PCN - Court Claim issued - need help!

Mullers247

Hi Coupon-Mad,


really struggling to find bargepole's concise defence from the NEWBIES thread? there are a few that don't relate and I am also searching keywords - can you help me locate the one you mean?


thanks

Coupon-mad

Search the NEWBIES for the word bargepole (control & F on your keyboard).

Mullers247

Hi Coupon,


I have done that but can't see the post you mention - is it one of these then?


A defence by bargepole, showing that a defence about unclear signs should be written concisely:

and even more concisely here, about poorly marked lines and unclear signs about where to park:

Le_Kirk

Yes it is one of those but if you continue to scroll down, you will find some more. They are meant to be used as a basis for your defence, a starting point, showing you how a concise defence might look. Obviously you have to add in all the points that defend your particular case and counter all and any claims made by the claimant in the POC.

Mullers247

Thank you - AOS has been received so all good on that front - will re-work the defence tomorrow now and re-post once I have it done - thank you all for comments and help on this!

Mullers247

Hi All,


I have revised the defence using Bargepole's concise defence - please offer any advice or guidance as to if this will be ok to print, sign and email to the court - Ideally I want to get this sent by Friday as we only have until the 21st to offer a defence - thank you again for your advice!!!




IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

National Car Parks Limited (Claimant)

-and-

XXXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date at XXXX


3. The Penalty Charge Notice has come from the Defendant parking in an National Car Parks Limited car park with a valid ticket but the Defendant has had to guess what the contravention alleged actually was. The Defendant always buys a ticket and can only surmise that the keypad failed to record the full VRN on this occasion; however the Claimant has had the correct VRN all along from their other data stream (ANPR images).

4. The Particulars of Claim state that the Defendant XXXX; was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.


5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, 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 Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorization from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

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 £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

You can't say clearly on the one hand, that the D was the driver:

3. The Penalty Charge Notice has come from the Defendant parking in an National Car Parks Limited car park with a valid ticket but the Defendant has had to guess what the contravention alleged actually was. The Defendant always buys a ticket and can only surmise that the keypad failed to record the full VRN on this occasion; however the Claimant has had the correct VRN all along from their other data stream (ANPR images).

Then in the next breath, blame the C for not saying whether they are pursuing you as driver or keeper (see what I mean?):

4. The Particulars of Claim state that the Defendant XXXX; was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices.

And if you are going to defend as driver (which is fine) you can't have the words in bold below, as it makes no sense for your case:

it is denied that the Defendant, or any driver of the vehicle,

I think you need to add a point about making 'reasonable endeavours' to pay and display, as per this other defence:

https://forums.moneysavingexpert.com/discussion/comment/75072864#Comment_75072864

Mullers247

Hi Coupon,


thank you - I have revised the defence:




DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.


3. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXXXXX when it was parked at Barnet The Spires, Barnet in 2018.


4. The PCN stated the contravention as 'Parked without payment of the parking charge’ and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge had already been paid.


4. The Defendant always buys a ticket and can only surmise that the keypad failed to record the full VRN on this occasion; however the Claimant has had the correct VRN all along from their other data stream (ANPR images).


5. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.


6. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel. Appropriate payment was made via the provided payment machine but said machine did not indicate any failure on registration entry and defendant reasonably expected a valid ticket had been issued.


7. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.


7.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for their own failure.
7.2 The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

8. 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, and which appears to be an attempt at double recovery.
9. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty, for not noticing inaccurate data presented to them on behalf of the Claimant.

10. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Coupon-mad

Looking good, but just missing the usual point that the C is not the landowner and has no standing, which you will find in pretty much every other example defence.

Mullers247

Thanks Coupon - I added that bit back in from one of Bargepole's defence template's on the newbies thread. PDF of the defence has been emailed to [EMAIL="CCBCAQ@Justice.gov.uk"]CCBCAQ@Justice.gov.uk[/EMAIL] and got the confirmation email that the court has received the email, have told Mum to keep checking the MCOL to see if the defence is submitted to I can chase if not.


Weekend reading is post #2 of the Newbies FAQ to see what comes next.


I have a few questions I am not sure you can help with on here:


BW Legal called my Dad yesterday (a few days after we submitted the SAR to NCP, which I sent BW a copy of)


I had told him not to talk to them so he just said as you are taking legal action against me I have no wish to talk to you - is this the correct advice?


I suspect they may have been calling to try and make my Dad an offer to pay something towards the PCN to drop the court case? (which now I am helping him with and have shown him some forum comments he is against paying anything and would rather lose and be instructed to pay by a judge).


Should they continue to try and contact again what would your advice be?


Furthermore my Dad did an online credit check a week ago and low and behold BW Legal had credit checked him in September (before sending the court claim through) - are they allowed to do this as we assumed any company wanting to credit check you had to have permission (unless you are looking on comparison websites etc and are looking for credit)?


I know this is the parking forum and you probably cant help here (thank you for all the help you have provided so far BTW) but I just wondered if we have any recourse against them for this credit check (obviously we cant bring this up in the court claim as it is unrelated somewhat to a defence).


any advice as always is appreciated!!