Two fines with NCP

ulukai

KeithP wrote: »

Have you received a County Court Claim Form?

If so, what is the Issue Date on it?

Yes, 20/11/19, already sent the letter back to extend the deadline.

Coupon-mad

Good start. I'd remove your #6, 7 and 8 as they add nothing useful, and instead have:

6. The machines at this location are overly complicated with full keyboards and several larger unmarked buttons. It is a pay-on-exit system, whereby the Claimant has data that tells them what time the car arrived past the ANPR camera. As such, the Defendant believed and was reasonably entitled to conclude, that the system display was correct, which identified the car from the VRN and then displayed that a (too low) sum of £x was due. That sum was duly paid so the contract - as offered for the lower sum - was concluded with no breach.

7. Under the Consumer Rights Act ('CRA 2015') a Consumer is fundamentally entitled to rely upon the information as supplied by the trader, and any ambiguity must be interpreted in the way that most favours that consumer. The machines are not just ambiguous, in fact they positively mislead drivers into paying a smaller sum, so that the Claimant can then penalise and sue consumers.

7.1. This is illegal, as is the Claimant's attempt to add a sum in false 'costs' that is already counted in the breakdown of parking charge itself, and which is not prominently stated on the signs. These breaches of the CRA 2015 are causing dozens of parking claims to be summarily struck out in 2019 (e.g. at Caernarfon, Southampton, IOW and Warwick County Courts to name just four).

7.2. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.''

7.3. The definition of a consumer notice is given at 1.19 n the official Guidance and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

8. Further, under the Consumer Protection from Unfair Trading Regulations 2008, 'misleading omissions' it is an offence for a trader to hide material information or present misleading data, especially when it is displaying how much to pay, then penalising those who pay what was asked. Consumers are protected against rogue traders such as in this case, where a Defendant has been so badly misled that they were induced in to making a transactional decision that would not otherwise have been made. This was a company expense so the Defendant had no reason not to pay whatever the system required, as it would be claimed back.


And change this paragraph as you can't argue against the legal costs for £50 but you CAN argue about the £60:

11. In addition to the original parking charge, for which liability is denied, the claimants have artificially inflated the value of the claim by adding purported damages/costs of £60. As mentioned above, this sum is unrecoverable.

11.1. The parking industry is well aware of this fact, despite trying to justify it by their Trade Bodies both recently adding in a clause in their Codes of Practice, to try to allow their members' costs to be added. The parking firms' weak and self-serving CoP was held to be irrelevant at Southampton court on 11th November 2019, where District Judge Grand refused multiple applications (relating to at least nine claims) by a parking firm's roboclaim solicitor who was seeking permission to set aside the strike out order and to reinstate the summarily struck out cases. The parking firm failed on their applications, the nine (or more) claims remained struck out, and leave to appeal was refused by the Judge.

11.2. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

11.3. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple 2019 Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.


[STRIKE]plus ‘legal representative costs of £50, which the defendant submits have not actually been incurred by the claimant and constitute an attempt to achieve double recovery.[/STRIKE]
[STRIKE]
11.1. The added 'legal' costs are in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules. The Claimant's solicitors, BW Legal, recently admitted in court that their company handles millions of what are effectively cut and paste robo-claims, at any one time. The Defendant reasonably concludes that no supervising solicitor is likely to have provided legal advice for a fee or in any way supervised this claim[/STRIKE].

KeithP

I am going to assume that you filed an Acknowledgment of Service some time between 26th November and 9th December. If that's not the case, please say when you filed the AoS.

With a Claim Issue Date of 20th November, and having filed the Acknowledgment of Service in a timely manner, you have until 4pm on Monday 23rd December 2019 to file your Defence.

That's a little over a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are trying to keep you under pressure. Just file it.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

ulukai

Thank you Coupon-mad and KeithP much appreciated, should I be attaching pictures to the defence or at a later stage when submitting a witness statement? i.e of the ticket machine and signs etc.

