NCP County Court Claim - PCN

Coupon-mad

Isn't it shocking that Defendants who received a claim ''not posted in time'' by the CCBC, are met with a message saying the case is ''barred'' and they cannot defend at this time...with no explanation about what they are meant to do?

I bet some people read that and think, ''OK then'' and don't defend at all.

roland_

Hi guys,


Update, updated defence and list of SAR documentation provided below. Again, I appreciate the advice and input, without this forum I wouldn't have known where to start.



So the SAR documentation was sent, it was not all documentation requested as per the template email from MSE, but they have provided the following:


1. Driver details from DVLA
2. Note from phone call as per lost reference number from letter recieved
3. Images of car and reg plate entering and exiting car park. Driver not shown
4. First letter informing of PCN
5. Final reminder letter informing of PCN
6. PDTA data log showng time of payment and amount



I have updated the defence, and pasted below. I've amended as per suggestions above, and this particular car park has seen a wide range of criminal activity and drug use lately, which I have made reference to. It may be tenuous, but it could be argued that you wouldn't want to spend too much time outside of your car standing at the payment machines in this place.



I have two points of concern from the SAR:



1) they have the letters that were sent to me and I will argue I did not receive.

2) They have a note of a telephone conversation having taken place about a "lost reference number", which they would link to this case.



Now even with the above, they cannot prove (at least as far as I am aware) that I am the driver, nor can they prove I received the letters. Let me know your thoughts please.


Other questions I have:
3) Is section 9 still relevant given I now have the letters they sent with the detail of why they have raised the claim?
4) I am unsure if they are the landowner or not. What is the best method of identifying, is this purchasing the £3 land registry information?



________________________________________
DEFENCE
________________________________________

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


2. 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 against visitors. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.


No 'legitimate interest' or commercial justification - Beavis is distinguished


3. The Particulars of Claim does not state whether they believe the Defendant 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.


4. 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.


5. The 'pay on exit' system is unfair, seemingly designed to catch drivers out and not fit for purpose. A reasonable and circumspect driver would expect the data from the ANPR camera to link to the machine and inform the customer how much is to be paid. The machine is misleading in that once a registration number is entered, an amount is immediately displayed, which could be mistaken for the machine having allotted the amount to be paid. Given the fact that the Claimant has the time of arrival in their system, there can be no excuse for omitting this from the system at the point of exit and setting drivers up for a fall and £100 charge.



In addition to the above, given the number of incidents and lack of security within the Claimants car park over the previous year, it is understandable that car park customers would not want to spend any longer than needed to pay for a ticket. Please see reference to just a selection of incidents at the car park recently.

REFERENCE TO KNIVES
REFERENCE TO DRUG USE/NEEDLES
REFERENCE TO INCIDENT 1
REFERENCE TO INCIDENT 2

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. REFER TO PHOTOGRAPHS HERE


6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. REFER TO PHOTOGRAPHS HERE

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


7.1. The claim includes a sum of £AMOUNT, described as "Legal representative's costs". This work is done as part of the Claimant's Legal Representatives everyday routine and no "expert services" are involved. The Claimant is put to strict proof, by way of timesheets or otherwise, to show how this cost has been incurred.


7.2. This claim inflates the total to an eye-watering £AMOUNT, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.

8. The Defendant never received the Notice to Keeper letter in-line with POFA at Section 4, (9) which resulted in no chance to appeal or contact the Claimant.


9. These unwarranted demands for enormous sums, added to the uncertainty of the alleged/unknown contravention have caused stress and anxiety. Even now when defending this claim the Defendant has no idea what the Claimant is alleging, which could be any one of:


- not paying at all, yet they have supplied no evidence and the Defendant cannot possibly recall the day, but does not make a habit of not paying, or
- making a partial payment, such as if a coin slipped through unrecorded, or
- a parking ticket machine failure
- putting the wrong VRN into the machine
- failure of their own systems to record the VRN in full and/or match any payment made to the data they held in regards to length of stay on the property


10. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.


11. 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

PDTA data log showng time of payment and amount

OK, so when compared to the ANPR times, how many minutes did you take at the start before paying, and how many minutes after expiry, to leave?

roland_

OK, so when compared to the ANPR times, how many minutes did you take at the start before paying, and how many minutes after expiry, to leave?

You only pay upon exit - the ANPR scans your reg plate on the way in, you need to select the relevant amount for however many hours you've been there (you have to walk to the machine, it isn't one of the ones you drive through), pay and then leave. From paying, to exiting, was 2 minutes. All in all, I was about 1 hour over what I paid for. All this is for £1 of lost revenue

KeithP

So forgive me for asking, but as you pay on exit, how did you manage to pay for an hour less that they were asking for?

roland_

So forgive me for asking, but as you pay on exit, how did you manage to pay for an hour less that they were asking for?

No problem - so the machine doesn't automatically state the amount to be paid based on the time you have been parked for - for example, I drive in to the car park, there is no ticket you take, the ANPR takes you details. Before exiting the car park, you walk to the machine, enter your VNR. The machine will then straight away show £1 - you have to increase or decrease the amount by £1 increments to match how long you have been in the car park for. I could be in the car park for 6 hours - it will always show £1 required first of all.



I can't remember, but in my mind, I think I must have assumed that the £1 was all I had to pay, paid, and then left - honest mistake.

Coupon-mad

You have a case to win, based on unfair and unclear terms displayed at the exit - i.e:

This was a 'pay on exit' site where the Claimant expects drivers to guess how much to pay and somehow know to overtype the £1 displayed on the screen, which was set by default to one hour and it turns out, not related to the time there at all.

