Responding to a Court Summons

thanfrancis

Hi,

I wish I'd come here earlier (sorry), and I'm now at defence stage and planning my argument. I have read the NEWBIE section (which I am), some recent cases and the dropbox link to file a defence. Could I lay out my plans to see if you have any advice?

CONTEXT:

My partner and I (KEEPER) had our vehicle parked in the corner of a garage block careful to avoid blocking any garages; it is unclear whether this would classify as residential or commercial:
google.co.uk/maps/@51.4776138,-0.0242165,3a,75y,213.54h,80.41t/data=!3m6!1e1!3m4!1sR5iS0LxrQTw3CgeFbgqttw!2e0!7i16384!8i8192

This was in October 2018, and the vehicle received a PCN on the windshield, which was ignored (sorry). I can not recall who was driving when the car was parked, nor do I recall the wording of any signs (sorry) and it is difficult to re-visit the location. The Google Streetview was taken in March 2018 (clearly before anything had been put in place).

Letters were subsequently sent to an old address, due to an out of date V5C address (sorry again) and the vehicle has subsequently been sold. These letters were returned to Gladstones solicitors by the new owners with "not known at this address".

The PPC on the is "PACE RECOVERY & STORAGE LIMITED" a.k.a Ace Security Services.

STATUS:

A court summons [*sorry, not summons, notice of service] has now been received by the residents at the old V5C address. It was issued on 12/03/2019:

"The driver of the vehicle with registration xxxxx (the 'Vehicle' parked in breach of the terms of parking stipulated on the signage 'the 'Contract') at xxxxxx on xx/10/2018, thus incurring the parking charge (the 'PCN'). The driver of the Vehicle agreed to pay the PCN within 28 days of issue yet failed to do so. The Claimant claims the unpaid PCN from the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £100 for the PCN, £60 in contractual costs pursuant to the Contract and PCN terms and condition, together with statutory interest of £3.86 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.04 per day."

DEFENCE: (planned to be filed before 26th March)

1. The Defendant is xxxx and it is admitted that the Defendant was the registered keeper of the vehicle xxxxxxx on 20/10/2018. There is no clear cause of action shown in the Particulars of Claim and liability for this charge, or any sum at all claimed by this Claimant, is denied for the following reasons:

2 ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording set out in Schedule 4, Section 9 (f) POFA. And, further, that the signs failed to provide ‘adequate notice’ of any charge. Any non-compliance voids any right to ‘keeper liability’.

3. Even if the Defendant is found to be liable under the POFA 2012, that law only permits a claimant to recover no more than the sum stated on the PCN. It is submitted that any added fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

4. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. Strict proof is required that there is a chain of contracts leading from the landowner to HX Car Park Management, and no proof has been provided despite several requests in writing by the Defendant to the Claimant’s solicitors before and after the Letter before claim.

5.The purported Letter before claim can be seen to miss the following information:

a. A clear summary of facts on which the claim is based.
b. A list of the relevant documents on which the Defendant intends to rely
c. How the “charge amount” of £160 has been calculated and justified.
d. Any form of possible negotiation or ADR offered.
e. Copies of the documents upon which their Client intends to rely, including the purported contract they allege was breached.

6. The Claimant’s signs are in small print, the terms are illegible. And so no contract was formed with the driver to pay £60, £100, £160 or any sum at all, since the signs have no legible ‘charge’ which could be visible on arrival and the wording is prohibitive and in any event. No sum payable to this Claimant was accepted nor even known about by any driver who was not given a fair opportunity to discover the onerous terms by which they - and this Defendant- would later be pursued. Where terms on a parking sign are not seen then there can be no contract (the Defendant relies upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000 in this regard).

7. The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence in that the Defendant was the driver (not so here).

8. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and the Pre-action Protocol. It merely provides a date, location, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. Gladstones have also added ‘Legal representatives costs’ of £50. I propose these have not been incurred by the claimant but artificially invented in an attempt to circumvent the Small Claims costs rules using double recovery.

9. The Claimant is put to strict proof to explain why they have failed to comply with the Protocol and why Gladstones appear to consider themselves and their clients to be immune from the rules of the court, which bind every other litigant.

10. The Claimant has failed to follow the Code of Practice (CoP) of their Trade Body, as regards clear signage and acting in a professional manner to ensure that action is not taken without any cause. The Supreme Court Judges in the Beavis case held that such a CoP is effectively 'regulation' full compliance with which is both expected and binding upon any parking operator.

11. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping a note of wasted time and costs so far in dealing with this matter, with a view to claiming any reasonable losses connected with defending this claim and attending any hearings.

12. Based on the above reasons, the Court is invited to strike out the claim, due to no cause of action nor prospects of success.

I believe the facts stated in this defence are true.



