Excel PNC v Xircom

KeithP

Xircom wrote: »

I think I expect the debit to be sold to a 3rd party for collection but will wait and see.

No debt will be sold.

However, the PPC may well engage a Debt Collector.

Xircom

I'm now think of following that email up with this letter

Dear Sir or Madam

Parking Charge Notice [xxxxxxxxx]: Vehicle Registration [xxxxxxxxx]

Subject access request ( Data Protection Act 2018 / General Data Protection Regulations (GDPR) ) [My full name and address, Managing Director of Xircom Systems Limited].

Please supply the data about me that I am entitled to under data protection law relating to myself and my company, If you need any more data from me to confirm my identity please let me know as soon as possible. It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is ico.org.uk or it can be contacted on 0303 123 1113.

Yours faithfully

Company Secretary
Xircom Systems Ltd

I've not displayed my full name and address in this sample but it is in the document ready to be sent, again by email in PDF format.

1. Should I send this now or wait?
2. Should I sent it all?

My understanding is for them to issue a Notice to Hirer, they must have contact DVLA for my details and then contacted my lease company in order to get my trading address and my company registered address, at no time have the specified my name in their letters everything is addressed to my company and it either to my trading address or to my accountants which is my registered address as per companies house. If they have this information then under GDPR they have a duty to tell me where it stored, in what format and who has access to this data. I think this could be a breach of GDPR regulation.

Let me have your views before I send or don't depending.

thanks
Xircom

Coupon-mad

Looks OK to send that SAR.

You are saying the Defendant will be the company? Therefore as Director you will have to attend court wherever the parking firm choose, as a company Defendant doesn't get the choice of court, just so you know.

they still have to adhere to POFA Regulations ; Paragraphs 13 and 14 of Schedule 4.

No, it's not mandatory. They can pursue the driver if they think they know who that was, or they will be pursuing your company based on the law of agency (read CPS v AJH Films as that case will be used).

if it goes to CCJ / Court then that a different ball-game, I think I expect the debit to be sold to a 3rd party for collection

No, they can't do that. You need to read more threads exactly like yours.

Xircom

having read you reply Coupon-Mad ; I followed the link to this information

Any properly qualified legal person would know that a person is not generally liable in law for the actions of somebody they have allowed somebody else to use. If they were, then there would have been no need for the Protection of Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. The hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars.

Excel and BW Legal tried to convince the court that this was not the case. Although they succeeded at first, their scheme came unstuck when the motorist appealed. Their greed cost Excel two lots of advocate fees and resulted in a persuasive appeal decision which can now be used against them.

I can see how this would act in this instance, I'm the MD for Xircom Systems Ltd hired the car and the car is used as a pool car in my company, I don't have to disclose who the driver was and as it was parked at a shopping centre the likelihood is that it was not used for business on that day or time but for personal use. they can try to place the debit on my lap.

That's how I read the situation.

Coupon-mad

as it was parked at a shopping centre the likelihood is that it was not used for business on that day or time but for personal use

Now you are talking, this is exactly what a Company defence should say.

Otherwise you will find the PPC will try to use CPS v AJH Films and the lw of agency, which can and does apply to companies when their employees are acting on their behalf in the course of work.

So the more you can say to distance the event from that possibility, the more likely a Judge will agree with you that this is NOT a case where vicarious liability applies.

Xircom

OK today I received a Claim Form N1SDT issued from County Court Business Centre ; I just drafting my defence and will post it up for comment be submitting it online.

Xircom

(Company Name) Limited v Excel Parking Services Ltd
Dated 23rd July 2019
Claim No. XXXXXXXXX

Defence Statement
Company XXXX does not accept any liability to this claim for the following reasons.
1. According to Excel the car REG No.......was parked in the “The Square Shopping Centre Car Park” on 20th Nov 2018 @ 13:53 incorrectly, (Company name) has never disputed the fact that the registration is one of our vehicles. We asked Excel for proof and a copy of the original PNC, we also asked why it had taken over 60 days for a letter demanding payment, which was received on the 24th Jan 2019

2. (Company Name) telephoned Excel and were give short, sharp reply, “they (Excel) did not have to provide proof”

3. The car is sometimes used as a pool car for (Company Name) and on that day, it was booked out to a job in Chorlton by an AD-Hoc Contract Engineer, as our man was off sick and the Contractor’s car was in the garage. We have the engineers name but no forward address as he was hired via an agency, also my understanding is that I have no liability to say who was driving at the time of this alleged offence, the other issue is if the PNC had been on the car we would have acted quicker and the contract engineer would have settled it as it was by the time we received the first letter some 60 days later the engineer had left our company and moved on to new contracts.

4. We would also like to point out that the car was parked in a shopping centre care park, during a time “which looks like it may have been lunch time” this was not work related and as far as I can see not (Company Name) Limited responsibility.

5. Excel are using Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. If this was such a case the hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars. CPS vs AJH Films. DDJ Cowell found that CPS vs AJH Films allowed the transfer of liability from Driver to Registered Keeper as the driver was the keeper's agent. However, following the judgment Mr Smith expressed surprise as he had previously had an identical claim dismissed where CPS v AJH Films was found not to apply. DDJ Cowell acknowledged that had this been known to her before then the Judgment may well have been different. She gave permission to appeal both claims. On appeal it was found that CPS v AJH Films is only applicable in an employee/employer situation.

6. Is his not such a situation. Where I ‘am an employer but the driver was not employed by me but contracted by a 3rd party? Had the PNC been on the car and or the initial letter arrived whilst the contractor was with my company then it would have been settled immediately, had the person from Excel who we telephoned acted professional and supplied the initial PNC and letter we would have paid immediately and been able to claim our cost back from the contract engineer, as it is the time scale was to great, the engineer has moved on

KeithP

What is the Issue Date on your Claim Form?

Did the Claim Form come from the County Court Business Centre in Northampton, or from somewhere else?

Is that a real Claim Number in your most recent post?
If so, you had best obliterate it as it uniquely identifies you and your incident.

That Defence doesn't look like any I have seen before.
Have you read the many example Defences linked from post #2 of the NEWBIES thread?

Xircom

Issue Date 17 July 2019
Money Claims Online
COUNTY COURT BUSINESS CENTRE
ST KATHARINE HOUSE
21-27 ST KATHARINE'S STREET
NN1 2LH

I've not read any defence, this is mine all open, honest and true. but I will go and have a look

KeithP

Xircom wrote: »

Issue Date 17 July 2019
Money Claims Online
COUNTY COURT BUSINESS CENTRE

With a Claim Issue Date of 17th July, you have until Monday 5th August to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's four weeks away. Loads of time to produce a perfect Defence, and it is good to see that you are not leaving it to the last minute.


When you are happy with the content, your Defence should 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. Log into MCOL 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 just trying to keep you under pressure.
   
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.