Whilst this might be acceptable in a car park without ANPR cameras, in this case, it is a disingenuous unfair term and an abuse of data that the Claimant already holds. It was in the gift of the Claimant to display the time of arrival, once a driver inputs their VRN, because the Claimant's system has that data. Instead, this Claimant deliberately chooses not to display that information for the driver, expecting them guess or not notice that the system has not actually been used to calculate the £1, then the Claimant uses that data against them to penalise them for £100.

A reasonable and circumspect driver would expect the data from the ANPR camera to link to the machine and calculate how much to pay (as is seen in many other ANPR car parks) and not lie about it by just displaying a misleading default amount that drivers then pay in good faith. Given the fact that the Claimant has the time of arrival in their system, there can be no excuse for omitting this from the system at the point of exit and setting drivers up for a fall and £100 charge.

The punitive parking charge is unconscionable given all the facts, and represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

P.S. You have 2 x number 5.

roland_

Thank you, I have amended below.


I have a couple of questions before I submit the final version:




1) they have the letters that were sent to me and I will argue I did not receive. Is this just a case of my word against theirs?

2) They have a note of a telephone conversation having taken place about a "lost reference number", which they would link to this case. They may argue this is proof I was aware of the claim. However there is no detail about the conversation. Does this put the point around me not receiving the letters at risk?

Now even with the above, they cannot prove (at least as far as I am aware) that I am the driver.

3) Is section 10 still relevant given I now have the letters they sent with the detail of why they have raised the claim?


4) I am unsure if they are the landowner or not. What is the best method of identifying, is this purchasing the £3 land registry information? Is this even worth it given my argument focuses on the method of payment upon exit?




Cheers all



________________________________________
DEFENCE
________________________________________

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


2. 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 against visitors. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.


No 'legitimate interest' or commercial justification - Beavis is distinguished


3. The Particulars of Claim does not state whether they believe the Defendant 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.


4. 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.


5. This was a 'pay on exit' site where the Claimant expects drivers to guess how much to pay and somehow know to overtype the £1 displayed on the screen, which was set by default to one hour and it turns out, not related to the time there at all, seemingly designed to catch drivers out and not fit for purpose.



Whilst this might be acceptable in a car park without ANPR cameras, in this case, it is a disingenuous unfair term and an abuse of data that the Claimant already holds. It was in the gift of the Claimant to display the time of arrival, once a driver inputs their VRN, because the Claimant's system has that data. Instead, this Claimant deliberately chooses not to display that information for the driver, expecting them guess or not notice that the system has not actually been used to calculate the £1, then the Claimant uses that data against them to penalise them for £100.


A reasonable and circumspect driver would expect the data from the ANPR camera to link to the machine and calculate how much to pay (as is seen in many other ANPR car parks) and not lie about it by just displaying a misleading default amount that drivers then pay in good faith. Given the fact that the Claimant has the time of arrival in their system, there can be no excuse for omitting this from the system at the point of exit and setting drivers up for a fall and £100 charge.


The punitive parking charge is unconscionable given all the facts, and represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.


In addition to the above, given the number of incidents and lack of security within the Claimants car park over the previous year, it is understandable that car park customers would not want to spend any longer than needed to pay for a ticket. Please see reference to just a selection of incidents at the car park recently.



REFERENCE TO KNIVES
REFERENCE TO DRUG USE/NEEDLES
REFERENCE TO INCIDENT 1
REFERENCE TO INCIDENT 2

6. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. REFER TO PHOTOGRAPHS HERE


7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. REFER TO PHOTOGRAPHS HERE

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


8.1. The claim includes a sum of £AMOUNT, described as "Legal representative's costs". This work is done as part of the Claimant's Legal Representatives everyday routine and no "expert services" are involved. The Claimant is put to strict proof, by way of timesheets or otherwise, to show how this cost has been incurred.


8.2. This claim inflates the total to an eye-watering £AMOUNT, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.

9. The Defendant never received the Notice to Keeper letter in-line with POFA at Section 4, (9) which resulted in no chance to appeal or contact the Claimant.


10. These unwarranted demands for enormous sums, added to the uncertainty of the alleged/unknown contravention have caused stress and anxiety. Even now when defending this claim the Defendant has no idea what the Claimant is alleging, which could be any one of:


- not paying at all, yet they have supplied no evidence and the Defendant cannot possibly recall the day, but does not make a habit of not paying, or
- making a partial payment, such as if a coin slipped through unrecorded, or
- a parking ticket machine failure
- putting the wrong VRN into the machine
- failure of their own systems to record the VRN in full and/or match any payment made to the data they held in regards to length of stay on the property


11. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.


12. 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

Your paragraphs ALL need numbering, and the stuff about knife crime is for your Witness Statement later, before the hearing, not now.

A defence attaches no evidence or links, it's just the defence. A statement only.

1) they have the letters that were sent to me and I will argue I did not receive. Is this just a case of my word against theirs? Yes - but you will be the only witness standing/sitting there at the hearing, as the other side will at best, send a legal rep who cannot have the knowledge you have. The Judge will listen to you.

2) They have a note of a telephone conversation having taken place about a "lost reference number", which they would link to this case. They may argue this is proof I was aware of the claim. However there is no detail about the conversation. Does this put the point around me not receiving the letters at risk?
Only if you have lied.


3) Is section 10 still relevant given I now have the letters they sent with the detail of why they have raised the claim?
I would remove #10.

4) I am unsure if they are the landowner or not. What is the best method of identifying, is this purchasing the £3 land registry information? Is this even worth it given my argument focuses on the method of payment upon exit?
Probably not, as they will have to disclose it in their WS and evidence.

roland_

Good stuff - I will complete the numbering, remove references to evidence/supporting resources, remove #10 and submit. Will update once I hear back - thank you