(Name) (Signature) (Date)


FURTHER QUESTIONS:

If a "local court" is assigned, will this be local to the defendant (i.e. at the defendant's correct current address), to the defendant's old address (the one that was on the V5C), to the claimant or to the claimant's solicitors?

LASTLY:

Thank you so much for running this resource, it has immensely put my mind at ease that this can be [successfully] challenged by a layman.

Nathan

ShakeItOff

Right, firstly, this is not a summons. This is a civil matter, not criminal.

Have you done the Acknowledgement of Service?

Have they now got your correct address? If not, you need to send their Data Protection Officer a rectification notice to correct your address. You would also be well advised to send a SAR to the PPC, and DVLA if you can. You will probably not receive this ahead of needing to submit your defence, but will arrive for your WS.

Who is the PPC? Apologies if I have missed it.

You will want to redact some more of your original post for addresses etc. The PPCs do frequent this board.

Defence looks researched, but I'm sure there will be more experienced posters along shortly to provide comment.

Lastly, with the court, this will usually be your local court. You will have the opportunity to specify which court when it comes to the DQ stage.

thanfrancis

Thank you ShakeItOff, I have acknowledged the service with the court and redacted the written addresses above.

They [the PPC & MoJ] do not have my correct address, though my driving licence does have the correct address, as does my new vehicle's V5C. The PPC is "PACE RECOVERY & STORAGE LIMITED" a.k.a Ace Security Services.

I will make sure to send an SAR to the PPC for the case, and a rectification notice to the PPC's DPO as you advised. And thank you, that is helpful to know about local courts.

ShakeItOff

thanfrancis wrote: »

They [the PPC & MoJ] do not have my correct address, though my driving licence does have the correct address, as does my new vehicle's V5C. The PPC is "PACE RECOVERY & STORAGE LIMITED" a.k.a Ace Security Services.

It doesn't matter at this point what the address on your V5C is - PPCs can only request your details once. You must send them a rectification notice with your address on it. It really doesn't need to have any fluff in it - literally just "please be aware of my updated address". Put your reference number on it so they can match it correctly. Do it via email, not post, and ask them to confirm that they have updated your address.

From personal experience, it's a real faff getting a default CCJ removed because the PPC sent papers to an old address.

You might also want to search the board for PACE cases to see how others have got on with their cases in the past.

Umkomaas

2 ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording set out in Schedule 4, Section 9 (f) POFA. And, further, that the signs failed to provide ‘adequate notice’ of any charge. Any non-compliance voids any right to ‘keeper liability’.

Do you have the Notice to Keeper to back up your assertion of non-compliance? If you do, what is the date of the parking event and what is the Date Sent (maybe shown as Date Issued) shown on the NtK?

If you don't have a copy you should SAR the PPC using this template. It will also tease out anything else they hold on you and your (then) vehicle, so it's good practice to SAR them in any case. Don't hold your defence back beyond its deadline waiting for the SAR reply.

https://legalbeagles.info/library/guides_and_letters/court/subject-access-request/

They have a month to respond so you might not get the info back in time for the defence, but it will be useful for your Witness Statement.

FURTHER QUESTIONS:

If a "local court" is assigned, will this be local to the defendant (i.e. at the defendant's correct current address), to the defendant's old address (the one that was on the V5C), to the claimant or to the claimant's solicitors?

It will be the court nearest to your location at the time you complete the Directions Questionnaire - a few weeks after submitting your Defence. It's your choice. Watch out for Gladstones attempting to railroad you and the court into agreeing to a 'hearing on the papers'. All covered in the NEWBIES FAQ sticky, post #2, much of which has had legal professionals' input. It should be your go-to for any question you have about the court process, from where you are now, right up to the actual hearing (if one takes place).

thanfrancis

Thank you both,

Address Change:

I have emailed both the PPC and their solicitors as you advised, and requested a reply to confirm the address change.

CCJs:

I have to agree regarding the CCJ issue that can result from an old address (lesson learned) - my mortgage is due for renewal in the summer so this could have been a disaster.

The PPC:

From what I have seen on the boards PACE are both litigious and successful, but I'm prepared to defend notwithstanding.

Hearing on the papers:

I did catch mention of the "hearing on the papers" trap and will be cautious.

NtK/SAR:

I do not have the NtK, so as you have advised I will post a letter containing the SAR to the PPC and will still push the clause in the defence. For future users reading this and looking to file an SAR, this is what mine looked like:

Name: xxxxxx
Address: xxxxx
Telephone: xxxxx

17/03/2019

Pace Recovery & Storage Limited
792 WICKHAM ROAD
Croydon
London
CR0 8EA

Dear Sir or Madam

Subject access request ( Data Protection Act 2018 / General Data Protection Regulations (GDPR) )

Name: xxxx
Address: xxxxx
Previous Address: xxxxxx
Vehicle Registration: xxxxx

Please supply the data about me that I am entitled to under data protection law relating to myself.

