explanation is given as to the basis of the increase.

8. The Defendant has visited the Worksop Miners Welfare Inst since receiving this claim and notes that there are no Pay & Display Ticket (PDT) machines as far as the Defendant can ascertain, so the driver(s) would have been unable to purchase a ticket.

9. 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.

10. 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 the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

Looks fine to me now! Good work, good preparation for the stages to come as well, as you seem to be very much up for this and on the case.

Just one thing, surely if this is a multi-ticket case, CEL have added far more than just £93.73 to the claim? This bit should be saying the difference between the PCNs at £100 a pop, and the figure bottom right of the claim form, which I reckon is more like double?

7. 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 £93.73, for which no calculation or explanation is given as to the basis of the increase.

Daniellep64013

Thank you! The court forms are only for one fine, there are another 3 PCN's but they haven't been sent to court (yet)! So I don't know where we stand in terms of the other fines?

The county court form says -
Amount claimed £193.73
Court fee - £25.00
Legal representatives cost - £50.00
Total amount - £268.73

Also, the form has a bit that says 'debt + damages claimed to the sum of 172.00' then says about the 11.73 interest pursuant to S.69 of the County Courts Act 1984. Could I include something in the defence about them using the word 'damages'? I don't know whether I'm barking up the wrong tree, so please tell me if I am. But to me that falsly suggests there are damages to the land, rather than just a debt?

Coupon-mad

The damages they have made up are not damages to the land, but imaginary (false) costs for 'debt collection'. Discussed to death on endless threads!

Your point in the defence should say that they've added £168.73 in an attempt at double recovery, which is an abuse of process. Like here, this one's more robust:

https://forums.moneysavingexpert.com/discussion/comment/75520074#Comment_75520074

Daniellep64013

Oh right I see! Should I include all of this, it all reads relevant to our case (I think)? & then add in about the £168.73 rather than the £93.73? This is all so confusing, you really are a God send!!

8. The POFA, 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 being a maximum of £100 depending on the Claimant's full compliance with the POFA and establishing a breach of a 'relevant obligation' and/or 'relevant contract'.

9. Regarding purported 'legal costs' of £50, 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 costs allegedly incurred by already remunerated clerical staff. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred any case-specific legal costs, because no solicitor is likely to have supervised this current batch of cut & paste claims at all.

10. It is an abuse of process for the Claimant to issue a knowingly inflated claim that it is not entitled to recover. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot. Claims such as this have recently been struck out by County Courts for reasons of: ''Substantial charge additional to the parking charge. Additional charge not recoverable under the POFA, Pre-action Protocol and CPRs...abuse of process.''

11. Debt collection agencies act on a no-win-no-fee basis for parking operators, so even if letters were sent by any third party, no costs have been incurred, in truth. Nor can a parking operator add any 'damages' to the PCN sum, not even if their member-biased Trade Body pretends they can in a Code of Practice, and not even if a further sum is mentioned on signage, because this would exceed the maximum parking charge, in a flagrant attempt at double recovery. Both law and case law regarding parking on private land, dictates that any additional charge for damages/indemnity costs (howsoever described) is not recoverable under the POFA Schedule 4, nor with reference to the judgment in ParkingEye Ltd v Beavis [2015] UKSC 67.

12. It was held in the Supreme Court in Beavis (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. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Defendant asks that the Court takes judicial notice of this industry's repeated abuse of consumers' rights and remedies.

13. 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).