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**Court Summons** NCP - BW Legal ANPR Overstay
Bordtea
Posts: 25 Forumite
Good evening all,
Looking for some advice please around putting together a defence for a court summons I've received for overstaying in an NCP car park who are being represented by BW Legal.
The parking occured in June, all correspondence has been ignored until the court summons. No POPLA appeal, and no appeal to the parking company. The case has been acknowledged online and it awaiting submission of the Defence, which I intend to post on Monday.
In a nutshell - the driver parked in a pay and display car park and paid for one hour. Upon return to the vehicle after the time had expired, there was no physical ticket on the car and so the driver thought nothing of it and left the car park, unaware of the ANPR presence. A week later, a letter arrived claiming a 30 minute overstay. ANPR camera on entry/exit to car park and provided photos of the front/rear number plate of the vehicle.
The driver has not been disclosed, and the registered keeper is being pursued.
Clearly this is not a legal argument but the whole system is set up to catch people out, if you can put in place an ANPR system then you can link it to the machine to pay on exit, not pay and display. It's pathetic.
Now - a couple of quick questions:
1. Is it possible for the case to go to court without actually going to court on the day e.g. by post, the reason being the registered keeper is v reluctant to attend court. I am aware a lay representative can be used but AFAIK the registered keeper/defendant would still have to be there on the day? Clearly this isn't ideal but the defendant will not stand up in court to fight the case and would prefer to pay the money...
2. I previously won a case against Gladstone's for a different claim by initially submitting a 'lite' defence centred around the deficient statement of particulars, saying that I could not submit a defence without knowing more information. The court struck out the claim. I am tempted to go down this route again rather than submitting the full defence initially. The particulars are better than in the gladstone case but still not great. Thoughts?
3. I have listed the arguments below, which are the strongest? Are there any that should be removed, or any extras to be added? This is a first stab but looking for advice please!
Arguments
POFA - as far as I can tell all the letters sent conform with the POFA Act and so keeper liability could be shown, happy to post photos if somebody could check.
Inflated costs - breach of POFA - RK being pursued for £167 + £25 court fee + £50 legal representative's cost + interest. The £167 however is comprised of £100 parking charge + then added a random £60 charge on, plus interest.
Denial of contract - Signage inadequate - see attached photos. Large sign to the side of entrance with thousands of words on in tiny font, impossible to read from a car on entry to the car park. I have read previously about a 'red hand rule' or something similar but can't find anything on it recently, could anybody pls advise? IIRC it's something along the lines of the parking charge text must stand out from the sign.
No Option to Cover Extra Cost of Time - The signs also do not make clear how you are supposed to extend a stay if you get back to your car 'late'. For example, if I pay for 1 hour @ 1300 and return at 1420 and then paid for a further hour which would take me until 1520, there is presumably still 20 minutes in there unpaid?
Denial of contract - no standing authority to form contracts and/or litigate - The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
Deficient Particulars - particulars don't state whether they are pursuing driver or keeper, fail to comply with civil procedure rules 16.4. 2. The POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage. Are they claiming for a breach of contract or a trespass?
ANPR Data Protection Concerns
Reasonable endeavours e.g. Jolley v Carmel - the driver made reasonable endeavours to comply with the contractual terms by paying for 1 hour's parking (e.g. paid for a ticket, rather than parking and not paying)
Distinguished from Beavis - 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.
General political situation - parliamentary committee at the moment looking at these shady practices by parking companies
BPA Grace Period - NCP is a member of the BPA. BPA guidelines state a grace period of no less than Cameras record entry and exit time, not the time actually parked. There is time taken to find a space etc which could reasonably take 5 minutes. I am aware this is probably a weak argument - is it better to remove?
Apologies for the wordiness of this post and for posting at such a late stage as I will need to submit my defence by post on Monday to meet the deadline. Would be grateful for any advice, and I will post a draft defence on here in the next 24h.
Very best wishes
Looking for some advice please around putting together a defence for a court summons I've received for overstaying in an NCP car park who are being represented by BW Legal.