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

[signature]


Question:

Could I ask how you mail correspondence to a PPC? Do you use stamps in a mailbox, proof of posting or recorded mail? And do you need to cc the letter to their solicitor? Do you cc an emailed copy?

Redx

if using royal mail, you take the unstamped letter to the counter in the P.O. and ask for a free certificate of posting, they will stick it on the letter and give you the receipt free of charge

do not use SIGNED FOR nor SPECIAL DELIVERY, only pay for the first class service WITH FREE RECEIPT , this gos to the PPC, not the solicitors

HOWEVER

ONLY DO THIS IF YOU CANNOT EMAIL THEIR DPO DIRECT

we recommend you check their privacy page and EMAIL the SAR, to their DPO, and copy yourself into the delivery addresses, so you know its been delivered and does not fail either, in fact , their website privacy page includes the email address for this matter , include a scanned copy or picture of the front of your court claim form as proof of who you are, otherwise they will ask for proof and this will delay matters

post is a last resort, email direct to their DPO is preferred and advised very , very STRONGLY

as an aside, for any post being done in this saga (like to their solicitors), the first class post with free certificates of posting should be used, nothing else, it is deemed "delivered" 2 days later, as it would be for the postal SAR to the PPC

signed for and spcial delivery and courier etc can be refused, meaning you only have proof of non-delivery, especially to P O BOX numbers if they hide behind those etc

thanfrancis

Thank you Redx, it was this [image below] that threw me on the court document, as I assumed it meant I needed to supply the documents to the solicitor. It's useful to know that they need to go to the claimant:

pasteboard.co/I5SfGeg.png

Because their DPO's details (name or email) are not listed (nor can I find them from forum-hopping), I will both:

1) send an email of the SAR to the PPC's generic contact address with subject "FAO: Data Protection Officer"
and 2) mail the SAR to the claimant, heading the envelope with "FAO: Data Protection Officer" and will obtain a certificate of posting.

Redx

I checked the website privacy page for your PPC and the email is DEFINITELY listed, took me one minute to find it, scroll down to the bottom of the page where it specifically tells you to email them (or phone them , but DO NOT phone them , never phone these people or their solicitors)

do not use the generic contact address, make sure you email it to the DPO email address as listed right at the bottom of that privacy page

we dont tell you these things for nothing (but its free advice) , try to do what you are told (and not what you think)

you do not send a SAR to the claimant if its the solicitors , the claimant themselves are your PPC with GLADRAGS acting on their behalf

so SAR to PACE, the WS and exhibits etc go to the solicitor if they are using one (like GLADRAGS for example) , not the PPC

its important to know what goes where, which is why you need to carefully study the NEWBIES thread post #2 , and the links , ESPECIALLY the links to the threads and posts by BARGEPOLE and LOC123, as they tell you what goes where and the timelines etc

your pasteboard link wont open on my laptop as its a possible malware site

we suggest you use tinypic for pictures etc


your DEFENCE will be emailed to the CCBC before its due date and time, as a signed and dated email attachment which is a PDF, as seen in the numerous posts by member KeithP

thanfrancis

I'm sorry Redx, thank you for putting me in my place - you're absolutely right, the privacy page isn't crawled and I hadn't realised that the underlined title was hyperlinked (I had tried looking up Z1969902 on the ICO site instead and came up empty handed).

I have emailed the SAR directly to the PPC at: dpo@acesecurities.co.uk with the recommended framework above. As this is not a pre-action I will not send a letter to reinforce the SAR.

I have re-hosted the image: tinypic.com/r/345fs55/9 thank you for this guidance.

I have also created a document to track progress and pull the guides into one place for myself:
docs.google.com/document/d/1UwaG736Zk3MgJA6a3HZGUeBHaZTR7eBSnRmC2qzzvMY/edit?usp=sharing

I will be emailing an appropriately formatted, scanned PDF to CCBCAQ@Justice.gov.uk on 18th April [12 March + 5 Days (Service) + 14 Days (Preparation) + 14 Days (AOS acknowledged) = 19th April].

As the SAR was filed today 17th March, I believe I should receive documents within 1 calendar month or be able to use the lack of SAR response in the defence if filing on 18th April?

Thank you again.

Redx

thank you, now we are getting somewhere instead of being at odds

your live link http://tinypic.com/view.php?pic=345fs55&s=9#.XI6yYbjgpPY

yes , PACE are using GLADRAGS as their solicitors (as is usual in these IPC cases) and so any docs and evidence go to GLADRAGS , at the correct time, and GLADRAGS will do the same with you at the correct time

no SAR to gladrags because it isnt pre action, as you correctly say

yes that is the email I saw for PACE on their privacy page, so correct in sending them that SAR

I wont comment on your defence as I am not legally qualified or trained to do so, so I point out obvious errors and issues, like most members on here (very few members here have what you need in experience and training, perhaps a handful)

but you seem to be up to speed on this now, good luck