Fruitcake

Please read and follow the guide to court written by bargepole that you will find in post 2 of the NEWBIES.
This takes you step by step from the LBC to the court date itself and tells you what to submit, to whom, and when.

What happened about the hire/lease company making a payment to NCP? I hope this was never passed on to you.

Coupon-mad

ulukai wrote: »

Thank you Coupon-mad and KeithP much appreciated, should I be attaching pictures to the defence or at a later stage when submitting a witness statement? i.e of the ticket machine and signs etc.

New advice is to attach a copy of DJ Grand's Order to the defence as a second email attachment. It's linked in the ABUSE OF PROCESS thread in post #14.

ulukai

Fruitcake wrote: »

What happened about the hire/lease company making a payment to NCP? I hope this was never passed on to you.

No it wasn't, I emailed the fleet manager about my company excusing them selves, she asked HR about it who never replied and it never came off my wages

Coupon-mad

You should mention it in your defence that there is a related claim that will be pursued by the Defendant later, if the D is charged by the Fleet firm because they were misled into paying a duplicate PCN. Whilst the Fleet firm has not charged the D for that yet, the Claimant has benefitted from monies they were not entitled to receive and this is a matter of concern that may cause the D a loss in the next few months, if the Fleet Department require the monies back for the wrongly paid PCN. And the D holds the C liable for that loss, and will separately claim in due course, if it becomes actual loss.

ulukai

Hello again, I'm at the witness statement stage, have read a fair a bit of others, I've probably done it all wrong so I thought I'd go ahead and post it and let someone correct me.

Witness Statement

1. I am x, of [Address], [Postcode], the Defendant in this matter. I will say as follows:

2. This matter relates to a pay & display car park and on the date xx, I was in Newcastle for work specifically to attend HSBC for ATM repairs which lasted just over 2 hours, this was the first time I had to use this car park, when I arrived the signs at the entrance are on the passenger side and too small to read, also it’s impossible to read all of the signs due to parts not being visible from my vehicle on the drivers side, this is the only place these signs are located in the car park, on a awkward slope and very narrow entrance with no walkway, you would not think to stop in this spot to read a large document, safety being my first concern, see exhibit 1 & 2

With there being no signs for pay and display around the ticket machine or entrance signs and having entered my reg and not had any option to increase the tariff I had assumed with it being ANPR, that system calculates your stay and charges the required fee when you leave, so I went and did my job and came back to buy a ticket in good faith however the ticket machine has too many buttons, is overly confusing and there was no option to increase the tariff again, see exhibit 3, 4 & 5, as I had put my reg in I had assumed that the ticket machine had calculated my fee for my stay in the car park and paid £2.50, see exibit 6, as I was looking down to the machine trying to figure this out you do not notice the sign above and off to the right with the tariffs, see exhibit 3.

2. Exhibit 6 & 7 show the receipt and the expenses claimed with my company to prove I had no intention to under pay and had absolutely no reason not to pay the required amount.

3. Upon receipt of a parking charge notice from the Claimant, I informed them of my mistake and even offered to pay the difference in my appeal which was refused.

4. It is my position that, the Claimant has no standing, or cause of action, to litigate in this matter. The signage and ticket machine were inconsistent, confusing, and hence incapable of binding the driver into any contract

5. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.


I believe that the facts stated in this witness statement are true.


signed:


date:

Coupon-mad

That's a start but look at threads by:

Missaver
keypulse
Lego-9

...to see the rest of the stuff you need to be saying and attaching; court transcripts about the added false £60 and the Consumer Rights Act 2015 Sch 2 (the grey list of unfair terms) which is breached at paras 6, 10, 14 and 18.

Read those 3 threads first.  One of them has posted all his documents he used to win, just the other day.

You also need a signed & dated SUMMARY COSTS ASSESSMENT as seen on other threads too.