The parking occured in June, all correspondence has been ignored until the court summons. No POPLA appeal, and no appeal to the parking company. The case has been acknowledged online and it awaiting submission of the Defence, which I intend to post on Monday.
In a nutshell - the driver parked in a pay and display car park and paid for one hour. Upon return to the vehicle after the time had expired, there was no physical ticket on the car and so the driver thought nothing of it and left the car park, unaware of the ANPR presence. A week later, a letter arrived claiming a 30 minute overstay. ANPR camera on entry/exit to car park and provided photos of the front/rear number plate of the vehicle.
The driver has not been disclosed, and the registered keeper is being pursued.
Clearly this is not a legal argument but the whole system is set up to catch people out, if you can put in place an ANPR system then you can link it to the machine to pay on exit, not pay and display. It's pathetic.
Now - a couple of quick questions:
1. Is it possible for the case to go to court without actually going to court on the day e.g. by post, the reason being the registered keeper is v reluctant to attend court. I am aware a lay representative can be used but AFAIK the registered keeper/defendant would still have to be there on the day? Clearly this isn't ideal but the defendant will not stand up in court to fight the case and would prefer to pay the money...
2. I previously won a case against Gladstone's for a different claim by initially submitting a 'lite' defence centred around the deficient statement of particulars, saying that I could not submit a defence without knowing more information. The court struck out the claim. I am tempted to go down this route again rather than submitting the full defence initially. The particulars are better than in the gladstone case but still not great. Thoughts?
3. I have listed the arguments below, which are the strongest? Are there any that should be removed, or any extras to be added? This is a first stab but looking for advice please!
Arguments
POFA - as far as I can tell all the letters sent conform with the POFA Act and so keeper liability could be shown, happy to post photos if somebody could check.
Inflated costs - breach of POFA - RK being pursued for £167 + £25 court fee + £50 legal representative's cost + interest. The £167 however is comprised of £100 parking charge + then added a random £60 charge on, plus interest.
Denial of contract - Signage inadequate - see attached photos. Large sign to the side of entrance with thousands of words on in tiny font, impossible to read from a car on entry to the car park. I have read previously about a 'red hand rule' or something similar but can't find anything on it recently, could anybody pls advise? IIRC it's something along the lines of the parking charge text must stand out from the sign.
No Option to Cover Extra Cost of Time - The signs also do not make clear how you are supposed to extend a stay if you get back to your car 'late'. For example, if I pay for 1 hour @ 1300 and return at 1420 and then paid for a further hour which would take me until 1520, there is presumably still 20 minutes in there unpaid?
Denial of contract - no standing authority to form contracts and/or litigate - The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
Deficient Particulars - particulars don't state whether they are pursuing driver or keeper, fail to comply with civil procedure rules 16.4. 2. The POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage. Are they claiming for a breach of contract or a trespass?
ANPR Data Protection Concerns
Reasonable endeavours e.g. Jolley v Carmel - the driver made reasonable endeavours to comply with the contractual terms by paying for 1 hour's parking (e.g. paid for a ticket, rather than parking and not paying)
Distinguished from Beavis - 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.
General political situation - parliamentary committee at the moment looking at these shady practices by parking companies
BPA Grace Period - NCP is a member of the BPA. BPA guidelines state a grace period of no less than Cameras record entry and exit time, not the time actually parked. There is time taken to find a space etc which could reasonably take 5 minutes. I am aware this is probably a weak argument - is it better to remove?
Apologies for the wordiness of this post and for posting at such a late stage as I will need to submit my defence by post on Monday to meet the deadline. Would be grateful for any advice, and I will post a draft defence on here in the next 24h.
Very best wishes
0
Comments
-
Claim form0
-
No, email to the CCBCAQ email that KeithP mentioned on every defence thread.acknowledged online and it awaiting submission of the Defence, which I intend to post on Monday.
Unless you mean you will 'post' it here for us to see, on Monday? That's fine!
Yes but do NOT say that at this stage, nor at DQ stage. Make out you will be attending.Is it possible for the case to go to court without actually going to court on the day
Then 14 days before the hearing, write and ask the local Judge to hear the case on the papers in your absence, as you cannot get time off etc. Copy to the Claimant.
