Two separate claim forms for two separate PCNs Excel

jerry2354

UPDATE: CASE WON! The car park was Broomhill rooftop carpark, Sheffield. See last posts for court summary and final defence, witness statement, skeleton argument and (unsuccessful) punitive costs application

Hi,

I am stuck with guidance on the newbies sticky about multiple claims.

About my case: I, the RK, received two LBCs from Excel in Feb for two occasions 14 days apart where my car was parked in an ANPR carpark for a short period. The claim says the car was parked without a ticket. The car has multiple drivers and the driver may have been unaware that this was a pay and display, assuming it was free for shoppers (partly due to a free council car park in front of the high-street confusing a potential driver). Visiting the car park to gather evidence, the signage was tiny, the carpark poorly lit and at night.

I stupidly ignored all letters until the LBC came. The carpark is not owned by the shops and according to their managers, the landlord himself is a cowboy and unreachable. I could not ask for the fine to be dropped therefore.

I sent a SAR to the data protection officer as per the newbies sticky and a restriction of data processing to the litigations team. I sent one email to each department with both cases in the same email. They replied to the SAR but did not include a ticket machine record or a list of all outstanding 'fines' as asked. I also said that all PCNs must be dealt in the same claim.

My problem: Today I have received two claim forms (Northampton) posted on the same date, one for each fine. I have not yet acknowledged them as I don't know how it works when two PCNs are in separate claims and if this is allowed as the newbies sticky seems to say it isn't. Before I acknowledge service then write a draft defence, I've been looking at "res judicata" in the forum but this seems to be about multiple claims for the same event, e.g. the car wasn't moved in between. Please could someone clarify if they are allowed to put two claims through for two PCNs for effectively the same 'breach of terms and conditions' even if they were two separate events? Do I now have two cases to try and fight with the same arguments?

Thank you for your time.

KeithP

Hi and Welcome.

At this stage you need to deal with both Claims.

What is the Issue Date on each Claim Form?

jerry2354

The issue date is the 25th March for both.

Coupon-mad

Acknowledge them both individually, on MCOL. Here's how:

https://www.dropbox.com/s/ni1h8g3u5skvynt/MCOL%20AOS%20help%20file.pdf?dl=0&m=

Two claims? That's an abuse of process. If so, add a defence point fairly high up, stating this (thanks to bargepole for this wording):

The Court is invited to take note that the Claimant has issued two claims, numbers XXXXXXXX and XXXXXXXX, against the Defendant at or around the same date, and with substantially identical particulars. It is submitted that this constitutes an abuse of process, making the Defendant potentially liable for two instances of issue fees, solicitor costs, and hearing fees, and runs contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and to apply appropriate sanctions against the Claimant.

You can also add:

The Defendant raised the issue of the two PCNs in a Subject Access request in the pre-action stage and pointed out that the events were duplicates as regards the facts, and that the PCNs must be dealt in the same claim. The Claimant has ignored this and issued two separate claims wasting the court's time and that of the Defendant.

You will be unlikely to have that noticed by a Judge this early, but then repeat it in a covering letter/email at each stage after that (see bargepole's summary of what happens when, in the 2nd post of the NEWBIES thread).

Do not miss a trick to ask for this AGAIN and AGAIN, if you have two claims, until finally your local Judge will likely issue an Order consolidating them.

Chase this up too. Threaten their DPO with an ICO complaint, then DO IT! They MUST disclose the machine record of the payments made that are data relating to that car:

They replied to the SAR but did not include a ticket machine record or a list of all outstanding 'fines' as asked.

Watch out too!

In Excel v Ambler, Excel were held in a court to have ALTERED the machine records, so there were two different versions and the Judge was damning of their conduct.

Search the forum for AMBLER to read that, I think Lamilad posted a thread about it.

KeithP

jerry2354 wrote: »

The issue date is the 25th March for both.

With a Claim Issue Date of 25th March, you have until Monday 15th April to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow C-m's link in post #4 above. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 29th April 2019 to file your Defence.

That's over a month away. Loads of time to produce a perfect Defence but best not 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.
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 a copy of the Claimant's Directions Questionnaire, they are just trying to put 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.

File each Defence separately as described above, but in each email mention the other Claim, including its number. Point out to the court that these are effectively duplicates and an abuse of process. Request that the court consolidate them both into one Claim.

You should also mention that in each Defence.

Unfortunately, it is unlikely that anyone will do anything about this at this stage, but if every time you need to send anything to the court, eventually a Judge will notice and resolve this.

jerry2354

Coupon-mad wrote: »

Chase this up too. Threaten their DPO with an ICO complaint, then DO IT! They MUST disclose the machine record of the payments made that are data relating to that car:

Just to clarify... the driver may have not make a payment so there may not be any data on the machine that relates to my car? Does this matter in terms of making an ICO complaint? Looking at other ICO complaints on the board this happens when people have bought a ticket and maybe made a mistake in the reg but not been sent data?

Coupon-mad

Aha that's different, forget that bit for now then.

Acknowledge the claim - as per this crib sheet instruction:

https://www.dropbox.com/s/ni1h8g3u5skvynt/MCOL%20AOS%20help%20file.pdf?dl=0&m=

and show us your defence.

jerry2354

I've assembled this draft defence, I would really appreciate any suggestions or comments. I have added some questions I have in blue italics.