But do NOT tip them off any earlier, as it encourages them (signals an easier case).
Yes, try that, if you are sure the POC do not state what the breach was, or the terms were, for example.I previously won a case against Gladstone's for a different claim by initially submitting a 'lite' defence centred around the deficient statement of particulars, saying that I could not submit a defence without knowing more information. The court struck out the claim. I am tempted to go down this route again rather than submitting the full defence initially. The particulars are better than in the gladstone case but still not great. Thoughts?
Your thoughts about defence are fine except for Grace Periods (not for 30 mins).
Google it:I have read previously about a 'red hand rule'
Lord Denning red hand rulePRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi Coupon-Mad, thanks for your quick response, really appreciate it.
Ah, yes, sorry, I will email to the CCBC as a PDF attachment rather than post. That will give me an extra day. Claim form issue date was 21 Dec 2018.
Understood re. attendance, thank you.
Will remove grace period reference. Initially I thought it was only 20 mins (teaches me to skim read) which I thought was close enough to 15 min period to be viable but clearly 30 min is too long. Thanks
Re. POC I have posted a mirror thread on Pepipoo that contains images (I have been a member on there for a while so can post). I can't post the link to the thread as new members are banned from posting links, hence I can't post images. But you can see the POC on there, would appreciate your thoughts.
Thanks again, really do appreciate it0 -
You can show your images here by breaking the links.
e.g. 'DOT' instead of . and hxxp instead of http.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
With a Claim Issue Date of 21st December, you had until Wednesday 9th January to do the Acknowledgement of Service.Claim form issue date was 21 Dec 2018.
Did you do the AoS in that timescale?
If you did, you then have until 4pm on Wednesday 23rd January 2019 to file your Defence.
Not long now, but don't leave it to the very last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- 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.
0 - Sign it and date it.
-
Coupon-mad wrote: »You can show your images here by breaking the links.
e.g. 'DOT' instead of . and hxxp instead of http.
Thanks.
Claim form - hxxps://ibb.co/BK11vYq
First letter from NCP - hxxps://ibb.co/kQFbn8m
Signs in context by entrance - hxxps://ibb.co/9h7GbMD
One of the central section of signs showing tariffs. To the right you can see just how small the text is on the terms - hxxps://ibb.co/wWpb4Tj
Sign to left of entrance of car park - hxxps://ibb.co/nMFGKkP0 -
Thanks Keith, that's useful. Yes the acknowledgement was put in before the 9th Jan so we're still good. A little late in posting but with Christmas in the way etc time goes quickly, and wanted to research properly before posting a thread!With a Claim Issue Date of 21st December, you had until Wednesday 9th January to do the Acknowledgement of Service.
Did you do the AoS in that timescale?
If you did, you then have until 4pm on Wednesday 23rd January 2019 to file your Defence.
Not long now, but don't leave it to the very last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- Wait for your DQ from the CCBC, or
0 - Sign it and date it.
-
Doesn't it make you incensed that theyissue a batch of claims on 21st December? I bet they are proud.
CLAIM
https://ibb.co/BK11vYq
NTK
https://ibb.co/kQFbn8mPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Signs:
ENTRANCE
https://ibb.co/9h7GbMD
TARIFF SIGN - PENALTY NOT QUANTIFIED (EXCEPT IN NON-BOLD AT THE BOTTOM)
https://ibb.co/wWpb4Tj
T&CS SIGN (THIS ONE IS CLEARER - DO NOT USE THIS ONE AS EVIDENCE):
https://ibb.co/nMFGKkPPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Coupon-mad wrote: »Doesn't it make you even more incensed that these utter scumbags issue a batch of claims on 21st December?
I bet they are proud...how can people live with themselves when they do this to people?
Thank you! Haha yes I did think that, I think we actually received it on Christmas eve!!
What are your thoughts around the POC? Do you think they're clear enough such that I should submit the full defence or deficient enough to go with the 'lite' defence in the first instance?
Best wishes and thanks again for your help0
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