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

2. The Court is invited to take note that the Claimant has issued two claims, numbers XXXXXXXX and XXXXXXXX, against the Defendant at or around the same date, and with substantially identical particulars. It is submitted that this constitutes an abuse of process, making the Defendant potentially liable for two instances of issue fees, solicitor costs, and hearing fees, and runs contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and to apply appropriate sanctions against the Claimant.

3. The Defendant raised the issue of the two PCNs in a Subject Access request in the pre-action stage and pointed out that the events were duplicates as regards the facts, and that the PCNs must be dealt in the same claim. The Claimant has ignored this and issued two separate claims wasting the court's time and that of the Defendant.

4. The alleged contravention took place at night. Upon investigation, none of the signs, nor the Pay and Display Machines in the car park were adequately illuminated. The Pay and Display Machines and tariff signs were found at far ends of the car park and were not visible at night from the centre and car entrance. The machines would not be passed if leaving the car park via the pavement down the side of the entrance ramp. The terms 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 and would sooner be distracted by the parking advertisement which is in significantly larger font. Any repeater signs are high up and poorly illuminated. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. This is not conforming to the British Parking Associations, Code of Practice.

Is the above point too waffly? Should I just stick to ‘insufficient lighting’ and ‘small signs/font in comparison to advertisement’ as two small separate points for the defence, then go into the details in the WS?

5. The Particulars of Claim state that the claim is, “in respect of a Charge Notice (CN) for a contravention on XX/XX/XXXX at XXXXXXXXX Pay & Display Car Park”. It is not stated whether the Claimant is claiming against the driver or the registered keeper and what the contravention is. These assertions indicate that the Claimant has failed to identify a Cause of Action. 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.

I will attach a copy to this response of my rather spare POC in case it helps.

6. 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.

7. The Particulars of Claim state that the Claimant is seeking recovery of interest. The date from which this is claimed, the total amount of interest claimed to the date of calculation and the daily rate at which interest accrues after that date are not specified. As such, the claim fails to comply with Civil Procedure Rule 16.4.

8. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper ‘parking without payment’ as specified in the notice to keeper. The Defendant asked for a partially redacted copy of the pay and display machine records for the time of the alleged contravention in a Subject Access Request in the pre-action stage however the Claimant has ignored this request.

9. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported Debt Collection Costs of £60, which have not actually been incurred by the Claimant since no debt has been collected.

10. 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 £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

It is stated in the notice to keeper small print, “where debt recovery action is taken, further charges may be incurred that will be added to the value of the PCN up to the value of an additional £60.” However, the “Amount of charge” in red at the top is stated as £100. Does this invalidate the POFA point above because they mentioned extra charges in small print?

11. 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.

I will attach a photo of my NTK to this post. I have read many posts stating that Excel do not follow POFA 2012 rules in their NTKs, however they seem to include the sections which were previously missing in my NTK (the 28 day rule about perusing the RK as the driver and that they do not know who the driver is, are both there). The only potential breach I see is that the 28 day period is said to start from the “day after the issue date of this Notice” (Issue date is defined as date of posting in my NTK) whereas the POFA wording is 28 days after the notice is “given” (two working days after postage i.e. delivery). Is this wording significant? Do I have any hope of saying the POFA rules have not been followed?

Also, under the contravention reason section, it says “The maximum period allowed at this site is minutes”. They have not put a number here! Does this have any consequence?

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.

Name
Signature
Date

Finally, I forgot to mention that the parking charge would have been 60p. I’ve read in the newbies thread that “extortionate charge’ is not a defence but I am confused how coupon-mad was stating how £4 became and extortionate £100 in his edit to the defence in the newbies thread:
"A 2018 defence where ParkingEye use ANPR alongside a Pay & Display machine, then try to morph the £4 tariff into £100 damages (which is nothing like how the Beavis case was pleaded)"




This is my POC:

h t t p s /imgur.com/a/ox4q5qZ


And my NTK:

h t t p s /imgur.com/a/k8Je6Dm

Le_Kirk

WRT your point 4, you've answered it yourself. IMHO you stick to defence points (as per Bargepole's examples) and, as you say, elaborate on what happened on the day in your WS.

Coupon-mad

I will attach a photo of my NTK.

Not to a defence, which is a stand alone document; no evidence yet.

The only potential breach I see is that the 28 day period is said to start from the “day after the issue date of this Notice” (Issue date is defined as date of posting in my NTK) whereas the POFA wording is 28 days after the notice is “given” (two working days after postage i.e. delivery). Is this wording significant? Do I have any hope of saying the POFA rules have not been followed?

Yes indeed. That is not compliant for liability to pass to the keeper.

Also remember that the POFA is not just about the NTK. It also has the pre-requisites of:

- adequate notice of the parking charge (on signage) so that can shoot down liability,

- a relevant contract or relevant obligation for the driver to do something, like show a permit but only if the driver was given a fair opportunity to do so/learn of those terms.

jerry2354

Not to a defence, which is a stand alone document; no evidence yet.

Sorry, it wasn't clear, I meant I'd attached a censored version to the bottom of the post in case anyone wanted to see

Also remember that the POFA is not just about the NTK. It also has the pre-requisites of:

- adequate notice of the parking charge (on signage) so that can shoot down liability,

- a relevant contract or relevant obligation for the driver to do something, like show a permit but only if the driver was given a fair opportunity to do so/learn of those terms.

So you're saying that I can add the breach of POFA rules leading to no keeper liability to the points about poor signage as there was no therefore no contract and the driver had no fair opportunity to learn of their obligation to pay and display?